Supreme Court: Republic of The Philippines Manila en Banc

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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 a! JOSE M. RES"RRECCION, petitioners,
vs.
#ON. $ENJAMIN $. ESG"ERRA, % &%s 'a(a'%t) as OIC Go*+,o, o- t&+ .,o*%'+ o- R%/a0,
#ON. ROMEO C. DE LEON, % &%s 'a(a'%t) as OIC Ma)o, o- t&+ Mu%'%(a0%t) o- Ta)ta), R%/a0,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO 1. LACANIENTA, TEODORO 2.
MEDINA, ROSENDO S. .A1, a! TERESITA L. TOLENTINO, respondents.

MELENCIO3#ERRERA, 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 aytay, Province of !i"al.
As re#uired by the Court, respondents submitted their Comment on the Petition, and petitioner$s their
!eply to respondents$ Comment.
%n the Barangay elections held on May &', &()*, petitioner Alfredo M. De +eon ,as elected Barangay
Captain and the other petitioners Angel -. -alamat, Mario C. -ta. Ana, .ose C. olentino, !ogelio ..
de la !osa and .ose M. !esurreccion, as Barangay Councilmen of Barangay Dolores, aytay, !i"al
under Batas Pambansa Blg. ***, other,ise kno,n as the Barangay /lection Act of &()*.
0n 1ebruary (, &()', petitioner Alfredo M, de +eon received a Memorandum antedated December &,
&()2 but signed by respondent 0%C 3overnor Benjamin /sguerra on 1ebruary ), &()' designating
respondent 1lorentino 3. Magno as Barangay Captain of Barangay Dolores, aytay, !i"al. he
designation made by the 0%C 3overnor ,as 4by authority of the Minister of +ocal 3overnment.4
Also on 1ebruary ), &()', respondent 0%C 3overnor signed a Memorandum, antedated December &,
&()2 designating respondents !emigio M. igas, !icardo 5. +acanienta eodoro 6. Medina, !oberto
-. Pa" and eresita +. olentino as members of the Barangay Council of the same Barangay and
Municipality.
hat the Memoranda had been antedated is evidenced by the Affidavit of respondent 0%C 3overnor,
the pertinent portions of ,hich read7
888 888 888
hat % am the 0%C 3overnor of !i"al having been appointed as such on March *9, &()2:
hat as being 0%C 3overnor of the Province of !i"al and in the performance of my duties thereof, %
among others, have signed as % did sign the unnumbered memorandum ordering the replacement of all
the barangay officials of all the barangay;s< in the Municipality of aytay, !i"al:
hat the above cited memorandum dated December &, &()2 ,as signed by me personally on 1ebruary
),&()':
hat said memorandum ,as further deciminated ;sic< to all concerned the follo,ing day, 1ebruary (.
&()'.
1=!>/! A11%A? -A@/> ?0?/.
Pasig, Metro Manila, March *A, &()'.
Before us no,, petitioners pray that the subject Memoranda of 1ebruary ), &()' 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 -ection A of the Barangay
/lection Act of &()* ;BP Blg. ***<, their terms of office 4shall be si8 ;2< years ,hich shall commence
on .une ', &()* and shall continue until their successors shall have elected and shall have #ualified,4
or up to .une ', &()). %t is also their position that ,ith the ratification of the &()' Constitution,
respondent 0%C 3overnor no longer has the authority to replace them and to designate their
successors.
0n the other hand, respondents rely on -ection *, Article %%% of the Provisional Constitution,
promulgated on March *B, &()2, ,hich provided7
-/C%0? *. All elective and appointive officials and employees under the &('A Constitution shall
continue in office until other,ise provided by proclamation or e8ecutive order or upon the designation or
appointment and #ualification of their successors, if such appointment is made ,ithin a period of one year
from 1ebruary *B,&()2.
By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials ,ere abolished and that petitioners continued in office by virtue of the afore#uoted
provision and not because their term of si8 years had not yet e8pired: and that the provision in the
Barangay /lection Act fi8ing the term of office of Barangay officials to si8 ;2< years must be deemed
to have been repealed for being inconsistent ,ith the afore#uoted provision of the Provisional
Constitution.
/8amining the said provision, there should be no #uestion that petitioners, as elective officials under
the &('A Constitution, may continue in office but should vacate their positions upon the occurrence of
any of the events mentioned. 1
-ince the promulgation of the Provisional Constitution, there has been no proclamation or e8ecutive
order terminating the term of elective Barangay officials. hus, the issue for resolution is ,hether or
not the designation of respondents to replace petitioners ,as validly made during the oneCyear period
,hich ended on 1ebruary *B, &()'.
Considering the candid Affidavit of respondent 0%C 3overnor, ,e hold that 1ebruary ), &('', should
be considered as the effective date of replacement and not December &,&()2 to ,hich it ,as ante
dated, in keeping ,ith the dictates of justice.
But ,hile 1ebruary ), &()' is ostensibly still ,ithin the oneCyear deadline, the afore#uoted provision
in the Provisional Constitution must be deemed to have been overtaken by -ection *', Article D6%%% of
the &()' Constitution reading.
SECTION 27. his 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.
he &()' Constitution ,as ratified in a plebiscite on 1ebruary *, &()'. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. >aving become inoperative,
respondent 0%C 3overnor could no longer rely on -ection *, Article %%%, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must no, be held to have ac#uired security of tenure specially considering that the
Barangay /lection Act of &()* declares it 4a policy of the -tate to guarantee and promote the
autonomy of the barangays to ensure their fullest development as selfCreliant communities.
4
-imilarly,
the &()' Constitution ensures the autonomy of local governments and of political subdivisions of
,hich the barangays form a part,
3
and limits the President$s po,er to 4general supervision4 over local
governments.
5
!elevantly, -ection ), Article D of the same &()' Constitution further provides in part7
-ec. ). he term of office of elective local officials, e8cept barangay officials, ,hich shall be determined
by la,, shall be three years ...
=ntil the term of office of barangay officials has been determined by la,, therefore, the term of office
of si8 ;2< years provided for in the Barangay /lection Act of &()*
5
should still govern.
Contrary to the stand of respondents, ,e find nothing inconsistent bet,een the term of si8 ;2< years
for elective Barangay officials and the &()' Constitution, and the same should, therefore, be
considered as still operative, pursuant to -ection A, Article D6%%% of the &()' Constitution, reading7
-ec. A. All e8isting la,s, decrees, e8ecutive orders, proclamations letters of instructions, and other
e8ecutive issuances not inconsistent, ,ith this Constitution shall remain operative until amended,
repealed or revoked.
E>/!/10!/, ;&< he Memoranda issued by respondent 0%C 3overnor on 1ebruary ), &()'
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, aytay, !i"al, are both declared to be of no legal force and effect: and ;*< the Erit
of Prohibition is granted enjoining respondents perpetually from proceeding ,ith the ousterFtakeCover
of petitioners$ positions subject of this Petition. Eithout costs.
-0 0!D/!/D.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancaco, Pa!illa, "i!in an! Cortes, JJ.,
concur.

S+(a,at+ O(%%os

TEE#AN6EE, CJ., concurring7
he main issue resolved in the judgment at bar is ,hether the &()' Constitution took effect on
Fe#ruar 2, $%&7, the date that the plebiscite for its ratification ,as held or ,hether it took effect on
Fe#ruar $$, $%&7, the date its ratification ,as proclaimed per Proclamation ?o. B) of the President
of the Philippines, Cora"on C. A#uino.
he Court$s decision, ,ith the lone dissent of Mr. .ustice -armiento, holds that by virtue of the
provision of Article D6%%%, -ection *' of the &()' Constitution that it 4shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose,4 the &()'
Constitution took effect on 1ebruary *, &()', the date of its ratification in the plebiscite held on that
same date.
he thrust of the dissent is that the Constitution should be deemed to 4take 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.4 his vie, ,as actually proposed at the Constitutional Commission deliberations, but ,as
,ithdra,n by its proponent in the face of the 4over,helming4 contrary vie, that the Constitution 4,ill
be effective on the very day of the plebiscite.4
he record of the proceedings and debates of the Constitutional Commission fully supports the
Court$s judgment. %t sho,s that the clear, une#uivocal and e8press intent of the Constitutional
Conunission in unanimously approving ;by thirtyCfive votes in favor and none against< the afore#uoted
-ection *' of ransitory Article D6%%% of the &()' Constitution ,as that 4the act of ratification is the act
of voting by the people. -o that is the date of the ratification4 and that 4the canvass thereafter Gof the
votesH is merely the mathematical confirmation of ,hat ,as done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an act ,hich ,as
actually done by the 1ilipino people in adopting the Constitution ,hen they cast their votes on the
date of the plebiscite.4
he record of the deliberations and the voting is reproduced hereinbelo,7 1
M!. MAAMB0?3. 'a!a( Presi!ent, (a )e no) put to a vote t*e ori+inal ,or(ulation o, t*e co((ittee
as in!icate! in Section $2, unless t*ere are ot*er co((issioners )*o )oul! li-e to present a(en!(ents.
M!. DA6%D/. 'a!a( Presi!ent.
>/ P!/-%D/?. Co((issioner .avi!e is reco+nize!.
M!. DA6%D/. May % propose the follo,ing amendments.
0n line *, delete the ,ords 4its ratification4 and in lieu thereof insert the follo,ingC. 4>/
P!0C+AMA%0? B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D.4 And on the last line, after
4constitutions,4 add the follo,ing7 4A?D >/%! AM/?DM/?-.4
M!. MAAMB0?3. .ust a moment, Madam President. %f Commissioner Davide is going to propose an
additional sentence, the committee ,ould suggest that ,e take up first his amendment to the first
sentence as originally formulated. Ee are no, ready to comment on that proposed amendment.
he proposed amendment ,ould be to delete the ,ords 4its ratification and in lieu thereof insert the ,ords
4>/ P!0C+AMA%0? B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D.4 And the second
amendment ,ould be7 After the ,ord 4constitutions,4 add the ,ords4 A?D >/%! AM/?DM/?-,4
he committee accepts the first proposed amendment. >o,ever, ,e regret that ,e cannot accept the
second proposed amendment after the ,ord 4constitutions4 because the committee feels that ,hen ,e
talk of all previous Constitutions, necessarily it includes 4A?D >/%! AM/?DM/?-.4
M!. DA6%D/. Eith that e8planation, l ,ill not insist on the second. But, Madam President, may % re#uest
that % be allo,ed to read the second amendment so the Commission ,ould be able to appreciate the
change in the first.
M!. MAAMB0?3. @es, Madam President, ,e can no, do that.
M!. DA6%D/. he second sentence ,ill read7 4>/ P!0C+AMA%0? ->A++ B/ MAD/ E%>%? 1%6/
DA@- 10++0E%?3 >/ C0MP+/%0? 01 >/ CA?6A-- B@ >/ C0MM%--%0? 0? /+/C%0?-
01 >/ !/-=+- 01 -=C> P+/B%-C%/.4
M!. MAAMB0?3. Madam President, after conferring ,ith our chairman, the committee feels that the
second proposed amendment in the form of a ne, sentence ,ould not be e8actly necessary and the
committee feels that it ,ould be too much for us to impose a time frame on the President to make the
proclamation. As ,e ,ould recall, Madam President, in the approved Article on the /8ecutive, there is a
provision ,hich says that the President shall make certain that all la,s shall be faithfully complied. Ehen
,e approve this first sentence, and it says that there ,ill be a proclamation by the President that the
Constitution has been ratified, the President ,ill naturally comply ,ith the la, in accordance ,ith the
provisions in the Article on the /8ecutive ,hich ,e have cited. %t ,ould be too much to impose on the
President a time frame ,ithin ,hich she ,ill make that declaration. %t ,ould be assumed that the
President ,ould immediately do that after the results shall have been canvassed by the C0M/+/C.
herefore, the committee regrets that it cannot accept the second sentence ,hich the 3entleman is
proposing, Madam President.
M!. DA6%D/. % am prepared to ,ithdra, the same on the assumption that there ,ill be an immediate
proclamation of the results by the President.
M!. MAAMB0?3. Eith that understanding, Madam President.
M!. DA6%D/. % ,ill not insist on the second sentence.
1!. B/!?A-. Madam President.
>/ P!/-%D/?. Commissioner Bernas is recogni"ed.
1!. B/!?A-. % ,ould ask the committee to reconsider its acceptance of the amendment ,hich makes
the effectivity of the ne, Constitution dependent upon the proclamation of the President. T*e e,,ectivit o,
t*e Constitution s*oul! co((ence on t*e !ate o, t*e rati,ication, not on t*e !ate o, t*e procla(ation o,
t*e Presi!ent. Ehat is confusing, % think, is )*at *appene! in $%7/ ,hen the amendments of &('2 ,ere
ratified. %n that particular case, the reason t*e a(en!(ents o, $%7/ )ere e,,ective upon t*e procla(ation
o, t*e Presi!ent ,as that the draft presented to the people said that the amendment ,ill be effective upon
the proclamation made by the President. % have a suspicion that ,as put in there precisely to give the
President some kind of lee,ay on ,hether to announce the ratification or not. herefore, )e s*oul! not
(a-e t*is !epen!ent on t*e action o, t*e Presi!ent since t*is )ill #e a (ani,estation o, t*e act o, t*e
people to #e !one un!er t*e supervision o, t*e CO'E0EC and it should be the C0M/+/C ,ho should
make the announcement that, in fact, the votes sho, that the Constitution ,as ratified and there should
be no need to ,ait for any proclamation on the part of the President.
M!. MAAMB0?3. Eould the 3entleman ans,er a fe, clarificatory #uestionsI
1!. B/!?A-. Eillingly, Madam President.
M!. MAAMB0?3. he 3entleman ,ill agree that a date has to be fi8ed as to e8actly ,hen the
Constitution is supposed to be ratified.
1!. B/!?A-. % ,ould say that t*e rati,ication o, t*e Constitution is on t*e !ate t*e votes )ere suppose!
to *ave #een cast.
M!. MAAMB0?3. +et us go to the mechanics of the ,hole thing, Madam President. Ee present the
Constitution to a plebiscite, the people e8ercise their right to vote, then the votes are canvassed by the
Commission on /lections. %f ,e delete the suggested amendment ,hich says7 4>/ P!0C+AMA%0?
B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D,4 ,hat ,ould be, in clear terms, the date ,hen the
Constitution is supposed to be ratified or not ratified, as the case may beI
1!. B/!?A-. he date ,ould be the casting of the ballots. if the President ,ere to say that the plebiscite
,ould be held, for instance, on .anuary &(, &()', then the date for the effectivity of the ne, Constitution
,ould be .anuary &(, &()'.
M!. MAAMB0?3. %n other ,ords, it ,ould not depend on the actual issuance of the results by the
Commission on /lections ,hich ,ill be doing the canvassI hat is immaterial Madam President
1!. B/!?A-. %t ,ould not, Madam President, because 4ratification4 is the act of saying 4yes4 is done
,hen one casts his ballot.
M!. MAAMB0?3. -o it is the date of the plebiscite itself, Madam PresidentI
1!. B/!?A-. @es, Madam President.
M!. MAAMB0?3. Eith that statement of Commissioner Bernas, ,e ,ould like to kno, from the
proponent, Commissioner Davide, if he is insisting on his amendment.
M!. DA6%D/. Madam President, % am insisting on the amendment because % cannot subscribe to the vie,
of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the
ballots. hat cannot be the date of reckoning because it is a plebiscite all over the country. Ee do not split
the moment of casting by each of the voters. Actually and technically speaking, it ,ould be all right if it
,ould be upon the announcement of the results of the canvass conducted by the C0M/+/C or the
results of the plebiscite held all over the country. But it is necessary that there be a body ,hich ,ill make
the formal announcement of the results of the plebiscite. -o it is either the President or the C0M/+/C
itself upon the completion of the canvass of the results of the plebiscite, and % opted for the President.
888 888 888
M!. ?0++/D0. Madam President.
>/ P!/-%D/?. Commissioner ?olledo is recogni"ed.
M!. ?0++/D0. hank you, Madam President. % beg to disagree ,ith Commissioner Davide. % support the
stand of Commissioner Bernas because it is reall t*e !ate o, t*e castin+ o, t*e 1es1 votes t*at is t*e
!ate o, t*e rati,ication o, t*e Constitution T*e announce(ent (erel con,ir(s t*e rati,ication even if the
results are released t,o or three days after. % think it is a fundamental principle in political la,, even in civil
la,, because an announcement is a mere confirmation T*e act o, rati,ication is t*e act o, votin+ # t*e
people. -o that is the date of the ratification. %f there should be any need for presidential proclamation,
that proclamation ,ill merely confirm the act of ratification.
hank you, Madam President.
>/ P!/-%D/?. Does Commissioner !egalado ,ant to contributeI
M!. !/3A+AD0. Madam President, % ,as precisely going to state the same support for Commissioner
Bernas, because the canvass thereafter is merely the (at*e(atical con,ir(ation of ,hat ,as done during
the date of the plebiscite and the procla(ation of the President is (erel t*e o,,icial con,ir(ator
!eclaration o, an act )*ic* )as actuall !one # t*e Filipino people in a!optin+ t*e Constitution )*en
t*e cast t*eir votes on t*e !ate o, t*e ple#iscite.
M!. +/!=M. Madam President, may % be recogni"ed.
>/ P!/-%D/?. Commissioner +erum is recogni"ed.
M!. +/!=M. % am in favor of the Davide amendment because ,e have to fi8 a date for the effectivity of
the Constitution. -uppose the announcement is delayed by, say, &9 days or a month, ,hat happens to
the obligations and rights that accrue upon the approval of the ConstitutionI -o % think ,e must have a
definite date. % am, therefore, in favor of the Davide amendment.
M!. MAAMB0?3. Madam President.
>/ P!/-%D/?. Commissioner Maambong is recogni"ed.
M!. MAAMB0?3. Eith the theory of the Commissioner, ,ould there be a necessity for the Commission
on /lections to declare the results of the canvassI
1!. B/!?A-. here ,ould be because it is t*e Co((ission on Elections )*ic* (a-es t*e o,,icial
announce(ent o, t*e results.
M!. MAAMB0?3. My ne8t #uestion ,hich is the final one is7 After the Commision on /lections has
declared the results of the canvass, ,ill there be a necessity for the President to make a proclamation of
the results of the canvass as submitted by the Commission on /lectionsI
1!. B/!?A-. % ,ould say there ,ould be no necessity, Madam President.
M!. MAAMB0?3. %n other ,ords, the President may or may not make the proclamation ,hether the
Constitution has been ratified or not.
1!. B/!?A-. % ,ould say that the proclamation made by the President ,ould be immaterial because
under the la,, the administration of all election la,s is under an independent Commission on /lections. %t
is the Commission on /lections ,hich announces the results.
M!. MAAMB0?3. But nevertheless, the President may make the proclamation.
1!. B/!?A-. @es, the President may. And if ,hat he says contradicts ,hat the Commission on /lections
says, it ,ould have no effect. % ,ould only add that ,hen ,e say that the date of effectivity is on the day of
the casting of the votes, ,hat ,e 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 *J hours.So t*at even i, t*e
votes are cast in t*e (ornin+, t*e Constitution is reall e,,ective ,ro( t*e previous (i!ni+*t.
-o that ,hen ,e adopted the ne, rule on citi"enship, the children of 1ilipino mothers or anybody born on
the date of effectivity of the &('A Constitution, ,hich is .anuary &', &('A, are naturalCborn citi"ens, no
matter ,hat time of day or night.
M!. MAAMB0?3. Could ,e, therefore, safely say that ,hatever date is the pu#lication o, t*e results o,
t*e canvass # t*e CO'E0EC retroacts to t*e !ate o, t*e ple#iscite2
M!. MAAMB0?3. % thank the Commissioner.
M!. 3=%?30?A. Madam President.
>/ P!/-%D/?. Commissioner 3uingona is recogni"ed.
M!. 3=%?30?A. Mention ,as made about the need for having a definite date. % think it is precisely the
proposal of Commissioner Bernas ,hich speaks of the date ;of ratification that ,ould have a definite date,
because t*ere )oul! #e no !e,inite !ate i, )e !epen! upon t*e canvassin+ # t*e CO'E0EC.
hank you,
>/ P!/-%D/?. Commissioner Concepcion is recogni"ed.
M!. C0?C/PC%0?. hank you, Madam President.
Ehoever makes the announcement as to the result of the plebiscite, be it the C0M/+/C or the President,
,ould announce that a majority of the votes cast on a given date ,as in favor of the Constitution. And that
is the date ,hen 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 % ,ould not say from the very beginning of the date of election
because as of that time it is impossible to determine ,hether there is a majority. 3t t*e en! o, t*e !a o,
election or ple#iscite, t*e !eter(ination is (a!e as o, t*at ti(e4t*e (a5orit o, t*e votes cast in a
ple#iscite *el! on suc* an! suc* a !ate. So t*at is t*e ti(e )*en t*e ne) Constitution )ill #e consi!ere!
rati,ie! an!, t*ere,ore, e,,ective.
>/ P!/-%D/?. May ,e no, hear 6iceCPresident Padilla.
M!. PAD%++A. Madam President, % am against the proposed amendment of Commissioner Davide and %
support the vie, 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. /ven in civil la,,
if there is a contract, say, bet,een 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 ,as e8ecuted.
herefore, t*e !ate o, t*e Constitution as rati,ie! s*oul! retroact to t*e !ate t*at t*e people *ave cast
t*eir a,,ir(ative votes in ,avor o, t*e Constitution.
>/ P!/-%D/?. Commissioner Maambong is recogni"ed
M!. MAAMB0?3. Ee ,ill no, ask once more Commissioner Davide if he is insisting on his amendment
M!. DA6%D/. In vie) o, t*e e6planation an! over)*el(in+ tyranny of the opinion t*at it )ill #e e,,ective
on t*e ver !a o, t*e ple#iscite, % am )it*!ra)in+ my amendment on the assumption that any of the
follo,ing bodies the 0ffice of the President or the C0M/+/C ,ill make the formal announcement of the
results.
M!. !AMA. Madam President, ,e are no, ready to vote on the original provision as stated by the
committee.
M!. MAAMB0?3. he committee ,ill read again the formulation indicated in the original committee
report as -ection &*.
T*is Constitution s*all ta-e e,,ect i((e!iatel upon its rati,ication # a (a5orit o, t*e votes cast in a
ple#iscite calle! ,or t*e purpose an! s*all superse!e all previous Constitutions.
Ee ask for a vote, Madam President.
6 0 % ? 3
>/ P!/-%D/?. As many as are in favor, please raise their hand. ;Several 'e(#ers raise! t*eir
*an!s.<
As many as are against, please raise their hand. ;No 'e(#er raise! *is *an!.<
T*e results s*o) 78 votes in ,avor an! none a+ainst9 Section $2 is approve!.
4

he Court ne8t holds as a conse#uence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on 1ebruary *, &()', that7 ;&< the Provisional
Constitution promulgated on March *B, &()2 must be deemed to have been superseded by the &()'
Constitution on the same date 1ebruary *, &()' and ;*< by and after said date, 1ebruary *, &()',
absent any saying clause to the contrary in the ransitory Article of the Constitution, respondent 0%C
3overnor could no longer e8ercise the po,er to replace petitioners in their positions as Barangay
Captain and Councilmen. >ence, the attempted replacement of petitioners by respondent 0%C
3overnor$s designation on 1ebruary ), &()' of their successors could no longer produce any legal
force and effect. Ehile the Provisional Constitution provided for a oneCyear period e8piring on March
*B, &()' ,ithin ,hich the po,er of replacement could be e8ercised, this period ,as shortened by the
ratification and effectivity on 1ebruary *, &()' of the Constitution. >ad the intention of the framers of
the Constitution been other,ise, they ,ould have so provided for in the ransitory Article, as indeed
they provided for multifarious transitory provisions in t,enty si8 sections of Article D6%%%, e.g.
e8tension of the si8Cyear term of the incumbent President and 6iceCPresident to noon of .une A9,
&((* for purposes of synchroni"ation of elections, the continued e8ercise of legislative po,ers 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 4the appointments of some seven
Court of Appeals .ustices, '& provincial fiscals and BB city fiscals reported e8tended ;by< the
President on 1ebruary *, &()' . . . could be open to serious #uestions,4 in vie, of the provisions of
-ections ) ;&< and (, Article 6%%% of the Constitution ,hich re#uire prior endorsement thereof by the
.udicial and Bar Council created under the Constitution. %t should be stated for the record that the
reported date of the appointments, 1ebruary *, &()', is incorrect. he official records of the Court
sho, that the appointments of the seven Court of Appeals .ustices ,ere transmitted to this Court on
1ebruary &, &()' and they ,ere all appointed on or before .anuary A&, &()'.
3
;-imilarly, the records
of the Department of .ustice like,ise sho, that the appointment papers of the last batch of provincial
and city fiscals signed by the President in completion of the reorgani"ation of the prosecution service
,ere made on .anuary A&, &()' and transmitted to the Department on 1ebruary &, &()'.< %t is also a
matter of record that since 1ebruary *, &()', no appointments to the .udiciary have been e8tended
by the President, pending the constitution of the .udicial and Bar Council, indicating that the Chief
/8ecutive has like,ise considered 1ebruary *, &()' as the effective date of the Constitution, as no,
e8pressly declared by the Court.
CR"1, J., concurring.
%n her #uiet and restrained manner, .ustice >errera is able to prove her point ,ith more telling effect
than the tones of thunder. -he has ,ritten another persuasive opinion, and % am delighted to concur. %
note that it in effect affirms my dissents in the De la -erna, 5amora, Du#uing and Bayas cases,
,here % submitted that the local 0%Cs may no longer be summarily replaced, having ac#uired security
of tenure under the ne, Constitution. 0ur difference is that ,hereas % ,ould make that right
commence on 1ebruary *B, &()', after the deadline set by the 1reedom Constitution, .ustice >errera
,ould opt for 1ebruary *, &()', ,hen the ne, Constitution ,as ratified. % yield to that better vie, and
agree ,ith her ponencia completely.
SARMIENTO, J., Dissenting.
Eith due respect to the majority % register this dissent.
Ehile % agree that the oneCyear deadline prescribed by -ection *, Article %%% of the Provisional
Constitution ,ith respect to the tenure of government functionaries, as follo,s7
from 1ebruary *B, &()2.
,as cut short by the ratification of the &()' Constitution, % entertain serious doubts ,hether or not that
cutCoff period began on 1ebruary *, &()', the date of the plebiscite held to approve the ne, Charter.
o my mind the &()' constitution took effect on 1ebruary &&, &()', the date the same ,as
proclaimed ratified pursuant to Proclamation ?o. B) of the President of the Philippines, and not
1ebruary *, &()', plebiscite day.
% rely, first and foremost, on the language of the &()' Charter itself, thus7
-ec. *'. his 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.
%t 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. 1or it cannot
be logically said that Constitution ,as ratified during such a plebiscite, ,hen the ,ill of the people as
of that time, had not, and could not have been, vet determined.
0ther than that, pragmatic considerations compel me to take the vie,.
% have no doubt that bet,een 1ebruary *, and 1ebruary &&, &()' the government performed acts that
,ould have been valid under the Provisional Constitution but ,ould other,ise have been void under
the &()' Charter. % recall, in particular, the appointments of some seven Court of Appeals .ustices,
'& provincial fiscals, and BB city fiscals the President reportedly e8tended on 1ebruary *, &()'. 1
=nder -ections ) ;&< and (, Article 6%%%, of the l()' Constitution, as follo,s7
888 888 888
-ec. ). ;%<A .udicial and Bar Council is hereby created under the supervision of the -upreme Court
composed of the Chief .ustice as e6 o,,icio Chairman, the -ecretary of .ustice, and a representative of
the Congress as e6 o,icio Members, a representative of the %ntegrated Bar, a professor of la,, a retired
Member of the -upreme Court, and a representative of the private sector.
888 888 888
-ec. (. he Members of the -upreme Court and judges of lo,er courts shall be appointed by the
President from a list of at least three nominees prepared by the .udicial and Bar Council for every
vacancy, -uch appointments need no confirmation.
888 888 888
such appointments could be open to serious #uestions.
-ince &('A, moreover, ,e have invariably reckoned the effectivity of the Constitution as ,ell as the
amendments thereto from the date it is proclaimed ratified.
%n 'a+toto v. 'an+uera,
4
,e held that the &('A Constitution became in force and effect on .anuary
&', &('A, the date Proclamation ?o. &&9*, 4Announcing the !atification by the 1ilipino People of the
Constitution Proposed by the &('& Constitutional Convention,4 ,as issued, although Mr. .ustice, no,
Chief .ustice, eehankee ,ould push its effectivity date further to April &', &('A, the date our
decision in Javellana v. E6ecutive Secretar,
3
became final. And this ,as so not,ithstanding -ection
&2, Article D6%%, of the &('A Constitution, thus7
-/C. &2. his Constitution shall take effect immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and, e8cept as herein provided, shall supersede the Constitution of
nineteenChundred and thirtyC five and all amendments thereto.
0n 0ctober *', &('2, then President Marcos promulgated Proclamation no. &B(B, proclaiming the
ratification of the &('2 amendments submitted in the plebiscite of 0ctober &2C &', &('2. he
Proclamation states, inter alia, that.
By virtueCof the po,ers vested in me by la,, % hereby proclaim all the amendments embodied in this
certificate as duly ratified by the 1ilipino people in the referendumC plebiscite held 0ct. &2C&', &('2
and are therefore effective and in full force and effect as of this date.
%t shall be noted that under Amendment ?o. ( of the said &('2 amendments.
hese 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 referendumCplebiscite.
0n April &, &()9, the then Chief /8ecutive issued Proclamation no. &(B(, 4Proclaiming the
!atification by the 1ilipino People of the Amendments of -ection ', Article D of the Constitution4
;lengthening the terms of office of judges and justices<. he Proclamation provides7
GtHhe aboveC#uoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held,
together ,ith the election for local officials, on .anuary A9, &()9, and that said amendment is hereby
declared to take effect immediately.
%t shall be noted that under !esolution ?o. *&, dated December &), &('(, the proposed amendment
shall take effect on the date the incumbent PresidentFPrime Minister shall proclaim its ratification.
0n April ', &()&, Proclamation ?o. *9'' ,as issued 4Proclaiming the !atification in the Plebiscite of
April ', &()& of the Amendments to the Constitution /mbodied in Batas Pambansa Blg. &** and
Declaring hem herefore /ffective and in 1ull 1orce and /ffect.4 he Proclamation, in declaring the
said amendments duly approved, further declared them 4GeHffective and in full force and in effect as of
the date of this Proclamation,4 %t shall be noted, in this connection, that under !esolutions ?os. % and
* of the Batasang Pambansa, hird !egular -ession, -itting as a Constituent Assembly, ,hich
parented these amendments, the same7
. . .shall become valid as part of the Constitution ,hen approved by a majority of the votes cast in a
plebiscite to be held pursuant to -ection *, Article D6% of the Constitution.
0n the other hand, Batas Pambansa Blg. &**, 4An Act to -ubmit to the 1ilipino People, for
!atification or !ejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, -itting as a Constituent Assembly, in its !esolutions ?umbered hree, ,o,
and 0ne, and to Appropriate 1unds herefore,4 provides, as follo,s7
-/C. '. he Commission on /lections, sitting en #anc, 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.
Ee have, finally, Proclamation ?o. *AA*, 4Proclaiming the !atification in the Plebiscite of .anuary *',
&()J, of the Amendments to the Constitution /mbodied in Batasang Pambansa !esolutions ?os.
&9J, &9B, &&9, &&&, &&* and &&A.4 %t states that the amendments7
....are therefore effective and in full force and effect as of the date of this Proclamation.
%t carries out !esolution no. &9J itself ;as ,ell as !esolutions ?os. &&9 and &&* and -ection (, Batas
Blg. 2JA<, ,hich states, that7
he 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 !esolutions ?os. &9B, &&&, and &&A provide, that7
hese amendments shall be valid as a part of the Constitution ,hen approved by a majority of the votes
cast in an electionFplebiscite at ,hich it is submitted to the people for their ratification pursuant to -ection
* of Article D6% of the Constitution, as amended.
hat a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a vie, that is not peculiar to the Marcos era.
he !esolution of Both >ouses ;of Congress< in .oint -ession on the March &&, &(J' plebiscite
called pursuant to !epublic Act ?o. 'A and the !esolution of Both >ouses ;of Congress< adopted on
-eptember &), &(J2, ,as adopted on April (,&(J'. he April (, &(J' !esolution makes no mention
of a retroactive application.
Accordingly, ,hen the incumbent President ;Mrs. Cora"on C. A#uino< proclaimed on 1ebruary &&,
&()', at Malacanang Palace7
... that the Constitution of the !epublic of the Philippines adopted by the Constitutional Commission of
&()2, including the 0rdinance appended thereto, has been duly ratified by the 1ilipino people and is
therefore effective and in full force and effect.
5
the &()' Constitution, in point of fact, came into force and effect, % hold that it took effect at no other
time.
% submit that our ruling in Ponsica v. I+nala+a
5
in ,hich ,e declared, in passing, that the ne, Charter
,as ratified on 1ebruary *, &()', does not in any ,ay ,eaken this dissent. As % stated, the remark
,as said in passingC,e did not resolve the case on account of a categorical holding that the &()'
Constitution came to life on 1ebruary *, &()'. %n any event, if ,e did, % no, call for its reCe8amination.
% am therefore of the opinion, consistent ,ith the vie,s e8pressed above, that the challenged
dismissals done on 1ebruary ), &()' ,ere valid, the &()' Constitution not being then as yet in force.

S+(a,at+ O(%%os
TEE#AN6EE, CJ., concurring7
he main issue resolved in the judgment at bar is ,hether the &()' Constitution took effect on
Fe#ruar 2, $%&7, the date that the plebiscite for its ratification ,as held or ,hether it took effect on
Fe#ruar $$, $%&7, the date its ratification ,as proclaimed per Proclamation ?o. B) of the President
of the Philippines, Cora"on C. A#uino.
he Court$s decision, ,ith the lone dissent of Mr. .ustice -armiento, holds that by virtue of the
provision of Article D6%%%, -ection *' of the &()' Constitution that it 4shall take effect immediately
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose,4 the &()'
Constitution took effect on 1ebruary *, &()', the date of its ratification in the plebiscite held on that
same date.
he thrust of the dissent is that the Constitution should be deemed to 4take 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.4 his vie, ,as actually proposed at the Constitutional Commission deliberations, but ,as
,ithdra,n by its proponent in the face of the 4over,helming4 contrary vie, that the Constitution 4,ill
be effective on the very day of the plebiscite.4
he record of the proceedings and debates of the Constitutional Commission fully supports the
Court$s judgment. %t sho,s that the clear, une#uivocal and e8press intent of the Constitutional
Conunission in unanimously approving ;by thirtyCfive votes in favor and none against< the afore#uoted
-ection *' of ransitory Article D6%%% of the &()' Constitution ,as that 4the act of ratification is the act
of voting by the people. -o that is the date of the ratification4 and that 4the canvass thereafter Gof the
votesH is merely the mathematical confirmation of ,hat ,as done during the date of the plebiscite and
the proclamation of the President is merely the official confirmatory declaration of an act ,hich ,as
actually done by the 1ilipino people in adopting the Constitution ,hen they cast their votes on the
date of the plebiscite.4
he record of the deliberations and the voting is reproduced hereinbelo,7 1
M!. MAAMB0?3. 'a!a( Presi!ent, (a )e no) put to a vote t*e ori+inal ,or(ulation o, t*e co((ittee
as in!icate! in Section $2, unless t*ere are ot*er co((issioners )*o )oul! li-e to present a(en!(ents.
M!. DA6%D/. 'a!a( Presi!ent.
>/ P!/-%D/?. Co((issioner .avi!e is reco+nize!.
M!. DA6%D/. May % propose the follo,ing amendments.
0n line *, delete the ,ords 4its ratification4 and in lieu thereof insert the follo,ingC. 4>/
P!0C+AMA%0? B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D.4 And on the last line, after
4constitutions,4 add the follo,ing7 4A?D >/%! AM/?DM/?-.4
M!. MAAMB0?3. .ust a moment, Madam President. %f Commissioner Davide is going to propose an
additional sentence, the committee ,ould suggest that ,e take up first his amendment to the first
sentence as originally formulated. Ee are no, ready to comment on that proposed amendment.
he proposed amendment ,ould be to delete the ,ords 4its ratification and in lieu thereof insert the ,ords
4>/ P!0C+AMA%0? B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D.4 And the second
amendment ,ould be7 After the ,ord 4constitutions,4 add the ,ords4 A?D >/%! AM/?DM/?-,4
he committee accepts the first proposed amendment. >o,ever, ,e regret that ,e cannot accept the
second proposed amendment after the ,ord 4constitutions4 because the committee feels that ,hen ,e
talk of all previous Constitutions, necessarily it includes 4A?D >/%! AM/?DM/?-.4
M!. DA6%D/. Eith that e8planation, l ,ill not insist on the second. But, Madam President, may % re#uest
that % be allo,ed to read the second amendment so the Commission ,ould be able to appreciate the
change in the first.
M!. MAAMB0?3. @es, Madam President, ,e can no, do that.
M!. DA6%D/. he second sentence ,ill read7 4>/ P!0C+AMA%0? ->A++ B/ MAD/ E%>%? 1%6/
DA@- 10++0E%?3 >/ C0MP+/%0? 01 >/ CA?6A-- B@ >/ C0MM%--%0? 0? /+/C%0?-
01 >/ !/-=+- 01 -=C> P+/B%-C%/.4
M!. MAAMB0?3. Madam President, after conferring ,ith our chairman, the committee feels that the
second proposed amendment in the form of a ne, sentence ,ould not be e8actly necessary and the
committee feels that it ,ould be too much for us to impose a time frame on the President to make the
proclamation. As ,e ,ould recall, Madam President, in the approved Article on the /8ecutive, there is a
provision ,hich says that the President shall make certain that all la,s shall be faithfully complied. Ehen
,e approve this first sentence, and it says that there ,ill be a proclamation by the President that the
Constitution has been ratified, the President ,ill naturally comply ,ith the la, in accordance ,ith the
provisions in the Article on the /8ecutive ,hich ,e have cited. %t ,ould be too much to impose on the
President a time frame ,ithin ,hich she ,ill make that declaration. %t ,ould be assumed that the
President ,ould immediately do that after the results shall have been canvassed by the C0M/+/C.
herefore, the committee regrets that it cannot accept the second sentence ,hich the 3entleman is
proposing, Madam President.
M!. DA6%D/. % am prepared to ,ithdra, the same on the assumption that there ,ill be an immediate
proclamation of the results by the President.
M!. MAAMB0?3. Eith that understanding, Madam President.
M!. DA6%D/. % ,ill not insist on the second sentence.
1!. B/!?A-. Madam President.
>/ P!/-%D/?. Commissioner Bernas is recogni"ed.
1!. B/!?A-. % ,ould ask the committee to reconsider its acceptance of the amendment ,hich makes
the effectivity of the ne, Constitution dependent upon the proclamation of the President. T*e e,,ectivit o,
t*e Constitution s*oul! co((ence on t*e !ate o, t*e rati,ication, not on t*e !ate o, t*e procla(ation o,
t*e Presi!ent. Ehat is confusing, % think, is )*at *appene! in $%7/ ,hen the amendments of &('2 ,ere
ratified. %n that particular case, the reason t*e a(en!(ents o, $%7/ )ere e,,ective upon t*e procla(ation
o, t*e Presi!ent ,as that the draft presented to the people said that the amendment ,ill be effective upon
the proclamation made by the President. % have a suspicion that ,as put in there precisely to give the
President some kind of lee,ay on ,hether to announce the ratification or not. herefore, )e s*oul! not
(a-e t*is !epen!ent on t*e action o, t*e Presi!ent since t*is )ill #e a (ani,estation o, t*e act o, t*e
people to #e !one un!er t*e supervision o, t*e CO'E0EC and it should be the C0M/+/C ,ho should
make the announcement that, in fact, the votes sho, that the Constitution ,as ratified and there should
be no need to ,ait for any proclamation on the part of the President.
M!. MAAMB0?3. Eould the 3entleman ans,er a fe, clarificatory #uestionsI
1!. B/!?A-. Eillingly, Madam President.
M!. MAAMB0?3. he 3entleman ,ill agree that a date has to be fi8ed as to e8actly ,hen the
Constitution is supposed to be ratified.
1!. B/!?A-. % ,ould say that t*e rati,ication o, t*e Constitution is on t*e !ate t*e votes )ere suppose!
to *ave #een cast.
M!. MAAMB0?3. +et us go to the mechanics of the ,hole thing, Madam President. Ee present the
Constitution to a plebiscite, the people e8ercise their right to vote, then the votes are canvassed by the
Commission on /lections. %f ,e delete the suggested amendment ,hich says7 4>/ P!0C+AMA%0?
B@ >/ P!/-%D/? >A % >A- B//? !A%1%/D,4 ,hat ,ould be, in clear terms, the date ,hen the
Constitution is supposed to be ratified or not ratified, as the case may beI
1!. B/!?A-. he date ,ould be the casting of the ballots. if the President ,ere to say that the plebiscite
,ould be held, for instance, on .anuary &(, &()', then the date for the effectivity of the ne, Constitution
,ould be .anuary &(, &()'.
M!. MAAMB0?3. %n other ,ords, it ,ould not depend on the actual issuance of the results by the
Commission on /lections ,hich ,ill be doing the canvassI hat is immaterial Madam President
1!. B/!?A-. %t ,ould not, Madam President, because 4ratification4 is the act of saying 4yes4 is done
,hen one casts his ballot.
M!. MAAMB0?3. -o it is the date of the plebiscite itself, Madam PresidentI
M!. MAAMB0?3. Eith that statement of Commissioner Bernas, ,e ,ould like to kno, from the
proponent, Commissioner Davide, if he is insisting on his amendment.
M!. DA6%D/. Madam President, % am insisting on the amendment because % cannot subscribe to the vie,
of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the
ballots. hat cannot be the date of reckoning because it is a plebiscite all over the country. Ee do not split
the moment of casting by each of the voters. Actually and technically speaking, it ,ould be all right if it
,ould be upon the announcement of the results of the canvass conducted by the C0M/+/C or the
results of the plebiscite held all over the country. But it is necessary that there be a body ,hich ,ill make
the formal announcement of the results of the plebiscite. -o it is either the President or the C0M/+/C
itself upon the completion of the canvass of the results of the plebiscite, and % opted for the President.
888 888 888
M!. ?0++/D0. Madam President.
>/ P!/-%D/?. Commissioner ?olledo is recogni"ed.
M!. ?0++/D0. hank you, Madam President. % beg to disagree ,ith Commissioner Davide. % support the
stand of Commissioner Bernas because it is reall t*e !ate o, t*e castin+ o, t*e 1es1 votes t*at is t*e
!ate o, t*e rati,ication o, t*e Constitution T*e announce(ent (erel con,ir(s t*e rati,ication even if the
results are released t,o or three days after. % think it is a fundamental principle in political la,, even in civil
la,, because an announcement is a mere confirmation T*e act o, rati,ication is t*e act o, votin+ # t*e
people. -o that is the date of the ratification. %f there should be any need for presidential proclamation,
that proclamation ,ill merely confirm the act of ratification.
hank you, Madam President.
>/ P!/-%D/?. Does Commissioner !egalado ,ant to contributeI
M!. !/3A+AD0. Madam President, % ,as precisely going to state the same support for Commissioner
Bernas, because the canvass thereafter is merely the (at*e(atical con,ir(ation of ,hat ,as done during
the date of the plebiscite and the procla(ation of the President is (erel t*e o,,icial con,ir(ator
!eclaration o, an act )*ic* )as actuall !one # t*e Filipino people in a!optin+ t*e Constitution )*en
t*e cast t*eir votes on t*e !ate o, t*e ple#iscite.
M!. +/!=M. Madam President, may % be recogni"ed.
>/ P!/-%D/?. Commissioner +erum is recogni"ed.
M!. +/!=M. % am in favor of the Davide amendment because ,e have to fi8 a date for the effectivity of
the Constitution. -uppose the announcement is delayed by, say, &9 days or a month, ,hat happens to
the obligations and rights that accrue upon the approval of the ConstitutionI -o % think ,e must have a
definite date. % am, therefore, in favor of the Davide amendment.
>/ P!/-%D/?. Commissioner Maambong is recogni"ed.
M!. MAAMB0?3. Eith the theory of the Commissioner, ,ould there be a necessity for the Commission
on /lections to declare the results of the canvassI
1!. B/!?A-. here ,ould be because it is t*e Co((ission on Elections )*ic* (a-es t*e o,,icial
announce(ent o, t*e results.
M!. MAAMB0?3. My ne8t #uestion ,hich is the final one is7 After the Commision on /lections has
declared the results of the canvass, ,ill there be a necessity for the President to make a proclamation of
the results of the canvass as submitted by the Commission on /lectionsI
1!. B/!?A-. % ,ould say there ,ould be no necessity, Madam President.
M!. MAAMB0?3. %n other ,ords, the President may or may not make the proclamation ,hether the
Constitution has been ratified or not.
1!. B/!?A-. % ,ould say that the proclamation made by the President ,ould be immaterial because
under the la,, the administration of all election la,s is under an independent Commission on /lections. %t
is the Commission on /lections ,hich announces the results.
M!. MAAMB0?3. But nevertheless, the President may make the proclamation.
1!. B/!?A-. @es, the President may. And if ,hat he says contradicts ,hat the Commission on /lections
says, it ,ould have no effect. % ,ould only add that ,hen ,e say that the date of effectivity is on the day of
the casting of the votes, ,hat ,e 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 *J hours.
So t*at even i, t*e votes are cast in t*e (ornin+, t*e Constitution is reall e,,ective ,ro( t*e previous
(i!ni+*t. -o that ,hen ,e adopted the ne, rule on citi"enship, the children of 1ilipino mothers or
anybody born on the date of effectivity of the &('A Constitution, ,hich is .anuary &', &('A, are naturalC
born citi"ens, no matter ,hat time of day or night.
M!. MAAMB0?3. Could ,e, therefore, safely say that ,hatever date is the pu#lication o, t*e results o,
t*e canvass # t*e CO'E0EC retroacts to t*e !ate o, t*e ple#iscite2
M!. MAAMB0?3. % thank the Commissioner.
M!. 3=%?30?A. Madam President.
>/ P!/-%D/?. Commissioner 3uingona is recogni"ed.
M!. 3=%?30?A. Mention ,as made about the need for having a definite date. % think it is precisely the
proposal of Commissioner Bernas ,hich speaks of the date ;of ratification that ,ould have a definite date,
because t*ere )oul! #e no !e,inite !ate i, )e !epen! upon t*e canvassin+ # t*e CO'E0EC.
hank you,
>/ P!/-%D/?. Commissioner Concepcion is recogni"ed.
M!. C0?C/PC%0?. hank you, Madam President.
Ehoever makes the announcement as to the result of the plebiscite, be it the C0M/+/C or the President,
,ould announce that a majority of the votes cast on a given date ,as in favor of the Constitution. And that
is the date ,hen 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 % ,ould not say from the very beginning of the date of election
because as of that time it is impossible to determine ,hether there is a majority. 3t t*e en! o, t*e !a o,
election or ple#iscite, t*e !eter(ination is (a!e as o, t*at ti(e4t*e (a5orit o, t*e votes cast in a
ple#iscite *el! on suc* an! suc* a !ate. So t*at is t*e ti(e )*en t*e ne) Constitution )ill #e consi!ere!
rati,ie! an!, t*ere,ore, e,,ective.
>/ P!/-%D/?. May ,e no, hear 6iceCPresident Padilla.
M!. PAD%++A. Madam President, % am against the proposed amendment of Commissioner Davide and %
support the vie, 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. /ven in civil la,,
if there is a contract, say, bet,een 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 ,as e8ecuted.
herefore, t*e !ate o, t*e Constitution as rati,ie! s*oul! retroact to t*e !ate t*at t*e people *ave cast
t*eir a,,ir(ative votes in ,avor o, t*e Constitution.
>/ P!/-%D/?. Commissioner Maambong is recogni"ed
M!. MAAMB0?3. Ee ,ill no, ask once more Commissioner Davide if he is insisting on his amendment
M!. DA6%D/. In vie) o, t*e e6planation an! over)*el(in+ tyranny of the opinion t*at it )ill #e e,,ective
on t*e ver !a o, t*e ple#iscite, % am )it*!ra)in+ my amendment on the assumption that any of the
follo,ing bodies the 0ffice of the President or the C0M/+/C ,ill make the formal announcement of the
results.
M!. !AMA. Madam President, ,e are no, ready to vote on the original provision as stated by the
committee.
M!. MAAMB0?3. he committee ,ill read again the formulation indicated in the original committee
report as -ection &*.
T*is Constitution s*all ta-e e,,ect i((e!iatel upon its rati,ication # a (a5orit o, t*e votes cast in a
ple#iscite calle! ,or t*e purpose an! s*all superse!e all previous Constitutions.
Ee ask for a vote, Madam President.
6 0 % ? 3
>/ P!/-%D/?. As many as are in favor, please raise their hand. ;Several 'e(#ers raise! t*eir
*an!s.<
As many as are against, please raise their hand. ;No 'e(#er raise! *is *an!.<
T*e results s*o) 78 votes in ,avor an! none a+ainst9 Section $2 is approve!.
4

he Court ne8t holds as a conse#uence of its declaration at bar that the Constitution took effect on
the date of its ratification in the plebiscite held on 1ebruary *, &()', that7 ;&< the Provisional
Constitution promulgated on March *B, &()2 must be deemed to have been superseded by the &()'
Constitution on the same date 1ebruary *, &()' and ;*< by and after said date, 1ebruary *, &()',
absent any saying clause to the contrary in the ransitory Article of the Constitution, respondent 0%C
3overnor could no longer e8ercise the po,er to replace petitioners in their positions as Barangay
Captain and Councilmen. >ence, the attempted replacement of petitioners by respondent 0%C
3overnor$s designation on 1ebruary ), &()' of their successors could no longer produce any legal
force and effect. Ehile the Provisional Constitution provided for a oneCyear period e8piring on March
*B, &()' ,ithin ,hich the po,er of replacement could be e8ercised, this period ,as shortened by the
ratification and effectivity on 1ebruary *, &()' of the Constitution. >ad the intention of the framers of
the Constitution been other,ise, they ,ould have so provided for in the ransitory Article, as indeed
they provided for multifarious transitory provisions in t,enty si8 sections of Article D6%%%, e.g.
e8tension of the si8Cyear term of the incumbent President and 6iceCPresident to noon of .une A9,
&((* for purposes of synchroni"ation of elections, the continued e8ercise of legislative po,ers 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 4the appointments of some seven
Court of Appeals .ustices, '& provincial fiscals and BB city fiscals reported e8tended ;by< the
President on 1ebruary *, &()' . . . could be open to serious #uestions,4 in vie, of the provisions of
-ections ) ;&< and (, Article 6%%% of the Constitution ,hich re#uire prior endorsement thereof by the
.udicial and Bar Council created under the Constitution. %t should be stated for the record that the
reported date of the appointments, 1ebruary *, &()', is incorrect. he official records of the Court
sho, that the appointments of the seven Court of Appeals .ustices ,ere transmitted to this Court on
1ebruary &, &()' and they ,ere all appointed on or before .anuary A&, &()'.
3
;-imilarly, the records
of the Department of .ustice like,ise sho, that the appointment papers of the last batch of provincial
and city fiscals signed by the President in completion of the reorgani"ation of the prosecution service
,ere made on .anuary A&, &()' and transmitted to the Department on 1ebruary &, &()'.< %t is also a
matter of record that since 1ebruary *, &()', no appointments to the .udiciary have been e8tended
by the President, pending the constitution of the .udicial and Bar Council, indicating that the Chief
/8ecutive has like,ise considered 1ebruary *, &()' as the effective date of the Constitution, as no,
e8pressly declared by the Court.
CR"1, J., concurring.
%n her #uiet and restrained manner, .ustice >errera is able to prove her point ,ith more telling effect
than the tones of thunder. -he has ,ritten another persuasive opinion, and % am delighted to concur. %
note that it in effect affirms my dissents in the De la -erna, 5amora, Du#uing and Bayas cases,
,here % submitted that the local 0%Cs may no longer be summarily replaced, having ac#uired security
of tenure under the ne, Constitution. 0ur difference is that ,hereas % ,ould make that right
commence on 1ebruary *B, &()', after the deadline set by the 1reedom Constitution, .ustice >errera
,ould opt for 1ebruary *, &()', ,hen the ne, Constitution ,as ratified. % yield to that better vie, and
agree ,ith her ponencia completely.
SARMIENTO, J., Dissenting.
Eith due respect to the majority % register this dissent.
Ehile % agree that the oneCyear deadline prescribed by -ection *, Article %%% of the Provisional
Constitution ,ith respect to the tenure of government functionaries, as follo,s7
from 1ebruary *B, &()2.
,as cut short by the ratification of the &()' Constitution, % entertain serious doubts ,hether or not that
cutCoff period began on 1ebruary *, &()', the date of the plebiscite held to approve the ne, Charter.
o my mind the &()' constitution took effect on 1ebruary &&, &()', the date the same ,as
proclaimed ratified pursuant to Proclamation ?o. B) of the President of the Philippines, and not
1ebruary *, &()', plebiscite day.
% rely, first and foremost, on the language of the &()' Charter itself, thus7
-ec. *'. his 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.
%t 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. 1or it cannot
be logically said that Constitution ,as ratified during such a plebiscite, ,hen the ,ill of the people as
of that time, had not, and could not have been, vet determined.
0ther than that, pragmatic considerations compel me to take the vie,.
% have no doubt that bet,een 1ebruary *, and 1ebruary &&, &()' the government performed acts that
,ould have been valid under the Provisional Constitution but ,ould other,ise have been void under
the &()' Charter. % recall, in particular, the appointments of some seven Court of Appeals .ustices,
'& provincial fiscals, and BB city fiscals the President reportedly e8tended on 1ebruary *, &()'. 1
=nder -ections ) ;&< and (, Article 6%%%, of the l()' Constitution, as follo,s7
888 888 888
-ec. ). ;%<A .udicial and Bar Council is hereby created under the supervision of the -upreme Court
composed of the Chief .ustice as e6 o,,icio Chairman, the -ecretary of .ustice, and a representative of
the Congress as e6 o,icio Members, a representative of the %ntegrated Bar, a professor of la,, a retired
Member of the -upreme Court, and a representative of the private sector.
888 888 888
*-ec. (. he Members of the -upreme Court and judges of lo,er courts shall be appointed by the
President from a list of at least three nominees prepared by the .udicial and Bar Council for every
vacancy, -uch appointments need no confirmation.
888 888 888
such appointments could be open to serious #uestions.
-ince &('A, moreover, ,e have invariably reckoned the effectivity of the Constitution as ,ell as the
amendments thereto from the date it is proclaimed ratified.
%n 'a+toto v. 'an+uera,
4
,e held that the &('A Constitution became in force and effect on .anuary
&', &('A, the date Proclamation ?o. &&9*, 4Announcing the !atification by the 1ilipino People of the
Constitution Proposed by the &('& Constitutional Convention,4 ,as issued, although Mr. .ustice, no,
Chief .ustice, eehankee ,ould push its effectivity date further to April &', &('A, the date our
decision in Javellana v. E6ecutive Secretar,
3
became final. And this ,as so not,ithstanding -ection
&2, Article D6%%, of the &('A Constitution, thus7
-/C. &2. his Constitution shall take effect immediately upon its ratification by a majority of the votes cast
nineteenChundred and thirtyC five and all amendments thereto.
0n 0ctober *', &('2, then President Marcos promulgated Proclamation no. &B(B, proclaiming the
ratification of the &('2 amendments submitted in the plebiscite of 0ctober &2C &', &('2. he
Proclamation states, inter alia, that.
By virtueCof the po,ers vested in me by la,, % hereby proclaim all the amendments embodied in this
certificate as duly ratified by the 1ilipino people in the referendum K plebiscite held 0ct. &2C&', &('2
and are therefore effective and in full force and effect as of this date.
%t shall be noted that under Amendment ?o. ( of the said &('2 amendments.
hese 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 referendumCplebiscite.
0n April &, &()9, the then Chief /8ecutive issued Proclamation no. &(B(, 4Proclaiming the
!atification by the 1ilipino People of the Amendments of -ection ', Article D of the Constitution4
;lengthening the terms of office of judges and justices<. he Proclamation provides7
GtHhe aboveC#uoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held,
together ,ith the election for local officials, on .anuary A9, &()9, and that said amendment is hereby
declared to take effect immediately.
%t shall be noted that under !esolution ?o. *&, dated December &), &('(, the proposed amendment
shall take effect on the date the incumbent PresidentFPrime Minister shall proclaim its ratification.
0n April ', &()&, Proclamation ?o. *9'' ,as issued 4Proclaiming the !atification in the Plebiscite of
April ', &()& of the Amendments to the Constitution /mbodied in Batas Pambansa Blg. &** and
Declaring hem herefore /ffective and in 1ull 1orce and /ffect.4 he Proclamation, in declaring the
said amendments duly approved, further declared them 4GeHffective and in full force and in effect as of
the date of this Proclamation,4 %t shall be noted, in this connection, that under !esolutions ?os. % and
* of the Batasang Pambansa, hird !egular -ession, -itting as a Constituent Assembly, ,hich
parented these amendments, the same7
... shall become valid as part of the Constitution ,hen approved by a majority of the votes cast in a
plebiscite to be held pursuant to -ection *, Article D6% of the Constitution.
0n the other hand, Batas Pambansa Blg. &**, 4An Act to -ubmit to the 1ilipino People, for
!atification or !ejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, -itting as a Constituent Assembly, in its !esolutions ?umbered hree, ,o,
and 0ne, and to Appropriate 1unds herefore,4 provides, as follo,s7
-/C. '. he Commission on /lections, sitting en #anc, 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.
Ee have, finally, Proclamation ?o. *AA*, 4Proclaiming the !atification in the Plebiscite of .anuary *',
&()J, of the Amendments to the Constitution /mbodied in Batasang Pambansa !esolutions ?os.
&9J, &9B, &&9, &&&, &&* and &&A.4 %t states that the amendments7
....are therefore effective and in full force and effect as of the date of this Proclamation.
%t carries out !esolution no. &9J itself ;as ,ell as !esolutions ?os. &&9 and &&* and -ection (, Batas
Blg. 2JA<, ,hich states, that7
he 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 !esolutions ?os. &9B, &&&, and &&A provide, that7
hese amendments shall be valid as a part of the Constitution ,hen approved by a majority of the
votes cast in an electionFplebiscite at ,hich it is submitted to the people for their ratification pursuant
to -ection * of Article D6% of the Constitution, as amended.
hat a Constitution or amendments thereto take effect upon proclamation of their ratification and not
at the time of the plebiscite is a vie, that is not peculiar to the Marcos era.
he !esolution of Both >ouses ;of Congress< in .oint -ession on the March &&, &(J' plebiscite
called pursuant to !epublic Act ?o. 'A and the !esolution of Both >ouses ;of Congress< adopted on
-eptember &), &(J2, ,as adopted on April (,&(J'. he April (, &(J' !esolution makes no mention
of a retroactive application. 3ccor!in+l, )*en t*e incu(#ent Presi!ent :'rs. Corazon C. 3;uino<
proclai(e! on Fe#ruar $$, $%&7, at 'alacanan+ Palace=
... that the Constitution of the !epublic of the Philippines adopted by the Constitutional Commission of
&()2, including the 0rdinance appended thereto, has been duly ratified by the 1ilipino people and is
therefore effective and in full force and effect.
5
the &()' Constitution, in point of fact, came into force and effect, % hold that it took effect at no other
time.
% submit that our ruling in Ponsica v. I+nala+a
5
in ,hich ,e declared, in passing, that the ne, Charter
,as ratified on 1ebruary *, &()', does not in any ,ay ,eaken this dissent. As % stated, the remark
,as said in passingC,e did not resolve the case on account of a categorical holding that the &()'
Constitution came to life on 1ebruary *, &()'. %n any event, if ,e did, % no, call for its reCe8amination.
% am therefore of the opinion, consistent ,ith the vie,s e8pressed above, that the challenged
dismissals done on 1ebruary ), &()' ,ere valid, the &()' Constitution not being then as yet in force.
Footot+s
& opacio, .r. vs. Pimentel 3.!. ?o. 'A''9, April &9, &()2.
* -ection *, BP Blg. ***.
A Article &&, -ection *B and Article D, -ections &, *, &J, among others.
J Article D, -ection J.
B -ection A, BP Blg. ***.
eehankee, C..., concurring7
& 6olume 1ive, !ecord of the Constitutional Commission Proceedings and Debates, pages 2*9C2*A: emphasis supplied.
* he entire draft Constitution ,as approved on 0ctober &*, &()2 forty fortyCfive votes in favor and t,o against.
A he seven Court of Appeals .ustices referred to are .ustices Alfredo +. Benipayo, Minerva 3. !eyes, Magdangal B. /lma, Cecilio P/,
.esus /lbinias, ?icolas +apena .r. and .usto P. orres, .r., and their appointments bear various dates from .anuary (, &()' to .anuary A&,
&()'.
-armiento, .., dissenting7
& Manila Bulletin, 1eb. A, &()', p. &, cols. 2C' Philippine Daily %n#uirer, 1eb. A,&()', p. &, cot &: Malaya, 1eb. A, &()', p. &, col. &.
* ?os. A'*9&9* March A, &('B, 2A -C!A J ;&('B<.
A ?os. +CA2&J*, March A&, &('A, B9 -C!A A9 ;&('A<.
J Proclamation ?o. B) ;&()'<.
B 3.!. ?o. '*A9&.
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 . !a"id as ami#us #uriae
$ffi#e of the %oli#itor General for respondents.
No. 2822&:
%al"ador Araneta for petitioner.
$ffi#e of the %oli#itor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-!"#$ is an ori%inal action for prohibition, &ith preli'inar( in)unction.
Petitioner therein pra(s for )ud%'ent*
"+ Restrainin%* ,a+ the Co''ission on Elections fro' enforcin% Republic Act No. -#"., or fro' perfor'in%
an( act that &ill result in the holdin% of the plebiscite for the ratification of the constitutional a'end'ents
proposed in /oint Resolutions Nos. " and . of the t&o 0ouses of Con%ress of the Philippines, approved on
March "$, "#$12 ,b+ the 3irector of Printin% fro' printin% ballots, pursuant to said Act and Resolutions2 and ,c+
the Auditor General fro' passin% in audit an( disburse'ent fro' the appropriation of funds 'ade in said
Republic Act No. -#".2 and
+ declarin% said Act unconstitutional and void.
4he 'ain facts are not disputed. 5n March "$, "#$1, the 6enate and the 0ouse of Representatives passed the
follo&in% resolutions*
". R. B. 0. ,Resolution of Both 0ouses+ No. ", proposin% that 6ection 7, Article 89, of the Constitution of the
Philippines, be a'ended so as to increase the 'e'bership of the 0ouse of Representatives fro' a 'a:i'u' of
";, as provided in the present Constitution, to a 'a:i'u' of "!;, to be apportioned a'on% the several
provinces as nearl( as 'a( be accordin% to the nu'ber of their respective inhabitants, althou%h each province
shall have, at least, one ,"+ 'e'ber2
. R. B. 0. No. , callin% a convention to propose a'end'ents to said Constitution, the convention to be
co'posed of t&o ,+ elective dele%ates fro' each representative district, to be <elected in the %eneral elections
to be held on the second 4uesda( of Nove'ber, "#1"2< and
.. R. B. 0. No. ., proposin% that 6ection "$, Article 89, of the sa'e Constitution, be a'ended so as to authori=e
6enators and 'e'bers of the 0ouse of Representatives to beco'e dele%ates to the afore'entioned
constitutional convention, &ithout forfeitin% their respective seats in Con%ress.
6ubse>uentl(, Con%ress passed a bill, &hich, upon approval b( the President, on /une "1, "#$1, beca'e
Republic Act No. -#"., providin% that the a'end'ents to the Constitution proposed in the afore'entioned
Resolutions No. " and . be sub'itted, for approval b( the people, at the %eneral elections &hich shall be held
on Nove'ber "-, "#$1.
4he petition in L-!"#$ &as filed on 5ctober ", "#$1. At the hearin% thereof, on 5ctober !, "#$1, the
6olicitor General appeared on behalf of respondents. Moreover, Att(. /uan 4. 3avid and counsel for the
Philippine Constitution Association ? hereinafter referred to as the P09LC5N6A ? &ere allo&ed to ar%ue as
ami#i #uriae. 6aid counsel for the P09LC5N6A, 3r. 6alvador Araneta, li@e&ise pra(ed that the decision in this
case be deferred until after a substantiall( identical case brou%ht b( said or%ani=ation before the Co''ission on
Elections,
"
&hich &as e:pected to decide it an( ti'e, and &hose decision &ould, in all probabilit(, be appealed
to this Court ? had been sub'itted thereto for final deter'ination, for a )oint decision on the identical issues
raised in both cases. 9n fact, on 5ctober .", "#$1, the P09LC5N6A filed &ith this Court the petition in G. R.
No. L-!-, for revie& b( #ertiorari of the resolution of the Co''ission on Elections
dis'issin% the petition

therein. 4he t&o ,+ cases &ere dee'ed sub'itted for decision on Nove'ber !, "#$1, upon the filin% of the
ans&er of respondent, the 'e'orandu' of the petitioner and the repl( 'e'orandu' of respondent in L-!-.
Ra'on A. Gon=ales, the petitioner in L-!"#$, is ad'ittedl( a Ailipino citi=en, a ta:pa(er, and a voter. 0e
clai's to have instituted case L-!"#$ as a class unit, for and in behalf of all citi=ens, ta:pa(ers, and voters
si'ilarl( situated. Althou%h respondents and the 6olicitor General have filed an ans&er den(in% the truth of this
alle%ation, upon the %round that the( have no @no&led%e or infor'ation to for' a belief as to the truth thereof,
such denial &ould appear to be a perfunctor( one. 9n fact, at the hearin% of case L-!"#$, the 6olicitor General
e:pressed hi'self in favor of a )udicial deter'ination of the 'erits of the issued raised in said case.
4he P09LC5N6A, petitioner in L-!-, is ad'ittedl( a corporation dul( or%ani=ed and e:istin% under the
la&s of the Philippines, and a civic, non-profit and non-partisan or%ani=ation the ob)ective of &hich is to uphold
the rule of la& in the Philippines and to defend its Constitution a%ainst erosions or onslau%hts fro' &hatever
source. 3espite his afore'entioned state'ent in L-!"#$, in his ans&er in L-!- the 6olicitor General
'aintains that this Court has no )urisdiction over the sub)ect-'atter of L-!-, upon the %round that the sa'e
is <'erel( political< as held in 'abana( "s. )opez *ito.
.
6enator Arturo M. 4olentino, &ho appeared before the
Co''ission on Elections and filed an opposition to the P09LC5N6A petition therein, &as allo&ed to appear
before this Court and ob)ected to said petition upon the %round* a+ that the Court has no )urisdiction either to
%rant the relief sou%ht in the petition, or to pass upon the le%alit( of the co'position of the 0ouse of
Representatives2 b+ that the petition, if %ranted, &ould, in effect, render in operational the le%islative
depart'ent2 and c+ that <the failure of Con%ress to enact a valid reapportion'ent la& . . . does not have the le%al
effect of renderin% ille%al the 0ouse of Representatives elected thereafter, nor of renderin% its acts null and
void.<
1URISDICTION
As earl( as An(ara "s. +le#toral ,ommission,
-
this Court ? spea@in% throu%h one of the leadin% 'e'bers of
the Constitutional Convention and a respected professor of Constitutional La&, 3r. /ose P. Laurel ? declared
that <the )udicial depart'ent is the onl( constitutional or%an &hich can be called upon to deter'ine the proper
allocation of po&ers bet&een the several depart'ents and a'on% the inte%ral or constituent units thereof.< 9t is
true that in 'abana( "s. )opez *ito,
7
this Court characteri=in% the issue sub'itted thereto as a political one,
declined to pass upon the >uestion &hether or not a %iven nu'ber of votes cast in Con%ress in favor of a
proposed a'end'ent to the Constitution ? &hich &as bein% sub'itted to the people for ratification ? satisfied
the three-fourths vote re>uire'ent of the funda'ental la&. 4he force of this precedent has been &ea@ened,
ho&ever, b( %uanes "s. ,hief A##ountant of the %enate-
$
Avelino vs. Cuenco,
1
4aBada vs. Cuenco,
!
and 'a#ias
"s. ,ommission on +le#tions.
#
9n the first, &e held that the officers and e'plo(ees of the 6enate Electoral
4ribunal are under its supervision and control, not of that of the 6enate President, as clai'ed b( the latter2 in the
second, this Court proceeded to deter'ine the nu'ber of 6enators necessar( for a .uorum in the 6enate2 in the
third, &e nullified the election, b( 6enators belon%in% to the part( havin% the lar%est nu'ber of votes in said
cha'ber, purportin% to act on behalf of the part( havin% the second lar%est nu'ber of votes therein, of t&o ,+
6enators belon%in% to the first part(, as 'e'bers, for the second part(, of the, 6enate Electoral 4ribunal2 and in
the fourth, &e declared unconstitutional an act of Con%ress purportin% to apportion the representative districts
for the 0ouse of Representatives, upon the %round that the apportion'ent had not been 'ade as 'a( be
possible accordin% to the nu'ber of inhabitants of each province. 4hus &e re)ected the theor(, advanced in
these four ,-+ cases, that the issues therein raised &ere political >uestions the deter'ination of &hich is be(ond
)udicial revie&.
9ndeed, the po&er to a'end the Constitution or to propose a'end'ents thereto is not included in the %eneral
%rant of le%islative po&ers to Con%ress.
";
9t is part of the inherent po&ers of the people ? as the repositor( of
soverei%nt( in a republican state, such as ours
""
? to 'a@e, and, hence, to a'end their o&n Aunda'ental La&.
Con%ress 'a( propose a'end'ents to the Constitution 'erel( because the sa'e e:plicitl( %rants such po&er.
"

0ence, &hen e:ercisin% the sa'e, it is said that 6enators and Me'bers of the 0ouse of Representatives act, not
as 'e'bers of ,on(ress, but as co'ponent ele'ents of a #onstituent assembl/. Chen actin% as such, the
'e'bers of Con%ress derive their authorit( fro' the Constitution, unli0e the people, &hen perfor'in% the sa'e
function,
".
for their authorit( does not e'anate fro' the Constitution ? the( are the "er/ sour#e of all po&ers
of %overn'ent, in#ludin( the ,onstitution itself .
6ince, &hen proposin%, as a constituent asse'bl(, a'end'ents to the Constitution, the 'e'bers of Con%ress
derive their authorit( fro' the Aunda'ental La&, it follo&s, necessaril(, that the( do not have the final sa( on
&hether or not their acts are &ithin or be(ond constitutional li'its. 5ther&ise, the( could brush aside and set
the sa'e at nau%ht, contrar( to the basic tenet that ours is a %overn'ent of la&s, not of 'en, and to the ri%id
nature of our Constitution. 6uch ri%idit( is stressed b( the fact that, the Constitution e:pressl( confers upon the
6upre'e Court,
"-
the po&er to declare a treat( unconstitutional,
"7
despite the e'inentl( political character of
treat(-'a@in% po&er.
9n short, the issue &hether or not a Resolution of Con%ress ? actin% as a constituent asse'bl( ? violates the
Constitution essentiall( )usticiable, not political, and, hence, sub)ect to )udicial revie&, and, to the e:tent that
this vie& 'a( be inconsistent &ith the stand ta@en in 'abana( "s. )opez *ito,
"$
the latter should be dee'ed
'odified accordin%l(. 4he Me'bers of the Court are unani'ous on this point.
THE MERITS
6ection " of Article D8 of the Constitution, as a'ended, reads*
4he Con%ress in )oint session asse'bled b( a vote of three-fourths of all the Me'bers of the 6enate and
of the 0ouse of Representatives votin% separatel(, 'a( propose a'end'ents to this Constitution or call
a convention for that purpose. 6uch a'end'ents shall be valid as part of this Constitution &hen
approved b( a 'a)orit( of the votes cast at an election at &hich the a'end'ents are sub'itted to the
people for their ratification.
Pursuant to this provision, a'end'ents to the Constitution 'a( be proposed, either b( Con%ress, or b( a
convention called b( Con%ress for that purpose. 9n either case, the vote of <three-fourths of all the 'e'bers of
the 6enate and of the 0ouse of Representatives votin% separatel(< is necessar(. And, <such a'end'ents shall
be valid as part of< the <Constitution &hen approved b( a 'a)orit( of the votes cast at an election at &hich the
a'end'ents are sub'itted to the people for their ratification.<
9n the cases at bar, it is conceded that the R. B. 0. Nos. " and . have been approved b( a vote of three-fourths of
all the 'e'bers of the 6enate and of the 0ouse of Representatives votin% separatel(. 4his, not&ithstandin%, it is
ur%ed that said resolutions are null and void because*
". 4he Me'bers of Con%ress, &hich approved the proposed a'end'ents, as &ell as the resolution callin% a
convention to propose a'end'ents, are, at best, de fa#to Con%ress'en2
. Con%ress 'a( adopt either one of t&o alternatives propose ? a'end'ents or call a convention therefore but
'a( not avail of both ? that is to sa(, propose a'end'ent and call a convention ? at the sa'e ti'e2
.. 4he election, in &hich proposals for a'end'ent to the Constitution shall be sub'itted for ratification, 'ust
be a spe#ial election, not a (eneral election, in &hich officers of the national and local %overn'ents ? such as
the elections scheduled to be held on Nove'ber "-, "#$1 ? &ill be chosen2 and
-. 4he spirit of the Constitution de'ands that the election, in &hich proposals for a'end'ent shall be sub'itted
to the people for ratification, 'ust be held under such conditions ? &hich, alle%edl(, do not e:ist ? as to %ive
the people a reasonable opportunit( to have a fair %rasp of the nature and i'plications of said a'end'ents.
)e(alit/ of ,on(ress and )e(al %tatus of the ,on(ressmen
4he first ob)ection is based upon 6ection 7, Article 89, of the Constitution, &hich provides*
4he 0ouse of Representatives shall be co'posed of not 'ore than one hundred and t&ent( Me'bers
&ho shall be apportioned a'on% the several provinces as nearl( as 'a( be accordin% to the nu'ber of
their respective inhabitants, but each province shall have at least one Me'ber. 4he Con%ress shall b(
la& 'a@e an apportion'ent &ithin three (ears after the return of ever( enu'eration, and not other&ise.
Entil such apportion'ent shall have been 'ade, the 0ouse of Representatives shall have the sa'e
nu'ber of Me'bers as that fi:ed b( la& for the National Asse'bl(, &ho shall be elected b( the
>ualified electors fro' the present Asse'bl( districts. Each representative district shall co'prise, as far
as practicable, conti%uous and co'pact territor(.
9t is ur%ed that the last enu'eration or census too@ place in "#$;2 that, no apportion'ent havin% been 'ade
&ithin three ,.+ (ears thereafter, the Con%ress of the Philippines andFor the election of its Me'bers beca'e
ille%al2 that Con%ress and its Me'bers, li@e&ise, beca'e a de fa#to Con%ress andFor de fa#to con%ress'en,
respectivel(2 and that, conse>uentl(, the disputed Resolutions, proposin% a'end'ents to the Constitution, as
&ell as Republic Act No. -#"., are null and void.
9t is not true, ho&ever, that Con%ress has not 'ade an apportion'ent &ithin three (ears after the enu'eration or
census 'ade in "#$;. 9t did actuall( pass a bill, &hich beca'e Republic Act No. .;-;,
"1
purportin% to 'a@e
said apportion'ent. 4his Act &as, ho&ever, declared unconstitutional, upon the %round that the apportion'ent
therein underta@en had not been 'ade accordin% to the nu'ber of inhabitants of the different provinces of the
Philippines.
"!
Moreover, &e are unable to a%ree &ith the theor( that, in vie& of the failure of Con%ress to 'a@e a valid
apportion'ent &ithin the period stated in the Constitution, Con%ress beca'e an <unconstitutional Con%ress<
and that, in conse>uence thereof, the Me'bers of its 0ouse of Representatives are de fa#to officers. 4he 'a)or
pre'ise of this process of reasonin% is that the constitutional provision on <apportion'ent &ithin three (ears
after the return of ever( enu'eration, and not other&ise,< is 'andator(. 4he fact that Con%ress is under le%al
obli%ation to 'a@e said apportion'ent does not )ustif(, ho&ever, the conclusion that failure to co'pl( &ith
such obli%ation rendered Con%ress ille%al or unconstitutional, or that its Me'bers have beco'e de fa#to
officers.
9t is conceded that, since the adoption of the Constitution in "#.7, Con%ress has not 'ade a valid apportion'ent
as re>uired in said funda'ental la&. 4he effect of this o'ission has been envisioned in the Constitution,
pursuant to &hich*
. . . Entil such apportion'ent shall have been 'ade, the 0ouse of Representatives shall have the sa'e
nu'ber of Me'bers as that fi:ed b( la& for the National Asse'bl(, &ho shall be elected b( the
>ualified electors fro' the present Asse'bl( districts. . . . .
4he provision does not support the vie& that, upon the e:piration of the period to 'a@e the apportion'ent, a
Con%ress &hich fails to 'a@e it is dissolved or beco'es ille%al. 5n the contrar(, it i'plies necessaril( that
Con%ress shall #ontinue to function &ith the representative districts e:istin% at the ti'e of the e:piration of said
period.
9t is ar%ued that the above->uoted provision refers onl( to the elections held in "#.7. 4his theor( assu'es that
an apportion'ent had to be 'ade necessaril( before the first elections to be held after the inau%uration of the
Co''on&ealth of the Philippines, or in "#.!.
"#
4he assu'ption, is, ho&ever, un&arranted, for there had been
no enu'eration in "#.7, and nobod( could foretell &hen it &ould be 'ade. 4hose &ho drafted and adopted the
Constitution in "#.7 could be certain, therefore, that the three-(ear period, after the earliest possible
enu'eration, &ould e:pire after the elections in "#.!.
Chat is 'ore, considerin% that several provisions of the Constitution, particularl( those on the le%islative
depart'ent, &ere a'ended in "#-;, b( establishin% a bica'eral Con%ress, those &ho drafted and adopted said
a'end'ent, in#orporatin( therein the pro"ision of the ori(inal ,onstitution re(ardin( the apportionment of the
distri#ts for representati"es, 'ust have @no&n that the three-(ear period therefor &ould e:pire after the
ele#tions s#heduled to be held and a#tuall/ held in 19&1.
4hus, the events conte'poraneous &ith the fra'in% and ratification of the ori%inal Constitution in "#.7 and of
the a'end'ent thereof in "#-; stron%l( indicate that the provision concernin% said apportion'ent and the
effect of the failure to 'a@e it &ere e:pected to be applied to conditions obtainin% after the elections in "#.7
and "#.!, and even after subse.uent elections.
4hen a%ain, since the report of the 3irector of the Census on the last enu'eration &as sub'itted to the
President on Nove'ber .;, "#$;, it follo&s that the three-(ear period to 'a@e the apportion'ent did not e:pire
until 1961, or after the Presidential elections in "#$". 4here can be no >uestion, therefore, that the 6enate and
the 0ouse of Representatives or%ani=ed or constituted on 3ece'ber .;, "#$", &ere de 2ure bodies, and that the
Me'bers thereof &ere de 2ure officers. Pursuant to the theor( of petitioners herein, upon e:piration of said
period of three (ears, or late in "#$., Con%ress beca'e ille%al and its Me'bers, or at least, those of the 0ouse
of Representatives, beca'e ille%al holder of their respective offices, and &ere de fa#to officers.
Petitioners do not alle%e that the e:piration of said three-(ear period &ithout a reapportion'ent, had the effect
of abro%atin% or repealin% the le%al provision creatin% Con%ress, or, at least, the 0ouse of Representatives, and
are not a&are of an( rule or principle of la& that &ould &arrant such conclusion. Neither do the( alle%e that the
ter' of office of the 'e'bers of said 0ouse auto'aticall( e:pired or that the( ipso fa#to forfeited their seats in
Con%ress, upon the lapse of said period for reapportion'ent. 9n fact, neither our political la&, nor our la& on
public officers, in particular, supports the vie& that failure to dischar%e a 'andator( dut(, &hatever it 'a( be,
&ould auto'aticall( result in the forfeiture of an office, in the absence of a statute to this effect.
6i'ilarl(, it &ould see' obvious that the provision of our Election La& relative to the election of Me'bers of
Con%ress in "#$7 &ere not repealed in conse>uence of the failure of said bod( to 'a@e an apportion'ent &ithin
three ,.+ (ears after the census of "#$;. 9nas'uch as the %eneral elections in "#$7 &ere presu'abl( held in
confor'it( &ith said Election La&, and the le%al provisions creatin% Con%ress ? &ith a 0ouse of
Representatives co'posed of 'e'bers elected b( >ualified voters of representative districts as the( e:isted at
the ti'e of said elections ? re'ained in force, &e can not see ho& said Me'bers of the 0ouse of
Representatives can be re%arded as de fa#to officers o&in% to the failure of their predecessors in office to 'a@e
a reapportion'ent &ithin the period afore'entioned.
Epon the other hand, the Constitution authori=es the i'peach'ent of the President, the 8ice-President, the
/ustices of the 6upre'e Court and the Auditor General for, inter alia, culpable violation of the Constitution,
;

the enforce'ent of &hich is, not onl( their 'andator( dut(, but also, their 'ain function. 4his provision
indicates that, despite the violation of such 'andator( dut(, the title to their respective offices re'ains
uni'paired, until dis'issal or ouster pursuant to a )ud%'ent of conviction rendered in accordance &ith Article
9D of the Constitution. 9n short, the loss of office or the e:tinction of title thereto is not auto'atic.
Even if &e assu'ed, ho&ever, that the present Me'bers of Con%ress are 'erel( de fa#to officers, it &ould not
follo& that the contested resolutions and Republic Act No. -#". are null and void. 9n fact, the 'ain reasons for
the e:istence of the de fa#to doctrine is that public interest de'ands that acts of persons holdin%, under color of
title, an office created b( a valid statute be, li@e&ise, dee'ed valid insofar as the public ? as distin%uished
fro' the officer in >uestion ? is concerned.
"
9ndeed, other&ise, those dealin% &ith officers and e'plo(ees of
the Govern'ent &ould be entitled to de'and fro' the' satisfactor( proof of their title to the positions the(
hold, before dealin% &ith the', or before reco%ni=in% their authorit( or obe(in% their co''ands, even if the(
should act &ithin the li'its of the authorit( vested in their respective offices, positions or e'plo('ents.
5ne
can i'a%ine this %reat inconvenience, hardships and evils that &ould result in the absence of the de fa#to
doctrine.
As a conse>uence, the title of a de fa#to officer cannot be assailed collaterall(.
.
9t 'a( not be contested e:cept
directl(, b( .uo warranto proceedin%s. Neither 'a( the validit( of his acts be >uestioned upon the %round that
he is 'erel( a de fa#to officer.
-
And the reasons are obvious* ,"+ it &ould be an indirect in>uir( into the title to
the office2 and ,+ the acts of a de fa#to officer, if &ithin the co'petence of his office, are valid, insofar as the
public is concerned.
9t is ar%ued that the fore%oin% rules do not appl( to the cases at bar because the acts therein involved have not
been co'pleted and petitioners herein are not third parties. 4his pretense is untenable. 9t is inconsistent &ith
a/0o "s. ,apistrano.
7
9n that case, one of the parties to a suit bein% heard before /ud%e Capistrano ob)ected to
his continuin% to hear the case, for the reason that, 'ean&hile, he had reached the a%e of retire'ent. 4his Court
held that the ob)ection could not be entertained, because the /ud%e &as at least, a de fa#to /ud%e, &hose title can
not be assailed collaterall(. 9t should be noted that 4a(@o &as not a third part( insofar as the /ud%e &as
concerned. 4a(@o &as one of the parties in the afore'entioned suit. Moreover, /ud%e Capistrano had not, as (et,
finished hearin% the case, 'uch less rendered decision therein. No ri%hts had vested in favor of the parties, in
conse>uence of the acts of said /ud%e. Get, 4a(@oHs ob)ection &as overruled. Needless to sa(, insofar as
Con%ress is concerned, its acts, as re%ards the Resolutions herein contested and Republic Act No. -#"., are
co'plete. Con%ress has nothin% else to do in connection there&ith.
4he Court is, also, unani'ous in holdin% that the ob)ection under consideration is untenable.
A"ailable Alternati"es to ,on(ress
Att(. /uan 4. 3avid, as ami#us #uriae, 'aintains that Con%ress 'a( either propose a'end'ents to the
Constitution or call a convention for that purpose, but it can not do both, at the sa'e ti'e. 4his theor( is based
upon the fact that the t&o ,+ alternatives are connected in the Constitution b( the dis)unctive <or.< 6uch basis
is, ho&ever, a &ea@ one, in the absence of other circu'stances ? and none has brou%ht to our attention ?
supportin% the conclusion dra&n b( the ami#us #uriae. 9n fact, the ter' <or< has, oftenti'es, been held to 'ean
<and,< or vice-versa, &hen the spirit or conte:t of the la& &arrants it.
$
9t is, also, note&orth( that R. B. 0. Nos. " and . propose a'end'ents to the constitutional provision on ,on(ress, to be sub'itted to the people for ratification on No"ember 1&- 1963, &hereas
R. B. 0. No. calls for a convention in 1931, to consider proposals for a'end'ent to the Constitution, in (eneral. 9n other &ords, the sub)ect-'atter of R. B. 0. No. is different fro' that of R
B. 0. Nos. " and .. Moreover, the a'end'ents proposed under R. B. 0. Nos. " and ., &ill be sub'itted for ratification several (ears before those that 'a( be proposed b( the constitutional
convention called in R. B. 0. No. . A%ain, althou%h the three ,.+ resolutions &ere passed on the sa'e date, the( &ere ta@en up and put to a vote separatel(, or one after the other. 9n other
&ords, the( &ere not passed at the sa'e ti'e.
9n an( event, &e do not find, either in the Constitution, or in the histor( thereof an(thin% that &ould ne%ate the authorit( of different Con%resses to approve the contested Resolutions, or of the
sa'e Con%ress to pass the sa'e in, different sessions or different da(s of the sa'e con%ressional session. And, neither has an( plausible reason been advanced to )ustif( the denial of authorit( to
adopt said resolutions on the sa'e da(.
Counsel as@* 6ince Con%ress has decided to call a constitutional convention to propose a'end'ents, &h( not let the &hole thin% be sub'itted to said convention, instead of, li@e&ise, proposin%
so'e specific a'end'ents, to be sub'itted for ratification before said convention is heldI 4he force of this ar%u'ent 'ust be conceded. but the sa'e i'pu%ns the wisdom of the action ta@en b(
Con%ress, not its authorit/ to ta@e it. 5ne see'in% purpose thereof to per'it Me'bers of Con%ress to run for election as dele%ates to the constitutional convention and participate in the
proceedin%s therein, &ithout forfeitin% their seats in Con%ress. Chether or not this should be done is a political >uestion, not sub)ect to revie& b( the courts of )ustice.
5n this >uestion there is no disa%ree'ent a'on% the 'e'bers of the Court.
'a/ ,onstitutional Amendments 4e %ubmitted for Ratifi#ation in a General +le#tion5
Article D8 of the Constitution provides*
. . . 4he Con%ress in )oint session asse'bled, b( a vote of three-fourths of all the Me'bers of the 6enate and of the 0ouse of Representatives votin% separatel(, 'a( propose
a'end'ents to this Constitution or call a contention for that purpose. 6uch a'end'ents shall be valid as part of this Constitution &hen approved b( a 'a)orit( of the votes cast at
an election at &hich the a'end'ents are sub'itted to the people for their ratification.
4here is in this provision nothin% to indicate that the <election< therein referred to is a <special,< not a %eneral, election. 4he circu'stance that three previous a'end'ents to the Constitution had
been sub'itted to the people for ratification in special elections 'erel( sho&s that Con%ress dee'ed it best to do so under the circu'stances then obtainin%. 9t does not ne%ate its authorit( to
sub'it proposed a'end'ents for ratification in %eneral elections.
9t &ould be better, fro' the vie&point of a thorou%h discussion of the proposed a'end'ents, that the sa'e be sub'itted to the peopleHs approval independentl( of the election of public officials.
And there is no den(in% the fact that an ade>uate appraisal of the 'erits and de'erits proposed a'end'ents is li@el( to be overshado&ed b( the %reat attention usuall( co''anded b( the choice
of personalities involved in %eneral elections, particularl( &hen provincial and 'unicipal officials are to be chosen. But, then, these considerations are addressed to the &isdo' of holdin% a
plebiscite si'ultaneousl( &ith the election of public officer. 4he( do not den( the authorit( of Con%ress to choose either alternative, as i'plied in the ter' <election< used, &ithout >ualification,
in the above>uoted provision of the Constitution. 6uch authorit( beco'es even 'ore patent &hen &e consider* ,"+ that the ter' <election,< nor'all( refers to the choice or selection of
candidates to public office b( popular vote2 and ,+ that the &ord used in Article 8 of the Constitution, concernin% the %rant of suffra%e to &o'en is, not <election,< but <plebiscite.<
Petitioners 'aintain that the ter' <election,< as used in 6ection " of Art. D8 of the Constitution, should be construed as 'eanin% a spe#ial election. 6o'e 'e'bers of the Court even feel that
said ter' ,<election<+ refers to a <plebiscite,< without an( <election,< %eneral or special, of public officers. 4he( opine that constitutional a'end'ents are, in %eneral, if not al&a(s, of such
i'portant, if not transcendental and vital nature as to de'and that the attention of the people be focused e:clusivel( on the sub)ect-'atter thereof, so that their votes thereon 'a( reflect no 'ore
than their intelli%ent, i'partial and considered vie& on the 'erits of the proposed a'end'ents, uni'paired, or, at least, undiluted b( e:traneous, if not insidious factors, let alone the partisan
political considerations that are li@el( to affect the selection of elective officials.
4his, certainl(, is a situation to be hoped for. 9t is a %oal the attain'ent of &hich should be pro'oted. 4he ideal conditions are, ho&ever, one thin%. 4he >uestion &hether the Constitution
forbids the sub'ission of proposals for a'end'ent to the people e6#ept under su#h #onditions, is another thin%. Much as the &riter and those &ho concur in this opinion ad'ire the contrar(
vie&, the( find the'selves unable to subscribe thereto &ithout, in effect, readin% into the Constitution &hat the( believe is not &ritten thereon and can not fairl( be deduced fro' the letter
thereof, since the spirit of the la& should not be a 'atter of sheer speculation.
4he 'a)orit( vie& ? althou%h the votes in favor thereof are insufficient to declare Republic Act No. -#". unconstitutional ? as abl( set forth in the opinion penned b( Mr. /ustice 6anche=, is,
ho&ever, other&ise.
7ould the %ubmission now of the ,ontested Amendments to the 8eople *iolate the %pirit of the ,onstitution5
9t should be noted that the contested Resolutions &ere approved on March "$, "#$1, so that, b( Nove'ber "-, "#$1, our citi=enr( shall have had practicall( ei%ht ,!+ 'onths to be infor'ed on
the a'end'ents in >uestion. 4hen a%ain, 6ection of Republic Act No. -#". provides*
,"+ that <the a'end'ents shall be published in three consecutive issues of the 5fficial Ga=ette, at least t&ent( da(s prior to the election2<
,+ that <a printed cop( of the proposed a'end'ents shall be posted in a conspicuous place in ever( 'unicipalit(, cit( and provincial office buildin% and in ever( pollin% place not later than
5ctober "-, "#$1,< and that said cop( <shall re'ain posted therein until after the election2<
,.+ that <at least five copies of said a'end'ent shall be @ept in each pollin% place, to be 'ade available for e:a'ination b( the >ualified electors durin% election da(2<
,-+ that <&hen practicable, copies in the principal native lan%ua%es, as 'a( be deter'ined b( the Co''ission on Elections, shall be @ept in each pollin% place2<
,7+ that <the Co''ission on Elections shall 'a@e available copies of said a'end'ents in En%lish, 6panish and, &henever practicable, in the principal native lan%ua%es, for free distributin%*<
and
,$+ that the contested Resolutions <shall be printed in full< on the bac@ of the ballots &hich shall be used on Nove'ber "-, "#$1.
Ce are not prepared to sa( that the fore%oin% 'easures are palpabl( inade>uate to co'pl( &ith the constitutional re>uire'ent that proposals for a'end'ent be <sub'itted to the people for their
ratification,< and that said 'easures are 'anifestl( insufficient, fro' a constitutional vie&point, to infor' the people of the a'end'ent sou%ht to be 'ade.
4hese &ere substantiall( the sa'e 'eans availed of to infor' the people of the sub)ect sub'itted to the' for ratification, fro' the ori%inal Constitution do&n to the Parit( A'end'ent. 4hus,
referrin% to the ori%inal Constitution, 6ection " of Act No. -;;, provides*
6aid Constitution, &ith the 5rdinance appended thereto, shall be published in the 5fficial Ga=ette, in En%lish and in 6panish, for three consecutive issues at least fifteen da(s prior
to said election, and a printed cop( of said Constitution, &ith the 5rdinance appended thereto, shall be posted in a conspicuous place in each 'unicipal and provincial %overn'ent
office buildin% and in each pollin% place not later than the t&ent(-second da( of April, nineteen hundred and thirt(-five, and shall re'ain posted therein continuall( until after the
ter'ination of the election. At least ten copies of the Constitution &ith the 5rdinance appended thereto, in En%lish and in 6panish, shall be @ept at each pollin% place available for
e:a'ination b( the >ualified electors durin% election da(. Chenever practicable, copies in the principal local dialects as 'a( be deter'ined b( the 6ecretar( of the 9nterior shall also
be @ept in each pollin% place.
4he provision concernin% &o'anHs suffra%e is 6ection " of Co''on&ealth Act No. .-, readin%*
6aid Article 8 of the Constitution shall be published in the 5fficial Ga=ette, in En%lish and in 6panish, for three consecutive issues at least fifteen da(s prior to said election, and the
said Article 8 shall be posted in a conspicuous place in each 'unicipal and provincial office buildin% and in each pollin% place not later than the t&ent(-second da( of April,
nineteen and thirt(-seven, and shall re'ain posted therein continuall( until after the ter'ination of the plebiscite. At least ten copies of said Article 8 of the Constitution, in En%lish
and in 6panish, shall be @ept at each pollin% place available for e:a'ination b( the >ualified electors durin% the plebiscite. Chenever practicable, copies in the principal native
lan%ua%es, as 'a( be deter'ined b( the 6ecretar( of the 9nterior, shall also be @ept in each pollin% place.
6i'ilarl(, 6ection , Co''on&ealth Act No. 7"1, referrin% to the "#-; a'end'ents, is of the follo&in% tenor*
4he said a'end'ents shall be published in En%lish and 6panish in three consecutive issues of the 5fficial Ga=ette at least t&ent( da(s prior to the election. A printed cop( thereof
shall be posted in a conspicuous place in ever( 'unicipal, cit(, and provincial %overn'ent office buildin% and in ever( pollin% place not later than Ma( ei%hteen, nineteen hundred
and fort(, and shall re'ain posted therein until after the election. At least ten copies of said a'end'ents shall be @ept in each pollin% place to be 'ade available for e:a'ination b(
the >ualified electors durin% election da(. Chen practicable, copies in the principal native lan%ua%es, as 'a( be deter'ined b( the 6ecretar( of the 9nterior, shall also be @ept
therein.
As re%ards the Parit( A'end'ent, 6ection of Republic Act No. 1. is to the effect that*
4he said a'end'ent shall be published in En%lish and 6panish in three consecutive issues of the 5fficial Ga=ette at least t&ent( da(s prior to the election. A printed cop( thereof
shall be posted in a conspicuous place in ever( 'unicipal, cit(, and provincial %overn'ent office buildin% and in ever( pollin% place not later than Aebruar( eleven, nineteen
hundred and fort(-seven, and shall re'ain posted therein until after the election. At least, ten copies of the said a'end'ent shall be @ept in each pollin% place to be 'ade available
for e:a'ination b( the >ualified electors durin% election da(. Chen practicable, copies in the principal native lan%ua%es, as 'a( be deter'ined b( the Co''ission on Elections,
shall also be @ept in each pollin% place.
4he 'ain difference bet&een the present situation and that obtainin% in connection &ith the for'er proposals does not arise fro' the la& enacted therefor. 4he difference sprin%s fro' the
circu'stance that the 'a)or political parties had ta@en sides on previous a'end'ents to the Constitution ? e:cept, perhaps, the &o'anHs suffra%e ? and, conse>uentl(, debated thereon at so'e
len%th before the plebiscite too@ place. Epon the other hand, said political parties have not see'in%l( 'ade an issue on the a'end'ents no& bein% contested and have, accordin%l(, refrained
fro' discussin% the sa'e in the current political ca'pai%n. 6uch debates or pole'ics as 'a( have ta@en place ? on a rather li'ited scale ? on the latest proposals for a'end'ent, have been
due principall( to the initiative of a fe& civic or%ani=ations and so'e 'ilitant 'e'bers of our citi=enr( &ho have voiced their opinion thereon. A le%islation cannot, ho&ever, be nullified b(
reason of the failure of certain sectors of the co''unit( to discuss it sufficientl(. 9ts constitutionalit( or unconstitutionalit( depends upon no other factors than those e:istin% at the ti'e of the
enact'ent thereof, unaffected b( the acts or o'issions of la& enforcin% a%encies, particularl( those that ta@e place subse>uentl( to the passa%e or approval of the la&.
Referrin% particularl( to the contested proposals for a'end'ent, the sufficienc( or insufficienc(, fro' a constitutional an%le, of the sub'ission thereof for ratification to the people on
Nove'ber "-, "#$1, depends ? in the vie& of those &ho concur in this opinion, and &ho, insofar as this phase of the case, constitute the 'inorit( ? upon &hether the provisions of Republic
Act No. -#". are such as to fairl( apprise the people of the %ist, the 'ain idea or the substance of said proposals, &hich is ? under R. B. 0. No. " ? the increase of the 'a:i'u' nu'ber of
seats in the 0ouse of Representatives, fro' "; to "!;, and ? under R. B. 0. No. . ? the authorit( %iven to the 'e'bers of Con%ress to run for dele%ates to the Constitutional Convention and,
if elected thereto, to dischar%e the duties of such dele%ates, &ithout forfeitin% their seats in Con%ress. Ce ? &ho constitute the 'inorit( ? believe that Republic Act No. -#". satisfies such
re>uire'ent and that said Act is, accordin%l(, constitutional.
A considerable portion of the people 'a( not @no& ho& over "$; of the proposed 'a:i'u' of representative districts are actuall( apportioned b( R. B. 0. No. " a'on% the provinces in the
Philippines. 9t is not i'probable, ho&ever, that the( are not interested in the details of the apportion'ent, or that a careful readin% thereof 'a( tend in their si'ple 'inds, to i'pair a clear vision
thereof. Epon the other hand, those &ho are 'ore sophisticated, 'a( enli%hten the'selves sufficientl( b( readin% the copies of the proposed a'end'ents posted in public places, the copies @ept
in the pollin% places and the te:t of contested resolutions, as printed in full on the bac@ of the ballots the( &ill use.
9t is, li@e&ise, conceivable that as 'an( people, if not 'ore, 'a( fail to reali=e or envisa%e the effect of R. B. 0. No. . upon the &or@ of the Constitutional Convention or upon the future of our
Republic. But, then, nobod( can foretell such effect &ith certaint(. Aro' our vie&point, the provisions of Article D8 of the Constitution are satisfied so lon% as the electorate @no&s that R. B.
0. No. . per'its Con%ress'en to retain their seats as le%islators, even if the( should run for and assu'e the functions of dele%ates to the Convention.
Ce are i'pressed b( the factors considered b( our distin%uished and estee'ed brethren, &ho opine other&ise, but, &e feel that such factors affect the wisdom of Republic Act No. -#". and that
of R. B. 0. Nos. " and ., not the authorit/ of Con%ress to approve the sa'e.
4he s(ste' of chec@s and balances underl(in% the )udicial po&er to stri@e do&n acts of the E:ecutive or of Con%ress transcendin% the confines set forth in the funda'ental la&s is not in
dero%ation of the principle of separation of po&ers, pursuant to &hich each depart'ent is supre'e &ithin its o&n sphere. 4he deter'ination of the conditions under &hich the proposed
a'end'ents shall be sub'itted to the people is concededl( a 'atter &hich falls &ithin the le%islative sphere. Ce do not believe it has been satisfactoril( sho&n that Con%ress has e:ceeded the
li'its thereof in enactin% Republic Act No. -#".. Presu'abl(, it could have done so'ethin% better to enli%hten the people on the sub)ect-'atter thereof. But, then, no la& is perfect. No product
of hu'an endeavor is be(ond i'prove'ent. 5ther&ise, no le%islation &ould be constitutional and valid. 6i: ,$+ Me'bers of this Court believe, ho&ever, said Act and R. B. 0. Nos. " and .
violate the spirit of the Constitution.
9nas'uch as there are less than ei%ht ,!+ votes in favor of declarin% Republic Act -#". and R. B. 0. Nos. " and . unconstitutional and invalid, the petitions in these t&o ,+ cases 'ust be, as the(
are hereb(, dis'iss and the &rits therein pra(ed for denied, &ithout special pronounce'ent as to costs. 9t is so ordered.
'a0alintal and 4en(zon- J.8.- JJ.- concur.
9ernando- J.- concurs full( &ith the above opinion, addin% a fe& &ords on the >uestion of )urisdiction.
Separate Opinions
MAKALINTAL, J., concurrin%*
9 concur in the fore%oin% opinion of the Chief /ustice. 9 &ould 'a@e so'e additional observations in connection &ith '( concurrence. 6ections and - of Republic Act No. -#". provide*
6ec. . 4he a'end'ents shall be published in three consecutive issues of the 5fficial Ga=ette at least t&ent( da(s prior to the election. A printed cop( thereof shall be posted in a
conspicuous place in ever( 'unicipalit(, cit( and provincial office buildin% and in ever( pollin% place not later than 5ctober fourteen, nineteen hundred and si:t(-seven, and shall
re'ain posted therein until after the election. At least five copies of the said a'end'ents shall be @ept in each pollin% place to be 'ade available for e:a'ination b( the >ualified
electors durin% election da(. Chen practicable, copies in the principal native lan%ua%es, as 'a( be deter'ined b( the Co''ission on Elections, shall be @ept in each pollin% place.
4he Co''ission on Elections shall 'a@e available copies of each a'end'ents in En%lish, 6panish and, &henever practicable, in the principal native lan%ua%es, for free
distribution.
::: ::: :::
6ec. -. 4he ballots &hich shall be used in the election for the approval of said a'end'ents shall be printed in En%lish and Pilipino and shall be in the si=e and for' prescribed b(
the Co''ission on Elections* 8ro"ided- howe"er, 4hat at the bac@ of said ballot there shall be printed in full Resolutions of both 0ouses of Con%ress Nu'bered 5ne and 4hree,
both adopted on March si:teen, nineteen hundred and si:t(-seven, proposin% the a'end'ents* 8ro"ided- further, 4hat the >uestionnaire appearin% on the face of the ballot shall be
as follo&s*
Are (ou in favor of the proposed a'end'ent to 6ection five of Article 89 of our Constitution printed at the bac@ of this ballotI
Are (ou in favor of the proposed a'end'ent to section si:teen of Article 89 of our Constitution printed at the bac@ of this ballotI
4o vote for the approval of the proposed a'end'ents, the voter shall &rite the &ord <(es< or its e>uivalent in Pilipino or in the local dialect in the blan@ space after each >uestion2
to vote for the re)ection thereof, he shall &rite the &ord <No< or its e>uivalent in Pilipino or in the local dialect.
9 believe that intrinsicall(, that is, considered in itself and &ithout reference to e:traneous factors and circu'stances, the 'anner prescribed in the aforesaid provisions is sufficient for the
purpose of havin% the proposed a'end'ents sub'itted to the people for their ratification, as en)oined in 6ection ", Article D8 of the Constitution. 9 a' at a loss to sa( &hat else should have
been re>uired b( the Act to 'a@e it adhere 'ore closel( to the constitutional re>uire'ent. Certainl( it &ould have been out of place to provide, for instance, that %overn'ent officials and
e'plo(ees should %o out and e:plain the a'end'ents to the people, or that the( should be the sub)ect of an( particular 'eans or for' of public discussion.
4he ob)ection of so'e 'e'bers of the Court to Republic Act No. -#". see's to 'e predicated on the fact that there are so 'an( other issues at sta@e in the co'in% %eneral election that the
attention of the electorate, cannot be entirel( focused on the proposed a'end'ents, such that there is a failure to properl( sub'it the' for ratification &ithin the intend'ent of the Constitution.
9f that is so, then the defect is not intrinsic in the la& but in its i'ple'entation. 4he sa'e 'anner of sub'ittin% the proposed a'end'ents to the people for ratification 'a(, in a different settin%,
be sufficient for the purpose. Get 9 cannot conceive that the constitutionalit( or unconstitutionalit( of a la& 'a( be 'ade to depend &ill(-nill( on factors not inherent in its provisions. Aor a la&
to be struc@ do&n as unconstitutional it 'ust be so b( reason of so'e irreconcilable conflict bet&een it and the Constitution. 5ther&ise a la& 'a( be either valid or invalid, accordin% to
circu'stances not found in its provisions, such as the =eal &ith &hich the( are carried out. 4o such a thesis 9 cannot a%ree. 4he criterion &ould be too broad and relative, and dependent upon
individual opinions that at best are sub)ective. Chat one 'a( re%ard as sufficient co'pliance &ith the re>uire'ent of sub'ission to the people, &ithin the conte:t of the sa'e la&, 'a( not be so
to another. 4he >uestion is susceptible of as 'an( vie&s as there are vie&ers2 and 9 do not thin@ this Court &ould be )ustified in sa(in% that its o&n vie& on the 'atter is the correct one, to the
e:clusion of the opinions of others.
5n the other hand, 9 re)ect the ar%u'ent that the ratification 'ust necessaril( be in a special election or plebiscite called for that purpose alone. Chile such procedure is hi%hl( to be preferred,
the Constitution spea@s si'pl( of <an ele#tion at &hich the a'end'ents are sub'itted to the people for their ratification,< and 9 do not subscribe to the restrictive interpretation that the
petitioners &ould place on this provision, na'el(, that it 'eans onl( a special election.
BENGZON, 1.P., J., concurrin%*
9t is the %lor( of our institutions that the( are founded upon la&, that no one can e:ercise an( authorit( over the ri%hts and interests of others e:cept pursuant to and in the 'anner authori=ed b(
la&." Based upon this principle, petitioners Ra'on A. Gon=ales and Philippine Constitution Association ,P09LC5N6A+ co'e to this Court in separate petitions.
Petitioner Gon=ales, as ta:pa(er, voter and citi=en, and alle%edl( in representation thru class suit of all citi=ens of this countr(, filed this suit for prohibition &ith preli'inar( in)unction to
restrain the Co''ission on Elections, 3irector of Printin% and Auditor General fro' i'ple'entin% andFor co'pl(in% &ith Republic Act -#"., assailin% said la& as unconstitutional.
Petitioner P09LC5N6A, as a civic, non-profit and non-partisan corporation, assails the constitutionalit( not onl( of Republic Act -#". but also of Resolutions of Both 0ouses Nos. " and . of
March "$, "#$1.
Republic Act -#"., effective /une "1, "#$1, is an Act sub'ittin% to the Ailipino people for approval the a'end'ents to the Constitution of the Philippines proposed b( the Con%ress of the
Philippines in Resolutions of Both 0ouses Nu'bered " and ., adopted on March "$, "#$1. 6aid Republic Act fi:es the date and 'anner of the election at &hich the aforesaid proposed
a'end'ents shall be voted upon b( the people, and appropriates funds for said election. Resolutions of Both 0ouses Nos. " and . propose t&o a'end'ents to the Constitution* the first, to
a'end 6ec. 7, Art. 89, b( increasin% the 'a:i'u' 'e'bership of the 0ouse of Representatives fro' "; to "!;, apportionin% "$; of said "!; seats and eli'inatin% the provision that Con%ress
shall b( la& 'a@e an apportion'ent &ithin three (ears after the return of ever( enu'eration2 the second, to a'end 6ec. "$, Art. 89, b( allo&in% 6enators and Representatives to be dele%ates to a
constitutional convention &ithout forfeitin% their seats.
6ince both petitions relate to the proposed a'end'ents, the( are considered to%ether herein.
6pecificall( and briefl(, petitioner Gon=alesH ob)ections are as follo&s* ,"+ Republic Act -#". violates 6ec. ", Art. D8 of the Constitution, in sub'ittin% the proposed a'end'ents to the
Constitution, to the people for approval, at the %eneral election of "#$1 instead of at a special election solel( for that purpose2 ,+ Republic Act -#". violates 6ec. ", Art. D8 of the Constitution,
since it &as not passed &ith the .F- vote in )oint session re>uired &hen Con%ress proposes a'end'ents to the Constitution, said Republic Act bein% a step in or part of the process of proposin%
a'end'ents to the Constitution2 and ,.+ Republic Act -#". violates the due process clause of the Constitution ,6ec. ", 6ubsec. ", Art. 999+, in not re>uirin% that the substance of the proposed
a'end'ents be stated on the face of the ballot or other&ise renderin% clear the i'port of the proposed a'end'ents, such as b( statin% the provisions before and after said a'end'ents, instead
of printin% at the bac@ of the ballot onl( the proposed a'end'ents.
6ince observance of Constitutional provisions on the pro#edure for a'endin% the Constitution is concerned, the issue is co%ni=able b( this Court under its po&ers to revie& an Act of Con%ress
to deter'ine its confor'it( to the funda'ental la&. Aor thou%h the Constitution leaves Con%ress free to propose &hatever Constitutional a'end'ent it dee's fit, so that the substan#e or #ontent
of said proposed a'end'ent is a 'atter of polic( and &isdo' and thus a political >uestion, the Constitution nevertheless i'poses re>uisites as to the manner or pro#edure of proposin% such
a'end'ents, e.(., the three-fourths vote re>uire'ent. 6aid procedure or 'anner, therefore, fro' bein% left to the discretion of Con%ress, as a 'atter of polic( and &isdo', is fi:ed b( the
Constitution. And to that e:tent, all >uestions bearin% on &hether Con%ress in proposin% a'end'ents follo&ed the procedure re>uired b( the Constitution, is perforce )usticiable, it not bein% a
'atter of polic( or &isdo'.
4urnin% then to petitioner Gon=alesH first ob)ection, 6ec. ", Art. D8 clearl( does not bear hi' on the point. 9t no&here re>uires that the ratification be thru an election solel/ for that purpose. 9t
onl( re>uires that it be at <an election at &hich the a'end'ents are sub'itted to the people for their ratification.< 4o )oin it &ith an election for candidates to public office, that is, to 'a@e it
concurrent &ith such election, does not render it an( less an election at &hich the proposed a'end'ents are sub'itted to the people for their ratification. 4o prohibition bein% found in the plain
ter's of the Constitution, none should be inferred. 0ad the fra'ers of re>uirin% Constitution thou%ht of re>uirin% a special election for the purpose onl( of the proposed a'end'ents, the( could
have said so, b( >ualif(in% the phrase &ith so'e &ord such as <special< or <solel(< or <e:clusivel(<. 4he( did not.
9t is not herein decided that such concurrence of election is &ise, or that it &ould not have been better to provide for a separate election e:clusivel( for the ratification of the proposed
a'end'ents. 4he point ho&ever is that such separate and e:clusive election, even if it 'a( be better or &iser, &hich a%ain, is not for this Court to decide, is not included in the procedure
re>uired b( the Constitution to a'end the sa'e. 4he function of the /udiciar( is <not to pass upon >uestions of &isdo', )ustice or e:pedienc( of le%islation<. 9t is li'ited to deter'inin%
&hether the action ta@en b( the Le%islative 3epart'ent has violated the Constitution or not. 5n this score, 9 a' of the opinion that it has not.
Petitioner Gon=alesH second point is that Republic Act -#". is deficient for not havin% been passed b( Con%ress in )oint session b( .F- vote.
6ec. ", Art. D8 of the Constitution provides*
6ec. ". 4he Con%ress in )oint session asse'bled, b( a vote of three-fourths of all the 'e'bers of the 6enate and of the 0ouse of Representatives votin% separatel(, 'a( propose
a'end'ents to this Constitution or call a convention for that purpose. 6uch a'end'ents shall be valid as part of this Constitution &hen approved b( a 'a)orit( of the votes cast at
an election to &hich the a'end'ents are sub'itted to the people for their ratification.
3oes Republic Act -#". propose a'end'ents to the ConstitutionI 9f b( the ter' <propose a'end'ent< is 'eant to deter'ine C0A4 said a'end'ent shall be, then Republic Act -#". does
not2 Resolutions of Both 0ouses " and . alread( did that. 9f, on the other hand, it 'eans, or also 'eans, to provide for ho&, &hen, and b( &hat 'eans the a'end'ents shall be submitted to the
people for approval, then it does.
A careful readin% of 6ec. ", Art. D8 sho&s that the first sense. is the one intended. 6aid 6ection has t&o sentences* in the first, it re>uires the .F- votin% in )oint session, for Con%ress to <propose
a'end'ents<. And then in the second sentence, it provides that <such a'end'ents . . . shall be sub'itted to the people for their ratification<. 4his clearl( indicates that b( the ter' <propose
a'end'ents< in the first sentence is 'eant to fra'e the substance or the content or the C0A4-ele'ent of the a'end'ents2 for it is this and this alone that is sub'itted to the people for their
ratification. 4he details of &hen the election shall be held for approval or re)ection of the proposed a'end'ents, or the 'anner of holdin% it, are not sub'itted for ratification to for' part of the
Constitution. 6tated differentl(, the plain lan%ua%e of 6ection ", Art. D8, sho&s that the act of proposin% a'end'ents is distinct fro' ? albeit related to ? that of sub'ittin% the a'end'ents
to the people for their ratification2 and that the .F- votin% re>uire'ent applies onl( to the first step, not to the second one.
9t follo&s that the sub'ission of proposed a'end'ents can be done thru an ordinar( statute passed b( Con%ress. 4he Constitution does not e:pressl( state b( &ho' the sub'ission shall be
underta@en2 the rule is that a po&er not lod%ed else&here under the Constitution is dee'ed to reside &ith the le%islative bod(, under the doctrine of residuar( po&ers. Con%ress therefore validl(
enacted Republic Act -#". to fi: the details of the date and 'anner of sub'ittin% the proposed a'end'ents to the people for their ratification. 6ince it does not <propose a'end'ents< in the
sense referred to b( 6ec. ", Art. D8 of the Constitution, but 'erel( provides for ho& and &hen the a'end'ents, alread( proposed, are %oin% to be voted upon, the sa'e does not need the .F-
vote in )oint session re>uired in 6ec. ", Art. D8 of the Constitution. Aurther'ore, Republic Act -#". is an appropriation 'easure. 6ec. $ thereof appropriates P",;;;,;;; for carr(in% out its
provisions. 6ec. "!, Art. 89 of the Constitution states that <All appropriation . . . bills shall ori%inate e:clusivel( in the 0ouse of Representatives<. Republic Act -#"., therefore, could not have
been validl( adopted in a )oint session, reinforcin% the vie& that 6ec. ", Art. D8 does not appl( to such a 'easure providin% for the holdin% of the election to ratif( the proposed a'end'ents,
&hich 'ust perforce appropriate funds for its purpose.
Petitioner Gon=ales contends, thirdl(, that Republic Act -#". offends a%ainst substantive due process. An e:a'ination of the provisions of the la& sho&s no violation of the due process clause
of the Constitution. 4he publication in the 5fficial Ga=ette at least ; da(s before the election, the postin% of notices in public buildin%s not later than 5ctober "-, "#$1, to re'ain posted until
after the elections, the placin% of copies of the proposed a'end'ents in the pollin% places, aside fro' printin% the sa'e at the bac@ of the ballot, provide sufficient opportunit( to the voters to
cast an intelli%ent vote on the proposal. 3ue process refers onl( to providin% fair opportunit(2 it does not %uarantee that the opportunit( %iven &ill in fact be availed of2 that is the loo@-out of the
voter and the responsibilit( of the citi=en. As lon% as fair and reasonable opportunit( to be infor'ed is %iven, and it is, the due process clause is not infrin%ed.
Non-printin% of the provisions to be a'ended as the( no& stand, and the printin% of the full proposed a'end'ents at the bac@ of the ballot instead of the substance thereof at the face of the
ballot, do not deprive the voter of fair opportunit( to be infor'ed. 4he present &ordin% of the Constitution is not bein% veiled or suppressed fro' hi'2 he is conclusivel( presu'ed to @no& the'
and the( are available should he &ant to chec@ on &hat he is conclusivel( presu'ed to @no&. 6hould the voters choose to re'ain i%norant of the present Constitution, the fault does not lie &ith
Con%ress. Aor opportunit( to fa'iliari=e oneself &ith the Constitution as it stands has been available thru all these (ears. Perhaps it &ould have been 'ore convenient for the voters if the present
&ordin% of the provisions &ere also to be printed on the ballot. 4he sa'e ho&ever is a 'atter of polic(. As lon% as the 'ethod adopted provides sufficientl( reasonable chance to intelli%entl(
vote on the a'end'ents, and 9 thin@ it does in this case, it is not constitutionall( defective.
Petitioner Gon=alesH other ar%u'ents touch on the 'erits or &isdo' of the proposed a'end'ents. 4hese are for the people in their soverei%n capacit( to decide, not for this Court.
4&o ar%u'ents &ere further advanced* first, that Con%ress cannot both call a convention and propose a'end'ents2 second, that the present Con%ress is a de fa#to one, since no apportion'ent
la& &as adopted &ithin three (ears fro' the last census of "#$;, so that the Representatives elected in "#$" are de fa#to officers onl(. Not bein% de 2ure, the( cannot propose a'end'ents, it is
ar%ued.
As to the first point, 6ec. " of Art. D8 states that Con%ress <'a( propose a'end'ents or call a convention for that purpose<. 4he ter' <or<, ho&ever, is fre>uentl( used as havin% the sa'e
'eanin% as <and< particularl( in per'issive, affir'ative sentences so that the interpretation of the &ord <or< as <and< in the Constitution in such use &ill not chan%e its 'eanin% ,8ic@sbur% 6. J
P. R. Co. v. Goodenou%h, . 6o. -;-, -"", ";! La, --+. And it should be pointed out that the resolutions proposin% a'end'ents ,R.B.0. Nos. " and .+ are different fro' that callin% for a
convention ,R.B.0. No. +. 6urel(, if Con%ress dee's it better or &ise to a'end the Constitution before a convention called for is elected, it should not be fettered fro' doin% so. Aor our
purposes in this case, suffice it to note that the Constitution does not prohibit it fro' doin% so.
As to the second ar%u'ent, it is also true that 6ec. 7 of Art. 89 of the Constitution provides in part that <4he Con%ress shall b( la& 'a@e an apportion'ent &ithin three (ears after the return of
ever( enu'eration, and not other&ise<. 9t ho&ever further states in the ne:t sentence* <Entil such apportion'ent shall have been 'ade, the 0ouse of Representatives shall have the sa'e nu'ber
of Me'bers as that fi:ed b( la& for the National Asse'bl(, &ho shall be elected b( the >ualified electors fro' the present asse'bl( districts.< 4he failure of Con%ress, therefore, to pass a valid
redistrictin% la& since the ti'e the above provision &as adopted, does not render the present districtin% ille%al or unconstitutional. Aor the Constitution itself provides for its continuance in such
case, renderin% le%al and de 2ure the status .uo.
Aor the above reasons, 9 vote to uphold the constitutionalit( of Republic Act -#"., and full( concur &ith the opinion of the Chief /ustice.
FERNANDO, J., concurrin%*
At the outset, &e are faced &ith a >uestion of )urisdiction. 4he opinion prepared b( the Chief /ustice discusses the 'atter &ith a fullness that erases doubts and 'is%ivin%s and clarifies the
applicable principles. A fe& &ords 'a( ho&ever be added.
Ce start fro' the pre'ise that onl( &here it can be sho&n that the >uestion is to be solved b( public opinion or &here the 'atter has been left b( the Constitution to the sole discretion of an( of
the political branches, as &as so clearl( stated b( the then /ustice Concepcion in a:ada ". ,uen#o," 'a( this Court avoid passin% on the issue before it. Chatever 'a( be said about the present
>uestion, it is hard to spea@ &ith certitude considerin% Article D8, that Con%ress 'a( be entrusted &ith the full and uncontrolled discretion on the procedure leadin% to proposals for an
a'end'ent of the Constitution.
9t 'a( be said ho&ever that in 'abana( ". )opez *ito, this Court throu%h /ustice 4uason follo&ed Cole'an v. Miller,. in its holdin% that certain aspects of the a'endin% process 'a( be
considered political. 0is opinion >uoted &ith approval the vie& of /ustice Blac@, to &hich three other 'e'bers of the Enited 6tates 6upre'e Court a%reed, that the process itself is political in its
entiret(, <fro' sub'ission until an a'end'ent beco'es part of the Constitution, and is not sub)ect to )udicial %uidance, control or interference at an( point.< 9n a sense that &ould solve the
'atter neatl(. 4he )udiciar( &ould be spared the at ti'es arduous and in ever( case soul-searchin% process of deter'inin% &hether the procedure for a'end'ents re>uired b( the Constitution
has been follo&ed.
At the sa'e ti'e, &ithout i'pu%nin% the 'otives of Con%ress, &hich cannot be )udiciall( in>uired into at an( rate, it is not be(ond the real' of possibilit( that a failure to observe the
re>uire'ents of Article D8 &ould occur. 9n the event that )udicial intervention is sou%ht, to rel( auto'aticall( on the theor( of political >uestion to avoid passin% on such a 'atter of delicac(
'i%ht under certain circu'stances be considered, and ri%htl( so, as nothin% less than )udicial abdication or surrender.
Chat appears re%rettable is that a 'a)or opinion of an estee'ed )urist, the late /ustice 4uason, &ould no lon%er be controllin%. 4here is co'fort in the thou%ht that the vie& that then prevailed
&as itself a product of the ti'es. 9t could ver( &ell be that considerin% the circu'stances e:istin% in "#-1 as &ell as the particular a'end'ent sou%ht to be incorporated in the Constitution, the
parit( ri%hts ordinance, the better part of &isdo' in vie& of the %rave econo'ic situation then confrontin% the countr( &ould be to avoid the e:istence of an( obstacle to its bein% sub'itted for
ratification. Moreover, the Republic bein% less than a (ear old, A'erican 6upre'e Court opinions on constitutional >uestions &ere-invariabl( accorded uncritical acceptance. 4hus the approach
follo&ed b( /ustice 4uason is not difficult to understand. 9t 'a( be said that there is less propensit( no&, &hich is all to the %ood, for this Court to accord that 'uch deference to constitutional
vie&s co'in% fro' the >uarter.
Nor is this 'ode of vie&in% the opinion of /ustice 4uason to do in)ustice to his 'e'or(. Aor as he stated in another 'a)or opinion in Araneta ". !in(lasan,- in ascertainin% the 'eanin% to be
%iven the E'er%enc( Po&ers Act,7 one should not i%nore &hat &ould ensue if a particular 'ode of construction &ere follo&ed. As he so e'phaticall( stated, <Ce test a rule b( its results.<
4he conse>uences of a )udicial veto on the then proposed a'end'ent on the econo'ic survival of the countr(, an erroneous appraisal it turned out later, constituted an effective ar%u'ent for its
sub'ission. Ch( not then consider the >uestion political and let the people decideI 4hat assu'ption could have been indul%ed in. 9t could ver( &ell be the inarticulate 'a)or pre'ise. Aor 'an(
it did bear the sta'p of )udicial states'anship.
4he opinion of Chief /ustice Concepcion renders cr(stal-clear &h( as of this date and in the foreseeable future )udicial in>uir( to assure the ut'ost co'pliance &ith the constitutional
re>uire'ent &ould be a 'ore appropriate response.
SANCHEZ, J., in separate opinion*
Ri%ht at the outset, the &riter e:presses his deep appreciation to Mr. /ustice Cali:to 5. Kaldivar and Mr. /ustice Ared Rui= Castro for their invaluable contribution to the substance and for' of
the opinion &hich follo&s.
3irectl( under attac@ in this, a petition for prohibition, is the constitutionalit( of Republic Act -#"., approved on /une "1, "#$1. 4his Act see@s to i'ple'ent Resolutions " and . adopted b( the
6enate and the 0ouse of Representatives on March "$, "#$1 &ith the end in vie& of a'endin% vital portions of the Constitution.
6ince the proble' here presented has its roots in the resolutions aforesaid of both houses of Con%ress, it 'a( )ust as &ell be that &e recite in brief the salient features thereof. Resolution No. "
increases the 'e'bership of the 0ouse of Representatives fro' "; to "!; 'e'bers, and i''ediatel( apportions "$; seats. A co'panion resolution is Resolution No. . &hich per'its 6enators
and Con%ress'en ? &ithout forfeitin% their seats in Con%ress ? to be 'e'bers of the Constitutional Convention" to be convened, as provided in another resolution ? Resolution No. .
Parentheticall(, t&o of these proposed a'end'ents to the Constitution ,Resolutions 9 and .+ are to be sub'itted to the people for their ratification ne:t Nove'ber "-, "#$1. Resolution No. )ust
adverted to calls for a constitutional convention also to propose amendments to the ,onstitution. 4he dele%ates thereto are to be elected on the second 4uesda( of Nove'ber "#1;2 the
convention to sit on /une 1- 19312 and the a'end'ents proposed b( the convention to be sub'itted to the people thereafter for their ratification.
5f i'portance no& are the proposed a'end'ents increasin% the nu'ber of 'e'bers of the 0ouse of representatives under Resolution No. ", and that in Resolution No. . &hich %ives 6enators
and Con%ress'en the ri%ht to sit as 'e'bers of the constitutional convention to be convened on /une ", "#1". Because, these are the t&o a'end'ents to be sub'itted to the people in the
%eneral elections soon to be held on Nove'ber "-, "#$1, upon the provisions of 6ection ", Republic Act -#"., &hich reads*
4he a'end'ents to the Constitution of the Philippines proposed b( the Con%ress of the Philippines in Resolutions of both 0ouses Nu'bered 5ne and 4hree, both adopted on
March si:teen, nineteen hundred and si:t(- seven, shall be sub'itted to the people for approval at the %eneral election &hich shall be held on Nove'ber fourteen, nineteen hundred
and si:t(- seven, in accordance &ith the provisions of this Act.
Republic Act -#". pro)ects the basic an%le of the proble' thrust upon us ? the 'anner in &hich the a'end'ents proposed b( Con%ress )ust adverted to be brou%ht to the peopleHs attention.
Airst, to the controllin% constitutional precept. 9n order that proposed a'end'ents to the Constitution 'a( beco'e effective, 6ection ", Article D8 thereof co''ands that such a'end'ents
'ust be <approved b( a 'a)orit( of the votes cast at an election at &hich a'end'ents are submitted to the people for their ratifi#ation.< 4he accent is on t&o &ords co'ple'entin% each other,
na'el(, <sub'itted< and <ratification.<
". Ce are forced to ta@e a lon% hard loo@ at the core of the proble' facin% us. And this, because the a'end'ents sub'itted are transcendental and enco'passin%. 4he ceilin% of the nu'ber of
Con%ress'en is sou%ht to be elevated fro' "; to "!; 'e'bers2 and 6enators and Con%ress'en 'a( run in constitutional conventions &ithout forfeitin% their seats. 4hese certainl( affect the
people as a &hole. 4he increase in the nu'ber of Con%ress'en has its proportional increase in the peopleHs ta: burdens. 4he( 'a( not loo@ at this &ith favor, &hat &ith the constitutional
provision ,6ection 7, Article 89+ that Con%ress <shall b( la& 'a@e an apportion'ent<, &ithout the necessit( of disturbin% the present constitutionall( provided nu'ber of Con%ress'en. People
in Lue=on Cit(, for instance, 'a( bal@ at the specific apportion'ent of the "$; seats set forth in Resolution No. ", and as@ for a Con%ress'an of their o&n, on the theor( of e>ual representation.
And then, people 'a( >uestion the propriet( of per'ittin% the increased "!; Con%ress'en fro' ta@in% part in the forthco'in% constitutional convention and future conventions for fear that the(
'a( do'inate its proceedin%s. 4he( 'a( entertain the belief that, if at all, increase in the nu'ber of Con%ress'en should be a proper topic for deliberation in a constitutional convention &hich,
an(&a(, &ill soon ta@e place. 4he( probabl( &ould as@* Ch( the hurr(I 4hese ponderables re>uire the peopleHs close scrutin(.
. Cith these as bac@drop, &e perforce %o into the philosoph( behind the constitutional directive that constitutional a'end'ents be sub'itted to the people for their ratification.
A constitutional a'end'ent is not a te'porar( e:pedient. Enli@e a statute &hich 'a( suffer a'end'ents three or 'ore ti'es in the sa'e (ear, it is intended to stand the test of ti'e. 9t is an
e:pression of the peopleHs soverei%n &ill.
And so, our approach to the proble' of the 'echanics of sub'ission for ratification of a'end'ents is that reasonin( on the basis of the spirit of the ,onstitution is 2ust as important as
reasonin( b/ a stri#t adheren#e to the phraseolo(/ thereof. Ce underscore this, because it is &ithin the real' of possibilit( that a Constitution 'a(be overhauled. 6upposin% three-fourths of the
Constitution is to be a'ended. 5r, the proposal is to eli'inate the all i'portant2 Bill of Ri%hts in its entiret(. Ce believe it to be be(ond debate that in so'e such situations the a'end'ents
ou%ht to call for a constitutional convention rather than a le%islative proposal. And (et, nothin% there is in the boo@s or in the Constitution itself. &hich &ould re>uire such a'end'ents to be
adopted b( a constitutional convention. And then, too, the spirit of the supre'e enact'ent, &e are sure, forbids that proposals therefor be initiated b( Con%ress and thereafter presented to the
people for their ratification.
9n the conte:t )ust adverted to, &e ta@e the vie& that the &ords <sub'itted to the people for their ratification<, if construed in the li%ht of the nature of the Constitution ? a funda'ental charter
that is le%islation direct fro' the people, an ? e:pression of their soverei%n &ill ? is that it can onl( be a'ended b( the people e:pressin% the'selves accordin% to the procedure ordained b(
the Constitution. 4herefore, a'end'ents 'ust be fairl( laid before the people for their blessin% or spurnin%. 4he people are not to be 'ere rubber sta'ps. 4he( are not to vote blindl(. 4he(
'ust be afforded a'ple opportunit( to 'ull over the ori%inal provisions co'pare the' &ith the proposed a'end'ents, and tr( to reach a conclusion as the dictates of their conscience su%%est,
free fro' the incubus of e:traneous or possibl( in insidious influences. Ce believe, the &ord <sub'itted< can onl( 'ean that the %overn'ent, &ithin its 'a:i'u' capabilities, should strain
ever( effort to infor' ver( citi=en of the provisions to be a'ended, and the proposed a'end'ents and the 'eanin%, nature and effects thereof. B( this, &e are not to be understood as sa(in%
that, if one citi=en or ";; citi=ens or ",;;; citi=ens cannot be reached, then there is no sub'ission &ithin the 'eanin% of the &ord as intended b( the fra'ers of the Constitution. Chat the
Constitution in effect directs is that the %overn'ent, in sub'ittin% an a'end'ent for ratification, should put ever( instru'entalit( or a%enc( &ithin its structural fra'e&or@ to enli%hten the
people, educate the' &ith respect to their act of ratification or re)ection. Aor, as &e have earlier stated, one thin% is submission and another is ratifi#ation. 4here 'ust be fair sub'ission,
intelli%ent, consent or re)ection. 9f &ith all these safe%uards the people still approve the a'end'ent no 'atter ho& pre)udicial it is to the', then so be it. Aor, the people decree their o&n fate.
Aptl( had it been said*
. . . 4he %reat 'en &ho builded the structure of our state in this respect had the 'ental vision of a %ood Constitution voiced b( /ud%e Coole(, &ho has said <A %ood Constitution
should be(ond the reach of te'porar( e:cite'ent and popular caprice or passion. 9t is needed for stabilit( and steadiness2 it 'ust (ield to the thou%ht of the people2 not to the &hi'
of the people, or the thou%ht evolved the e:cite'ent or hot blood, but the sober second thou%ht, &hich alone, if the %overn'ent is to be safe, can be allo&ed efficienc(. . . . ,han(es
in (o"ernment are to be feared unless the benefit is #ertain. As Montai%n sa(s* <All %reat 'utations sha@e and disorder a state. Good does not ne#essaril/ su##eed e"il; another e"il
ma/ su##eed and a worse.< A'. La& Rev. "!!#, p. ."".
.. 4ersel( put, the issue before us funnels do&n to this proposition* 9f the people are not sufficientl( infor'ed of the a'end'ents to be voted upon, to conscientiousl( deliberate thereon, to
e:press their &ill in a %enuine 'anner can it be said that in accordance &ith the constitutional 'andate, <the a'end'ents are sub'itted to the people for their ratificationI< 5ur ans&er is <No<.
Ce e:a'ine Republic Act -#"., approved on /une "1, "#$1 < the statute that sub'its to the people the constitutional a'end'ents proposed b( Con%ress in Resolutions " and .. 6ection of
the Act provides the 'anner of propa%ation of the nature of the a'end'ents throu%hout the countr(. 4here are five parts in said 6ection , "iz*
,"+ 4he a'end'ent shall be published in three consecutive issues of the 5fficial Ga=ette at least t&ent( da(s prior to the election.
,+ A printed cop( thereof shall be posted in a conspicuous place in ever( 'unicipalit(, cit( and provincial office buildin% and in ever( pollin% place not later than 5ctober fourteen,
nineteen hundred and si:t(-seven, and shall re'ain posted therein until after the election.
,.+ At least five copies of the said a'end'ents shall be @ept in each pollin% place to be 'ade available for e:a'ination b( the >ualified electors durin% election da(.
,-+ Chen practicable, copies in the principal native lan%ua%es, as 'a( be deter'ined b( the Co''ission on Elections, shall be @ept in each pollin% place.
,7+ 4he Co''ission on Elections shall 'a@e available copies of said a'end'ents in En%lish, 6panish and, &henever practicable, in the principal native lan%ua%es, for free
distribution.
A >uestion that co'es to 'ind is &hether the procedure for disse'ination of infor'ation re%ardin% the a'end'ents effectivel( brin%s the 'atter to the people. A dissection of the 'echanics
(ields disturbin% thou%hts. Airst, the 5fficial Ga=ette is not &idel( read. 9t does not reach the barrios. And even if it reaches the barrios, is it available to allI And if it is, &ould all under stand
En%lishI 6econd, it should be conceded that 'an( citi=ens, especiall( those in the outl(in% barrios, do not %o to 'unicipal, cit( andFor provincial office buildin%s, e:cept on special occasions
li@e pa(in% ta:es or respondin% to court su''onses. And if the( do, &ill the( notice the printed a'end'ents posted on the bulletin boardI And if the( do notice, such cop( a%ain is in En%lish
,sa'ple sub'itted to this Court b( the 6olicitor General+ for, an(&a(, the statute does not re>uire that it be in an( other lan%ua%e or dialect. 4hird, it &ould not help an( if at least five copies are
@ept in the pollin% place for e:a'ination b( >ualified electors durin% election da(. As petitioner puts it, votin% ti'e is not stud( ti'e. And then, &ho can enter the pollin% place, e:cept those
&ho are about to voteI Aourth, copies in the principal native lan%ua%es shall be @ept in each pollin% place. But this is not, as 6ection itself i'plies, in the nature of a co''and because such
copies shall be @ept therein onl( <&hen practicable< and <as 'a( be deter'ined b( the Co''ission on Elections.< Even if it be said that these are available before election, a citi=en 'a( not
intrude into the school buildin% &here the pollin% places are usuall( located &ithout disturbin% the school classes bein% held there. Aifth, it is true that the Co'elec is directed to 'a@e available
copies of such a'end'ents in En%lish, 6panish or &henever practicable, in the principal native lan%ua%es, for free distribution. 0o&ever, Co'elec is not re>uired to activel( distribute the' to
the people. 4his is si%nificant as to people in the provinces, especiall( those in the far-flun% barrios &ho are co'pletel( un'indful of the discussions that %o on no& and then in the cities and
centers of population on the 'erits and de'erits of the a'end'ents. Rather, Co'elec, in this case, is but a passive a%enc( &hich 'a( hold copies available, but &hich copies 'a( not be
distributed at all. Ainall(, it is of co''on @no&led%e that Co'elec has 'ore than its hands full in these pre-election da(s. 4he( cannot possibl( 'a@e e:tensive distribution.
8oters &ill soon %o to the polls to sa( <(es< or <no<. But even the official sa'ple ballot sub'itted to this Court &ould sho& that onl/ the a'end'ents are printed at the bac@. And this, in
pursuance to Republic Act -#". itself.
6urel( enou%h, the voters do not have the benefit of proper notice of the proposed a'end'ents thru disse'ination b( publication in e6tenso. People do not have at hand the necessar( data on
&hich to base their stand on the 'erits and de'erits of said a'end'ents.
Ce, therefore, hold that there is no proper submission of the proposed constitutional a'end'ents &ithin the 'eanin% and intend'ent of 6ection ", Article D8 of the Constitution.
-. Conte'porar( histor( is &itness to the fact that durin% the present election ca'pai%n the focus is on the election of candidates. 4he constitutional a'end'ents are cro&ded out. Candidates on
the ho'estretch, and their leaders as &ell as the voters, %ear their undivided efforts to the election of officials2 the constitutional a'end'ents cut no ice &ith the'. 4he truth is that even in the
ballot itself, the space accorded to the castin% of <(es< or <no< vote &ould %ive one the i'pression that the constitutional a'end'ents are but a bootstrap to the electoral ballot. Corse still, the
fortunes of 'an( elective officials, on the national and local levels, are ine:tricabl( intert&ined &ith the results of the votes on the plebiscite. 9n a clash bet&een votes for a candidate and
conscience on the 'erits and de'erits of the constitutional a'end'ents, &e are >uite certain that it is the latter that &ill be dented.
7. 4hat proper sub'ission of a'end'ents to the people to enable the' to e>uall( ratif( the' properl( is the 'eat of the constitutional re>uire'ent, is reflected in the se>uence of unifor' past
practices. 4he Constitution had been a'ended thrice < in "#.#, "#-; and "#-1. 9n each case, the a'end'ents &ere e'bodied in resolutions adopted b( the Le%islature, &hich thereafter fi:ed
the dates at &hich the proposed a'end'ents &ere to be ratified or re)ected. 4hese plebiscites have been referred to either as an <election< or <%eneral election<. At no ti'e, ho&ever, &as the
vote for the a'end'ents of the Constitution held si'ultaneousl( &ith the election officials, national or local. Even &ith re%ard to the "#-1 parit( a'end'ent2 the record sho&s that the sole issue
&as the "#-1 parit( a'end'ent2 and the special elections si'ultaneousl( held in onl( three provinces, 9loilo, Pan%asinan and Bu@idnon, &ere 'erel( in#idental thereto.
9n the end &e sa( that the people are the last ra'parts that %uard a%ainst indiscri'inate chan%es in the Constitution that is theirs. 9s it too 'uch to as@ that reasonable %uarantee be 'ade that in
the 'atter of the alterations of the la& of the land, their true voice be heardI 4he ans&er perhaps is best e:pressed in the follo&in% thou%hts* <=t must be remembered that the ,onstitution is the
people>s ena#tment. No proposed #han(e #an be#ome effe#ti"e unless the/ will it so throu(h the #ompellin( for#e of need of it and desire for it.<-
Aor the reasons %iven, our vote is that Republic Act -#". 'ust be stric@en do&n as in violation of the Constitution.
?aldi"ar and ,astro- JJ.- concur.
Re/es- J.4.).- !izon and An(eles- JJ.- concur in the result.
R+@+%- J.4.).- J.- #on#urrin(:
= #on#ur in the result with the opinion penned b/ 'r. Justi#e %an#hez. o appro"e a mere proposal to amend the ,onstitution re.uires AArt. B*C a threeDfourths A1E&C "ote of all the members of
ea#h le(islati"e #hamber- the hi(hest ma2orit/ e"er demanded b/ the fundamental #harter- one hi(her e"en than that re.uired in order to de#lare war A%e#. 2&- Arti#le *=C- with all its dire
#onse.uen#es. =f su#h an o"erwhelmin( ma2orit/- that was e"identl/ e6a#ted in order to impress upon all and sundr/ the seriousness of e"er/ #onstitutional amendment- is as0ed for a proposal
to amend the ,onstitution- = find it impossible to belie"e that it was e"er intended b/ its framers that su#h amendment should be submitted and ratified b/ 2ust Fa ma2orit/ of the "otes #ast at an
ele#tion at whi#h the amendments are submitted to the people for their ratifi#ationF- if the #on#entration of the people>s attention thereon to be di"erted b/ other e6traneous issues- su#h as the
#hoi#e of lo#al and national offi#ials. he framers of the ,onstitution- aware of the fundamental #hara#ter thereof- and of the need of (i"in( it as mu#h stabilit/ as is pra#ti#able- #ould ha"e
onl/ meant that an/ amendments thereto should be debated- #onsidered and "oted upon at an ele#tion wherein the people #ould de"ote undi"ided attention to the sub2e#t. hat this was the
intention and the spirit of the pro"ision is #orroborated in the #ase of all other #onstitutional amendments in the past- that were submitted to and appro"ed in spe#ial ele#tions e6#lusi"el/
de"oted to the issue whether the le(islature>s amendator/ proposals should be ratified or not.
!izon- An(eles- ?aldi"ar and ,astro- JJ.- #on#ur.
Footnotes
1 Gr(in( the latter to refrain from implementin( Republi# A#t. No. &911 and from submittin( to a plebis#ite in the (eneral ele#tions to be held on No"ember 1&- 1963- the
,onstitutional amendments proposed in the aforementioned R.4.H. Nos. 1 and 1.
2 !ated $#tober 1I- 1963.
1 38 8hil. 1.
& 61 8hil. 119- 1J3.
J %upra.
6 81 8hil. 818.
3 )D28J1- 'ar#h & and 1&- 19&9.
8 )D1IJ2I- 9ebruar/ 28- 19J3.
9 )D1868&- %eptember 1&- 1961.
1I %e#tion 1- Art. *=- ,onstitution of the 8hilippines.
11 %e#tion 1- Art. ==- ,onstitution of the 8hilippines.
12 %e#tion 1- Art. B*- ,onstitution of the 8hilippines.
11 $f amendin( the ,onstitution.
1& And- inferentiall/- to lower #ourts.
1J %e#. 2A1C- Art. *=== of the ,onstitution.
16 %upra.
13 Appro"ed- June 13- 1961.
18 'a#ias "s. ,ommission on +le#tions- supra.
19 Gnder the ori(inal ,onstitution pro"idin( for a uni#ameral le(islati"e bod/- whose members were #hosen for a term of three A1C /ears A%e#tion 1- Art. *=- of the $ri(inal
,onstitutionC.
2I %e#tion 1- Arti#le =B of the ,onstitution.
21 )ino )una "s. Rodri(uez and !e los An(eles- 13 8hil. p. 192; Na#ionalista 8art/ "s. !e *era- 8J 8hil.- 126; ,odilla "s. 'artinez- )D1&J69- No"ember 21- 196I. %ee- also- %tate
"s. ,arrol- 18 ,onn. &99; 7il#o6 "s. %mith- J 7endell KN.@.L 211; 21 Am. !e#.- 211; %heenan>s ,ase- 122 'ass.- &&J; 21 Am. Rep.- 121.
22 orres "s. Ribo- 81 8hil. JI.
21 Na#ionalista 8art/ "s. !e *era- supra.
2& 8eople "s. Ro(elio Gabitanan- &1 $.G. 1211.
2J J1 8hil. 866.
26 JI Am. Jur.- %e#. 282- pp. 263D268- #itin( He#0athorn ". He#0athorn- 28& 'i#h. 633- 28I N7 39- #itin( R,); Robson ". ,antwell- 1&1 %, 1I&- 1&1 %+ 18I- #itin( R,); Gei(er
". Mobil0a- 26 7ash 131- 66 8 &21- Am. %t. Rep. 311 and man/ others.
4+NG?$N- J.8.- J.- #on#urrin(:
1 Gnited %tates ". %an Ja#into in ,o.- 12J G. %. 231.
2 An(ara ". +le#toral ,ommission- 61 8hil. 119- 19J8- Justi#e )aurel- ponente.
9+RNAN!$- J.- #on#urrin(:
1 1I1 8hil. 1IJ1 A19J3C.
2 38 8hil. 1 A19&3C.
1 1I3 G% &11 A1919C.
& 8& 8hil. 168 A19&IC.
J ,ommonwealth A#t No. 631 A19&1C.
6 Araneta ". !in(lasan- supra- at p. 136.
%AN,H+?- J.- separate opinion:
1 he te6t of the law reads: FHe A%enator or 'ember of the House of Representati"esC ma/- howe"er- be a 'ember of ,onstitutional ,on"ention.F
2 +mphasis supplied.
1 +llin(ham "s. !/e- 99 N.+. pp. &- 1J; +mphasis supplied.
& +lin(ham "s. !/e- supra- at p. 13; emphasis supplied.
SUPREME COURT
Manila
EN BANC

G.R. No. L334534 S+(t+78+, 11, 1970
MAN"EL $. IM$ONG, petitioner,
vs.
JAIME FERRER, as C&a%,7a o- t&+ Co7+0+', LINO M. .ATAJO a! CESAR MILAFLOR, as
7+78+,s t&+,+o-, respondents.
G.R. No. L334553 S+(t+78+, 11, 1970
IN T#E MATTER OF A .ETITION FOR DECLARATOR9 J"DGMENT REGARDING T#E
2ALIDIT9 OF R.A. No. :134, OT#ER;ISE 6NO;N AS T#E CONSTIT"TIONAL CON2ENTION
ACT OF 1970. RA"L M. GON1ALES, petitioner,
vs.
COMELEC, respondent.
'anuel ". I(#on+ in *is o)n #e*al,.
>aul '. Gonzales in *is o)n #e*al,.
O,,ice o, t*e Solicitor General Feli6 ?. 3ntonio, 3ctin+ 3ssistant Solicitor General >icar!o 0.
Pronove, Jr., an! Solicitors >aul I. Goco, "ernar!o P. Par!o, >osalio 3. !e 0eon, @icente 3. Torres
an! Guiller(o C. Na-ar ,or respon!ents.
0orenzo TaAa!a, 3rturo Tolentino, Jovito Salon+a an! E((anuel Pelaez as a(ici curiae.

MA6ASIAR, J.:
hese t,o separate but related petitions for declaratory relief ,ere filed pursuant to -ec. &( of !.A.
?o. 2&A* by petitioners Manuel B. %mbong and !aul M. 3on"ales, both members of the Bar,
ta8payers and interested in running as candidates for delegates to the Constitutional Convention.
Both impugn the constitutionality of !.A. ?o. 2&A*, claiming during the oral argument that it
prejudices their rights as such candidates. After the -olicitor 3eneral had filed ans,ers in behalf the
respondents, hearings ,ere held at ,hich the petitioners and the amici curiae, namely -enator
+oren"o aLada, -enator Arturo olentino, -enator .ovito -alonga, and -enator /mmanuel Pelae"
argued orally.
%t ,ill be recalled that on March &2, &(2', Congress, acting as a Constituent Assembly pursuant to
Art. D6 of the Constitution, passed !esolution ?o. * ,hich among others called for a Constitutional
Convention to propose constitutional amendments to be composed of t,o delegates from each
representative district ,ho shall have the same #ualifications as those of Congressmen, to be elected
on the second uesday of ?ovember, &('9 in accordance ,ith the !evised /lection Code.
After the adoption of said !es. ?o. * in &(2' but before the ?ovember elections of that year,
Congress, acting as a legislative body, enacted !epublic Act ?o. J(&J implementing the aforesaid
!esolution ?o. * and practically restating in toto the provisions of said !esolution ?o. *.
0n .une &', &(2(, Congress, also acting as a Constituent Assembly, passed !esolution ?o. J
amending the aforesaid !esolution ?o. * of March &2, &(2' by providing that the convention 4shall be
composed of A*9 delegates apportioned among the e8isting representative districts according to the
number of their respective inhabitants7 Provided, that a representative district shall be entitled to at
least t,o delegates, ,ho shall have the same #ualifications as those re#uired of members of the
>ouse of !epresentatives,4
1
4and 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 legislation7 Provided, that it shall not be inconsistent ,ith the provisions
of this !esolution.4
4
0n August *J, &('9, Congress, acting as a legislative body, enacted !epublic Act ?o. 2&A*,
implementing !esolutions ?os. * and J, and e8pressly repealing !.A. ?o.
J(&J.
3
Petitioner !aul M. 3on"ales assails the validity of the entire la, as ,ell as the particular provisions
embodied in -ections *, J, B, and par. & of );a<. Petitioner Manuel B. %mbong impugns the
constitutionality of only par. % of -ec. );a< of said !.A. ?o. 2&A* practically on the same grounds
advanced by petitioner 3on"ales.
I
he validity of -ec. J of !.A. ?o. 2&A*, ,hich considers, all public officers and employees, ,hether
elective or appointive, including members of the Armed 1orces of the Philippines, as ,ell as officers
and employees of corporations or enterprises of the government, as resigned from the date of the
filing of their certificates of candidacy, ,as recently sustained by this Court, on the grounds, inter alia,
that the same is merely an application of and in consonance ,ith the prohibition in -ec. * of Art. D%% of
the Constitution and that it does not constitute a denial of due process or of the e#ual protection of
the la,. +ike,ise, the constitutionality of paragraph * of -ec. );a< of !.A. ?o. 2&A* ,as upheld.
5
II
Eithout first considering the validity of its specific provisions, ,e sustain the constitutionality of the
enactment of !.A. ?o. 2&A* by Congress acting as a legislative body in the e8ercise of its broad la,C
making authority, and not as a Constituent Assembly, because K
&. Congress, ,hen acting as a Constituent Assembly pursuant to Art. D6 of the Constitution, has full and
plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a
threeCfourths vote of each >ouse in joint session assembled but voting separately. !esolutions ?os. *
and J calling for a constitutional convention ,ere passed by the re#uired threeCfourths vote.
*. he 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 po,ers essential to the
effective e8ercise of the principal po,er granted, such as the po,er to fi8 the #ualifications, number,
apportionment, and compensation of the delegates as ,ell as appropriation of funds to meet the
e8penses for the election of delegates and for the operation of the Constitutional Convention itself, as ,ell
as all other implementing details indispensable to a fruitful convention. !esolutions ?os. * and J already
embody the aboveCmentioned details, e8cept the appropriation of funds.
A. Ehile the authority to call a constitutional convention is vested by the present Constitution solely and
e8clusively in Congress acting as a Constituent Assembly, the po,er to enact the implementing details,
,hich are no, contained in !esolutions ?os. * and J as ,ell as in !.A. ?o. 2&A*, does not e8clusively
pertain to Congress acting as a Constituent Assembly. -uch implementing details are matters ,ithin the
competence of Congress in the e8ercise of its comprehensive legislative po,er, ,hich po,er
encompasses all matters not e8pressly or by necessary implication ,ithdra,n or removed by the
Constitution from the ambit of legislative action. And as lone as such statutory details do not clash ,ith
any specific provision of the constitution, they are valid.
J. Conse#uently, ,hen 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, ,hich authority is e8pressly recogni"ed in
-ec. ) of !es ?o. * as amended by !es. ?o. J.
B. he fact that a bill providing for such implementing details may be vetoed by the President is no
argument against conceding such po,er 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 re#uired implementing details.
III
Petitioner !aul M. 3on"ales asserts that -ec. * on the apportionment of delegates is not in
accordance ,ith proportional representation and therefore violates the Constitution and the intent of
the la, itself, ,ithout pinpointing any specific provision of the Constitution ,ith ,hich it collides.
=nlike in the apportionment of representative districts, the Constitution does not e8pressly or
impliedly re#uire 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 un,ieldy convention. %f the framers of the present Constitution ,anted the
apportionment of delegates to the convention to be based on the number of inhabitants in each
representative district, they ,ould have done so in so many ,ords as they did in relation to the
apportionment of the representative districts.
5
he apportionment provided for in -ec. * of !.A. ?o. 2&A* cannot possibly conflict ,ith its o,n intent
e8pressed therein: for it merely obeyed and implemented the intent of Congress acting as a
Constituent Assembly e8pressed in -ec. & of !es. ?o. J, ,hich provides that the A*9 delegates
should be apportioned among the e8isting representative districts according to the number of their
respective inhabitants, but fi8ing a minimum of at least t,o delegates for a representative district. he
presumption is that the factual predicate, the latest available official population census, for such
apportionment ,as presented to Congress, ,hich, accordingly employed a formula for the necessary
computation to effect the desired proportional representation.
he records of the proceedings on -enate Bill ?o. '' sponsored by -enator Pelae" ,hich is no,
!.A. ?o. 2&A*, submitted to this ribunal by the amici curiae, sho, that it based its apportionment of
the delegates on the &('9 official preliminary population census taken by the Bureau of Census and
-tatistics from May 2 to .une A9, &('2: and that Congress adopted the formula to effect a reasonable
apportionment of delegates. he Director of the Bureau of Census and -tatistics himself, in a letter to
-enator Pelae" dated .uly A9, &('9, stated that 4on the basis of the preliminary count of the
population, ,e have computed the distribution of delegates to the Constitutional Convention based on
-enate Bill '' ;p. * lines B to A* and p. A line &*< ,hich is a fair and an e#uitable method of
distributing the delegates pursuant to the provisions of the joint !esolution of both >ouses ?o. *, as
amended. =pon your re#uest at the session of the -enateC>ouse Conference Committee meeting
last night, ,e are submitting here,ith the results of the computation on the basis of the aboveCstated
method.4
/ven if such latest census ,ere a preliminary census, the same could still be a valid basis for such
apportionment.
:
he fact that the lone and small congressional district of Batanes, may be overC
represented, because it is allotted t,o delegates by !.A. ?o. 2&A* despite the fact that it has a
population very much less than several other congressional districts, each of ,hich is also allotted
only t,o delegates, and therefore underCrepresented, visCaCvis Batanes alone, does not vitiate the
apportionment as not effecting proportional representation. Absolute proportional apportionment is
not re#uired and is not possible ,hen 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 ,ell as daily death and birth. %t is enough that
the basis employed is reasonable and the resulting apportionment is substantially proportional.
!esolution ?o. J fi8ed a minimum of t,o delegates for a congressional district.
Ehile there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and -tatistics, ,e are not prepared to rule that the
computation formula adopted by, Congress for proportional representation as, directed in !es. ?o. J
is unreasonable and that the apportionment provided in !.A. ?o. 2&A* does not constitute a
substantially proportional representation.
%n the Macias case, relied on by petitioner 3on"ales, the apportionment la,, ,hich ,as nullified as
unconstitutional, granted more representatives to a province ,ith less population than the provinces
,ith more inhabitants. -uch is not the case here, ,here under -ec. * of !.A. ?o. 2&A* Batanes is
allotted only t,o delegates, ,hich number is e#ual to the number of delegates accorded other
provinces ,ith more population. he present petitions therefore do not present facts ,hich fit the
mould of the doctrine in the case of 'acias et al. vs. Co(elec, supra.
he impossibility of absolute proportional representation is recogni"ed by the Constitution itself ,hen
it directs that the apportionment of congressional districts among the various provinces shall be 4as
nearl as (a #e accor!in+ to t*eir respective in*a#itants, but each province shall have at least one
member4 ;-ec. B, Art. 6%, Phil. Const., emphasis supplied<. he employment of the phrase 4as nearly
as may be according to their respective inhabitants4 emphasi"es the fact that the human mind can
only appro8imate a reasonable apportionment but cannot effect an absolutely proportional
representation ,ith mathematical precision or e8actitude.
I@
-ec. B of !.A. 2&A* is attacked on the ground that it is an undue deprivation of liberty ,ithout due
process of la, and denies the e#ual protection of the la,s. -aid -ec. B dis#ualifies any elected
delegate from running 4for any public office in any election4 or from assuming 4any appointive office or
position in any branch of the government government until after the final adjournment of the
Constitutional Convention.4
hat the citi"en does not have any inherent nor natural right to a public office, is a8iomatic under our
constitutional system. he -tate through its Constitution or legislative body, can create an office and
define the #ualifications and dis#ualifications therefor as ,ell as impose inhibitions on a public officer.
Conse#uently, only those ,ith #ualifications and ,ho do not fall under any constitutional or statutory
inhibition can be validly elected or appointed to a public office. he obvious reason for the #uestioned
inhibition, is to immuni"e the delegates from the perverting influence of selfCinterest, 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 ,ell nigh sacred function of formulating the supreme la, of the land, ,hich may
endure for generations and ,hich cannot easily be changed like an ordinary statute. Eith the
dis#ualification embodied in -ec. B, the delegate ,ill not utili"e 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. he appointing authority may, by his appointing po,er, entice votes for his o,n proposals.
?ot love for self, but love for country must al,ays motivate his actuations as delegate: other,ise the
several provisions of the ne, Constitution may only satisfy individual or special interests, subversive
of the ,elfare of the general citi"enry. %t should be stressed that the dis#ualification is not permanent
but only temporary only to continue until the final adjournment of the convention ,hich may not
e8tend beyond one year. he convention that framed the present Constitution finished its task in
appro8imately seven months K from .uly A9, &(AJ to 1ebruary ), &(AB.
As admitted by petitioner 3on"ales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for ,hich he ,as elected, from being appointed to
any civil office ,hich may have been created or the emolument ,hereof shall have been increased
,hile he ,as a member of the Congress. ;-ec. &2, Art. 6%, Phil. Constitution.<
As observed by the -olicitor 3eneral in his Ans,er, the overriding objective of the challenged
dis#ualification, 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: other,ise, his seat in the convention ,ill be vacant and his constituents ,ill be
deprived of a voice in the convention. he inhibition is like,ise 4designed to prevent popular political
figures from controlling elections or positions. Also it is a brake on the appointing po,er, to curtail the
latter$s desire to $raid$ the convention of 4talents4 or attempt to control the convention.4 ;p. &9, Ans,er
in +CA*JJA.<
hus the challenged dis#ualification prescribed in -ec. B of !.A. ?o. 2&A* is a valid limitation on the
right to public office pursuant to state police po,er as it is reasonable and not arbitrary.
he discrimination under -ec. B against delegates to the Constitutional Convention is like,ise
constitutional: for it is based on a substantial distinction ,hich makes for real differences, is germane
to the purposes of the la,, and applies to all members of the same class.
7
he function of a delegate
is more farCreaching and its effect more enduring than that of any ordinary legislator or any other
public officer. A delegate shapes the fundamental la, of the land ,hich delineates the essential
nature of the government, its basic organi"ation and po,ers, defines the liberties of the people, and
controls all other la,s. =nlike ordinary statutes, constitutional amendments cannot be changed in one
or t,o years. ?o other public officer possesses such a po,er, not even the members of Congress
unless they themselves, propose constitutional amendments ,hen acting as a Constituent Assembly
pursuant to Art. D6 of the Constitution. he classification, therefore, is neither ,himsical nor
repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the la,, ,hich 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.
+astly, the dis#ualification applies to all the delegates to the convention ,ho ,ill be elected on the
second uesday of ?ovember, &('9.
@
Paragraph &, -ec. );a< of !.A. ?o. 2&A* is impugned by both petitioners as violative of the
constitutional guarantees of due process, e#ual protection of the la,s, freedom of e8pressions,
freedom of assembly and freedom of association.
his Court ruled last year that the guarantees of due process, e#ual protection of the la,s, peaceful
assembly, free e8pression, and the right of association are neither absolute nor illimitable rights: they
are al,ays subject to the pervasive and dormant police po,er of the -tate and may be la,fully
abridged to serve appropriate and important public interests.
8
%n said Gonzalez vs. Co(elec case the Court applied the clear and present danger test to determine
,hether a statute ,hich trenches upon the aforesaid Constitutional guarantees, is a legitimate
e8ercise of police po,er.
9
Paragraph & of -ec. );a<, !.A. ?o. 2&A* prohibits7
&. any candidate for delegate to the convention
;a< from representing, or
;b< allo,ing himself to be represented as being a candidate of any political party or any
other organi"ation: and
*. any political party, political group, political committee, civic, religious, professional or other
organi"ations or organi"ed group of ,hatever 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 other,ise, favorable to or
against his campaign for election.
he ban against all political parties or organi"ed groups of ,hatever nature contained in par. & of -ec.
);a<, is confined to party or organi"ation support or assistance, ,hether material, moral, emotional or
other,ise. he very -ec. );a< in its provisos permits the candidate to utili"e in his campaign the help
of the members of his family ,ithin 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. %t allo,s the full e8ercise of
his freedom of e8pression and his right to peaceful assembly, because he cannot be denied any
permit to hold a public meeting on the prete8t that the provision of said section may or ,ill be violated.
he 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. he very party or organi"ation to ,hich he may
belong or ,hich may be in sympathy ,ith 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.
%t is therefore patent that the restriction contained in -ec. );a< is so narro, 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.
%n the aforesaid case of Gonzales vs. Co(elec, supra, this Court unanimously sustained the validity
of the limitation on the period for nomination of candidates in -ec. B9CA of !.A. ?o. J))9, thus7
he prohibition of too early nomination of candidates presents a #uestion that is not too formidable in
character. According to the act7 4%t shall be unla,ful 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.
he right of association is affected. Political parties have less freedom as to the time during ,hich they
may nominate candidates: the curtailment is not such, ho,ever, as to render meaningless such a basic
right. heir scope of legitimate activities, save this one, is not unduly narro,ed. ?either is there
infringement of their freedom to assemble. hey can do so, but not for such a purpose. Ee sustain its
validity. Ee do so unanimously.
10
%n said Gonzales vs. Co(elec case, this Court like,ise held that the period for the conduct of an
election campaign or partisan political activity may be limited ,ithout offending the aforementioned
constitutional guarantees as the same is designed also to prevent a 4clear and present danger of a
substantive evil, the debasement of the electoral process.4
11
/ven if the partisan activity consists of ;a< forming organi"ations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes andFor 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
andFor 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, ;-ec. B9CB, pars.
;a<, ;b<, and ;c<, !.A. J))9<, the abridgment ,as still affirmed as constitutional by si6 (e(#ers of this
Court, ,hich could not 4ignore ... the legislative declaration that its enactment ,as in response to a
serious substantive evil affecting the electoral process, not merely in danger of happening, but
actually in e8istence, and likely to continue unless curbed or remedied. o assert other,ise ,ould be
to close one$s eyes to the reality of the situation.4
14
:
+ike,ise, because four members dissented, this Court in said case of Gonzales vs. Co(elec, supra,
failed to muster the re#uired eight votes to declare as unconstitutional the limitation on the period for
;a< making speeches, announcements or commentaries or holding intervie,s 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 andFor undertaking any campaign or
propaganda for or against any candidate or party specified in -ec. B9CB, pars. ;c<, ;d< M ;e< of !.A.
J))9.
13
he debasement of the electoral process as a substantive evil e8ists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. & of -ec.
);a< of !.A. ?o. 2&A*, to justify such ban. %n the said Gonzales vs. Co(elec case, this Court gave
4due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process,4
15
impressed as it ,as by the e8planation made by the author of !.A. ?o. J))9, -en.
+oren"o aLada, ,ho appeared as amicus curiae, 4that such provisions ,ere 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 e8istence of a grave and substantive evil of e8cessive
partisanship, dishonesty and corruption as ,ell as violence that of late has marred election
campaigns and partisan political activities in this country. >e did invite our attention like,ise to the
,ellCsettled doctrine that in the choice of remedies for an admitted malady re#uiring governmental
action, on the legislature primarily rests the responsibility. ?or should the cure prescribed by it, unless
clearly repugnant to fundamental rights, be ignored or disregarded.4
15
But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by -enator Pelae", the basic motivation, according to -enate Majority 1loor +eader
-enator Arturo olentino, the sponsor of the PuyatColentino amendment embodied in par. & of -ec.
);a< of !.A. ?o. 2&A*, is to assure the candidates e#ual protection of the la,s by according them
e#uality of chances.
1:
he primary purpose of the prohibition then is also to avert the clear and
present danger of another substantive evil, the denial of the e#ual protection of the la,s. he
candidates must depend on their individual merits and not on the support of political parties or
organi"ations. -enator olentino and -enator -alonga emphasi"ed that under this provision, the poor
candidate has an even chance as against the rich candidate. Ee are not prepared to disagree ,ith
them, because such a conclusion, predicated as it is on empirical logic, finds support in our recent
political history and e8perience. Both -enators stressed that the independent candidate ,ho ,ins 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 other,ise, of the political parties or organi"ations supporting his opponent. his position
is further strengthened by the principle that the guarantee of social justice under -ec. 6, Art. %% of the
Constitution, includes the guarantee of e#ual opportunity, e#uality of political rights, and e#uality
before the la, enunciated by Mr. .ustice ua"on in the case 3uido vs. !ural Progress Administration.
17
Ehile it may be true that a party$s support of a candidate is not ,rong per se it is e#ually true that
Congress in the e8ercise of its broad la,Cmaking authority can declare certain acts as mala prohibita
,hen justified by the e8igencies of the times. 0ne such act is the party or organi"ation support
proscribed in -ec. );a<,,hich ban is a valid limitation on the freedom of association as ,ell as
e8pression, for the reasons aforestated.
-enator olentino emphasi"ed that 4e#uality of chances may be better attained by banning all
organi"ation support.4
18
he #uestioned par. & of -ec. ) ;a< like,ise can easily pass the balancingCofCinterest test.
19
%n the apt ,ords of the -olicitor 3eneral7
%t is to be noted that right no, the nation is on the threshold of re,riting its Constitution in a hopeful
endeavor to find a solution to the grave economic, social and political problems besetting the country.
%nstead of directly proposing the amendments Congress has chosen to call a Constitutional Convention
,hich shall have the task of fashioning a document that shall embody the aspirations and ideals of the
people. Because ,hat is to be amended is the fundamental la, of the land, it is indispensable that the
Constitutional Convention be composed of delegates truly representative of the people$s ,ill. Public
,elfare demands that the delegates should speak for the entire nation, and their voices be not those of a
particular segment of the citi"enry, or of a particular class or group of people, be they religious, political,
civic or professional in character. -enator Pelae", Chairman of the -enate Committee on Codes and
Constitutional Amendments, elo#uently stated that 4the function of a constitution is not to represent
anyone in interest or set of interests, not to favor one group at the e8pense or disadvantage of the
candidates K but to encompass all the interests that e8ist ,ithin our society and to blend them into one
harmonious and balanced ,hole. 1or the constitutional system means, not the predominance of interests,
but the harmonious balancing thereof.4
-o that the purpose for calling the Constitutional Convention ,ill not be deflated or frustrated, it is
necessary that the delegatee thereto be independent, beholden to no one but to 3od, country and
conscience.
888 888 888
he evil therefore, ,hich the la, seeks to prevent lies in the election of delegates ,ho, because they
have been chosen ,ith the aid and resources of organi"ations, cannot be e8pected to be sufficiently
representative of the people. -uch delegates could very ,ell be the spokesmen of narro, political,
religious or economic interest and not of the great majority of the people.
40
Ee like,ise concur ,ith the -olicitor 3eneral that the e#ual protection of the la,s is not unduly
subverted in par. % of -ec. );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. he
discrimination applies to all organi"ations, ,hether political parties or social, civic, religious, or
professional associations. he ban is germane to the objectives of the la,, ,hich are to avert the
debasement of the electoral process, and to attain real e#uality of chances among individual
candidates and thereby make real the guarantee of e#ual protection of the la,s.
he political parties and the other organi"ed groups have builtCin advantages because of their
machinery and other facilities, ,hich, the individual candidate ,ho is ,ithout any organi"ation
support, does not have. he fact that the other civic of religious organi"ations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation: because it still
has that much builtCin advantage as against the individual candidate ,ithout similar support.
Moreover, these civic religious and professional organi"ation may band together to support common
candidates, ,ho advocates the reforms that these organi"ations champion and believe are
imperative. his is admitted by petitioner 3on"ales thru the letter of -enator 3an"on dated August
&', &('9 attached to his petition as Anne8 4D4, ,herein the -enator stated that his o,n 4ima,a4
group had agreed ,ith the +iberal Party in %loilo to support petitioner 3on"ales and t,o others as their
candidates for the convention, ,hich organi"ed support is nullified by the #uestioned ban, -enator
3an"on stressed that 4,ithout the group moving and ,orking in joint collective effort4 they cannot
4e8ercise effective control and supervision over our
leaders K the Eomen$s +eague, the area commanders, etc.4: but ,ith their joining ,ith the +P$s they
4could have presented a solid front ,ith very bright chances of capturing all seats.4
he civic associations other than political parties cannot ,ith reason insist that they should be
e8empted from the ban: because then by such e8emption they ,ould be free to utili"e the facilities of
the campaign machineries ,hich they are denying to the political parties. Ehenever all organi"ation
engages in a political activity, as in this campaign for election of delegates to the Constitutional
Convention, to that e8tent it partakes of the nature of a political organi"ation. his, despite the fact
that the Constitution and by la,s 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. >ence, they must like,ise respect the ban.
he freedom of association also implies the liberty not to associate or join ,ith others or join any
e8isting organi"ation. A person may run independently on his o,n merits ,ithout need of catering to a
political party or any other association for support. And he, as much as the candidate ,hose
candidacy does not evoke sympathy from any political party or organi"ed group, must be afforded
e#ual chances. As emphasi"ed by -enators olentino and -alonga, this ban is to assure e#ual
chances to a candidate ,ith talent and imbued ,ith patriotism as ,ell as nobility of purpose, so that
the country can utili"e their services if elected.
%mpressed as Ee are by the elo#uent and masterly e8position of -enator aLada for the invalidation
of par. & of -ec. );a< of !.A. ?o. 2&A*, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of !ights, Ee are not persuaded to entertain the
belief that the challenged ban transcends the limits of constitutional invasion of such cherished
immunities.
E>/!/10!/, the prayers in both petitions are hereby denied and !.A. ?o. 2&A* including -ecs. *,
J, B, and );a<, paragraph &, thereof, cannot be declared unconstitutional. Eithout costs.
>ees, J.".0., .izon an! Castro, JJ., concur.
'a-alintal, J., concurs in t*e result.
Tee*an-ee, J., is on leave.

S+(a,at+ O(%%os

FERNANDO, J., concurring and dissenting7
he opinion of .ustice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in e8pression, has much to recommend it. 0n the ,hole, % concur. % find difficulty,
ho,ever, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision7 4?o candidate for delegate to the Convention shall represent or allo, himself
to be represented as being a candidate of any political party or any other organi"ation, and no
political party, political group, political committee, civic, religious, professional, or other organi"ation or
organi"ed group of ,hatever 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 other,ise,
favorable to or against his campaign for election7 ...4
1
%t is ,ith regret then that % dissent from that
portion of the decision.
&. % find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organi"ations is concerned ,ith the e8plicit provision that the
freedom to form associations or societies for purposes not contrary to la, shall not be abridged.
4
he
right of an individual to join others of a like persuasion to pursue common objectives and to engage in
activities is embraced ,ithin if not actually encouraged by the regime of liberty ordained by the
Constitution. his particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.
%n the =nited -tates, in the absence of an e8plicit provision of such character, it is the vie, of .ustice
Douglas, in a &(2A article, that it is primarily the 1irst Amendment of her Constitution, ,hich
safeguards freedom of speech and of the press, of assembly and of petition 4that provides
GassociationsH ,ith the protection they need if they are to remain viable and continue to contribute to
our 1ree -ociety.4
3
-uch is indeed the case, for five years earlier the American -upreme Court had
already declared7 4%t is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the 4liberty4 Gembraced inH freedom of speech.4
5
?ot long after, in &(2B, .ustice Douglas as: spokesman for the American -upreme Court could
elaborate further on the scope of the right of association as including 4the right to e8press one$s
attitudes or philosophies by membership in a group or by affiliation ,ith it or by other la,ful means,
Association in that conte8t is a form of e8pression of opinion: and ,hile it is not e8tremely included in
the 1irst Amendment its e8istence is necessary in making the e8press guarantees fully meaningful.4
5

hus is further vitali"ed freedom of e8pression ,hich, for .ustice +aurel, is at once the instrument4
and the guarantee and the bright consummate flo,er of all liberty4
:
and, for .ustice Cardo"o, 4the
matri8, the indispensable condition of nearly every other form of freedom.4
7
*. %t is in the light of the above fundamental postulates that % find merit in the plea of petitioners to
annul the challenged provision. here is much to be said for the point emphatically stressed by
-enator +oren"o M. aLada, as amicus curiae, to the effect that there is nothing unla,ful in a
candidate for delegate to the Convention representing or allo,ing himself to be represented as such
of any political party or any other organi"ation as ,ell as of such political party, political group,
political committee, civic, religious, professional or other organi"ation or organi"ed group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or other,ise, favorable to or against his campaign for election as such delegate. %
find the conclusion inescapabe therefore, that ,hat the constitutional provisions in #uestion allo,,
more specifically the right to form associations, is prohibited. he infirmity of the ban is thus apparent
on its face.
here is, to my mind, another avenue of approach that leads to the same conclusion. he final
proviso in the same section of the Act forbids any construction that ,ould in any ,ise 4impair or
abridge the freedom of civic, political, religious, professional, trade organi"ations or organi"ed groups
of ,hatever 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.4
8
%t is regrettable that such an e8plicit recognition of ,hat
cannot be forbidden consistently ,ith the constitutional guarantees of freedom of e8pression and
freedom of association falls short of according full respect to ,hat is thus commanded, by the
fundamental la,, as they are precluded by the very same Act from giving aid or support precisely to
the very individuals ,ho can carry out ,hatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus vie,ed, the conviction % entertain as to its
lack of validity is further strengthened and fortified.
A. %t ,ould be a different matter, of course, if there is a clear and present danger of a substantive evil
that ,ould justify a limitation on such cherished freedoms. !eference has been made to Gonzales v.
Co((ission on Elections.
9
As repression is permissible only ,hen the danger of substantive evil is
present is e8plained by .ustice Branders thus7 ... the evil apprehended is to imminent that it may
befall before there is opportunity for full discussion. %f there be time to e8pose 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. 1or him the apprehended evil must be 4relatively serious.4 1or
4GprohibitionH of free speech and assembly is a measure so stringent that it ,ould be inappropriate as
the means for averting a relatively trivial harm to society.4 .ustice Black ,ould go further. >e ,ould
re#uire that the substantive evil be 4e8tremely serious.4 0nly thus may there be a reali"ation of the
ideal envisioned by Cardo"o7 4here shall be no compromise of the freedom to think one$s thoughts
and speak them, e8cept at those e8treme borders ,here thought merges into action.4 %t received its
original formulation from >olmes. hus7 4he #uestion in every case is ,hether the ,ords used in
such circumstances are of such a nature as to create a clear and present danger that they ,ill bring
about the substantive evils that Congress has a right to prevent. %t is a #uestion of pro8imity and
degree.4 4
10
he majority of the Court ,ould find the e8istence of a clear and present danger of
debasing the electoral process. Eith due respect, % find myself unable to share such a vie,.
he assumption ,ould, 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. here ,ould be a sacrifice
then of the national interest involved. he Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental la,. %t ,ould appear though that ,hat prompted
such a ban is to assure that the present majority party ,ould not continue to play its dominant role in
the political life of the nation. he thought is entertained that other,ise, ,e ,ill not have a Convention
truly responsive to the needs of the hour and of the future insofar as they may be anticipated.
o my mind, this is to lose sight of the fact that in the national elections of &(J2, &(BA, &(2& and
&(2B, the presidency ,as ,on by the opposition candidate. Moreover, in national elections for
senators alone, that of &(B&, to mention only one instance, sa, a complete s,eep of the field by the
then minority party. %t ,ould be unjustifiable, so % am led to believe to assume that inevitably the
prevailing dominant political party ,ould continue its ascendancy in the coming Convention.
hen, too, the result of the plebiscite in the t,o proposed amendments in &(2' indicate unmistakably
that the people can, if so minded, make their ,ishes prevail. here is thus no assurance that the
mere identification ,ith party labels ,ould automatically insure the success of a candidacy. /ven if it
be assumed that to guard against the evils of party spirit carried to e8cess, such a ban is called for,
still no such danger is presented by allo,ing civil, professional or any other organi"ation or organi"ed
group of ,hatever nature to field its o,n candidates or give aid or support, directly or indirectly
material or other,ise, to anyone running for the Convention. 1rom such a source, no such misgivings
or apprehension need arise. ?or it the fear that organi"ations could hastily be assembled or put up to
camouflage their true colors as satellites of the political parties be valid. he electorate can see
through such schemes and can emphatically register its reaction. here is, moreover, the further
safeguard that ,hatever ,ork the Convention may propose is ultimately subject to popular ratification.
1or me then the danger of a substantive evil is neither clear nor present. Ehat causes me grave
concern is that to guard against such undesirable eventuality, ,hich may not even come to pass, a
flagrant disregard of ,hat the Constitution ordains is minimi"ed. A desirable end cannot be coerced
by unconstitutional means.
J. %t is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an e8isting Constitution, political parties or political groups are to be denied
the opportunity of launching the candidacy of their choice. Eell has it been said by Chief .ustice
>ughes7 4he greater the importance of safeguarding the community from incitements to the
overthro, 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 ,ill of
the people and that changes, if desired, may be obtained by peaceful means. herein lies the security
of the !epublic, the very foundation of constitutional government.4
11
%t is to carry this essential
process one step farther to recogni"e and to implement the right of every political party or group to
select the candidates ,ho, by their election, could translate into actuality their hopes for the
fundamental la, that the times demand. Moreover, is it not in keeping ,ith the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organi"ed civic
groups making their influence felt in the task of constitution framing, the result of ,hich has
momentuous implications for the nationI Ehat is decisive of this aspect of the matter is not the
character of the association or organi"ed group as such but the essentially political activity thus
carried out.
his is not to deny the ,ide latitude as to the choice of means vested in Congress to attain a
desirable goal. ?or can it be successfully argued that the judiciary should display reluctance in
e8tending sympathy and understanding to such legislative determination. his is merely to stress that
ho,ever ,orth,hile 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 ,orded as not lacking in
effectivity insofar as civic, religious, professional or other organi"ations or organi"ed group is
concerned, but not necessarily so in the case of political party, political group or political committee.
here is the commendable admission by -enator olentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to assert their influence. %t could
very ,ell happen, then, in not a fe, cases, assuming the strength of political parties, that a candidate
thus favored is sure of emerging the victor. Ehat is thus sought to be accomplished to guard against
the evil of party spirit prevailing could very ,ell be doomed to futility. he high hopes entertained by
the articulate and vocal groups of young people, intellectuals and ,orkers, may not be reali"ed. he
result ,ould be that this unorthodo8 and novel provision could assume the character of a tease, an
illusion like a munificent be#uest in a pauper$s ,ill.
%f such an appraisal is not unjustifiably tinged ,ith pessimism, then, to my mind, a radical approach to
a problem possibly tainted ,ith constitutional infirmity cannot hurdle the judicial test as to its validity. %t
is one thing to encourage a fresh and untried solution to a problem of gravity ,hen the probability of
its success may be assumed. %t is an entirely different matter to cut do,n the e8ercise of ,hat
other,ise are undeniable constitutional rights, ,hen as in this case, the outcome might belie
e8pectations. Considering the ,ellCsettled 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 narro,ly achieved, % 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
,hom they can repose their trust is consistent ,ith the constitutional rights of freedom of association
and freedom of e8pression. >ere, the danger of overbreadth, so clear and manifest as to be offensive
to constitutional standards, magnified by the probability that the result ,ould be the failure and not
success of the statutory scheme, cautions against the affi8ing of the imprimatur of judicial approval to
the challenged provision.
B. ?ecessarily then, from this mode of vie,ing the matter, it ,ould follo, that the holding of this Court
in Gonzales v. Co(elec
14
does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. Ehat survived the test of constitutional validity in that case, ,ith
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 &B9
days immediately preceding election and for any other public office earlier than (9 days immediately
preceding such election.
13
A corollary to the above limitation, the provision making it unla,ful for any
person, ,hether or not a voter or candidate, or for any group or association of persons, ,hether or
not a political party or political committee, to engage in an election campaign or partisan political
activity e8cept during the above periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or commentaries or holding intervie,s 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 narro, 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 t,oCthirds majority for a declaration of
invalidity. %nsofar as election campaign or partisan political activity ,ould limit or restrict the formation,
of organi"ations, 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 ,ell as the holding of political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies, ,ith a similar and in vie,, only five members of this Court, a
minority thereof voted, for their unconstitutionality. Ehat emerges clearly, then, is that definite acts
short of preventing the political parties from the choice of their candidates and thereafter ,orking for
them in effect ,ere considered by this Court as not violative of the constitutional freedoms of speech,
of press, of assembly and of association.
he challenged provision in these t,o petitions, ho,ever, goes much farther. Political parties or any
other organi"ation or organi"ed group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. o my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be ,ithin the sphere of liberty. hus, %
am unable to conclude that our previous decision in 3on"ales v. Commission on /lections ,hich
already ,as indicative of the cautious and hesitant judicial approach to lending its approval to ,hat
other,ise are invasions of vital constitutional safeguards to freedoms of belief, of e8pression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.
>ence my inability to subscribe in its entirety to the opinion of the Court. % am authori"ed to state that
the Chief .ustice is in agreement ,ith the vie,s herein e8pressed.
Concepcion, C.J., @illa(or an! Bal!ivar, JJ., concur.
$ARREDO, J., concurring and dissenting7
Eithout prejudice to a more e8tended opinion, % vote, in concurrence ,ith the majority, to sustain the
validity of the provisions of !epublic Act 2&A* impugned by petitioners in these cases, e8cept -ection
J and the portion of -ection );a< referring to political parties. As regards -ection J, % reiterate my
separate opinion in the cases of -ubido and others. ;3.!. ?os. +CA*JA2 and +CA*JA(< Eith respect to
-ection );a<, % hold that the considerations ,hich take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate and support their o,n
candidates, reasonable and ,ithin the limits of the Constitution do not obtain ,hen it comes to civic or
nonCpolitical organi"ations. As % see it, the said ban, insofar as civic or nonCpolitical organi"ations are
concerned, is a deceptive device to preserve the builtCin advantages of political parties ,hile at the
same time crippling completely the other kinds of associations. he only ,ay to accomplish the
purported objective of the la, of e#uali"ing the forces that ,ill 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 andFor some of their members have made
necessary the imposition thereof. =nder the resulting set up embodied in the provision in #uestion,
the individual candidates ,ho have never had any political party connections or very little of it ,ould
be at an obvious disadvantage unless they are allo,ed to seek and use the aid of civic organi"ations.
?either the elaborate provisions of !epublic Act 2&A* regarding methods of campaign nor its other
provisions intended to minimi"e 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 ,ith 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 bet,een no,
and election day.
he 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. he only insurance of the people against political parties ,hich may be inclined to,ards
the /stablishment and the status #uo is to organi"e themselves to gain much needed strength and
effectivity. o deny them this right is to stifle the people$s only opportunity for change.
%t is a8iomatic that issues, no matter ho, valid, if not related to particular candidates in an organi"ed
,ay, 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 ,ay to relate them is by organi"ation. 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 ,ho are minded
to actively battle for them and any attempt to curtail them ,ould endanger the very purposes for
,hich a ne, constitutional convention has been conceived.
Consistently ,ith my separate opinion in the case of Gonzales an! Ca#i+ao vs. Co(elec, 3.!. ?o. +C
*')AA, April &), &(2( and for the reasons therein stated, % maintain that the right of suffrage ,hich is
the cornerstone of any democracy like ours is meaningless ,hen 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.
%t is, of course, understood that this opinion is based on my considered vie,, contrary to that of the
majority, that as -ection );a< stands and taking into account its genesis, the ban against political
parties is separable from that against other associations ,ithin the contemplation of -ection *& of the
Act ,hich e8pressly refers to the separability of the application thereof to any 4persons, groups or
circumstances.4
% reserve my right to e8pand this e8planation of my vote in the ne8t fe, days.

< S+(a,at+ O(%%os
he opinion of .ustice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in e8pression, has much to recommend it. 0n the ,hole, % concur. % find difficulty,
ho,ever, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision7 4?o candidate for delegate to the Convention shall represent or allo, himself
to be represented as being a candidate of any political party or any other organi"ation, and no
political party, political group, political committee, civic, religious, professional, or other organi"ation or
organi"ed group of ,hatever 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 other,ise,
favorable to or against his campaign for election7 ...4
1
%t is ,ith regret then that % dissent from that
&. % find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organi"ations is concerned ,ith the e8plicit provision that the
freedom to form associations or societies for purposes not contrary to la, shall not be abridged.
4
he
right of an individual to join others of a like persuasion to pursue common objectives and to engage in
activities is embraced ,ithin if not actually encouraged by the regime of liberty ordained by the
Constitution. his particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.
%n the =nited -tates, in the absence of an e8plicit provision of such character, it is the vie, of .ustice
Douglas, in a &(2A article, that it is primarily the 1irst Amendment of her Constitution, ,hich
safeguards freedom of speech and of the press, of assembly and of petition 4that provides
GassociationsH ,ith the protection they need if they are to remain viable and continue to contribute to
our 1ree -ociety.4
3
-uch is indeed the case, for five years earlier the American -upreme Court had
already declared7 4%t is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the 4liberty4 Gembraced inH freedom of speech.4
5
?ot long after, in &(2B, .ustice Douglas as: spokesman for the American -upreme Court could
elaborate further on the scope of the right of association as including 4the right to e8press one$s
attitudes or philosophies by membership in a group or by affiliation ,ith it or by other la,ful means,
Association in that conte8t is a form of e8pression of opinion: and ,hile it is not e8tremely included in
the 1irst Amendment its e8istence is necessary in making the e8press guarantees fully meaningful.4
5

hus is further vitali"ed freedom of e8pression ,hich, for .ustice +aurel, is at once the instrument4
and the guarantee and the bright consummate flo,er of all liberty4
:
and, for .ustice Cardo"o, 4the
matri8, the indispensable condition of nearly every other form of freedom.4
7
*. %t is in the light of the above fundamental postulates that % find merit in the plea of petitioners to
annul the challenged provision. here is much to be said for the point emphatically stressed by
-enator +oren"o M. aLada, as amicus curiae, to the effect that there is nothing unla,ful in a
candidate for delegate to the Convention representing or allo,ing himself to be represented as such
of any political party or any other organi"ation as ,ell as of such political party, political group,
political committee, civic, religious, professional or other organi"ation or organi"ed group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or other,ise, favorable to or against his campaign for election as such delegate. %
find the conclusion inescapabe therefore, that ,hat the constitutional provisions in #uestion allo,,
more specifically the right to form associations, is prohibited. he infirmity of the ban is thus apparent
on its face.
here is, to my mind, another avenue of approach that leads to the same conclusion. he final
proviso in the same section of the Act forbids any construction that ,ould in any ,ise 4impair or
abridge the freedom of civic, political, religious, professional, trade organi"ations or organi"ed groups
of ,hatever 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.4
8
%t is regrettable that such an e8plicit recognition of ,hat
cannot be forbidden consistently ,ith the constitutional guarantees of freedom of e8pression and
freedom of association falls short of according full respect to ,hat is thus commanded, by the
fundamental la,, as they are precluded by the very same Act from giving aid or support precisely to
the very individuals ,ho can carry out ,hatever constitutional reforms, programs, policies or
proposals for amendment they might advocate. As thus vie,ed, the conviction % entertain as to its
lack of validity is further strengthened and fortified.
A. %t ,ould be a different matter, of course, if there is a clear and present danger of a substantive evil
that ,ould justify a limitation on such cherished freedoms. !eference has been made to Gonzales v.
Co((ission on Elections.
9
As repression is permissible only ,hen the danger of substantive evil is
present is e8plained by .ustice Branders thus7 ... the evil apprehended is to imminent that it may
befall before there is opportunity for full discussion. %f there be time to e8pose 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. 1or him the apprehended evil must be 4relatively serious.4 1or
4GprohibitionH of free speech and assembly is a measure so stringent that it ,ould be inappropriate as
the means for averting a relatively trivial harm to society.4 .ustice Black ,ould go further. >e ,ould
re#uire that the substantive evil be 4e8tremely serious.4 0nly thus may there be a reali"ation of the
ideal envisioned by Cardo"o7 4here shall be no compromise of the freedom to think one$s thoughts
and speak them, e8cept at those e8treme borders ,here thought merges into action.4 %t received its
original formulation from >olmes. hus7 4he #uestion in every case is ,hether the ,ords used in
such circumstances are of such a nature as to create a clear and present danger that they ,ill bring
about the substantive evils that Congress has a right to prevent. %t is a #uestion of pro8imity and
degree.4 4
10
he majority of the Court ,ould find the e8istence of a clear and present danger of
debasing the electoral process. Eith due respect, % find myself unable to share such a vie,.
he assumption ,ould, 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. here ,ould be a sacrifice
then of the national interest involved. he Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental la,. %t ,ould appear though that ,hat prompted
such a ban is to assure that the present majority party ,ould not continue to play its dominant role in
the political life of the nation. he thought is entertained that other,ise, ,e ,ill not have a Convention
truly responsive to the needs of the hour and of the future insofar as they may be anticipated.
o my mind, this is to lose sight of the fact that in the national elections of &(J2, &(BA, &(2& and
&(2B, the presidency ,as ,on by the opposition candidate. Moreover, in national elections for
senators alone, that of &(B&, to mention only one instance, sa, a complete s,eep of the field by the
then minority party. %t ,ould be unjustifiable, so % am led to believe to assume that inevitably the
prevailing dominant political party ,ould continue its ascendancy in the coming Convention.
hen, too, the result of the plebiscite in the t,o proposed amendments in &(2' indicate unmistakably
that the people can, if so minded, make their ,ishes prevail. here is thus no assurance that the
mere identification ,ith party labels ,ould automatically insure the success of a candidacy. /ven if it
be assumed that to guard against the evils of party spirit carried to e8cess, such a ban is called for,
still no such danger is presented by allo,ing civil, professional or any other organi"ation or organi"ed
group of ,hatever nature to field its o,n candidates or give aid or support, directly or indirectly
material or other,ise, to anyone running for the Convention. 1rom such a source, no such misgivings
or apprehension need arise. ?or it the fear that organi"ations could hastily be assembled or put up to
camouflage their true colors as satellites of the political parties be valid. he electorate can see
through such schemes and can emphatically register its reaction. here is, moreover, the further
safeguard that ,hatever ,ork the Convention may propose is ultimately subject to popular ratification.
1or me then the danger of a substantive evil is neither clear nor present. Ehat causes me grave
concern is that to guard against such undesirable eventuality, ,hich may not even come to pass, a
flagrant disregard of ,hat the Constitution ordains is minimi"ed. A desirable end cannot be coerced
by unconstitutional means.
J. %t is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an e8isting Constitution, political parties or political groups are to be denied
the opportunity of launching the candidacy of their choice. Eell has it been said by Chief .ustice
>ughes7 4he greater the importance of safeguarding the community from incitements to the
overthro, 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 ,ill of
the people and that changes, if desired, may be obtained by peaceful means. herein lies the security
of the !epublic, the very foundation of constitutional government.4
11
%t is to carry this essential
process one step farther to recogni"e and to implement the right of every political party or group to
select the candidates ,ho, by their election, could translate into actuality their hopes for the
fundamental la, that the times demand. Moreover, is it not in keeping ,ith the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organi"ed civic
groups making their influence felt in the task of constitution framing, the result of ,hich has
momentuous implications for the nationI Ehat is decisive of this aspect of the matter is not the
character of the association or organi"ed group as such but the essentially political activity thus
carried out.
his is not to deny the ,ide latitude as to the choice of means vested in Congress to attain a
desirable goal. ?or can it be successfully argued that the judiciary should display reluctance in
e8tending sympathy and understanding to such legislative determination. his is merely to stress that
ho,ever ,orth,hile 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 ,orded as not lacking in
effectivity insofar as civic, religious, professional or other organi"ations or organi"ed group is
concerned, but not necessarily so in the case of political party, political group or political committee.
here is the commendable admission by -enator olentino, appearing as amicus curiae, that the
political leaders of stature, in their individual capacity, could continue to assert their influence. %t could
very ,ell happen, then, in not a fe, cases, assuming the strength of political parties, that a candidate
thus favored is sure of emerging the victor. Ehat is thus sought to be accomplished to guard against
the evil of party spirit prevailing could very ,ell be doomed to futility. he high hopes entertained by
the articulate and vocal groups of young people, intellectuals and ,orkers, may not be reali"ed. he
result ,ould be that this unorthodo8 and novel provision could assume the character of a tease, an
illusion like a munificent be#uest in a pauper$s ,ill.
%f such an appraisal is not unjustifiably tinged ,ith pessimism, then, to my mind, a radical approach to
a problem possibly tainted ,ith constitutional infirmity cannot hurdle the judicial test as to its validity. %t
is one thing to encourage a fresh and untried solution to a problem of gravity ,hen the probability of
its success may be assumed. %t is an entirely different matter to cut do,n the e8ercise of ,hat
other,ise are undeniable constitutional rights, ,hen as in this case, the outcome might belie
e8pectations. Considering the ,ellCsettled 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 narro,ly achieved, % 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
,hom they can repose their trust is consistent ,ith the constitutional rights of freedom of association
and freedom of e8pression. >ere, the danger of overbreadth, so clear and manifest as to be offensive
to constitutional standards, magnified by the probability that the result ,ould be the failure and not
success of the statutory scheme, cautions against the affi8ing of the imprimatur of judicial approval to
the challenged provision.
B. ?ecessarily then, from this mode of vie,ing the matter, it ,ould follo, that the holding of this Court
in Gonzales v. Co(elec
14
does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. Ehat survived the test of constitutional validity in that case, ,ith
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 &B9
days immediately preceding election and for any other public office earlier than (9 days immediately
preceding such election.
13
A corollary to the above limitation, the provision making it unla,ful for any
person, ,hether or not a voter or candidate, or for any group or association of persons, ,hether or
not a political party or political committee, to engage in an election campaign or partisan political
activity e8cept during the above periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or commentaries or holding intervie,s 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 narro, 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 t,oCthirds majority for a declaration of
invalidity. %nsofar as election campaign or partisan political activity ,ould limit or restrict the formation,
of organi"ations, 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 ,ell as the holding of political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies, ,ith a similar and in vie,, only five members of this Court, a
minority thereof voted, for their unconstitutionality. Ehat emerges clearly, then, is that definite acts
short of preventing the political parties from the choice of their candidates and thereafter ,orking for
them in effect ,ere considered by this Court as not violative of the constitutional freedoms of speech,
of press, of assembly and of association.
he challenged provision in these t,o petitions, ho,ever, goes much farther. Political parties or any
other organi"ation or organi"ed group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. o my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be ,ithin the sphere of liberty. hus, %
am unable to conclude that our previous decision in 3on"ales v. Commission on /lections ,hich
already ,as indicative of the cautious and hesitant judicial approach to lending its approval to ,hat
other,ise are invasions of vital constitutional safeguards to freedoms of belief, of e8pression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.
>ence my inability to subscribe in its entirety to the opinion of the Court. % am authori"ed to state that
the Chief .ustice is in agreement ,ith the vie,s herein e8pressed.
Concepcion, C.J., @illa(or an! Bal!ivar, JJ., concur.
$ARREDO, J., concurring and dissenting7
Eithout prejudice to a more e8tended opinion, % vote, in concurrence ,ith the majority, to sustain the
validity of the provisions of !epublic Act 2&A* impugned by petitioners in these cases, e8cept -ection
J and the portion of -ection );a< referring to political parties. As regards -ection J, % reiterate my
separate opinion in the cases of -ubido and others. ;3.!. ?os. +CA*JA2 and +CA*JA(< Eith respect to
-ection );a<, % hold that the considerations ,hich take the restraint on the freedoms of association,
assembly and speech involved in the ban on political parties to nominate and support their o,n
candidates, reasonable and ,ithin the limits of the Constitution do not obtain ,hen it comes to civic or
nonCpolitical organi"ations. As % see it, the said ban, insofar as civic or nonCpolitical organi"ations are
concerned, is a deceptive device to preserve the builtCin advantages of political parties ,hile at the
same time crippling completely the other kinds of associations. he only ,ay to accomplish the
purported objective of the la, of e#uali"ing the forces that ,ill 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 andFor some of their members have made
necessary the imposition thereof. =nder the resulting set up embodied in the provision in #uestion,
the individual candidates ,ho have never had any political party connections or very little of it ,ould
be at an obvious disadvantage unless they are allo,ed to seek and use the aid of civic organi"ations.
?either the elaborate provisions of !epublic Act 2&A* regarding methods of campaign nor its other
provisions intended to minimi"e 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 ,ith 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 bet,een no,
and election day.
he 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. he only insurance of the people against political parties ,hich may be inclined to,ards
the /stablishment and the status #uo is to organi"e themselves to gain much needed strength and
effectivity. o deny them this right is to stifle the people$s only opportunity for change.
%t is a8iomatic that issues, no matter ho, valid, if not related to particular candidates in an organi"ed
,ay, 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 ,ay to relate them is by organi"ation. 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 ,ho are minded
to actively battle for them and any attempt to curtail them ,ould endanger the very purposes for
,hich a ne, constitutional convention has been conceived.
Consistently ,ith my separate opinion in the case of Gonzales an! Ca#i+ao vs. Co(elec, 3.!. ?o. +C
*')AA, April &), &(2( and for the reasons therein stated, % maintain that the right of suffrage ,hich is
the cornerstone of any democracy like ours is meaningless ,hen 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.
%t is, of course, understood that this opinion is based on my considered vie,, contrary to that of the
majority, that as -ection );a< stands and taking into account its genesis, the ban against political
parties is separable from that against other associations ,ithin the contemplation of -ection *& of the
Act ,hich e8pressly refers to the separability of the application thereof to any 4persons, groups or
circumstances.4
% reserve my right to e8pand this e8planation of my vote in the ne8t fe, days.
< Footot+s
& -ec. & of !es. ?o. J.
* -ec. A, !es. ?o. J.
A -ec. **, !.A. ?o. 2&A*.
J Abelardo -ubido vs. Comelec, in re validity of -ec. J and -ec. );a< par. *, !.A. 2&A*, 3.!. ?o. +CA*JA2, and %n the matter of the petition
for declaratory relief re validity and constitutionality of -ec. J, !.A. 2&A*, >on. 3uardson +ood, .udge, C1%, Pasig, !i"al et al., petitioners,
3.!. ?o. +CA*JA(, -ept. (, &('9.
B -ec. B, Art. 6%, Constitution.
2 Macias et al. vs. Comelec, 3. !. ?o. +C&)2)J, -ept. &J, &(2&..
' People vs. 6era, 2B Phil. B2: People vs. -olon, 3.!. ?o. +C&J)2J, ?ov. *A, &(29.
) -ee 3on"ales vs. Comelec, +C*')AA, April &), &(2(: 6ol. *', -C!A, p. )AB, )B) et se#.: .ustice Douglas in /lfbrandt v. !ussel, A)J =-
&&, &)C&(, &(22.
( *' -C!A, pp. )29C)2&.
&9 *' -C!A, p. )2B.
&& *' -C!A, p. )2(.
&* *' -C!A, pp. )2JC)2B, )2).
&A *' -C!A, pp. )2(C)'9.
&J *' -C!A, p. )'A.
&B *' -C!A, p. )'*.
&2 -ee his sponsorship speech of .uly *9, &('9.
&' )J Phil. )J', )B*.
&) -ee his sponsorship speech on .uly *9, &('9.
&( -ee .ustice Castro$s separate opinion in 3on"ales vs. Comelec, supra, *' -C!A, pp. )()C)(( citing American Communications
Association vs. Douds, AA( =.-. A)A, (J +. /d., (*B, (JA'.
*9 Pp. JCB, &*, Ans,er in +CA*JA*.
1/!?A?D0, .., concurring and dissenting7
& -ec. );a<, !epublic Act ?o. 2&A* ;&('9<.
* he Constitution provides7 4he right to form associations or societies for purposes not contrary to la, shall not be abridged.4 Art. %%%, -ec.
&, par. 2.
A Douglas, he !ight of Association, 2A Col. +a, !ev. &A2A ;&(2A<.
J ?AACP v. Alabama e8 rel. Patterson, AB' =- JJ(, J29 ;&(B)< per >arlan, .. Cf. Bates v. +ittle !ock, A2& =- B&2 ;&(29<: -helton v.
ucker, A2J =- J'(. ;&(29<: +ouisiana e8 rel. 3remillon v. ?AACP, A22 =-. *(A ;&(2&<: Communist Party v. -ubversive Activities Control
Board, A2' =- & ;&(2&<: -cales v. =nited -tates, A2' =- *9A ;&(2&<: ?AACP v. Button, A'& =- J&B ;&(2A<: 3ibson v. 1lorida +egislative
%nvestigation, Comm., A'* =- BA( ;&(2A<: Brotherhood v. 6irginia e8 rel. -tate Bar A'' =- & ;&(2J<: ?AACP v. Alabama, A'' =- *))
;&(2J<.
B 3ris,old v. Connecticut, A)& =- J'(, J)A ;&(2B<. %n /lfbrandt v. !ussel, A)J =- &&, &) ;&(22< he spoke of this right as a 4cherished
freedom.4 Cf. Neyishan v. Board of !egents, A)B =- B)( ;&(2'<.
2 Planas v. 3il, 2' Phil. 2* ;&(A(<, .ustice +aurel #uoting Eendell Philipps.
' Palko v. Connecticut, A9* =- A&(, A*A ;&(A'<.
) -ection );a<, !epublic Act ?o. 2&A* ;&('9<.
( +C*')AA, April &), &(2(, *' -C!A )AB.
&9 I#i!., pp. )B(C)29.
&& De .onge v. 0regon, *(( =- ABA, A2B ;&(A'<.
&* +C*')AA, April &), &(2(, *' -C!A C)AB.
&A -ec. B9;a< of !epublic Act J))9 ;&(2'<.
SUPREME COURT
Manila
EN BANC
G.R. No. L35:350 A(,%0 4, 1981
SAM"EL C. OCCENA, petitioner,
vs.
T#E COMMISSION ON ELECTIONS, T#E COMMISSION ON A"DIT, T#E NATIONAL
TREAS"RER, T#E DIRECTOR OF .RINTING, respondents.

G.R. No. L35:505 A(,%0 4, 1981
RAMON A. GON1ALES, MAN"EL $. IM$ONG, JO A"REA MARCOS3IM$ONG, RA9 ALLAN T.
DRILON, NELSON $. MALANA a! GIL M. TA$IOS, petitioners,
vs.
T#E NATIONAL TREAS"RER a! t&+ COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:
he challenge in these t,o prohibition proceedings against the validity of three Batasang Pambansa
!esolutions
1
proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners -amuel 0ccena and !amon A. 3on"ales, both members of the
Philippine Bar and former delegates to the &('& Constitutional Convention that framed the present
Constitution, are suing as ta8payers. he rather unorthodo8 aspect of these petitions is the assertion
that the &('A Constitution is not the fundamental la,, the .avellana
4
ruling to the contrary
not,ithstanding. o put it at its mildest, such an approach has the arresting charm of novelty O but
nothing else. %t is in fact self defeating, for if such ,ere indeed the case, petitioners have come to the
,rong forum. Ee sit as a Court dutyCbound to uphold and apply that Constitution. o contend
other,ise as ,as done here ,ould be, #uite clearly, an e8ercise in futility. ?or are the arguments of
petitioners cast in the traditional form of constitutional litigation any more persuasive. 1or reasons to
be set forth, ,e dismiss the petitions.
he suits for prohibition ,ere filed respectively on March 2
3
and March &*, &()&.
5
0n March &9 and
&A respectively, respondents ,ere re#uired to ans,er each ,ithin ten days from notice.
5
here ,as a
comment on the part of the respondents. hereafter, both cases ,ere set for hearing and ,ere duly
argued on March *2 by petitioners and -olicitor 3eneral /stelito P. Mendo"a for respondents. Eith
the submission of pertinent data in amplification of the oral argument, the cases ,ere deemed
submitted for decision.
%t is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.
&. %t is much too late in the day to deny the force and applicability of the &('A Constitution. %n the
dispositive portion of Javellana v. T*e E6ecutive Secretar,
:
dismissing petitions for prohibition and
mandamus to declare invalid its ratification, this Court stated that it did so by a vote of si8
7
to four.
8
%t
then concluded7 4his being the vote of the majority, there is no further judicial obstacle to the ne,
Constitution being considered in force and effect.4
9
-uch a statement served a useful purpose. %t
could even be said that there ,as a need for it. %t served to clear the atmosphere. %t made manifest
that, as of .anuary &', &('A, the present Constitution came into force and effect. Eith such a
pronouncement by the -upreme Court and ,ith the recognition of the cardinal postulate that ,hat the
-upreme Court says is not only entitled to respect but must also be obeyed, a factor for instability
,as removed. hereafter, as a matter of la,, all doubts ,ere resolved. he &('A Constitution is the
fundamental la,. %t is as simple as that. Ehat cannot be too strongly stressed is that the function of
judicial revie, has both a positive and a negative aspect. As ,as so convincingly demonstrated by
Professors Black
10
and Murphy,
11
the -upreme Court can check as ,ell as legitimate. %n declaring
,hat the la, is, it may not only nullify the acts of coordinate branches but may also sustain their
validity. %n the latter case, there is an affirmation that ,hat ,as done cannot be stigmati"ed as
constitutionally deficient. he mere dismissal of a suit of this character suffices. hat is the meaning
of the concluding statement in .avellana. -ince then, this Court has invariably applied the present
Constitution. he latest case in point is People v. Sola,
14
promulgated barely t,o ,eeks ago. During
the first year alone of the effectivity of the present Constitution, at least ten cases may be cited.
13

*. Ee come to the crucial issue, the po,er of the Interi( Batasang Pambansa to propose
amendments and ho, it may be e8ercised. More specifically as to the latter, the e8tent of the
changes that may be introduced, the number of votes necessary for the validity of a proposal, and the
standard re#uired for a proper submission. As ,as stated earlier, petitioners ,ere unable to
demonstrate that the challenged resolutions are tainted by unconstitutionality.
;&< he e8istence of the po,er of the Interi( Batasang Pambansa is indubitable. he applicable
provision in the &('2 Amendments is #uite e8plicit. %nsofar as pertinent it reads thus7 4he Interi(
Batasang Pambansa shall have the same po,ers and its Members shall have the same functions,
responsibilities, rights, privileges, and dis#ualifications as the interi( ?ational Assembly and the
regular ?ational Assembly and the Members thereof.4
15
0ne of such po,ers is precisely that of
proposing amendments. he &('A Constitution in its ransitory Provisions vested the Interi( ?ational
Assembly ,ith the po,er to propose amendments upon special call by the Prime Minister by a vote of
the majority of its members to be ratified in accordance ,ith the Article on Amendments.
15
Ehen,
therefore, the Interi( Batasang Pambansa, upon the call of the President and Prime Minister
1erdinand /. Marcos, met as a constituent body it acted by virtue 0f such impotence %ts authority to
do so is clearly beyond doubt. %t could and did propose the amendments embodied in the resolutions
no, being assailed. %t may be observed parenthetically that as far as petitioner 0ccena is Concerned,
the #uestion of the authority of the Interi( Batasang Pambansa to propose amendments is not ne,.
%n Occena v. Co((ission on Elections,
1:
filed by the same petitioner, decided on .anuary *), &()9,
such a #uestion ,as involved although not directly passed upon. o #uote from the opinion of the
Court penned by .ustice Antonio in that case7 4Considering that the proposed amendment of -ection
' of Article D of the Constitution e8tending the retirement of members of the -upreme Court and
judges of inferior courts from si8tyCfive ;2B< to seventy ;'9< years is but a restoration of the age of
retirement provided in the &(AB Constitution and has been intensively and e8tensively discussed at
the Interi( Batasang Pambansa, as ,ell as through the mass media, it cannot, therefore, be said that
our people are una,are of the advantages and disadvantages of the proposed amendment.4
17

;*< Petitioners ,ould urge upon us the proposition that the amendments proposed are so e8tensive in
character that they go far beyond the limits of the authority conferred on the %nterim Batasang
Pambansa as -uccessor of the Interi( ?ational Assembly. 1or them, ,hat ,as done ,as to revise
and not to amend. %t suffices to #uote from the opinion of .ustice Makasiar, speaking for the Court, in
.el >osario v. Co((ission on Elections
18
to dispose of this contention. hus7 4A. And ,hether the
Constitutional Convention ,ill only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely ne, Constitution based on an %deology foreign to the
democratic system, is of no moment: because the same ,ill be submitted to the people for
ratification. 0nce ratified by the sovereign people, there can be no debate about the validity of the
ne, Constitution. J. he fact that the present Constitution may be revised and replaced ,ith a ne,
one ... is no argument against the validity of the la, because $amendment$ includes the $revision$ or
total overhaul of the entire Constitution. At any rate, ,hether the Constitution is merely amended in
part or revised or totally changed ,ould become immaterial the moment the same is ratified by the
sovereign people.4
19
here is here the adoption of the principle so ,ellCkno,n in American decisions
as ,ell as legal te8ts that a constituent body can propose anything but conclude nothing.
40
Ee are
not disposed to deviate from such a principle not only sound in theory but also advantageous in
practice.
;A< hat leaves only the #uestions of the vote necessary to propose amendments as ,ell as the
standard for proper submission. Again, petitioners have not made out a case that calls for a judgment
in their favor. he language of the Constitution supplies the ans,er to the above #uestions. he
Interi( Batasang Pambansa, sitting as a constituent body, can propose amendments. %n that
capacity, only a majority vote is needed. %t ,ould be an indefensible proposition to assert that the
threeCfourth votes re#uired ,hen it sits as a legislative body applies as ,ell ,hen it has been
convened as the agency through ,hich amendments could be proposed. hat is not a re#uirement as
far as a constitutional convention is concerned. %t is not a re#uirement either ,hen, as in this case,
the Interi( Batasang Pambansa e8ercises its constituent po,er to propose amendments. Moreover,
even on the assumption that the re#uirement of threeC fourth votes applies, such e8traordinary
majority ,as obtained. %t is not disputed that !esolution ?o. & proposing an amendment allo,ing a
naturalCborn citi"en of the Philippines naturali"ed in a foreign country to o,n a limited area of land for
residential purposes ,as approved by the vote of &** to B: !esolution ?o. * dealing ,ith the
Presidency, the Prime Minister and the Cabinet, and the ?ational Assembly by a vote of &J' to B ,ith
& abstention: and !esolution ?o. A on the amendment to the Article on the Commission on /lections
by a vote of &J) to * ,ith & abstention. Ehere then is the alleged infirmityI As to the re#uisite
standard for a proper submission, the #uestion may be vie,ed 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 ,ere properly informed as to the proposed changes. As to the period, the
Constitution indicates the ,ay the matter should be resolved. here is no ambiguity to the applicable
provision7 4Any amendment to, or revision of, this Constitution shall be valid ,hen ratified by a
majority of the votes cast in a plebiscite ,hich shall be held not later than three months after the
approval of such amendment or revision.4
41
he three resolutions ,ere approved by the Interi(
Batasang Pambansa sitting as a constituent assembly on 1ebruary B and *', &()&. %n the Batasang
Pambansa Blg. **, the date of the plebiscite is set for April ', &()&. %t is thus ,ithin the (9Cday period
provided by the Constitution. hus any argument to the contrary is unavailing. As for the people being
ade#uately informed, it cannot be denied that this time, as in the cited &()9 0ccena opinion of .ustice
Antonio, ,here the amendment restored to seventy the retirement age of members of the judiciary,
the proposed amendments have 4been intensively and e8tensively discussed at the Interi( Batasang
Pambansa, as ,ell as through the mass media, G so that H it cannot, therefore, be said that our people
are una,are of the advantages and disadvantages of the proposed amendment G s H.4
44

E>/!/10!/, the petitions are dismissed for lack of merit. ?o costs.
"arre!o, 'a-asiar, 3;uino Concepcion, Jr., Fernan!ez, Guerrero, .e Castro an! 'elencio4Cerrera,
JJ., concur.
3#a! Santos, J., is on leave.

S+(a,at+ O(%%os

TEE#AN6EE, J., dissenting7
% 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 ', &()&.
&. Consistently ,ith my dissenting opinion in Sani!a! vs. Co(elec
1
on the invalidity of the 0ctober
&('2 amendments proposals to the &('A Constitution for not having been proposed nor adopted in
accordance ,ith the mandatory provisions thereof, as restated by me in Ci!al+o vs. 'arcos
4
and .e
la 0lana vs. Co(elec
3
, #uestioning the validity of the December &', &('' referendum O e8ercise as
to the continuance in office as incumbent President and to be Prime Minister after the organi"ation of
the %nterim Batasang Pambansa as provided for in Amendment ?o. A of the &('2 Amendments, % am
constrained to dissent from the majority decision of dismissal of the petitions.
% had held in Sani!a! that the transcendental constituent po,er to propose and approve amendments
to the Constitution as ,ell as to set up the machinery and prescribe the procedure for the ratification
of the amendments proposals has been ,ithheld by the Constitution from the President ;Prime
Minister< as sole repository of e8ecutive po,er and that so long as the regular ?ational Assembly
provided for in Article 6%%% of the Constitution had not come to e8istence and the proposals for
constitutional amendments ,ere no, deemed necessary to be discussed and adopted for submittal
to the people, strict adherence ,ith the mandatory re#uirements of the amending process as provided
in the Constitution must be complied ,ith. his means, under the prevailing doctrine of Tolentino vs.
Co(elec
5
that the proposed amendments to be valid must come from the constitutional agency
vested ,ith the constituent po,er to do so, i.e. in the %nterim ?ational Assembly provided in the
ransitory Article D6%% ,hich ,ould then have to be convened and not from the e8ecutive po,er as
vested in the President ;Prime Minister< from ,hom such constituent po,er has been ,ithheld.
*. As restated by me in the &('' case of Ci!al+o, under the controlling doctrine of Tolentino, the
0ctober &('2 constitutional amendments ,hich created the %nterim Batasang Pambansa in lieu of the
%nterim ?ational Assembly ,ere invalid since as ruled by the Court therein, constitutional provisions
on amendments 4dealing ,ith the procedure or manner of amending the fundamental la, are binding
upon the Convention and the other departments of the government ;and< are no less binding upon
the people4 and 4the very %dea of deparcing from the fundamental la, is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of la,.4 he proposed amendments at bar
having been adopted by the %nterim Batasang Pambansa as the fruit of the invalid 0ctober, &('2
amendments must necessarily suffer from the same Congenital infirmity.
A. Prescinding from the foregoing and assuming the validity of the proposed amendments, % reiterate
my stand in Sani!a! that the doctrine of fair and proper submission firs enunciated by a simple
majority of si8 .ustices ;of an eleven member Court prior to the &('A Constitution ,hich increased the
official composition of the Court to fifteen< in Gonzales vs. Co(elec
5
and subse#uently officially
adopted by the re#uired constitutional t,oCthirds majority vote of the Court ;of eight votes, then< in
Tolentino is fully applicable in the case at bar. he three resolutions proposing comple8, complicated
and radical amendments of our very structure of government ,ere considered and approved by the
%nterim Batasang Pambansa sitting as a constituent assembly on 1ebruary *', &()&. %t set the date of
the plebiscite for thirtyCnine days later on April ', &()& ,hich is totally inade#uate and far short of the
ninetyCday period fi8ed by the Constitution for submittal to the people to 4sufficiently inform them of
the amendments to be voted upon, to conscientiously deliberate thereon and to e8press their ,ill in a
genuine manner.4
:

J. 4he minimum re#uirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment4 as stated by retired .ustice Conrado 6. -anche" in
his separate opinion in Gonzales bears repeating as follo,s7 4... ,e take the vie, that the ,ords
$submitted to the people for their ratification,$ if construed in the light of the nature of the Constitution O
a fundamental charter that is legislation direct from the people, an e8pression of their sovereign ,ill O
is that it can only be amended by the people e8pressing themselves according to the procedure
ordained by the Constitution. herefore, amendments must be fairly laid before the people for their
blessing or spurning. he people are not to be mere rubber stamps. hey are not to vote blindly. hey
must be afforded ample opportunity to mull over the original provisions, compare them ,ith the
proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free
from the incubus of e8traneous or possibly insidious influences. Ee believe the ,ord $submitted$ can
only mean that the government, ,ithin its ma8imum capabilities, should strain every short to inform
every citi"en of the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. ... Ehat the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency ,ithin its
structural frame,ork to enlighten the people, educate them ,ith respect to their act of ratification or
rejection. 1or, as ,e have earlier stated, one thing is submission and another is ratification. here
must be fair submission, intelligent consent or rejection. %f ,ith all these safeguards the people still
approve the amendments no matter ho, prejudicial it is to them, then so be it. 1or the people decree
their o,n fate.4
.ustice -anche" therein ended the passage ,ith an apt citation that 4... he great men ,ho builded
the structure of our state in this respect had the mental vision of a good Constitution voiced by .udge
Cooley, ,ho has said $A good Constitution should be beyond the reach of temporary e8citement and
popular caprice or passion. %t is needed for stability and steadiness: it must yield to the thought of the
people: not to the ,him of the people, or the thought evolved in e8citement, or hot blood, but the
sober second thought, ,hich alone if the government is to be safe, can be allo,ed efficacy ...
Changes in government are to be feard unless benefit is certain.$ As Montaign says7 $All great
mutation shake and disorder a state. 3ood does not necessarily succeed evil: another evil may
succeed and a ,orse.4$

S+(a,at+ O(%%os
% 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 ', &()&.
&. Consistently ,ith my dissenting opinion in Sani!a! vs. Co(elec
1
on the invalidity of the 0ctober
&('2 amendments proposals to the &('A Constitution for not having been proposed nor adopted in
accordance ,ith the mandatory provisions thereof, as restated by me in Ci!al+o vs. 'arcos
4
and .e
la 0lana vs. Co(elec
3
, #uestioning the validity of the December &', &('' referendum O e8ercise as
to the continuance in office as incumbent President and to be Prime Minister after the organi"ation of
the %nterim Batasang Pambansa as provided for in Amendment ?o. A of the &('2 Amendments, % am
constrained to dissent from the majority decision of dismissal of the petitions.
% had held in Sani!a! that the transcendental constituent po,er to propose and approve amendments
to the Constitution as ,ell as to set up the machinery and prescribe the procedure for the ratification
of the amendments proposals has been ,ithheld by the Constitution from the President ;Prime
Minister< as sole repository of e8ecutive po,er and that so long as the regular ?ational Assembly
provided for in Article 6%%% of the Constitution had not come to e8istence and the proposals for
constitutional amendments ,ere no, deemed necessary to be discussed and adopted for submittal
to the people, strict adherence ,ith the mandatory re#uirements of the amending process as provided
in the Constitution must be complied ,ith. his means, under the prevailing doctrine of Tolentino vs.
Co(elec
5
that the proposed amendments to be valid must come from the constitutional agency
vested ,ith the constituent po,er to do so, i.e. in the %nterim ?ational Assembly provided in the
ransitory Article D6%% ,hich ,ould then have to be convened and not from the e8ecutive po,er as
vested in the President ;Prime Minister< from ,hom such constituent po,er has been ,ithheld.
*. As restated by me in the &('' case of Ci!al+o, under the controlling doctrine of Tolentino, the
0ctober &('2 constitutional amendments ,hich created the %nterim Batasang Pambansa in lieu of the
%nterim ?ational Assembly ,ere invalid since as ruled by the Court therein, constitutional provisions
on amendments 4dealing ,ith the procedure or manner of amending the fundamental la, are binding
upon the Convention and the other departments of the government ;and< are no less binding upon
the people4 and 4the very %dea of deparcing from the fundamental la, is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of la,.4 he proposed amendments at bar
having been adopted by the %nterim Batasang Pambansa as the fruit of the invalid 0ctober, &('2
amendments must necessarily suffer from the same Congenital infirmity.
A. Prescinding from the foregoing and assuming the validity of the proposed amendments, % reiterate
my stand in Sani!a! that the doctrine of fair and proper submission firs enunciated by a simple
majority of si8 .ustices ;of an eleven member Court prior to the &('A Constitution ,hich increased the
official composition of the Court to fifteen< in Gonzales vs. Co(elec
5
and subse#uently officially
adopted by the re#uired constitutional t,oCthirds majority vote of the Court ;of eight votes, then< in
Tolentino is fully applicable in the case at bar. he three resolutions proposing comple8, complicated
and radical amendments of our very structure of government ,ere considered and approved by the
%nterim Batasang Pambansa sitting as a constituent assembly on 1ebruary *', &()&. %t set the date of
the plebiscite for thirtyCnine days later on April ', &()& ,hich is totally inade#uate and far short of the
ninetyCday period fi8ed by the Constitution for submittal to the people to 4sufficiently inform them of
the amendments to be voted upon, to conscientiously deliberate thereon and to e8press their ,ill in a
genuine manner.4
:

J. 4he minimum re#uirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment4 as stated by retired .ustice Conrado 6. -anche" in
his separate opinion in Gonzales bears repeating as follo,s7 4... ,e take the vie, that the ,ords
$submitted to the people for their ratification,$ if construed in the light of the nature of the Constitution O
a fundamental charter that is legislation direct from the people, an e8pression of their sovereign ,ill O
is that it can only be amended by the people e8pressing themselves according to the procedure
ordained by the Constitution. herefore, amendments must be fairly laid before the people for their
blessing or spurning. he people are not to be mere rubber stamps. hey are not to vote blindly. hey
must be afforded ample opportunity to mull over the original provisions, compare them ,ith the
proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free
from the incubus of e8traneous or possibly insidious influences. Ee believe the ,ord $submitted$ can
only mean that the government, ,ithin its ma8imum capabilities, should strain every short to inform
every citi"en of the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. ... Ehat the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency ,ithin its
structural frame,ork to enlighten the people, educate them ,ith respect to their act of ratification or
rejection. 1or, as ,e have earlier stated, one thing is submission and another is ratification. here
must be fair submission, intelligent consent or rejection. %f ,ith all these safeguards the people still
approve the amendments no matter ho, prejudicial it is to them, then so be it. 1or the people decree
their o,n fate.4
.ustice -anche" therein ended the passage ,ith an apt citation that 4... he great men ,ho builded
Cooley, ,ho has said $A good Constitution should be beyond the reach of temporary e8citement and
people: not to the ,him of the people, or the thought evolved in e8citement, or hot blood, but the
sober second thought, ,hich alone if the government is to be safe, can be allo,ed efficacy ...
Changes in government are to be feard unless benefit is certain.$ As Montaign says7 $All great
mutation shake and disorder a state. 3ood does not necessarily succeed evil: another evil may
succeed and a ,orse.4$
Footot+s
& !esolution ?os. *), &9J and &92;&()&<.
* .avellana v. he /8ecutive -ecretary, +CA2&J*, March A&, &('A, B9 -C!A A9.
A +CB2AB9, -amuel C. 0ccena v. he Commission on /lections, he Commission on Audit, he ?ational reasurer and the Director of
Printing.
J +CB2J9J, !amon A. 3on"ales v. he ?ational reasurer and the Commission on /lections. he other coCpetitioners are Manuel B. %mbong,
.o Aurea MarcosC %mbong, !ay Allan . Drilon, ?elson 6. Malana and 3il M. abios.
B here ,as on March *J an amended petition in 0ccena, adopting the theory of petitioner 3on"ales that the &(AB Constitution ,as once
again in force and effect.
2 %t should not be lost sight of that four other cases ,here decided in the joint resolution of dismissal dated March A&, &('A, an v. he
/8ecutive -ecretary, +CA2&2J: !o8as v. Melchor, +CA2&2B: Monteclaro v. he /8ecutive -ecretary, +CA2*A2: Dilag v. he >onorable
/8ecutive -ecretary, +CA2*)A, all reported in B9 -C!A A9.
' he si8 votes came from .ustices Makalintal Castro, Barredo, Makasiar, Antonio and /sguerra.
) he four votes ,ere cast by then Chief .ustice Concepcion, the late .ustice 5aldivar, and .ustice eehankee as ,ell as the ,riter of this
opinion.
( B9 -C!A at &J&. Concepcion, C.J., dissented from this concluding statement.
&9 Black, he People and the Court B2CB) ;&(2*<.
&& Murphy, /lements of .udicial -trategy &'C&) ;&(2J<.
&* 3.!. ?o. B2&B)C2J, March &', &()&.
&A Cf. 3arcia v. Domingo, +CA9&9J, .uly *B, &('A, B* -C!A &JA:
Buendia v. City of Baguio, +CAJ9&&, .uly *B, &('A, B* -C!A &BB: 1lores v. 1lores, +C*)(A9, August &', &('A, B* -C!A *(A: Alfanta v. ?ao,
+CA*A2*, -eptember &(, &('A, BA -C!A '2: People v. Molina, +CA9&(&, 0ctober ', &('A, BA -C!A J(B: People v. 5amora, +CAJ9(9,
?ovember &2, &('A, BJ -C!A J': !epublic v. 6illasor, +CA92'&, ?ovember *), &('A, BJ -C!A )A: Paulo v. Court of Appeals, +CAA)JB,
December &), &('A, BJ -C!A *BA: People v. Bacong, +CA2&2&,
December &(, &('A, BJ -C!A *)) and Asian -urety and %nsurance Co. v. >errera, +C*B*A*, December *9, &('A, BJ -C!A A&*.
%t may be mentioned that the first of such cases, 3arcia, ,as promulgated on .uly *B, &('A ,ith the ,riter of this opinion as opposite and the
ne8t case, Buendia, also on the same date, ,ith .ustice eehankee as ponente, both of ,hom ,ere dissenters in .avellana, but ,ho felt
bound to abide by the majority decision.
&J &('2 Amendments, par. *. he last sentence follo,s7 4>o,ever, it shall not e8ercise the po,ers provided in article 6%%%, -ection &J, ;&< of
the Constitution.4 Article 6%%%, -ection &J, par. ;&< reads as follo,s7 4/8cept as other,ise provided in this Constitution. no treaty shall be valid
and effective unless concurred in by a majority of all the members of the ?ational Assembly.4
&B Article D6%%, -ection &B of the Constitution reads as follo,s7 4he interi( ?ational Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. -uch amendments shall take effect ,hen
ratified in accordance ,ith Article -i8teen hereof.4
&2 +CB**2B, (B -C!A 'BB.
&' I#i!, '2*.
&) +CA*J'2, 0ctober *9, l('9, AB -C!A A2'.
&( l#i!, A2(CA'9.
*9 Cf. E6 parte Nerby, *9B P*'( ;&(**<.
*& Article D6%, -ection * of the Constitution.
** +CB**2B, (B -C!A 'BB, '2*. he ,riter of this opinion, along ,ith retired Chief .ustice Concepcion and .ustices Makalintal and Beng"on,
is committed to the vie, e8pressed in the ponencia of the retired Chief .ustice that in the final analysis the #uestion of proper
submission reduces itself not as to po,er, ,hich is the concern of the judiciary, but as to ,isdom, ,hich is entrusted to the constituent body
proposing the amendments. 3on"ales v. Commission on /lections, +C*)&(2, ?ovember (, &(2', *& -C!A ''J, )9&. he opposing vie, ,as
set forth by .ustice -anche".
eehankee, ..
& 'A -C!A AAA ;&('2<.
* )9 -C!A BA) ;&(''<.
A )9 -C!A B*B ;&(''<.
J +CAJ&B9, 0ct. &2, &('&, J& -C!A '9* and !esolution denying motion for reconsideration dated ?ov. J, &('&.
B *& -C!A ''J.
2 *& -C!A, at page )&'.
SUPREME COURT
Manila
EN BANC

G.R. No. L335150 O'to8+, 1:, 1971
ART"RO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, a! T#E C#IEF ACCO"NTANT, T#E A"DITOR, a! T#E
DIS$"RSING OFFICER OF T#E 1971 CONSTIT"TIONAL CON2ENTION, respondents, RA"L S.
MANGLA."S, JES"S G. $ARRERA, .A$LO S. TRILLANA III, 2ICTOR DE LA SERNA,
MARCELO $. FERNAN, JOSE 9. FERIA, LEONARDO SIG"ION RE9NA, 2ICTOR F. ORTEGA,
a! J"AN 2. $ORRA, %ntervenors.
3rturo '. Tolentino in *is o)n #e*al,.
>a(on 3. Gonzales ,or respon!ents C*ie, 3ccountant an! 3u!itor o, t*e $%7$ Constitutional
Convention.
E((anuel Pelaez, Jor+e '. Juco an! To(as 0. Ec*ivarre ,or respon!ent .is#ursin+ O,,icer o, t*e
$%7$ Constitutional Convention.
Intervenors in t*eir o)n #e*al,.

$ARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on /lections 4from
undertaking to hold a plebiscite on ?ovember ), &('&,4 at ,hich the proposed constitutional
amendment 4reducing the voting age4 in -ection & of Article 6 of the Constitution of the Philippines to
eighteen years 4shall be, submitted4 for ratification by the people pursuant to 0rganic !esolution ?o.
& of the Constitutional Convention of &('&, and the subse#uent implementing resolutions, by
declaring said resolutions to be ,ithout the force and effect of la, in so far as they direct the holding
of such plebiscite and by also declaring the acts of the respondent Commission ;C0M/+/C<
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the C0M/+/C, the Count
re#uired that copies thereof be served on the -olicitor 3eneral and the Constitutional Convention,
through its President, for such action as they may deem proper to take. %n due time, respondent
C0M/+/C filed its ans,er joining issues ,ith petitioner. o further put things in proper order, and
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this
nature, since the acts sought to be enjoined involve the e8penditure of funds appropriated by la, for
the Convention, the Court also ordered that the Disbursing 0fficer, Chief Accountant and Auditor of
the Convention be made respondents. After the petition ,as so amended, the first appeared thru
-enator /mmanuel Pelae" and the last t,o thru Delegate !amon 3on"ales. All said respondents,
thru counsel, resist petitioner$s action.
1or reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that ,ith the principal parties being duly represented by able counsel,
their interests ,ould be ade#uately protected already, the Court had to limit the number of intervenors
from the ranks of the delegates to the Convention ,ho, more or less, have legal interest in the
success of the respondents, and so, only Delegates !aul -. Manglapus, .esus 3. Barrera, Pablo -.
rillana %%%, 6ictor de la -erna, Marcelo B. 1ernan, .ose @. 1eria, +eonardo -iguion !eyna, 6ictor
0rtega and .uan B. Borra, all distinguished la,yers in their o,n right, have been allo,ed to intervene
jointly. he Court feels that ,ith such an array of brilliant and dedicated counsel, all interests involved
should be duly and amply represented and protected. At any rate, not,ithstanding that their
corresponding motions for leave to intervene or to appear as amicus curiae & 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 ,ith the records and the Court
ackno,ledges that they have not been ,ithout value as materials in the e8tensive study that has
been undertaken in this case.
he background facts are beyond dispute. he Constitutional Convention of &('& came into being by
virtue of t,o 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, !esolutions * and J of the joint sessions of Congress held on March &2, &(2'
and .une &', &(2( respectively. he delegates to the said Convention ,ere all elected under and by
virtue of said resolutions and the implementing legislation thereof, !epublic Act 2&A*. he pertinent
portions of !esolution ?o * read as follo,s7
-/C%0? &. here is hereby called a convention to propose amendments to the Constitution of the
Philippines, to be composed of t,o elective Delegates from each representative district ,ho shall have
the same #ualifications as those re#uired of Members of the >ouse of !epresentatives.
888 888 888
-/C%0? '. he amendments proposed by the Convention shall be valid and considered part of the
Constitution ,hen approved by a majority of the votes cast in an election at ,hich they are submitted to
the people for their ratification pursuant to Article D6 of the Constitution.
!esolution ?o. J merely modified the number of delegates to represent the different cities and
provinces fi8ed originally in !esolution ?o *.
After the election of the delegates held on ?ovember &9, &('9, the Convention held its inaugural
session on .une &, &('&. %ts preliminary labors of election of officers, organi"ation of committees and
other preparatory ,orks over, as its first formal proposal to amend the Constitution, its session ,hich
began on -eptember *', &('&, or more accurately, at about A7A9 in the morning of -eptember *),
&('&, the Convention approved 0rganic !esolution ?o. & reading thus7 .
CC 0!3A?%C !/-0+=%0? ?0. &
A !/-0+=%0? AM/?D%?3 -/C%0? 0?/ 01 A!%C+/ 6 01 >/ C0?-%=%0? 01 >/
P>%+%PP%?/- -0 A- 0 +0E/! >/ 60%?3 A3/ 0 &)
B/ % !/-0+6/D as it is hereby resolved by the &('& Constitutional Convention7
-ection &. -ection 0ne of Article 6 of the Constitution of the Philippines is amended to as follo,s7
-ection &. -uffrage may be e8ercised by ;male< citi"ens of the Philippines not other,ise
dis#ualified by la,, ,ho are ;t,entyCone< /%3>//? years or over and are able to read
and ,rite, and ,ho shall have resided in the Philippines for one year and in the
municipality ,herein they propose to vote for at least si8 months preceding the election.
-ection *. his amendment shall be valid as part of the Constitution of the Philippines ,hen approved by
a majority of the votes cast in a plebiscite to coincide ,ith the local elections in ?ovember &('&.
-ection A. his partial amendment, ,hich refers only to the age #ualification for the e8ercise of suffrage
shall be ,ithout prejudice to other amendments that ,ill be proposed in the future by the &('&
Constitutional Convention on other portions of the amended -ection or on other portions of the entire
Constitution.
-ection J. he Convention hereby authori"es the use of the sum of P'B,999.99 from its savings or from
its une8pended funds for the e8pense of the advanced plebiscite: provided, ho,ever that should there be
no savings or une8pended sums, the Delegates ,aive P*B9.99 each or the e#uivalent of *C&F* days per
diem.
By a letter dated -eptember *), &('&, President Diosdado Macapagal, called upon respondent
Comelec 4to help the Convention implement ;the above< resolution.4 he said letter reads7
-eptember *), &('&
he Commission on /lections Manila
hru the Chairman
3entlemen7
+ast night the Constitutional Convention passed !esolution ?o. & #uoted as follo,s7
888 888 888
;see above<
Pursuant to the provision of -ection &J, !epublic Act ?o. 2&A* other,ise kno,n as the Constitutional
Convention Act of &('&, may ,e call upon you to help the Convention implement this resolution7
-incerely,
;-gd.< D%0-DAD0 P. MACAPA3A+
D%0-DAD0 P. MACAPA3A+
President
0n -eptember A9, &('&, C0M/+/C 4!/-0+6/D to inform the Constitutional Convention that it ,ill
hold the plebiscite on condition that7
;a< he Constitutional Convention ,ill undertake the printing of separate official ballots, election returns
and tally sheets for the use of said plebiscite at its e8pense:
;b< he Constitutional Convention ,ill adopt its o,n security measures for the printing and shipment of
said ballots and election forms: and
;c< -aid official ballots and election forms ,ill be delivered to the Commission in time so that they could
be distributed at the same time that the Commission ,ill distribute its official and sample ballots to be
used in the elections on ?ovember ), &('&.
Ehat happened after,ards may best be stated by #uoting from intervenors$ 3overnors$ statement of
the genesis of the above proposal7
he President of the Convention also issued an order forming an Ad >oc Committee to implement the
!esolution.
his Committee issued implementing guidelines ,hich ,ere approved by the President ,ho then
transmitted them to the Commission on /lections.
he Committee on Plebiscite and !atification filed a report on the progress of the implementation of the
plebiscite in the afternoon of 0ctober ',&('&, enclosing copies of the order, resolution and letters of
transmittal above referred to ;Copy of the report is hereto attached as Anne8 )CMemorandum<.
!/C/-- !/-0+=%0?
%n its plenary session in the evening of 0ctober ', &('&, the Convention approved a resolution authored
by Delegate Antonio 0lmedo of Davao 0riental, calling for a recess of the Convention from ?ovember &,
&('& to ?ovember (, &('& to permit the delegates to campaign for the ratification of 0rganic !esolution
?o. &. ;Copies of the resolution and the transcript of debate thereon are hereto attached as Anne8es (
and (CA Memorandum, respectively<.
!/-0+=%0? C0?1%!M%?3 %MP+/M/?A%0?
0n 0ctober &*, &('&, the Convention passed !esolution ?o. *J submitted by Delegate .ose 0"ami"
confirming the authority of the President of the Convention to implement 0rganic !esolution ?o. &,
including the creation of the Ad >oc Committee ratifying all acts performed in connection ,ith said
implementation.
=pon these facts, the main thrust of the petition is that 0rganic !esolution ?o. & and the other
implementing resolutions thereof subse#uently approved by the Convention have no force and effect
as la,s in so far as they provide for the holding of a plebiscite coCincident ,ith the elections of eight
senators and all city, provincial and municipal officials to be held on ?ovember ), &('&, hence all of
Comelec$s acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by
the Constitution, a po,er lodged e8clusively in Congress, as a legislative body, and may not be
e8ercised by the Convention, and that, under -ection &, Article D6 of the Constitution, the proposed
amendment in #uestion cannot be presented to the people for ratification separately from each and all
of the other amendments to be drafted and proposed by the Convention. 0n the other hand,
respondents and intervenors posit that the po,er to provide for, fi8 the date and lay do,n the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose is
,ithin the authority of the Convention as a necessary conse#uence and part of its po,er to propose
amendments and that this po,er includes that of submitting such amendments either individually or
jointly at such time and manner as the Convention may direct in discretion. he Court$s delicate task
no, is to decide ,hich of these t,o poses is really in accord ,ith the letter and spirit of the
Constitution.
As a preliminary and prejudicial matter, the intervenors raise the #uestion of jurisdiction. hey
contend that the issue before =s is a political #uestion 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. %n this connection, it is to be noted that none of the respondent has
joined intervenors in this posture. %n fact, respondents Chief Accountant and Auditor of the convention
e8pressly concede the jurisdiction of this Court in their ans,er ackno,ledging that the issue herein is
a justifiable one.
-trangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of 3on"ales v. Comelec, *& -C!A ''J, ,herein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, ,ere precisely unanimous in
upholding its jurisdiction. 0bviously, distinguished counsel have either failed to grasp the full impact
of the portions of 0ur decision they have #uoted or ,ould misapply them by taking them out of
conte8t.
here should be no more doubt as to the position of this Court regarding its jurisdiction visCaCvis 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, ,hich concededly is at par ,ith the former. A simple reading of 0ur ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. -uccinctly but comprehensively, Chief .ustice Concepcion held for the Court thus7 .
As early as 3n+ara vs. Electoral Co((ission ;2A Phil. &A(, &B'<, this Court K speaking through one of
the leading members of the Constitutional Convention and a respected professor of Constitutional +a,,
Dr. .ose P. +aurel K declared that 4the judicial department is the only constitutional organ ,hich can be
called upon to determine the proper allocation of po,ers bet,een the several departments and among
the integral or constituent units thereof.4
%t is true that in 'a#ana+ v. 0opez @ito ;supra<, this Court characteri"ing the issue submitted thereto as a
political one declined to pass upon the #uestion ,hether or not a given number of votes cast in Congress
in favor of a proposed amendment to the Constitution K ,hich ,as being submitted to the people for
ratification K satisfied the threeCfourths vote re#uirement of the fundamental la,. he force of this
precedent has been ,eakened, ho,ever, by Suanes v. C*ie, 3ccountant of the -enate ;)& Phil. )&)<,
3velino v. Cuenco, ;+C*)B&, March J M &J, &(J(<, TaAa!a v. Cuenco, ;+C&9B*9, 1eb. *), &(B'< and
'acias v. Co((ission on Elections, ;+C&)2)J, -ept. &J, &(2&<. %n the first ,e held that the officers and
employees of the -enate /lectoral ribunal are under its supervision and control, not of that of the -enate
President, as claimed by the latter: in the second, this Court proceeded to determine the number of
-enators necessary for ;uoru( in the -enate: in the third, ,e nullified the election, by -enators 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 t,o ;*< -enators belonging to the first party, as
members, for the second party, of the -enate /lectoral ribunal: and in the fourth, ,e declared
unconstitutional an act of Congress purporting to apportion the representatives districts for the >ouse of
!epresentatives, upon the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. hus ,e rejected the theory, advanced in these
four ;J< cases that the issues therein raised ,ere political #uestions the determination of ,hich is beyond
judicial revie,.
%ndeed, the po,er to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative po,ers to Congress ;-ection &, Art. 6%, Constitution of the Philippines<. %t is
part of the inherent po,ers o, t*e people K as the repository sovereignty in a republican state, such as
ours ;-ection &, Art. &&, Constitution of the Philippines< K to make, and, hence, to amend their o,n
1undamental +a,. Congress may propose amendments to the Constitution merely because the same
e8plicitly grants such po,er. ;-ection &, Art. D6, Constitution of the Philippines< >ence, ,hen e8ercising
the same, it is said that -enators and members of the >ouse of !epresentatives act, not as members of
Congress, but as component elements of a constituent asse(#l. Ehen acting as such, the members of
Congress derive their authority from the Constitution, unlike the people, ,hen performing the same
function, ;0f amending the Constitution< for their authority does not emanate from the Constitution K they
are t*e ver source of all po,ers of government inclu!in+ t*e Constitution itsel,.
-ince, ,hen proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the 1undamental +a,, it follo,s, necessarily, that they do not have
the final say on ,hether or not their acts are ,ithin or beyond constitutional limits. 0ther,ise, they could
brush aside and set the same at naught, contrary to the basic tenet that ours is a government of la,s, not
of men, and to the rigid nature of our Constitution. -uch rigidity is stressed by the fact that the
Constitution e8pressly confers upon the -upreme Court, ;And, inferentially, to lo,er courts.< the po,er to
declare a treaty unconstitutional. ;-ec. *;&<, Art. 6%%% of the Constitution<, despite the eminently political
character of treatyCmaking po,er.
%n short, the issue ,hether or not a !esolution of Congress K acting as a constituent assembly K
violates the Constitution is essentially justiciable not political, and, hence, subject to judicial revie,, and,
to the e8tent that this vie, may be inconsistent ,ith the stand taken in 'a#ana+ v. 0opez @ito, ;supra< the
latter should be deemed modified accordingly. he Members of the Court are unanimous on this point.
?o one can rightly claim that ,ithin the domain of its legitimate authority, the Convention is not
supreme. ?o,here in his petition and in his oral argument and memoranda does petitioner point
other,ise. Actually, ,hat respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of &('&, as any other convention of the same nature, o,es its e8istence
and derives all its authority and po,er from the e8isting Constitution of the Philippines. his
Convention has not been called by the people directly as in the case of a revolutionary convention
,hich drafts the first Constitution of an entirely ne, government born of either a ,ar of liberation from
a mother country or of a revolution against an e8isting government or of a bloodless sei"ure of po,er
a la coup !Detat. As to such kind of conventions, it is absolutely true that the convention is completely
,ithout restrain and omnipotent all ,ise, and it is as to such conventions that the remarks of Delegate
Manuel !o8as of the Constitutional Convention of &(AJ #uoted by -enator Pelae" refer. ?o amount
of rationali"ation can belie the fact that the current convention came into being only because it ,as
called by a resolution of a joint session of Congress acting as a constituent assembly by authority of
-ection &, Article D6 of the present Constitution ,hich provides7
A!%C+/ D6 K AM/?DM/?-
-/C%0? &. he Congress in joint session assembled, by a vote of threeCfourths of all the Members of
the -enate and of the >ouse of !epresentatives voting separately, may propose amendments to this
Constitution or call a convention for the purpose. -uch amendments shall be valid as part of this
Constitution ,hen approved by a majority of the votes cast at an election at ,hich the amendments are
submitted to the people for their ratification.
rue it is that once convened, this Convention became endo,ed ,ith e8tra ordinary po,ers generally
beyond the control of any department of the e8isting government, but the compass of such po,ers
can be coCe8tensive only ,ith the purpose for ,hich the convention ,as 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 follo,s that the acts of convention, its officers and members are not immune from attack
on constitutional grounds. he present Constitution is in full force and effect in its entirety and in
everyone of its parts the e8istence of the Convention not,ithstanding, and operates even ,ithin the
,alls of that assembly. Ehile 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 e#ually beyond cavil that neither the Convention nor any of its
officers or members can rightfully deprive any person of life, liberty or property ,ithout due process of
la,, deny to anyone in this country the e#ual protection of the la,s or the freedom of speech and of
the press in disregard of the Bill of !ights of the e8isting Constitution. ?or, for that matter, can such
Convention validly pass any resolution providing for the taking of private property ,ithout just
compensation or for the imposition or e8acting of any ta8, impost or assessment, or declare ,ar or
call the Congress to a special session, suspend the privilege of the ,rit of habeas corpus, pardon a
convict or render judgment in a controversy bet,een private individuals or bet,een such individuals
and the state, in violation of the distribution of po,ers in the Constitution.
%t being manifest that there are po,ers ,hich the Convention may not and cannot validly assert,
much less e8ercise, in the light of the e8isting Constitution, the simple #uestion arises, should an act
of the Convention be assailed by a citi"en as being among those not granted to or inherent in it,
according to the e8isting Constitution, ,ho can decide ,hether such a contention is correct or notI %t
is of the very essence of the rule of la, that someho, some,here the Po,er and duty to resolve
such a grave constitutional #uestion must be lodged on some authority, or ,e ,ould have to confess
that the integrated system of government established by our founding fathers contains a ,ide vacuum
no intelligent man could ignore, ,hich is naturally un,orthy of their learning, e8perience and
craftsmanship in constitutionCmaking.
Ee need not go far in search for the ans,er to the #uery Ee have posed. he very decision of Chief
.ustice Concepcion in 3on"ales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and ,ealth of principle in the opinion ,ritten for a unanimous Court by .ustice +aurel
in Angara vs. /lectoral Commission, 2A Phil., &AJ, reading7
... ;%<n the main, the Constitution has blocked out ,ith deft strokes and in bold lines, allotment of po,er to
the e8ecutive, the legislative and the judicial departments of the government. he overlapping and
interlacing of functions and duties bet,een the several departments, ho,ever, sometimes makes it hard
to say ,here the one leaves off and the other begins. %n times of social dis#uietude or political e8citement,
the great landmark of the Constitution are apt to be forgotten or marred, if not entirely obliterated. %n
cases of conflict, the judicial department is the only constitutional organ ,hich can be called upon to
determine the proper allocation of po,ers bet,een 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 ,as ,ithin the po,er of our people, acting through their delegates to so provide, that instrument
,hich is the e8pression of their sovereignty ho,ever limited, has established a republican government
intended to operate and function as a harmonious ,hole, under a system of check and balances and
subject to specific limitations and restrictions provided in the said instrument. he Constitution sets forth
in no uncertain language the restrictions and limitations upon governmental po,ers and agencies. %f these
restrictions and limitations are transcended it ,ould be inconceivable if the Constitution had not provided
for a mechanism by ,hich to direct the course of government along constitutional channels, for then the
distribution of po,ers ,ould be mere verbiage, the bill of rights mere e8pressions 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. %n the =nited -tates
,here no e8press constitutional grant is found in their constitution, the possession of this moderating
po,er of the courts, not to speak of its historical origin and development there, has been set at rest by
popular ac#uiescence for a period of more than one and half centuries. %n our case, this moderating
po,er is granted, if not e8pressly, by clear implication from section * of Article 6%%% of our Constitution.
he Constitution is a definition of the po,ers or government. Eho is to determine the nature, scope and
e8tent of such po,ersI he Constitution itself has provided for the instrumentality of the judiciary as the
rational ,ay. And ,hen 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 ,hich that instrument secures and guarantees to them. his is in truth all that is
involved in ,hat is termed 4judicial supremacy4 ,hich properly is the po,er of judicial revie, under the
Constitution. /ven then, this po,er of judicial revie, is limited to actual cases and controversies to be
e8ercised after full opportunity of argument by the parties, and limited further to the constitutional #uestion
raised or the very lis (ota presented. Any attempt at abstraction could only lead to dialectics and barren
legal #uestions and to strike conclusions unrelated to actualities. ?arro,ed as its functions is in this
manner the judiciary does not pass upon #uestions of ,isdom, justice or e8pediency 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 ,isdom and justice of the people as
e8pressed through their representatives in the e8ecutive and legislative departments of the government.
But much as ,e might postulate on the internal checks of po,er provided in our Constitution, it ought not
the less to be remembered that, in the language of .ames Madison, the system itself is not 4the chief
palladium of constitutional liberty ... the people ,ho 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.4 %n the last and ultimate analysis then, must the success of our government in the unfolding
years to come be tested in the crucible of 1ilipino minds and hearts than in consultation rooms and court
chambers.
%n the case at bar, the ?ational Assembly has by resolution ;?o. )< of December A, &(AB, confirmed the
election of the herein petitioner to the said body. 0n the other hand, the /lectoral Commission has by
resolution adopted on December (, &(AB, fi8ed said date as the last day for the filing of protests against
the election, returns and #ualifications of members of the ?ational Assembly: not,ithstanding the
previous confirmations made by the ?ational Assembly as aforesaid. %f, as contended by the petitioner,
the resolution of the ?ational Assembly has the effect of cutting off the po,er of the /lectoral Commission
to entertain protests against the election, returns and #ualifications of members of the ?ational Assembly,
submitted after December A, &(AB then the resolution of the /lectoral Commission of December (, &(AB,
is mere surplusage and had no effect. But, if, as contended by the respondents, the /lectoral Commission
has the sole po,er of regulating its proceedings to the e8clusion of the ?ational Assembly, then the
resolution of December (, &(AB, by ,hich the /lectoral Commission fi8ed said date as the last day for
filing protests against the election, returns and #ualifications of members of the ?ational Assembly,
should be upheld.
>ere is then presented an actual controversy involving as it does a conflict of a grave constitutional nature
bet,een the ?ational Assembly on the one hand and the /lectoral Commission on the other. 1rom the
very nature of the republican government established in our country in the light of American e8perience
and of our o,n, upon the judicial department is thro,n the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. he /lectoral Commission as ,e 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 #ualifications of the members of the ?ational
Assembly. Although the /lectoral Commission may not be interfered ,ith, ,hen and ,hile acting ,ithin
the limits of its authority, it does not follo, that it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to constitutional restriction. he /lectoral Commission is
not a separate department of the government, and even if it ,ere, conflicting claims of authority under the
fundamental la, bet,een departmental po,ers and agencies of the government are necessarily
determined by the judiciary in justiciable and appropriate cases. Discarding the /nglish type and other
/uropean types of constitutional government, the framers of our Constitution adopted the American type
,here the ,ritten constitution is interpreted and given effect by the judicial department. %n some countries
,hich have declined to follo, the American e8ample, provisions have been inserted in their constitutions
prohibiting the courts from e8ercising the po,er to interpret the fundamental la,. his is taken as a
recognition of ,hat other,ise ,ould be the rule that in the absence of direct prohibition, courts are bound
to assume ,hat is logically their function. 1or instance, the Constitution of Poland of &(*& e8pressly
provides that courts shall have no po,er to e8amine the validity of statutes ;art. )&, Chap. %6<. he former
Austrian Constitution contained a similar declaration. %n countries ,hose constitution are silent in this
respect, courts have assumed this po,er. his is true in ?or,ay, 3reece, Australia and -outh Africa.
Ehereas, in C"echoslovakia ;arts. * and A, Preliminary +a, to Constitutional Charter of the
C"echoslavak, !epublic, 1ebruary *(, &(*9< and -pain ;arts. &*&C&*A, itle %D, Constitution of the
!epublic of &(A&< especial constitutional courts are established to pass upon the validity of ordinary la,s.
%n our case, the nature of the present controversy sho,s the necessity of a final constitutional arbiter to
determine the conflict of authority bet,een t,o agencies created by the Constitution. Eere ,e to decline
to take cogni"ance of the controversy, ,ho ,ill determine the conflictI And if the conflict ,ere left
undecided and undetermined, ,ould not a void be thus created in our constitutional system ,hich may in
the long run prove destructive of the entire frame,orkI o ask these #uestions is to ans,er them. Natura
vacuu( a#*orret, so must ,e avoid e8haustion in our constitutional system. =pon principle, reason, and
authority, ,e are clearly of the opinion that upon the admitted facts of the present case, this court has
jurisdiction over the /lectoral Commission and the subject matter of the present controversy for the
purpose of determining the character, scope and e8tent of the constitutional grant to the /lectoral
Commission as 4the sole judge of all contests relating to the election, returns and #ualifications of the
members of the ?ational Assembly.4 .
As the Chief .ustice has made it clear in Gonzales, like .ustice +aurel did in 3n+ara, these postulates
just #uoted do not apply only to conflicts of authority bet,een the three e8isting regular departments
of the government but to all such conflicts bet,een and among these departments, or, bet,een 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 >ouse of
Congress, on the other. Ee see no reason of logic or principle ,hatsoever, and none has been
convincingly sho,n to =s by any of the respondents and intervenors, ,hy 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, Ee are left ,ith no alternative but to uphold the jurisdiction of the Court over the present
case. %t goes ,ithout saying that Ee 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 la,, and 4upon principle, reason and
authority,4 per .ustice +aurel, supra, it is ,ithin the po,er as it is the solemn duty of the Court, under
the e8isting Constitution to resolve the issues in ,hich petitioner, respondents and intervenors have
joined in this case.
%%
he issue of jurisdiction thus resolved, Ee come to the cru8 of the petition. %s it ,ithin the po,ers of
the Constitutional Convention of &('& to order, on its o,n fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the e8ercise of
suffrage under -ection & of Article 6 of the Constitution proposed in the Convention$s 0rganic
!esolution ?o. & in the manner and form provided for in said resolution and the subse#uent
implementing acts and resolution of the ConventionI
At the threshold, the environmental circumstances of this case demand the most accurate and
une#uivocal statement of the real issue ,hich the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional e8tension of the right of suffrage to the eighteenC
yearColds, 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 ,ith his s,orn duty to prevent, Ehenever he can, any violation of the Constitution of the
Philippines even if it is committed in the course of or in connection ,ith the most laudable
undertaking. %ndeed, as the Court sees it, the specific #uestion raised in this case is limited solely and
only to the point of ,hether or not it is ,ithin the po,er of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment proposed in the above#uoted 0rganic
!esolution ?o. &, in the manner and form provided in said resolution as ,ell as in the subject
#uestion implementing actions and resolution of the Convention and its officers, at this juncture of its
proceedings, ,hen as it is a matter of common kno,ledge and judicial notice, it is not set to adjourn
sine !ie, and is, in fact, still in the preliminary stages of considering other reforms or amendments
affecting other parts of the e8isting Constitution: and, indeed, 0rganic !esolution ?o. & itself
e8pressly provides, that the amendment therein proposed 4shall be ,ithout prejudice to other
amendments that ,ill be proposed in the future by the &('& Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution.4 %n other ,ords,
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
,hether or not the eighteenCyearColds should be allo,ed to vote, simply because that issue is not
before =s no,. here should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it ,ill not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.
Eithal, 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 ,hich the
1ilipino people is committed, of adhering al,ays to the rule of la,. -urely, their idealism, sincerity and
purity of purpose cannot permit any other line of conduct or approach in respect of the problem before
=s. he Constitutional Convention of &('& itself ,as 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 e8isting social and governmental institutions,
including the provisions of the fundamental la, related to the ,ellCbeing and economic security of the
underprivileged classes of our people as ,ell as those concerning the preservation and protection of
our natural resources and the national patrimony, as an alternative to violent and chaotic ,ays of
achieving such lofty ideals. %n brief, leaving aside the e8cesses of enthusiasm ,hich at times have
justifiably or unjustifiably marred the demonstrations in the streets, pla"as and campuses, the youth
of the Philippines, in general, like the rest of the people, do not ,ant confusion and disorder, anarchy
and violence: ,hat they really ,ant are la, and order, peace and orderliness, even in the pursuit of
,hat they strongly and urgently feel must be done to change the present order of things in this
!epublic of ours. %t ,ould be tragic and contrary to the plain compulsion of these perspectives, if the
Court ,ere to allo, itself in deciding this case to be carried astray by considerations other than the
imperatives of the rule of la, and of the applicable provisions of the Constitution. ?eedless to say, in
a larger measure than ,hen 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 ,ith the proper parties,
and by striking do,n any act violative thereof. >ere, as in all other cases, Ee are resolved to
discharge that duty.
During these t,ice ,hen 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 ,ould be the last to put any obstruction or impediment to the ,ork of the Constitutional
Convention. %f there are respectable sectors opining that it has not been called to supplant the
e8isting Constitution in its entirety, since its enabling provision, Article D6, from ,hich the Convention
itself dra,s life e8pressly speaks only of amendments ,hich shall form part of it, ,hich opinion is not
,ithout persuasive force both in principle and in logic, the seemingly prevailing vie, is that only the
collective judgment of its members as to ,hat is ,arranted by the present condition of things, as they
see it, can limit the e8tent of the constitutional innovations the Convention may propose, hence the
complete substitution of the e8isting constitution is not beyond the ambit of the Convention$s authority.
Desirable as it may be to resolve, this grave divergence of vie,s, the Court does not consider this
case to be properly the one in ,hich it should discharge its constitutional duty in such premises. he
issues raised by petitioner, even those among them in ,hich respondents and intervenors have
joined in an apparent ,ish to have them s#uarely passed upon by the Court do not necessarily
impose upon =s the imperative obligation to e8press 0ur vie,s thereon. he 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 do,n by the Constitution
only ,hen and to the specific e8tent only that it ,ould be necessary to do so to avoid a constitutional
crisis or a clearly demonstrable violation of the e8isting Charter. Eithal, it is a very familiar principle of
constitutional la, that constitutional #uestions are to be resolved by the -upreme Court only ,hen
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 uni#ue footing in that regard.
%n our discussion of the issue of jurisdiction, Ee have already made it clear that the Convention came
into being by a call of a joint session of Congress pursuant to -ection % of Article D6 of the
Constitution, already #uoted earlier in this opinion. Ee 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
e8isting Constitution. ?o, Ee hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of -ection % of Article D6. his must be so, because it is
plain to =s that the framers of the Constitution took care that the process of amending the same
should not be undertaken ,ith the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued po,er, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and ,hich ,e 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 ,ithin the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
,orthy of the people for ,hich it is intended must not be prepared in haste ,ithout ade#uate
deliberation and study. %t is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the ,hole Constitution itself, and perforce must be conceived and prepared ,ith
as much care and deliberation. 1rom the very nature of things, the drafters of an original constitution,
as already observed earlier, operate ,ithout any limitations, restraints or inhibitions save those that
they may impose upon themselves. his is not necessarily true of subse#uent conventions called to
amend the original constitution. 3enerally, the framers of the latter see to it that their handi,ork is not
lightly treated and as easily mutilated or changed, not only for reasons purely personal but more
importantly, because ,ritten 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 e8igencies of the
people, hence, they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. hus, as a rule, the original constitutions carry ,ith them
limitations and conditions, more or less stringent, made so by the people themselves, in regard to the
process of their amendment. And ,hen such limitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of any subse#uent convention to claim that they
may ignore and disregard such conditions because they are as po,erful and omnipotent as their
original counterparts.
?othing of ,hat is here said is to be understood as curtailing in any degree the number and nature
and the scope and e8tent of the amendments the Convention may deem proper to propose. ?or does
the Court propose to pass on the issue e8tensively and brilliantly discussed by the parties as to
,hether or not the po,er or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is e8clusively legislative and as such may be e8ercised only by the
Congress or ,hether the said po,er can be e8ercised concurrently by the Convention ,ith the
Congress. %n the vie, the Court takes of present case, it does not perceive absolute necessity to
resolve that #uestion, grave and important as it may be. ruth 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, ?ovember ),
&('&, the date set by the Convention for the plebiscite it is calling, being nigh, Ee ,ill refrain from
making any pronouncement or e8pressing 0ur vie,s on this #uestion until a more appropriate case
comes to =s. After all, the basis of this decision is as important and decisive as any can be.
he ultimate #uestion, therefore boils do,n to this7 %s there any limitation or condition in -ection & of
Article D6 of the Constitution ,hich is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in 0rganic !esolution ?o. &I he 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 4election4 or plebiscite. %t being indisputable that the
amendment no, proposed to be submitted to a plebiscite is only the first amendment the Convention
propose Ee hold that the plebiscite being called for the purpose of submitting the same for ratification
of the people on ?ovember ), &('& is not authori"ed by -ection & of Article D6 of the Constitution,
hence all acts of the Convention and the respondent Comelec in that direction are null and void.
Ee have arrived at this conclusion for the follo,ing reasons7
&. he language of the constitutional provision afore#uoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose 4may
propose amendments to this Constitution,4 thus placing no limit as to the number of amendments that
Congress or the Convention may propose. he same provision also as definitely provides that 4such
a(en!(ents shall be valid as part of this Constitution ,hen approved by a majority of the votes cast
at an election at ,hich the a(en!(ents are submitted to the people for their ratification,4 thus leaving
no room for doubt as to ho, many 4elections4 or plebiscites may be held to ratify any amendment or
amendments proposed by the same constituent assembly of Congress or convention, and the
provision une#uivocably says 4an election4 ,hich means only one.
;*< 6ery little reflection is needed for anyone to reali"e the ,isdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking as
constitution making itself. %ndeed, any amendment of the Constitution is as important as the ,hole of
it if only because the Constitution has to be an integrated and harmonious instrument, if it is to be
viable as the frame,ork of the government it establishes, on the one hand, and ade#uately
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 ho, a constitution ,orthy of any country or people can have any part ,hich is out of
tune ,ith its other parts..
A constitution is the ,ork of the people thru its drafters assembled by them for the purpose. 0nce the
original constitution is approved, the part that the people play in its amendment becomes harder, for
,hen a ,hole constitution is submitted to them, more or less they can assumed its harmony as an
integrated ,hole, and they can either accept or reject it in its entirety. At the very least, they can
e8amine it before casting their vote and determine for themselves from a study of the ,hole
document the merits and demerits of all or any of its parts and of the document as a ,hole. And so
also, ,hen an amendment is submitted to them that is to form part of the e8isting constitution, in like
fashion they can study ,ith deliberation the proposed amendment in relation to the ,hole e8isting
constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
his cannot happen in the case of the amendment in #uestion. Prescinding already from the fact that
under -ection A of the #uestioned resolution, it is evident that no fi8ed frame of reference is provided
the voter, as to ,hat finally ,ill be concomitant #ualifications that ,ill be re#uired 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 ,hich make it impossible to vote intelligently on the proposed
amendment, although it may already be observed that under -ection A, if a voter ,ould 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
,hether they ,ill ever be or not, because Congress has reserved those for future action, ,hat kind of
judgment can he render on the proposalI
But the situation actually before =s is even ,orse. ?o one kno,s ,hat changes in the fundamental
principles of the constitution the Convention ,ill be minded to approve. o be more specific, ,e do
not have any means of foreseeing ,hether the right to vote ,ould be of any significant value at all.
Eho can say ,hether 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. he root of the difficulty in other
,ords, 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 e8isting social and political order enshrined in the
present Constitution. >o, can a voter in the proposed plebiscite intelligently determine the effect of
the reduction of the voting age upon the different institutions ,hich the Convention may establish and
of ,hich presently he is not given any ideaI
Ee 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 ,ell as its relation to the other
parts of the Constitution ,ith ,hich it has to form a harmonious ,hole. %n the conte8t of the present
state of things, ,here the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the e8isting Constitution, to present to the people any single
proposal or a fe, of them cannot comply ,ith this re#uirement. Ee are of the opinion that the present
Constitution does not contemplate in -ection & of Article D6 a plebiscite or 4election4 ,herein the
people are in the dark as to frame of reference they can base their judgment on. Ee reject the
rationali"ation 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. %n brief, under the proposed plebiscite, there can be, in the language of .ustice
-anche", speaking for the si8 members of the Court in 3on"ales, supra, 4no proper submission4.
%%%
he Court has no desire at all to hamper and hamstring the noble ,ork of the Constitutional
Convention. Much less does the Court ,ant to pass judgment on the merits of the proposal to allo,
these eighteen years old to vote. But like the Convention, the Court has its o,n duties to the people
under the Constitution ,hich is to decide in appropriate cases ,ith appropriate parties Ehether or not
the mandates of the fundamental la, are being complied ,ith. %n the best light 3od has given =s, ,e
are of the conviction that in providing for the #uestioned plebiscite before it has finished, and
separately from, the ,hole draft of the constitution it has been called to formulate, the Convention$s
0rganic !esolution ?o. & and all subse#uent acts of the Convention implementing the same violate
the condition in -ection &, Article D6 that there should only be one 4election4 or plebiscite for the
ratification of all the amendments the Convention may propose. Ee are not denying any right of the
people to vote on the proposed amendment: Ee are only holding that under -ection &, Article D6 of
the Constitution, the same should be submitted to them not separately from but together ,ith all the
other amendments to be proposed by this present Convention.
%? 6%/E 01 A++ >/ 10!/30%?3, the petition herein is granted. 0rganic !esolution ?o. & of the
Constitutional Convention of &('& and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on ?ovember ), &('&, as ,ell as the resolution
of the respondent Comelec complying there,ith ;!! !esolution ?o. 2(B< are hereby declared null
and void. he respondents Comelec, Disbursing 0fficer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance ,ith the said
organic resolution. %n vie, of the peculiar circumstances of this case, the Court declares this decision
immediately e8ecutory. ?o costs.
Concepcion, C.J., Tee*an-ee, @illa(or an! 'a-asiar, JJ., concur.

S+(a,at+ O(%%os

MA6ALINTAL, J., reserves his vote K
% reserve my vote. he resolution in #uestion is voted do,n by a sufficient majority of the Court on just
one ground, ,hich to be sure achieves the result from the legal and constitutional vie,point. %
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. >o,ever, considering the urgent nature of this case,
the lack of time to set do,n at length my opinion on the particular issue upon ,hich the decision is
made to rest, and the fact that a dissent on the said issue ,ould necessarily be inconclusive unless
the other issues raised in the petition are also considered and ruled upon K a task that ,ould be
premature and pointless at this time K % limit myself to this reservation.
RE9ES, J.$.L., 1ALDI2AR, CASTRO a! MA6ASIAR, JJ., concurring7
Ee concur in the main opinion penned by Mr. .ustice Barredo in his usual inimitable, forthright and
vigorous style. +ike him, ,e do not e8press our individual vie,s on the )is!o( of the proposed
constitutional amendment, ,hich is not in issue here because it is a matter that properly and
e8clusively addresses itself to the collective judgment of the people.
Ee must, ho,ever, articulate t,o additional objections of constitutional dimension ,hich, although
they ,ould seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in e6tenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has po,er to propose piecemeal amendments and
submit each separately to the people for ratification, ,e are nonetheless persuaded that ;&< that there
is no proper su#(ission of title proposed amendment in #uestion ,ithin the meaning and intendment
of -ection & of Article D6 of the Constitution, and ;*< that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. .ustice C. 6. -anche", in his dissent in Gonzales vs. Co((ission on
Elections
1
and P*ilippine Constitution 3ssociation vs. Co((ission on Elections,
4
e8pounded his vie,,
,ith ,hich ,e essentially agree, on the minimum re#uirements that must be met in order that there
can be a proper su#(ission to the people of a proposed constitutional amendment. his is ,hat he
said7
... amendments must be fairly laid before the people for their blessing or spurning. he people are not to
be mere rubber stamps. hey are not to vote blindly. hey must be afforded ample opportunity to mull
over the original provisions, compare them ,ith the proposed amendments, and try to reach a conclusion
as the dictates of their conscience suggest, free from the incubus of e8traneous or possibly insidious
influences. Ee believe the ,ord 4submitted4 can only mean that the government, ,ithin its ma8imum
capabilities, should strain every effort to inform citi"en of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, ,e are not to be understood as saying
that, if one citi"en or &99 citi"ens or &,999 citi"ens cannot be reached, then there is no submission ,ithin
the meaning of the ,ord as intended by the framers of the Constitution. Ehat the Constitution in effect
directs is that the government, in submitting an amendment for ratification, should put every
instrumentality or agency ,ithin its structural frame,ork to enlighten the people, educate them ,ith
respect to their act of ratification or rejection. 1or ,e have earlier stated, one thing is su#(ission and
another is rati,ication. here must be fair submission, intelligent consent or rejection.4 .
he second constitutional objection ,as given e8pression by one of the ,riters of this concurring
opinion, in the follo,ing ,ords7
% find it impossible to believe that it ,as ever intended by its framers that such amendment should be
submitted and ratified by just 4a majority of the votes cast at an election at ,hich the amendments are
submitted to the people for their ratification4, if the concentration of the people$s attention thereon is to be
diverted by other e8traneous issues, such as the choice of local and national officials. he framers of the
Constitution, a,are 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 ,herein the people could devote undivided attention to the subject.
5

rue it is that the #uestion posed by the proposed amendment, 4Do you or do you not ,ant the &)C
year old to be allo,ed to voteI,4 ,ould seem to be uncomplicated and innocuous. But it is one of life$s
verities that things ,hich 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. Ehy
should the voting age be lo,ered at all, in the first placeI Ehy should the ne, voting age be precisely
&) years, and not &( or *9I And ,hy not &'I 0r even &2 or &BI %s the &)Cyear old as mature as the
*&Cyear old so that there is no need of an educational #ualification to entitle him to voteI %n this age of
permissiveness and dissent, can the &)Cyear old be relied upon to vote ,ith judiciousness ,hen the
*&Cyear old, in the past elections, has not performed so ,ellI %f the proposed amendment is voted
do,n by the people, ,ill the Constitutional Convention insist on the said amendmentI Ehy is there
an unseemly haste on the part of the Constitutional Convention in having this particular proposed
amendment ratified at this particular timeI Do some of the members of the Convention have future
political plans ,hich they ,ant to begin to subserve by the approval this year of this amendmentI %f
this amendment is approved, does it thereby mean that the &)Cyear old should no, also shoulder the
moral and legal responsibilities of the *&Cyear oldI Eill he be re#uired to render compulsory military
service under the colorsI Eill the age of contractual consent be reduced to &) yearsI %f % vote against
this amendment, ,ill % not be unfair to my o,n child ,ho ,ill be &) years old, come &('AI .
he above are just samplings from here, there and every,here K from a domain ;of searching
#uestions< the bounds of ,hich are not immediately ascertainable. -urely, many more #uestions can
be added to the already long litany. And the ans,ers cannot be had e8cept as the #uestions are
debated fully, pondered upon purposefully, and accorded undivided attention.
-canning the contemporary scene, ,e say that the people are not, and by election time ,ill not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
hey have not been afforded ample time to deliberate thereon conscientiously. hey 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. hey
cannot thus ,eigh in tran#uility the need for and the ,isdom of the proposed amendment.
=pon the above dis#uisition, it is our considered vie, that the intendment of the ,ords, 4at an election
at ,hich the amendments are submitted to the people for their ratification,4 embodied in -ection & of
Article D6 of the Constitution, has not been met.
here is much to be said for the opinion of the Court penned by .ustice Barredo, characteri"ed by
clarity and vigor, its manifestation of fealty to the rule of la, couched in elo#uent 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 bo, to its supremacy.
hereby constitutionalism asserts itself. Eith the vie, % entertain of ,hat is allo,able, if not indeed
re#uired by the Constitution, my conformity does not e8tend as far as the acceptance of the
conclusion reached. he #uestion presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. =nder the circumstances, ,ith the e8press recognition in the
Constitution of the po,ers of the Constitutional Convention to propose amendments, % cannot discern
any objection to the validity of its action there being no legal impediment that ,ould call for its
nullification. -uch an approach all the more commends itself to me considering that ,hat ,as sought
to be done is to refer the matter to the people in ,hom, according to our Constitution, sovereignty
resides. %t is in that sense that, ,ith due respect, % find myself unable to join my brethren.
%. %t is understandable then ,hy the decisive issue posed could not be resolved by reliance on, implicit
in the petition and the ans,er 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. %t is gratifying to note that during the oral argument of petitioner
and counsel for respondents and intervenors, there apparently ,as a retreat from such e8treme
position, all parties, as should be the case, e8pressly avo,ing the primacy of the Constitution, the
applicable provision of ,hich as interpreted by this Court, should be controlling on both Congress and
the Convention. %t cannot be denied though that in at least one American state, that is Pennsylvania,
there ,ere decisions announcing the doctrine that the po,ers to be e8ercised by a constitutional
convention are dependent on a legislative grant, in the absence of any authority conferred directly by
the fundamental la,. he result is a convention that is subordinate to the la,making body. %ts field of
competence is circumscribed. %t has to look to the latter for the delimitation of its permissible scope of
activity. %t is thus made subordinate to the legislature. ?o,here has such a vie, been more
vigorously e8pressed than in the Pennsylvania case of Eood$s Appeal.
1
%ts holding though finds no
support under our constitutional provision.
%t does not thereby follo, that ,hile free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. he Constitution is #uite e8plicit that it is to the people,
and to the people alone, in ,hom sovereignty resides.
4
-uch a prerogative is therefore ,ithheld from
a convention. %t is an agency entrusted ,ith the responsibility of high import and significance it is true:
it is denied unlimited legal competence though. hat is ,hat sovereignty connotes. %t has to yield to
the superior force of the Constitution. here can then be no basis for the e8aggerated pretension that
it is an alter e+o of the people. %t is to be admitted that there are some American state decisions, the
most notable of ,hich is Sproule v. Fre!eric-s,
3
a Mississippi case, that dates back to &)(*, that yield
a different conclusion. he doctrine therein announced cannot bind us. 0ur Constitution makes clear
that the po,er of a constitutional convention is not sovereign. %t is appropriately termed constituent,
limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in
e8istence, subject in either case to popular approval.
he vie, that commends itself for acceptance is that legislature and constitutional convention, alike
recogni"ed by the Constitution, are coordinate, there being no superiority of one over the other.
%nsofar as the constituent po,er of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a ,ide sphere of autonomy consistently ,ith the Constitution ,hich
can be the only source of valid restriction on its competence. %t is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any ,ise be interfered ,ith,
much less controlled by Congress. A contrary conclusion ,ould impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it ,ere one of the
three coordinate departments ,hich under the principle of separation of po,ers is supreme ,ithin its
field and has e8clusive cogni"ance of matters properly subject to its jurisdiction. A succinct statement
of the appropriate principle that should govern the relationship bet,een a constitutional convention
and a legislative body under American la, is that found in 0rfield$s ,ork. hus7 4he earliest vie,
seems to have been that a convention ,as absolute. he convention ,as sovereign and subject to no
restraint. 0n the other hand, .ameson, ,hose vie,s have been most fre#uently cited in decisions,
vie,ed a convention as a body ,ith strictly limited po,ers, and subject to the restrictions imposed on
it by the legislative call. A third and intermediate vie, is that urged by Dodd K that a convention,
though not sovereign, is a body independent of the legislature: it is bound by the e8isting constitution,
but not by the acts of the legislature, as to the e8tent of its constituent po,er. his vie, has become
increasingly prevalent in the state decisions.4
5

*. %t 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 po,er the Constitutional, Convention must find its source. % turn
to its Article D6. %t reads7 4he Congress in joint session assembled, by a vote of three fourths of all
the Members of the -enate and of the >ouse of !epresentatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. -uch amendments shall be
valid as part of this Constitution ,hen approved by a majority of the votes cast at an election at ,hich
the amendments are submitted to the people for their ratification.4
Clearly, insofar as amendments, including revision, are concerned, there are t,o steps, proposal and
thereafter ratification. hus as to the former, t,o 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. 0nce assembled, a constitutional convention, like the Congress of the Philippines, possesses
in all its plenitude the constituent po,er. %nasmuch as Congress may determine ,hat amendments it
,ould 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 like,ise, to my mind, should be
deemed possessed of all the necessary authority to assure that ,hatever amendments it seeks to
introduce ,ould be submitted to the people at an election called for that purpose. %t ,ould appear to
me that to vie, the convention as being denied a prerogative ,hich is not ,ithheld from Congress as
a constituent body ,ould be to place it in an inferior category. -uch a proposition % do not find
acceptable. Congress and constitutional convention are agencies for submitting proposals under the
fundamental la,. A po,er granted to one should not be denied the other. ?o justification for such a
drastic differentiation either in theory or practice e8ists.
-uch a conclusion has for me the added reinforcement that to re#uire ordinary legislation before the
convention could be enabled to have its proposals voted on by the people ,ould be to place a po,er
in the legislative and e8ecutive branches that could, ,hether by act or omission, result in the
frustration of the amending process. % 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 re#uires other,ise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the po,ers of either the e8ecutive or legislative
branches, or, for that matter, the judiciary, it ,ould appear to be the better policy to interpret Article
D6 in such a ,ay that ,ould not sanction such restraint on the authority that must be recogni"ed as
vested in a constitutional convention. here is nothing in such a vie, that to my mind ,ould collide
,ith a reasonable interpretation of Article D6. %t certainly is one ,ay by ,hich freed from pernicious
abstractions, it ,ould be easier to accommodate a constitution to the needs of an unfolding future.
hat is to facilitate its being responsive to the challenge that time inevitably brings in its ,ake.
1rom such an approach then, % am irresistibly led to the conclusion that the challenged resolution ,as
,ell ,ithin the po,er of the convention. hat ,ould be to brush aside the ,eb of unreality spun from
a tooCrestrictive mode of appraising the legitimate scope of its competence. hat ,ould be, for me, to
give added vigor and life to the conferment of authority vested in it, attended by such grave and
a,esome responsibility.
A. %t becomes pertinent to in#uire then ,hether the last sentence of Article D6 providing that such
amendment shall be valid ,hen submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. %t 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
,hen the convention has finished its ,ork should all amendments proposed be submitted for
ratification. hat is not for me, and % say this ,ith respect, the appropriate interpretation. %t is true that
the Constitution uses the ,ord 4election4 in the singular, but that is not decisive. ?o undue reliance
should be accorded rules of grammar: they do not e8ert 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 conte8t. %t could be, if it ,ere not thus, selfCdefeating. -uch a
mode of construction does not commend itself. he ,ords used in the Constitution are not inert: they
derive vitality from the obvious purposes at ,hich they are aimed. Petitioner$s stress on linguistic
refinement, ,hile not implausible does not, for me, carry the day.
%t ,as like,ise argued by petitioner that the proposed amendment is provisional and therefore is not
such as ,as contemplated in this article. % do not find such contention convincing. he fact that the
Constitutional Convention did seek to consult the ,ishes of the people by the proposed submission of
a tentative amendatory provision is an argument for its validity. %t might be said of course that until
impressed ,ith finality, an amendment is not to be passed upon by the electorate. here is plausibility
in such a vie,. A literal reading of the Constitution ,ould support it. he spirit that informs it though
,ould not, for me, be satisfied. 1rom its silence % deduce the inference that there is no repugnancy to
the fundamental la, ,hen the Constitutional Convention ascertains the popular ,ill. %n that sense, the
Constitution, to follo, the phraseology of homas !eed Po,el, is not silently silent but silently vocal.
Ehat % deem the more important consideration is that ,hile 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 e8ercise of their sovereign po,ers by the e8press terms of the Constitution. A concept to the
contrary ,ould to my ,ay of thinking be inconsistent ,ith the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
J. he constitutional Convention having acted ,ithin the scope of its authority, an action to restrain or
prohibit respondent Commission on /lections from conducting the plebiscite does not lie. %t should not
be lost sight of that the Commission on /lections in thus being charged ,ith such a duty does not act
in its capacity as the constitutional agency to take charge of all la,s relative to the conduct of
election. hat is a purely e8ecutive function vested in it under Article D of the Constitution.
5
%t is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental la, 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 &('& 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.
:

he aforesaid considerations, such as they are, but ,hich for me have a force that % mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, ,ith due
ackno,ledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characteri"ed as in any ,ise bereft of a persuasive #uality of a high order.

S+(a,at+ O(%%os
MA6ALINTAL, J., reserves his vote K
% reserve my vote. he resolution in #uestion is voted do,n by a sufficient majority of the Court on just
one ground, ,hich to be sure achieves the result from the legal and constitutional vie,point. %
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. >o,ever, considering the urgent nature of this case,
the lack of time to set do,n at length my opinion on the particular issue upon ,hich the decision is
made to rest, and the fact that a dissent on the said issue ,ould necessarily be inconclusive unless
the other issues raised in the petition are also considered and ruled upon K a task that ,ould be
premature and pointless at this time K % limit myself to this reservation.
RE9ES, J.$.L., 1ALDI2AR, CASTRO a! MA6ASIAR, JJ., concurring7
Ee concur in the main opinion penned by Mr. .ustice Barredo in his usual inimitable, forthright and
vigorous style. +ike him, ,e do not e8press our individual vie,s on the )is!o( of the proposed
constitutional amendment, ,hich is not in issue here because it is a matter that properly and
e8clusively addresses itself to the collective judgment of the people.
Ee must, ho,ever, articulate t,o additional objections of constitutional dimension ,hich, although
they ,ould seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in e6tenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has po,er to propose piecemeal amendments and
submit each separately to the people for ratification, ,e are nonetheless persuaded that ;&< that there
is no proper su#(ission of title proposed amendment in #uestion ,ithin the meaning and intendment
of -ection & of Article D6 of the Constitution, and ;*< that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. .ustice C. 6. -anche", in his dissent in Gonzales vs. Co((ission on
Elections
1
and P*ilippine Constitution 3ssociation vs. Co((ission on Elections,
4
e8pounded his vie,,
,ith ,hich ,e essentially agree, on the minimum re#uirements that must be met in order that there
can be a proper su#(ission to the people of a proposed constitutional amendment. his is ,hat he
said7
capabilities, should strain every effort to inform citi"en of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, ,e are not to be understood as saying
that, if one citi"en or &99 citi"ens or &,999 citi"ens cannot be reached, then there is no submission ,ithin
the meaning of the ,ord as intended by the framers of the Constitution. Ehat the Constitution in effect
directs is that the government, in submitting an amendment for ratification, should put every
instrumentality or agency ,ithin its structural frame,ork to enlighten the people, educate them ,ith
respect to their act of ratification or rejection. 1or ,e have earlier stated, one thing is su#(ission and
another is rati,ication. here must be fair submission, intelligent consent or rejection.4 .
he second constitutional objection ,as given e8pression by one of the ,riters of this concurring
opinion, in the follo,ing ,ords7
% find it impossible to believe that it ,as ever intended by its framers that such amendment should be
submitted and ratified by just 4a majority of the votes cast at an election at ,hich the amendments are
submitted to the people for their ratification4, if the concentration of the people$s attention thereon is to be
diverted by other e8traneous issues, such as the choice of local and national officials. he framers of the
Constitution, a,are 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 ,herein the people could devote undivided attention to the subject.
5

rue it is that the #uestion posed by the proposed amendment, 4Do you or do you not ,ant the &)C
year old to be allo,ed to voteI,4 ,ould seem to be uncomplicated and innocuous. But it is one of life$s
verities that things ,hich 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. Ehy
should the voting age be lo,ered at all, in the first placeI Ehy should the ne, voting age be precisely
&) years, and not &( or *9I And ,hy not &'I 0r even &2 or &BI %s the &)Cyear old as mature as the
*&Cyear old so that there is no need of an educational #ualification to entitle him to voteI %n this age of
permissiveness and dissent, can the &)Cyear old be relied upon to vote ,ith judiciousness ,hen the
*&Cyear old, in the past elections, has not performed so ,ellI %f the proposed amendment is voted
do,n by the people, ,ill the Constitutional Convention insist on the said amendmentI Ehy is there
an unseemly haste on the part of the Constitutional Convention in having this particular proposed
amendment ratified at this particular timeI Do some of the members of the Convention have future
political plans ,hich they ,ant to begin to subserve by the approval this year of this amendmentI %f
this amendment is approved, does it thereby mean that the &)Cyear old should no, also shoulder the
moral and legal responsibilities of the *&Cyear oldI Eill he be re#uired to render compulsory military
service under the colorsI Eill the age of contractual consent be reduced to &) yearsI %f % vote against
this amendment, ,ill % not be unfair to my o,n child ,ho ,ill be &) years old, come &('AI .
he above are just samplings from here, there and every,here K from a domain ;of searching
#uestions< the bounds of ,hich are not immediately ascertainable. -urely, many more #uestions can
be added to the already long litany. And the ans,ers cannot be had e8cept as the #uestions are
debated fully, pondered upon purposefully, and accorded undivided attention.
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
hey have not been afforded ample time to deliberate thereon conscientiously. hey have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of the
cannot thus ,eigh in tran#uility the need for and the ,isdom of the proposed amendment.
=pon the above dis#uisition, it is our considered vie, that the intendment of the ,ords, 4at an election
at ,hich the amendments are submitted to the people for their ratification,4 embodied in -ection & of
Article D6 of the Constitution, has not been met.
here is much to be said for the opinion of the Court penned by .ustice Barredo, characteri"ed by
clarity and vigor, its manifestation of fealty to the rule of la, couched in elo#uent 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 bo, to its supremacy.
hereby constitutionalism asserts itself. Eith the vie, % entertain of ,hat is allo,able, if not indeed
re#uired by the Constitution, my conformity does not e8tend as far as the acceptance of the
conclusion reached. he #uestion presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. =nder the circumstances, ,ith the e8press recognition in the
Constitution of the po,ers of the Constitutional Convention to propose amendments, % cannot discern
any objection to the validity of its action there being no legal impediment that ,ould call for its
nullification. -uch an approach all the more commends itself to me considering that ,hat ,as sought
to be done is to refer the matter to the people in ,hom, according to our Constitution, sovereignty
resides. %t is in that sense that, ,ith due respect, % find myself unable to join my brethren.
%. %t is understandable then ,hy the decisive issue posed could not be resolved by reliance on, implicit
in the petition and the ans,er 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. %t is gratifying to note that during the oral argument of petitioner
and counsel for respondents and intervenors, there apparently ,as a retreat from such e8treme
position, all parties, as should be the case, e8pressly avo,ing the primacy of the Constitution, the
applicable provision of ,hich as interpreted by this Court, should be controlling on both Congress and
the Convention. %t cannot be denied though that in at least one American state, that is Pennsylvania,
there ,ere decisions announcing the doctrine that the po,ers to be e8ercised by a constitutional
convention are dependent on a legislative grant, in the absence of any authority conferred directly by
the fundamental la,. he result is a convention that is subordinate to the la,making body. %ts field of
competence is circumscribed. %t has to look to the latter for the delimitation of its permissible scope of
activity. %t is thus made subordinate to the legislature. ?o,here has such a vie, been more
vigorously e8pressed than in the Pennsylvania case of Eood$s Appeal.
1
%ts holding though finds no
support under our constitutional provision.
%t does not thereby follo, that ,hile free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. he Constitution is #uite e8plicit that it is to the people,
and to the people alone, in ,hom sovereignty resides.
4
-uch a prerogative is therefore ,ithheld from
a convention. %t is an agency entrusted ,ith the responsibility of high import and significance it is true:
it is denied unlimited legal competence though. hat is ,hat sovereignty connotes. %t has to yield to
the superior force of the Constitution. here can then be no basis for the e8aggerated pretension that
it is an alter e+o of the people. %t is to be admitted that there are some American state decisions, the
most notable of ,hich is Sproule v. Fre!eric-s,
3
a Mississippi case, that dates back to &)(*, that yield
a different conclusion. he doctrine therein announced cannot bind us. 0ur Constitution makes clear
that the po,er of a constitutional convention is not sovereign. %t is appropriately termed constituent,
limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in
e8istence, subject in either case to popular approval.
he vie, that commends itself for acceptance is that legislature and constitutional convention, alike
recogni"ed by the Constitution, are coordinate, there being no superiority of one over the other.
%nsofar as the constituent po,er of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a ,ide sphere of autonomy consistently ,ith the Constitution ,hich
can be the only source of valid restriction on its competence. %t is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any ,ise be interfered ,ith,
much less controlled by Congress. A contrary conclusion ,ould impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it ,ere one of the
three coordinate departments ,hich under the principle of separation of po,ers is supreme ,ithin its
field and has e8clusive cogni"ance of matters properly subject to its jurisdiction. A succinct statement
of the appropriate principle that should govern the relationship bet,een a constitutional convention
and a legislative body under American la, is that found in 0rfield$s ,ork. hus7 4he earliest vie,
seems to have been that a convention ,as absolute. he convention ,as sovereign and subject to no
restraint. 0n the other hand, .ameson, ,hose vie,s have been most fre#uently cited in decisions,
vie,ed a convention as a body ,ith strictly limited po,ers, and subject to the restrictions imposed on
it by the legislative call. A third and intermediate vie, is that urged by Dodd K that a convention,
though not sovereign, is a body independent of the legislature: it is bound by the e8isting constitution,
but not by the acts of the legislature, as to the e8tent of its constituent po,er. his vie, has become
increasingly prevalent in the state decisions.4
5

*. %t 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 po,er the Constitutional, Convention must find its source. % turn
to its Article D6. %t reads7 4he Congress in joint session assembled, by a vote of three fourths of all
the Members of the -enate and of the >ouse of !epresentatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. -uch amendments shall be
valid as part of this Constitution ,hen approved by a majority of the votes cast at an election at ,hich
the amendments are submitted to the people for their ratification.4
Clearly, insofar as amendments, including revision, are concerned, there are t,o steps, proposal and
thereafter ratification. hus as to the former, t,o 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. 0nce assembled, a constitutional convention, like the Congress of the Philippines, possesses
in all its plenitude the constituent po,er. %nasmuch as Congress may determine ,hat amendments it
,ould 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 like,ise, to my mind, should be
deemed possessed of all the necessary authority to assure that ,hatever amendments it seeks to
introduce ,ould be submitted to the people at an election called for that purpose. %t ,ould appear to
me that to vie, the convention as being denied a prerogative ,hich is not ,ithheld from Congress as
a constituent body ,ould be to place it in an inferior category. -uch a proposition % do not find
acceptable. Congress and constitutional convention are agencies for submitting proposals under the
fundamental la,. A po,er granted to one should not be denied the other. ?o justification for such a
drastic differentiation either in theory or practice e8ists.
-uch a conclusion has for me the added reinforcement that to re#uire ordinary legislation before the
convention could be enabled to have its proposals voted on by the people ,ould be to place a po,er
in the legislative and e8ecutive branches that could, ,hether by act or omission, result in the
frustration of the amending process. % 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 re#uires other,ise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the po,ers of either the e8ecutive or legislative
branches, or, for that matter, the judiciary, it ,ould appear to be the better policy to interpret Article
D6 in such a ,ay that ,ould not sanction such restraint on the authority that must be recogni"ed as
vested in a constitutional convention. here is nothing in such a vie, that to my mind ,ould collide
,ith a reasonable interpretation of Article D6. %t certainly is one ,ay by ,hich freed from pernicious
abstractions, it ,ould be easier to accommodate a constitution to the needs of an unfolding future.
hat is to facilitate its being responsive to the challenge that time inevitably brings in its ,ake.
1rom such an approach then, % am irresistibly led to the conclusion that the challenged resolution ,as
,ell ,ithin the po,er of the convention. hat ,ould be to brush aside the ,eb of unreality spun from
a tooCrestrictive mode of appraising the legitimate scope of its competence. hat ,ould be, for me, to
give added vigor and life to the conferment of authority vested in it, attended by such grave and
a,esome responsibility.
A. %t becomes pertinent to in#uire then ,hether the last sentence of Article D6 providing that such
amendment shall be valid ,hen submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. %t 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
,hen the convention has finished its ,ork should all amendments proposed be submitted for
ratification. hat is not for me, and % say this ,ith respect, the appropriate interpretation. %t is true that
the Constitution uses the ,ord 4election4 in the singular, but that is not decisive. ?o undue reliance
should be accorded rules of grammar: they do not e8ert 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 conte8t. %t could be, if it ,ere not thus, selfCdefeating. -uch a
mode of construction does not commend itself. he ,ords used in the Constitution are not inert: they
derive vitality from the obvious purposes at ,hich they are aimed. Petitioner$s stress on linguistic
refinement, ,hile not implausible does not, for me, carry the day.
%t ,as like,ise argued by petitioner that the proposed amendment is provisional and therefore is not
such as ,as contemplated in this article. % do not find such contention convincing. he fact that the
Constitutional Convention did seek to consult the ,ishes of the people by the proposed submission of
a tentative amendatory provision is an argument for its validity. %t might be said of course that until
impressed ,ith finality, an amendment is not to be passed upon by the electorate. here is plausibility
in such a vie,. A literal reading of the Constitution ,ould support it. he spirit that informs it though
,ould not, for me, be satisfied. 1rom its silence % deduce the inference that there is no repugnancy to
the fundamental la, ,hen the Constitutional Convention ascertains the popular ,ill. %n that sense, the
Constitution, to follo, the phraseology of homas !eed Po,el, is not silently silent but silently vocal.
Ehat % deem the more important consideration is that ,hile 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 e8ercise of their sovereign po,ers by the e8press terms of the Constitution. A concept to the
contrary ,ould to my ,ay of thinking be inconsistent ,ith the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
J. he constitutional Convention having acted ,ithin the scope of its authority, an action to restrain or
prohibit respondent Commission on /lections from conducting the plebiscite does not lie. %t should not
be lost sight of that the Commission on /lections in thus being charged ,ith such a duty does not act
in its capacity as the constitutional agency to take charge of all la,s relative to the conduct of
election. hat is a purely e8ecutive function vested in it under Article D of the Constitution.
5
%t is not
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental la, 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 &('& 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.
:

he aforesaid considerations, such as they are, but ,hich for me have a force that % mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, ,ith due
ackno,ledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characteri"ed as in any ,ise bereft of a persuasive #uality of a high order.
Footot+s
& =nder -ection A2, !ule &A) as amended, no one may appear as amicus curiae unless invited or allo,ed, by the Court.
!/@/-, ..B.+., 5A+D%6A!, CA-!0 and MANA-%A!, ..., concurring7
& +C*)&(2, ?ov. (, &(2', *& -C!A ''J, )&2C)&'.
* +C*)**J, ?ov. (, &(2', *& -C!A ''J, )&2C)&'.
A Per .ustice ..B.+. !eyes, concurred by .ustices Arsenio P. Di"on, Cali8to 0. 5aldivar, 1red !ui" Castro and /ugenio Angeles.
J *& -C!A )*&.
& Eood$s Appeal, 'B Pa. B( ;&)'J< cited in Malcolm and +aurel. Cases in Constitutional +a,, pp. &, JCB ;&(A2<. %t ,as therein stated7 4%n a
governmental and proper sense, la, is the highest act of a people$s sovereignty ,hile their government and Constitution remain unchanged.
%t is the supreme ,ill of the people e8pressed in the forms and by the authority of their Constitution. %t is their o,n appointed mode through
,hich they govern themselves, and by ,hich they bind themselves. -o long as their frame of government is unchanged in its grant of all
legislative po,er, these la,s are supreme over all subjects unforbidden by the instrument itself. he calling of a convention, and regulating
its action by la,, is not forbidden in the Constitution. %t is a conceded manner, through ,hich the people may e8ercise the rights reserved in
the bill of rights. ... he right of the people to restrain their delegates by la, cannot be denied, unless the po,er to call a convention by la,,
and the right of self protection be also denied.4
* According to -ec. & of Art. %%7 4-overeignty resides in the people and all government authority emanates from them.4 .
A && -o. J'*. he follo,ing e8cerpt appears in the opinion7 4Ee have spoken of the constitutional convention as a sovereign body, and that
characteri"ation perfectly defines the correct vie,, in our opinion, of the real nature of that august assembly. %t is the highest legislative body
kno,n to freemen in a representative government. %t is supreme in its sphere. %t ,ields the po,ers of sovereignty, specially delegated to it,
for the purpose and the occasion, by the ,hole electoral body, for the good of the ,hole common,ealth. he sole limitation upon its po,ers
is that no change in the form of government shall be done or attempted. he spirit of republicanism must breathe through every part of the
frame,ork, but the particular fashioning of the parts of this frame,ork is confided to the ,isdom the faithfulness, and the patriotism of this
great convocation, representing the people in their sovereignty.4 he -proule decision ,as cited ,ith approval four years later by the
Mississippi -upreme Court ane, in Dickson v. -tate, *9 -o. )J&. A &(9) decision of the -outhern -tate of 0klahoma, -tate v. -cales, (' P.
B)J, admitted the controversial character of the -proule dictum.
J 0rfield on he Amending of the 1ederal Constitution, JBCJ2 ;&(J*<.
B According to -ec. * of Article D of the Constitution7 4he Commission on /lections shall have e8clusive charge of its enforcement and
administration of all la,s relative to the conduct of elections and shall e8ercise all other functions ,hich may be conferred upon it by la,.4 Cf.
Abcede v. %mperial, &9A Phil. &A2 ;&(B)<.
2 4According to -ec. &J of the &('& Constitutional Convention Act ;&('9<74Administration and echnical Assistance. CC All government
entities, agencies and instrumentalities, including the -enate and >ouse of !epresentatives, shall place at the disposal of the Convention
such personnel premises, and furniture thereof as can, in their judgment be spared ,ithout detriment to public service, ,ithout cost, refund or
additional pay.4
SUPREME COURT
Manila
EN BANC
G.R. No. L355:50 O'to8+, 14, 197:
.A$LO C. SANIDAD a! .A$LITO 2. SANIDAD, petitioner,
vs.
#ONORA$LE COMMISSION ON ELECTIONS a! #ONORA$LE NATIONAL TREAS"RER,
respondents.
G.R. No. L355:85. O'to8+, 14,197:
2ICENTE M. G"1MAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L355715. O'to8+, 14,197:
RA"L M. GON1ALES, RA"L T. GON1ALES, JR., a! ALFREDO SALA.ANTAN, petitioners,
vs.
#ONORA$LE COMMISSION ON SELECTIONS a! #ONORA$LE NATIONAL TREAS"RER,
respondents.
MARTIN, J,:
he capital #uestion raised in these prohibition suits ,ith preliminary injunction relates to the po,er of
the incumbent President of the Philippines to propose amendments to the present Constitution in the
absence of the interim ?ational Assembly ,hich has not been convened.
0n -eptember *, &('2, President 1erdinand /. Marcos issued Presidential Decree ?o. ((& calling for
a national referendum on 0ctober &2, &('2 for the Citi"ens Assemblies ;4barangays4< to resolve,
among other things, the issues of martial la,, the % . assembly, its replacement, the po,ers of such
replacement, the period of its e8istence, the length of the period for tile e8ercise by the President of
his present po,ers.1
,enty days after or on -eptember **, &('2, the President issued another related decree,
Presidential Decree ?o. &9A&, amending the previous Presidential Decree ?o. ((&, by declaring the
provisions of presidential Decree ?o. **( providing for the manner of voting and canvass of votes in
4barangays4 ;Citi"ens Assemblies< applicable to the national referendumCplebiscite of 0ctober &2,
&('2. Puite relevantly, Presidential Decree ?o. &9A& repealed -ection J, of Presidential Decree ?o.
((&, the full te8t of ,hich ;-ection J< is #uoted in the footnote belo,.
4

0n the same date of -eptember **, &('2, the President issued Presidential Decree ?o. &9AA, stating
the #uestions to be submitted to the people in the referendumCplebiscite on 0ctober &2, &('2. he
Decree recites in its 4,hereas4 clauses that the people$s continued opposition to the convening of the
?ational Assembly evinces their desire to have such body abolished and replaced thru a
constitutional amendment, providing for a legislative body, ,hich ,ill be submitted directly to the
people in the referendumCplebiscite of 0ctober &2.
he #uestions ask, to ,it7
;&< Do you ,ant martial la, to be continuedI
;*< Ehether or not you ,ant martial la, to be continued, do you approve the follo,ing amendments
to the ConstitutionI 1or the purpose of the second #uestion, the referendum shall have the effect of a
plebiscite ,ithin the contemplation of -ection * of Article D6% of the Constitution.
P!0P0-/D AM/?DM/?-7
&. here shall be, in lieu of the interim ?ational Assembly, an interim Batasang Pambansa. Members
of the interim Batasang Pambansa ,hich shall not be more than &*9, unless other,ise provided by
la,, shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those ,ho 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.
!egional representatives shall be apportioned among the regions in accordance ,ith the number of
their respective inhabitants and on the basis of a uniform and progressive ratio ,hile the sectors shall
be determined by la,. he number of representatives from each region or sector and the, manner of
their election shall be prescribed and regulated by la,.
*. he interim Batasang Pambansa shall have the same po,ers and its members shall have the
same functions, responsibilities, rights, privileges, and dis#ualifications as the interim ?ational
Assembly and the regular ?ational Assembly and the members thereof. >o,ever, it shall not e8ercise
the po,er provided in Article 6%%%, -ection &J;l< of the Constitution.
A. he incumbent President of the Philippines shall, ,ithin A9 days from the election and selection of
the members, convene the interim Batasang Pambansa and preside over its sessions until the
-peaker shall have been elected. he incumbent President of the Philippines shall be the Prime
Minister and he shall continue to e8ercise all his po,ers even after the interim Batasang Pambansa is
organi"ed and ready to discharge its functions and like,ise he shall continue to e8ercise his po,ers
and prerogatives under the nineteen hundred and thirty five. Constitution and the po,ers vested in
the President and the Prime Minister under this Constitution.
J. he President ;Prime Minister< and his Cabinet shall e8ercise all the po,ers and functions, and
discharge the responsibilities of the regular President ;Prime Minister< and his Cabinet, and shall be
subject only to such dis#ualifications as the President ;Prime Minister< may prescribe. he President
;Prime Minister< if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
B. he incumbent President shall continue to e8ercise legislative po,ers until martial la, shall have
been lifted.
2. Ehenever in the judgment of the President ;Prime Minister<, there e8ists a grave emergency or a
threat or imminence thereof, or ,henever the interim Batasang Pambansa or the regular ?ational
Assembly fails or is unable to act ade#uately on any matter for any reason that in his judgment
re#uires immediate action, he may, in order to meet the e8igency, issue the necessary decrees,
orders or letters of instructions, ,hich shall form part of the la, of the land.
'. he barangays and sanggunians shall continue as presently constituted but their functions,
po,ers, and composition may be altered by la,.
!eferenda conducted thru the barangays and under the -upervision of the Commission on /lections
may be called at any time the government deems it necessary to ascertain the ,ill of the people
regarding any important matter ,hether of national or local interest.
). All provisions of this Constitution not inconsistent ,ith any of these amendments shall continue in
full force and effect.
(. hese amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by % majority of the votes cast in the referendumCplebiscite.4
he Commission on /lections ,as vested ,ith the e8clusive supervision and control of the 0ctober
&('2 ?ational !eferendumCPlebiscite.
0n -eptember *', &('2, PAB+0 C. -A?%DAD and PAB+%0 6. -A?%DAD, father and son,
commenced +CJJ2J9 for Prohibition ,ith Preliminary %njunction seeking to enjoin the Commission on
/lections from holding and conducting the !eferendum Plebiscite on 0ctober &2: to declare ,ithout
force and effect Presidential Decree ?os. ((& and &9AA, insofar as they propose amendments to the
Constitution, as ,ell as Presidential Decree ?o. &9A&, insofar as it directs the Commission on
/lections to supervise, control, hold, and conduct the !eferendumCPlebiscite scheduled on 0ctober
&2, &('2.
Petitioners contend that under the &(AB and &('A Constitutions there is no grant to the incumbent
President to e8ercise the constituent po,er to propose amendments to the ne, Constitution. As a
conse#uence, the !eferendumCPlebiscite on 0ctober &2 has no constitutional or legal basis.
0n 0ctober B, &('2, the -olicitor 3eneral filed the comment for respondent Commission on
/lections, he -olicitor 3eneral principally maintains that petitioners have no standing to sue: the
issue raised is political in nature, beyond judicial cogni"ance of this Court: at this state of the
transition period, only the incumbent President has the authority to e8ercise constituent po,er: the
referendumCplebiscite is a step to,ards normali"ation.
0n -eptember A9, &('2, another action for Prohibition ,ith Preliminary %njunction, docketed as +C
JJ2)J, ,as instituted by 6%C/?/ M. 3=5MA?, a delegate to the &('& Constitutional Convention,
asserting that the po,er to propose amendments to, or revision of the Constitution during the
transition period is e8pressly conferred on the interim ?ational Assembly under -ection &2, Article
D6%% of the Constitution.A
-till another petition for Prohibition ,ith Preliminary %njunction ,as filed on 0ctober B, &('2 by !A=+
M. 30?5A+/-, his son !A=+, .!., and A+1!/D0 -A+APA?A?, docketed as +C JJ'&J, to restrain
the implementation of Presidential Decrees relative to the forthcoming !eferendumCPlebiscite of
0ctober &2.
hese last petitioners argue that even granting him legislative po,ers under Martial +a,, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution: a referendumCplebiscite is untenable under the Constitutions of &(AB and &('A: the
submission of the proposed amendments in such a short period of time for deliberation renders the
plebiscite a nullity: to lift Martial +a,, the President need not consult the people via referendum: and
allo,ing &BC.year olds to vote ,ould amount to an amendment of the Constitution, ,hich confines the
right of suffrage to those citi"ens of the Philippines &) years of age and above.
Ee find the petitions in the three entitled cases to be devoid of merit.
%
Justicia#ilit o, ;uestion raise!.
&. As a preliminary resolution, Ee rule that the petitioners in +CJJ2J9 ;Pablo C. -anidad and Pablito
6. -anidad< possess locus stan!i to challenge the constitutional premise of Presidential Decree ?os.
((&, &9A&, and &9AA. %t is no, an ancient rule that the valid source of a stature Presidential Decrees
are of such natureCmay be contested by one ,ho ,ill sustain a direct injuries as a in result of its
enforcement. At the instance of ta8payers, la,s providing for the disbursement of public funds may
be enjoined, upon the theory that the e8penditure of public funds by an officer of the -tate for the
purpose of e8ecuting an unconstitutional act constitutes a misapplication of such funds. J he
breadth of Presidential Decree ?o. ((& carries all appropriation of 1ive Million Pesos for the effective
implementation of its purposes. B Presidential Decree ?o. &9A& appropriates the sum of /ight Million
Pesos to carry out its provisions. 2 he interest of the aforenamed petitioners as ta8payers in the
la,ful e8penditure of these amounts of public money sufficiently clothes them ,ith that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards ta8payer$s suits, this
Court enjoys that open discretion to entertain the same or not. ' 1or the present case, Ee deem it
sound to e8ercise that discretion affirmatively so that the authority upon ,hich the disputed Decrees
are predicated may be in#uired into.
*. he -olicitor 3eneral ,ould consider the #uestion at bar as a pure political one, lying outside the
domain of judicial revie,. Ee disagree. he amending process both as to proposal and ratification,
raises a judicial #uestion. 8 his is especially true in cases ,here the po,er of the Presidency to
initiate the of normally e8ercised by the legislature, is seriously doubted. =nder the terms of the &('A
Constitution, the po,er to propose amendments o the constitution resides in the interim ?ational
Assembly in the period of transition ;-ee. &B, ransitory provisions<. After that period, and the regular
?ational Assembly in its active session, the po,er to propose amendments becomes ipso facto the
prerogative of the regular ?ational Assembly ;-ec. &, pars. & and * of Art. D6%, &('A constitution<.
he normal course has not been follo,ed. !ather than calling the ?ational Assembly to constitute
itself into a constituent assembly the incumbent President undertook the proposal of amendments
and submitted the proposed amendments thru Presidential Decree &9AA to the people in a
!eferendumCPlebiscite on 0ctober &2. =navoidably, the regularity regularity of the procedure for
amendments, ,ritten in lambent ,ords in the very Constitution sought to be amended, raises a
contestable issue. he implementing Presidential Decree ?os. ((&, &9A&, and &9AA, ,hich 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, ,ithin the competence of this Court to pass upon. -ection
* ;*<, Article D of the ne, Constitution provides7 4All cases involving the constitutionality of a treaty,
e8ecutive agreement, or la, may shall be heard and decided by the -upreme Court en banc and no
treaty, e8ecutive agreement, or la, may be declared unconstitutional ,ithout the concurrence of at
least ten Members. ...4 he -upreme Court has the last ,ord in the construction not only of treaties
and statutes, but also of the Constitution itself he amending, like all other po,ers organi"ed in the
Constitution, is in form a delegated and hence a limited po,er, so that the -upreme Court is vested
,ith that authorities to determine ,hether that po,er has been discharged ,ithin its limits.
Political #uestions are neatly associated ,ith the ,isdom, of the legality of a particular act. Ehere the
vorte8 of the controversy refers to the legality or validity of the contested act, that matter is definitely
justiciable or nonCpolitical. Ehat is in the heels of the Court is not the ,isdom 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 po,er of a constituent assembly. Ehether the amending process
confers on the President that po,er to propose amendments is therefore a do,nright justiciable
#uestion. -hould the contrary be found, the actuation of the President ,ould merely be a #rutu(
,ul(en. %f the Constitution provides ho, it may be amended, the judiciary as the interpreter of that
Constitution, can declare ,hether the procedure follo,ed or the authority assumed ,as valid or not.
10
Ee cannot accept the vie, of the -olicitor 3eneral, in pursuing his theory of nonCjusticiability, that the
#uestion of the President$s authority to propose amendments and the regularity of the procedure
adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. %s it not that the people themselves, by their sovereign act,
provided for the authority and procedure for the amending process ,hen they ratified the present
Constitution in &('AI Ehether, therefore, the constitutional provision has been follo,ed or not is the
proper subject of in#uiry, not by the people themselves of course ,ho e8ercise no po,er of judicial
but by the -upreme Court in ,hom the people themselves vested that po,er, a po,er ,hich includes
the competence to determine ,hether the constitutional norms for amendments have been observed
or not. And, this in#uiry must be done a prior not a posterior i.e., before the submission to and
ratification by the people.
%ndeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of
the Court$s majority to treat such issue of Presidential role in the amending process as one of nonC
political impression. %n the Plebiscite Cases,
11
the contention of the -olicitor 3eneral that the issue on
the legality of Presidential Decree ?o. 'A 4submitting to the Pilipino people ;on .anuary &B, &('A< for
ratification or rejection the Constitution of the !epublic of the Philippines proposed by the &('&
Constitutional Convention and appropriating fund s therefore 4is a political one, ,as rejected and the
Court unanimously considered the issue as justiciable in nature. -ubse#uently in the !atification
Cases
14
involving the issue of ,hether or not the validity of Presidential Proclamation ?o. &&9*.
announcing the !atification by the 1ilipino people of the constitution proposed by the &('&
Constitutional Convention,4 partakes of the nature of a political #uestion, the affirmative stand of$ the
-olicitor 3eneral ,as dismissed, the Court ruled that the #uestion raised is justiciable. Chief .ustice
Concepcion, e8pressing the majority vie,, said, hus, in the aforementioned plebiscite cases, Ee
rejected the theory of the respondents therein that the #uestion ,hether Presidential Decree ?o. 'A
calling a plebiscite to be held on .anuary &B, &('A, for the ratification or rejection of the proposed ne,
Constitution, ,as valid or not, ,as not a proper subject of judicial in#uiry because, they claimed, it
partook of a political nature, and Ee unanimously declared that the issue ,as a justiciable one. Eith
%dentical unanimity. Ee overruled the respondent$s contention in the &('& habeas corpus cases,
#uestioning 0ur authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the ,rit of habeas corpus on August *&, &('&,
despite the opposite vie, taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda,
insofar as it adhered to the former case, ,hich vie, Ee, accordingly, abandoned and refused to
apply. 1or the same reason, Ee did not apply and e8pressly modified, in 3on"ales vs. Commission
on /lections, the politicalC#uestion theory adopted in Mabanag vs. +ope" 6ito.4
13
he return to
Barcelon vs. Baker and Mabanag vs. +ope" 6ito, urged by the -olicitor 3eneral, ,as decisively
refused by the Court. Chief .ustice Concepcion continued7 4he reasons adduced in support thereof
are, ho,ever, substantially the same as those given in support on the political #uestion theory
advanced in said habeas corpus and plebiscite cases, ,hich ,ere carefully considered by this Court
and found by it to be legally unsound and constitutionally untenable. As a conse#uence. 0ur
decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis ,hich gained added ,eight by its virtual reiteration.4
%%
he amending process as laid out
in the ne, Constitution.
&. Article D6% of the &('A Constitution on Amendments ordains7
-/C%0? &. ;&< Any amendment to, or revision of, this Constitution may be proposed by the ?ational
Assembly upon a vote of threeCfourths of all its Members, or by a constitutional convention. ;*< he
?ational Assembly may, by a vote of t,oCthirds of all its Members, call a constitutional convention or, by a
majority vote of all its Members, submit the #uestion of calling such a convention to the electorate in an
election.
-/C%0? *. Any amendment to, or revision of, this Constitution shall be valid ,hen ratified by a majority
of the votes cast in a plebiscite ,hich shall be held not later than three months after the approval of such
amendment or revision.
%n the present period of transition, the interim ?ational Assembly instituted in the ransitory
Provisions is conferred ,ith that amending po,er. -ection &B of the ransitory Provisions reads7
-/C%0? &B. he interim ?ational Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. -uch amendments shall take
effect ,hen ratified in accordance ,ith Article -i8teen hereof.
here are, therefore, t,o periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. %n times of normally, the amending process may be initiated by the
proposals of the ;&< regular ?ational Assembly upon a vote of threeCfourths of all its members: or ;*<
by a Constitutional Convention called by a vote of t,oCthirds of all the Members of the ?ational
Assembly. >o,ever 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 ?ational Assembly. %n times of
transition, amendments may be proposed by a majority vote of all the Members of the ?ational
Assembly upon special call by the interim Prime Minister,.
*. his Court in A#uino v. C0M/+/C,4 had already settled that the incumbent President is vested
,ith that prerogative of discretion as to ,hen he shall initially convene the interim ?ational Assembly.
-peaking for the majority opinion in that case, .ustice Makasiar said7 4he Constitutional Convention
intended to leave to the President the determination of the time ,hen he shall initially convene the
interim ?ational Assembly, consistent ,ith the prevailing conditions of peace and order in the
country.4 Concurring, .ustice 1ernande", himself a member of that Constitutional Convention,
revealed7 4;E<hen the Delegates to the Constitutional Convention voted on the ransitory Provisions,
they ,ere a,are of the fact that under the same, the incumbent President ,as given the discretion as
to ,hen he could convene the interim ?ational Assembly: it ,as so stated plainly by the sponsor,
Delegate @ane"a: as a matter of fact, the proposal that it be convened $immediately$, made by
Delegate Pimentel ;6< ,as rejected. he President$s decision to defer the convening of the interim
?ational Assembly soon found support from the people themselves. %n the plebiscite of .anuary &9C
&B, &('A, at ,hich the ratification of the &('A Constitution ,as submitted, the people voted against
the convening of the interim ?ational Assembly. %n the referendum of .uly *J, &('A, the Citi"ens
Assemblies ;4bagangays4< reiterated their sovereign ,ill to ,ithhold the convening of the interim
?ational Assembly. Again, in the referendum of 1ebruary *', &('B, the proposed #uestion of ,hether
the interim ?ational Assembly shall be initially convened ,as eliminated, because some of the
members of Congress and delegates of the Constitutional Convention, ,ho ,ere deemed
automatically members of the % interim ?ational Assembly, ,ere against its inclusion since in that
referendum of .anuary, &('A, the people had already resolved against it.
A. %n sensu strictiore, ,hen the legislative arm of the state undertakes the proposals of amendment to
a Constitution, that body is not in the usual function of la,making. lt is not legislating ,hen engaged
in the amending process.&2 !ather, it is e8ercising a peculiar po,er besto,ed upon it by the
fundamental charter itself. %n the Philippines, that po,er is provided for in Article D6% of the &('A
Constitution ;for the regular ?ational Assembly< or in -ection &B of the ransitory Provisions ;for the
?ational Assembly<. Ehile ordinarily it is the business of the legislating body to legislate for the nation
by virtue of constitutional conferment amending of the Constitution is not legislative in character. %n
political science a distinction is made bet,een constitutional content of an organic character and that
of a legislative character$. he distinction, ho,ever, is one of policy, not of la,.
17
-uch being the case,
approval of the President of any proposed amendment is a misnomer
18
he prerogative of the
President to approve or disapprove applies only to the ordinary cases of legislation. he President
has nothing to do ,ith proposition or adoption of amendments to the Constitution.
19

%%%
Concentration of Po,ers
in the President during
crisis government.
&. %n general, the governmental po,ers in crisis government the Philippines is a crisis government
today are more or less concentrated in the President.
40
According to !ossiter, 4;t<he concentration of
government po,er in a democracy faced by an emergency is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of po,ers. %n most free states it has generally been
regarded as imperative that the total po,er of the government be parceled out among three mutually
independent branches e8ecutive, legislature, and judiciary. %t is believed to be destructive of
constitutionalism if any one branch should e8ercise any t,o or more types of po,er, and certainly a
total disregard of the separation of po,ers is, as Madison ,rote in the 1ederalist, ?o. J', $the very
definition of tyranny.$ %n normal times the separation of po,ers 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 e8istence. here are moments
in the life of any government ,hen all po,ers must ,ork together in unanimity of purpose and action,
even if this means the temporary union of e8ecutive, legislative, and judicial po,er in the hands of
one man. he more complete the separation of po,ers in a constitutional system, the more difficult
and yet the more necessary ,ill be their fusion in time of crisis. his is evident in a comparison of the
crisis potentialities of the cabinet and presidential systems of government. %n the former the allC
important harmony of legislature and e8ecutive is taken for granted: in the latter it is neither
guaranteed nor to be to confidently e8pected. As a result, cabinet is more easily established and
more trust,orthy than presidential dictatorship. he po,er of the state in crisis must not only be
concentrated and e8panded: it must also be freed from the normal system of constitutional and legal
limitations.
41
.ohn +ocke, on the other hand, claims for the e8ecutive in its o,n right a broad
discretion capable even of setting aside the ordinary la,s in the meeting of special e8igencies for
,hich the legislative po,er had not provided.
44
he rationale behind such broad emergency po,ers
of the /8ecutive is the release of the government from 4the paralysis of constitutional restrains4 so
that the crisis may be ended and normal times restored.
*. he presidential e8ercise of legislative po,ers in time of martial la, is no, a conceded valid at.
hat sun clear authority of the President is saddled on -ection A ;pars. & and *< of the ransitory
Provisions, thus7
43
he incumbent President of the Philippines shall initially convene the interim ?ational Assembly and shall
preside over its sessions until the interim -peaker shall have been elected. >e shall continue to e8ercise
his po,ers and prerogatives under the nineteen hundred and thirtyCfive Constitution and the po,ers
vested in the President and the Prime Minister under this Constitution until the calls upon the interim
?ational Assembly to elect the interim President and the interim Prime Minister, ,ho shall then e8ercise
their respective po,ers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent
President shall be part of the la, of the land, and shall remain valid, binding, and effective even after
lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or superseded by
subse#uent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or
unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.
4%t is unthinkable,4 said .ustice 1ernande", a &('& Constitutional Convention delegate, 4that the
Constitutional Convention, ,hile giving to the President the discretion ,hen to call the interim
?ational Assembly to session, and kno,ing that it may not be convened soon, ,ould create a
vacuum in the e8ercise of legislative po,ers. 0ther,ise, ,ith no one to e8ercise the la,making
po,ers, there ,ould be paraly"ation of the entire governmental machinery.4
45
Paraphrasing !ossiter,
this is an e8tremely important factor in any constitutional dictatorship ,hich e8tends over a period of
time. he separation of e8ecutive and legislature ordained in the Constitution presents a distinct
obstruction to efficient crisis government. he steady increase in e8ecutive po,er is not too much a
cause for as the steady increase in the magnitude and comple8ity of the problems the President has
been called upon by the 1ilipino people to solve in their behalf, ,hich involve rebellion, subversion,
secession, recession, inflation, and economic crisisCa crisis greater than ,ar. %n short, ,hile
conventional constitutional la, just confines the President$s po,er as CommanderCinCChief to the
direction of the operation of the national forces, yet the facts of our political, social, and economic
disturbances had convincingly sho,n that in meeting the same, indefinite po,er should be attributed
to tile President to take emergency measures
45
%6
Authority of the incumbent
President t to propose
amendments to the Constitution.
&. As earlier pointed out, the po,er to legislate is constitutionally consigned to the interim ?ational
Assembly during the transition period. >o,ever, the initial convening of that Assembly is a matter fully
addressed to the judgment of the incumbent President. And, in the e8ercise of that judgment, the
President opted to defer convening of that body in utter recognition of the people$s preference.
+ike,ise, in the period of transition, the po,er to propose amendments to the Constitution lies in the
interim ?ational Assembly upon special call by the President ;-ee. &B of the ransitory Provisions<.
Again, harking to the dictates of the sovereign ,ill, the President decided not to call the interim
?ational Assembly. Eould it then be ,ithin the bounds of the Constitution and of la, for the President
to assume that constituent po,er of the interim Assembly visCaCvis his assumption of that body$s
legislative functionsI he ans,er is yes. %f the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason ,hy he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution, ,hich is but adjunct, although
peculiar, to its gross legislative po,er. his, of course, is not to say that the President has converted
his office into a constituent assembly of that nature normally constituted by the legislature. !ather,
,ith the interim ?ational Assembly not convened and only the Presidency and the -upreme Court in
operation, the urges of absolute necessity render it imperative upon the President to act as agent for
and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very
constitution, the -upreme Court possesses no capacity to propose amendments ,ithout
constitutional infractions. 1or the President to shy a,ay from that actuality and decline to undertake
the amending process ,ould leave the governmental machineries at a stalemate or create in the
po,ers of the -tate a destructive vacuum, thereby impeding the objective of a crisis government 4to
end the crisis and restore normal times.4 %n these parlous times, that Presidential initiative to reduce
into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President no,, are mere agents of the people .4:
*. he President$s action is not a unilateral move. As early as the referendums of .anuary &('A and
1ebruary &('B, the people had already rejected the calling of the interim ?ational Assembly. he
+upong agapagpaganap of the Natipunan ng mga -anggunian, the Pambansang Natipunan ng mga
Barangay, and the Pambansang Natipunan ng mga Barangay, representing J*,999 barangays, about
the same number of Nabataang Barangay organi"ations, -anggunians in &,JB) municipalities, '*
provinces, A subCprovinces, and 29 cities had informed the President that the prevailing sentiment of
the people is for the abolition of the interim ?ational Assembly. 0ther issues concerned the lifting of
martial la, and amendments to the Constitution .47 he national organi"ations of -angguniang Bayan
presently proposed to settle the issues of martial la,, the interim Assembly, its replacement, the
period of its e8istence, the length of the period for the e8ercise by the President of its present po,ers
in a referendum to be held on 0ctober &2 .
48
he Batasang Bayan ;legislative council< created under
Presidential Decree ((B of -eptember &9, &('2, composed of &( cabinet members, ( officials ,ith
cabinet rank, (& members of the +upong agapagpaganap ;e8ecutive committee< of the Natipunan
ng mga -angguniang Bayan voted in session to submit directly to the people in a plebiscite on
0ctober &2, the previously #uoted proposed amendments to the Constitution, including the issue of
martial la, .49 -imilarly, the 4barangays4 and the 4sanggunians4 endorsed to the President the
submission of the proposed amendments to the people on 0ctober &2. All the foregoing led the
President to initiate the proposal of amendments to the Constitution and the subse#uent issuance of
Presidential Decree ?o, &9AA on -eptember **, &('2 submitting the #uestions ;proposed
amendments< to the people in the ?ational !eferendumCPlebiscite on 0ctober &2.
6
he People is -overeign
&. =nlike in a federal state, the location of sovereignty in a unitary state is easily seen. %n the
Philippines, a republican and unitary state, sovereignty 4resides in the people and all government
authority emanates from them .30 %n its fourth meaning, -avigny ,ould treat people as 4that particular
organi"ed assembly of individuals in ,hich, according to the Constitution, the highest po,er e8ists.4
31
his is the concept of popular sovereignty. %t means that the constitutional legislator, namely the
people, is sovereign
34
%n conse#uence, the people may thus ,rite into the Constitution their
convictions on any subject they choose in the absence of e8press constitutional prohibition.
33
his is
because, as >olmes said, the Constitution 4is an e8periment, as all life is all e8periment.4
35
4he
necessities of orderly government,4 ,rote !ottschaefer, 4do not re#uire that one generation should be
permitted to permanently fetter all future generations.4 A constitution is based, therefore, upon a selfC
limiting decision of the people ,hen they adopt it.
35

*. he 0ctober &2 referendumCplebiscite is a resounding call to the people to e8ercise their sovereign
po,er as constitutional legislator. he proposed amendments, as earlier discussed, proceed not from
the thinking of a single man. !ather, they are the collated thoughts of the sovereign ,ill reduced only
into enabling forms by the authority ,ho can presently e8ercise the po,ers of the government. %n
e#ual vein, the submission of those proposed amendments and the #uestion of martial la, in a
referendumCplebiscite e8presses but the option of the people themselves implemented only by the
authority of the President. %ndeed, it may ,ell be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure to be follo,ed reside someho, in a
particular body.
6%
!eferendumCPlebiscite not
rendered nugatory by the
participation of the &BCyear olds.
&. 0ctober &2 is in parts a referendum and a plebiscite. he #uestion C ;&< Do you ,ant martial la, to
be continuedI C is a referendum #uestion, ,herein the &BCyear olds may participate. his ,as
prompted by the desire of the 3overnment 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 ?e, 0rder. 1or the succeeding
#uestion on the proposed amendments, only those of voting age of &) years may participate. his is
the plebiscite aspect, as contemplated in -ection *, Article D6% of the ne, Constitution.
3:
0n this
second #uestion, it ,ould only be the votes of those &) years old and above ,hich ,ill have valid
bearing on the results. he fact that the voting populace are simultaneously asked to ans,er the
referendum #uestion and the plebiscite #uestion does not infirm the referendumCplebiscite. here is
nothing objectionable in consulting the people on a given issue, ,hich is of current one and
submitting to them for ratification of proposed constitutional amendments. he fear of commingled
votes ;&BCyear olds and &)Cyear olds above< is readily dispelled by the provision of t,o ballot bo8es
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
he ballots
in the ballot bo8 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 bo8. And, the results of the
referendumCplebiscite shall be separately prepared for the age groupings, i.e., ballots contained in
each of the t,o bo8es.
38
*. %t is apt to distinguish here bet,een a 4referendum4 and a 4plebiscite.4 A 4referendum4 is merely
consultative in character. %t is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of ,hich is derived from or ,ithin the
totality of the e8ecutive po,er of the President.
39
%t is participated in by all citi"ens from the age of
fifteen, regardless of ,hether or not they are illiterates, feebleCminded, or e8C convicts .
50
A
4plebiscite,4 on the other hand, involves the constituent act of those 4citi"ens of the Philippines not
other,ise dis#ualified by la,, ,ho are eighteen years of age or over, and ,ho shall have resided in
the Philippines for at least one year and in the place ,herein they propose to vote for at least si8
months preceding the election +iteracy, property or any other substantive re#uirement is not imposed.
%t is generally associated ,ith the amending process of the Constitution, more particularly, the
ratification aspect.
6%%
&. here appeals to be no valid basis for the claim that the regime of martial la, stultifies in main the
freedom to dissent. hat speaks of a bygone fear. he martial la, regime ,hich, in the observation of
.ustice 1ernando,
51
is impressed ,ith a mild character recorded no -tate imposition for a muffled
voice. o be sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. he for the referendumCplebiscite on 0ctober &2 recogni"es all
the embracing freedoms of e8pression and assembly he President himself had announced that he
,ould not countenance any suppression of dissenting vie,s on the issues, as he is not interested in
,inning a 4yes4 or 4no4 vote, but on the genuine sentiment of the people on the issues at hand.
54

hus, the dissenters soon found their ,ay to the public forums, voicing out loud and clear their
adverse vie,s on the proposed amendments and even ;in the valid ratification of the &('A
Constitution, ,hich is already a settled matter.
53
/ven government employees have been held by the
Civil -ervice Commission free to participate in public discussion and even campaign for their stand on
the referendumCplebiscite issues.
55

6%%%
ime for deliberation
is not short.
&. he period from -eptember *& to 0ctober &2 or a period of A ,eeks is not too short for free
debates or discussions on the referendumCplebiscite issues. he #uestions are not ne,. hey are the
issues of the day. he people have been living ,ith them since the proclamation of martial la, four
years ago. he referendums of &('A and &('B carried the same issue of martial la,. hat
not,ithstanding, the contested brief period for discussion is not ,ithout counterparts in previous
plebiscites for constitutional amendments. .ustice Makasiar, in the !eferendum Case, recalls7 4=nder
the old -ociety, &B days ,ere allotted for the publication in three consecutive issues of the 0fficial
3a"ette of the ,omen$s suffrage amendment to the Constitution before the scheduled plebiscite on
April A9, &(A' ;Com. Act ?o. AJ<. he constitutional amendment to append as ordinance the
complicated ydingsCNocialsko,ski ,as published in only three consecutive issues of the 0fficial
3a"ette for &9 days prior to the scheduled plebiscite ;Com. Act J(*<. 1or the &(J9 Constitutional
amendments providing for the bicameral Congress, the reelection of the President and 6ice
President, and the creation of the Commission on /lections, *9 days of publication in three
consecutive issues of the 0fficial 3a"ette ,as fi8ed ;Com Act ?o. B&'<. And the Parity Amendment,
an involved constitutional amendment affecting the economy as ,ell as the independence of the
!epublic ,as publici"ed in three consecutive issues of the 0fficial 3a"ette for *9 days prior to the
plebiscite ;!ep. Act ?o. 'A<.4
55
*. %t is ,orthy to note that Article D6% of the Constitution makes no provision as to the specific date
,hen the plebiscite shall be held, but simply states that it 4shall be held not later than three months
after the approval of such amendment or revision.4 %n Coleman v. Miller,
5:
the =nited -tates -upreme
court held that this matter of submission involves 4an appraisal of a great variety of relevant
conditions, political, social and economic,4 ,hich 4are essentially political and not justiciable.4 he
constituent body or in the instant cases, the President, may fi8 the time ,ithin ,hich the people may
act. his 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 ,idely separated in
time: second, it is only ,hen there is deemed to be a necessity therefor that amendments are to be
proposed, the reasonable implication being that ,hen proposed, they are to be considered and
disposed of presently, and third, ratification is but the e8pression of the approbation of the people,
hence, it must be done contemporaneously.
57
%n the ,ords of .ameson, 4;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 ,hile that sentiment may fairly be supposed to e8ist. it ought to be regarded as ,aived,
and not again to be voted upon, unless a second time proposed by proper body
%? !/-=M/
he three issues are
&. %s the #uestion of the constitutionality of Presidential Decrees ?os. ((&, &9A& and &9AA political or
justiciableI
*. During the present stage of the transition period, and under, the environmental circumstances no,
obtaining, does the President possess po,er to propose amendments to the Constitution as ,ell as
set up the re#uired machinery and prescribe the procedure for the ratification of his proposals by the
peopleI
A. %s the submission to the people of the proposed amendments ,ithin the time frame allo,ed
therefor a sufficient and proper submissionI
=pon the first issue, Chief .ustice 1red !ui" Castro and Associate .ustices /nri#ue M. 1ernando,
Claudio eehankee, Antonio P. Barredo, Cecilia Muno" Palma, >ermogenes Concepcion .r. and
!uperto 3. Martin are of the vie, that the #uestion posed is justiciable, ,hile Associate .ustices 1eli8
6. Makasiar, 1eli8 P. Antonio and !amon C. A#uino hold the vie, that the #uestion is political.
=pon the second issue, Chief .ustice Castro and Associate .ustices Barredo, Makasiar, Antonio,
A#uino, Concepcion .r. and Martin voted in the affirmative, ,hile Associate .ustices eehankee and
Muno" Palma voted in the negative. Associate .ustice 1ernando, conformably to his concurring and
dissenting opinion in A#uino vs. /nrile ;B( -C!A &)A<, specifically dissents from the proposition that
there is concentration of po,ers in the /8ecutive during periods of crisis, thus raising serious doubts
as to the po,er of the President to propose amendments.
=pon the third issue, Chief .ustice Castro and Associate .ustices Barredo, Makasiar, A#uino,
Concepcion .r. and Martin are of the vie, that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate .ustices Barredo and Makasiar
e8pressed the hope, ho,ever that the period of time may be e8tended. Associate .ustices 1ernando,
Makasiar and Antonio are of the vie, that the #uestion is political and therefore beyond the
competence and cogni"ance of this Court, Associate .ustice 1ernando adheres to his concurrence in
the opinion of Chief .ustice Concepcion in 3on"ales vs. C0M/+/C ;*& -C!A ''J<.Associate
.ustices eehankee and M=?05 Palma hold that prescinding from the President$s lack of authority to
e8ercise the constituent po,er to propose the amendments, etc., as above stated, there is no fair and
proper submission ,ith sufficient information and time to assure intelligent consent or rejection under
the standards set by this Court in the controlling cases of 3on"ales, supra, and olentino vs.
C0M/+/C ;J& -C!A '9*<.
Chief .ustice Castro and Associate .ustices Barredo, Makasiar, Antonio, A#uino, Concepcion .r. and
Martin voted to dismiss the three petitions at bar. 1or reasons as e8pressed in his separate opinion,
Associate .ustice 1ernando concurs in the result. Associate .ustices eehankee and Muno" Palma
voted to grant the petitions.
ACC0!D%?3+@, the vote being ) to * to dismiss, the said petitions are hereby dismissed. his
decision is immediately e8ecutory.
-0 0!D/!/D.
3;uino, J, in t*e result.
S+(a,at+ O(%%os
CASTRO, C.J.:, concurring7
1rom the challenge as formulated in the three petitions at bar and the grounds advanced be the
-olicitor 3eneral in opposition thereto, as ,ell as the arguments adduced by the counsels of the
parties at the hearing had on 0ctober ' and ), &('2, three vital issues readily project themselves as
the centers of controversy, namely7
;&< %s the #uestion of the constitutionality of Presidential Decrees ?os. ((&, &9A& and &9AA political or
justiciableI
;*< During the present stage of the transition period, and under the environmental circumstances no,
obtaining, does the President possess po,er to propose amendments to the Constitution as ,ell as
set up the re#uired machineries and prescribe the procedure for the ratification of his proposals by
the peopleI
;A< %s the submission to the people of the proposed amendments ,ithin the time frame allo,ed
therefor a sufficient and proper, submission4
%
1irst %ssue
he threshold #uestion is not at all one of first impression -pecifically on the matter of proposals to
amend the Constitution, this Court, in Mabanag vs. +ope" 6ito ;') Phil. &<, inceptively announced the
dictum thatC
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. he e8ercise of this
po,er is even independent of any intervention by the Chief /8ecutive. %f on grounds of e8pediency
scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for
judicial in#uiry into the validity of a proposal than into that of a ratification.
%n time, ho,ever, the validity of the said pronouncement ,as eroded. %n the assessment of the Court
itselfC
he force of this precedent has been ,eakened, ho,ever, by -uanes vs. Chief Accountant of the
-enate ;)& Phil. )&)<, Avelino vs. Cuenco ;+C*B)&, March J and &J, &(J(<, anada vs. Cuenco ;+C
&9B*9, 1ebruary *), &(B'<, and Macias vs. Commission on /lections ;+C&)2)J, -eptember &J,
&(2&<.
888 888 888
%n short, the issue ,hether or not a !esolution of CongressCacting as a constituent assemblyCviolates
the Constitution is essentially justiciable, not political, and, hence, subject to judicial revie,, and, to
the e8tent this vie, may be inconsistent ,ith the stand taken in Mabanag vs. +ope" 6ito the latter
should be deemed modified accordingly. he Members of the Court are unanimous on this point.4
;3on"ales vs. Commission on /lections, et al, +C*)&(2, ?ovember (, &(2', *& -C!A ''J, ')2C')'<.
he abandonment of the Mabanag vs. +ope" 6ito doctrine appears to have been completed ,hen, in
.avellana vs. -ecretary, et al. ;+CA2&J*, March Al, &('A, B9 -C!A A9<, si8 members of the Court
concurred in the vie, that the #uestion of ,hether the &('A Constitution ,as ratified in accordance
,ith the provisions of Article D6 ;Amendments< of the &(AB Constitution is inherently and essentially
justiciable.
As elucidated therein, ,ith e8tensive #uotations from anada vs. Cuenco ;&9A Phil. &9B&<C
... the term $political #uestion$ connotes, in legal parlance, ,hat it means in ordinarily parlance, namely, a
#uestion of policy in matters concerning the government of a -tate, as a body politic. %n other ,ords, in
the language of Corpus .uris -ecundum ;supra<, it refers to $those #uestions ,hich, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to ,hich full
discretionary authority has been delegated to the +egislature or e8ecutive branch of the government.$ %t is
concerned ,ith issues dependent upon the ,isdom, not legality, of a particular measure.$
Accordingly, ,hen the grant of po,er is #ualified, conditional or subject to limitations, the issue on
,hether or not the prescribed #ualifications or conditions have been met, or the limitations respected,
is justiciable or nonCpolitical, the cru8 of the problem being one of legality or validity of the contested
act, not its ,isdom. 0ther,ise, said #ualifications, conditions or limitations C particularly those
prescribed or imposed by the Constitution C ,ould be set at naught.4 ;.avellana vs. /8ecutive
-ecretary, supra<.
-o it is in the situation here presented. he basic issue is the constitutional validity of the presidential
acts of proposing amendments to the Constitution and of calling a referendumCplebiscite for the
ratification of the proposals made. /vidently, the #uestion does not concern itself ,ith the ,isdom of
the e8ercise of the authority claimed or of the specific amendments proposed. %nstead the in#uiry vel
non is focused solely on the e8istence of the said po,er in the President C a #uestion 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 po,ers.
1or the Court to shun cogni"ance of the challenge herein presented, especially in these parlous
years, ,ould be to abdicate its constitutional po,ers, shirk its constitutional responsibility, and deny
the people their ultimate recourse for judicial determination.
% have thus no hesitancy in concluding that the #uestion here presented is ,ell ,ithin the periphery of
judicial in#uiry.
%%
-econd %ssue
he main #uestion stands on a different footing: it appears unprecedented both here and else,here.
%ts solution, % believe, can be found and unraveled only by a critical assessment of the e8isting legal
order in the light of the prevailing political and factual milieu.
o 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 ,ith the procedure set
forth therein. >ence, 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 soCcalled 4constitution of sovereignty4
,hich comprises the provision or provisions on the modes in accordance ,ith ,hich formal changes
in the fundamental la, may be effected the same ,ould ordinarily be the controlling criterion for the
validity of the amendments sought.
=nfortunately, ho,ever, during the present transition period of our political development, no e8press
provision is e8tant in the Constitution regarding the agency or agent by ,hom and the procedure by
,hich amendments thereto may be proposed and ratified fact overlooked by those ,ho challenge the
validity of the presidential acts in the premises. his is so because there are at least t,o distinctly in
the transition from the old system of government under the &(AB Constitution to the ne, one
established by the &('A Constitution.
he first stage comprises the period from the effectivity of the Constitution on .anuary &', &('A to the
time the ?ational Assembly is convened by the incumbent President and the interim President and
the interim Prime Minister are chosen Article D6%%, -ections & and AG&H. he e8istence of this stage as
an obvious fact of the nation$s political life ,as recogni"ed by the Court in A#uino vs. Commission on
/lections, et al. ;+CJ999J, .anuary A&, &('B, 2* -C!A *'B<, ,hen it rejected the claim that, under the
&('A Constitution, the President ,as in duty bound to convene the interim ?ational Assembly soon
after the Constitution took effect.
he second stage embraces the period from the date the interim ?ational Assembly is convened to
the date the 3overnment described in Articles 6%% to %D of the Constitution is inaugurated, follo,ing
the election of the members of the regular ?ational Assembly ;Article D6%%, -ection &< and the
election of the regular President and Prime Minister,. his is as it should be because it is recogni"ed
that the President has been accorded the discretion to determine ,hen he shall initially convene the
interim ?ational Assembly, and his decision to defer the convocation thereof has found over,helming
support by the sovereign people in t,o previous referenda, therein giving reality to an interregnum
bet,een the effectivity of the Constitution and the initial convocation of the interim ?ational Assembly,
,hich interregnum, as aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the t,o sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage. hus,
-ection &B, Article D6%% ;ransitory Provisions< providesC
4-ec. &B. he interim ?ational Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. -uch amendments shall
take effect ,hen ratified in accordance ,ith Article -i8teen hereof.4
Patently, the reference to the 4interim ?ational Assembly4 and the 4interim Prime Minister4 limits the
application thereof to the second stage of the transition period, i.e.,., after the interimI ?ational
Assembly shall have been convened and the interim Prime Minister shall have been chosen.
=pon the other hand, the provisions of Article D6% ;Amendments<, to ,itC
-/C%0? &. ;&< Any amendment to, or revision of, this Constitution may be proposed by the ?ational
Assembly upon a vote of threeCfourths of all its Members, or by a constitutional convention.
;*< he ?ational Assembly may, by a vote of t,oCthirds of all its Members, call a constitutional convention
or, by a majority vote of all its Members, submit the #uestion of ceiling such a convention to the electorate
in an election.
-/C. *. Any amendment to, or revision of, this Constitution shall be valid ,hen ratified by a majority of the
votes cast in a plebiscite ,hich shall be held not later than three months after the approval of such
amendment or revision.
une#uivocally contemplate amendments after the regular 3overnment shall have become fully
operative, referring as they do to the ?ational Assembly ,hich ,ill come into being only at that time.
%n the face of this constitutional hiatus, ,e are confronted ,ith the dilemma ,hether amendments to
the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by ,hom
and in ,hat manner such amendments may be proposed and ratified.
-usceptibility to change is one of the hallmarks of an %deal Constitution. ?ot 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. hey are, instead, dynamic precepts intended to keep in stride ,ith and
attuned to the living social organism they seek to fashion and govern. %f it is conceded that 4the
political or philosophical aphorism of one generation is doubted by the ne8t and entirely discarded by
the third,4 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. 0n these verities, there can be no debate.
During the first stage of the transition period in ,hich the 3overnment is at present C ,hich is
understandably the most critical C the need for change may be most pressing and imperative, and to
disavo, the e8istence of the right to amend the Constitution ,ould be sheer political heresy. -uch
vie, ,ould deny the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of gro,th. -uch a result obviously could not
have been intended by the framers of the fundamental la,.
%t seems, ho,ever, that the happenstance that the first period ,ould come to pass before the
convocation of the interim ?ational Assembly ,as not anticipated, hence, the omission of an e8press
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 po,er of the people to
amend the fundamental charter that governs their lives and their future and perhaps even the very
survival of the nation.
=pon the other hand, it is clear from the aforeC#uoted provisions on the amendatory process that the
intent ,as, instead, to provide a simpler and more e8peditious mode of amending the Constitution
during the transition period. 1or, ,hile under Article D6% thereof, proposals for amendment may be
made directly by the regular ?ational Assembly by a vote of at least threeCfourths of all its members,
under -ection &B of Article D6%%, a bare majority vote of all the members of the ?ational Assembly
,ould suffice for the purpose. he rela8ation and the disparity in the vote re#uirement are revealing.
he 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 ?ational Assembly ,ill be able, in a manner
of speaking, to iron out the kinks in the ne, Constitution, remove imperfections therein, and provide
for changed or changing circumstances before the establishment of the regular 3overnment. %n this
contest, therefore, it is inutile speculation to assume that the Constitution ,as intended to render
impotent or ar the effectuation of needful change at an even more critical period C the first stage. Eith
greater reason, therefore, must the right and po,er to amend the Constitution during the first stage of
te transition period be upheld, albeit ,ithin its e8press and implied constraints.
?either can it be successfully argued, in the same conte8t and in the present posture, that the
Constitution may be amended during the said first stage only by convening the interim ?ational
Assembly. hat is to say and re#uire that he said stage must first be brought to an end before any
amendment may be proposed and ratified. -ettled jurisprudence does not s#uare ,ith such a
proposition. As aptly noted in A#uino vs. Commission on /lections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim ?ational Assembly because they could
not have foreseen ho, long the crises ,hich impelled the proclamation and justify the continued state
of martial la, ,ould last. %ndeed, the framers committed to the sound judgment is not subject to
judicial revie,, save possibly to determine ,hether arbitrariness has infected such e8ercise: absent
such a taint, the matter is solely in the keeping of the President. o thus content that only by
convening the interim ?ational Assembly may the Constitution be amended at this time ,ould
effectively override the judgement vested in the President, even in default of any he has acted
arbitrarily or gravely abuse his discretion. 1urthermore, to sustain such a contention ,ould not only
negate the mandate so resoundingly e8pressed by the people in t,o national referenda against the
immediate convening of the interim ?ational Assembly, but as ,ell deride their over,helming
approval of the manner in ,hich the President has e8ercised the legislative po,er to issue
proclamations, orders, decrees and instructions having the stature and force of la,.
3iven the constitutional stalemate or impasse spa,ned by these supervening developments, the
logical #uery that compels itself for resolution is7 By ,hom, then, may proposals for the amendment of
the Constitution be made and in ,hat manner may said proposals be ratified by the peopleI
%t is conventional ,isdom that, conceptually, the constituent po,er is not to be confuse ,ith legislative
po,er in general because the prerogative to propose amendments to the Constitution is not in any
sense embraced ,ithin the ambit of ordinary la,Cmaking. >ence, there is much to recommend the
proposition that, in default of an e8press grant thereof, the legislature C traditionally the delegated
repository thereof C may not claim it under a general grant of legislative authority. %n the same vein,
neither ,ould it be altogether unassailable to say that because by constitutional tradition and e8press
allocation the constituent po,er under the Constitution is locate in the la,Cmaking agency and at this
stage of the transition period the la,Cmaking authority is firmly recogni"ed as being lodged in the
President, the said constituent po,er should no, logically be in the hands of te President ,ho may
thus e8ercise it in place of the interim ?ational Assembly. %nstead,, as pointed out in 3on"ales vs.
Commission on /lections, et al., supra, the po,er to amend the Constitution or to propose
amendments thereto
... is part of the inherent po,ers of the people C as the repository of sovereignty in a republican state, such
as ours C t o make, and, hence, to amend their o,n 1undamental +a,.
As such, it is undoubtedly a po,er that only the sovereign people, either directly by themselves or
through their chosen delegate, can ,ield. -ince it has been sho,n that the people, inadvertently or
other,ise, have not delegated that po,er to inadvertently or other,ise, have not delegated that
po,er to any instrumentality during the current stage of our hegira from crisis to normalcy, it follo,s of
necessity that the same remains ,ith them for them to e8ercise in the manner they see fit and
through the agency they choose. And, even if it ,ere conceded that C as it is reputedly the rule in
some jurisdictions C a delegation of the constituent authority amounts to a complete divestiture from
the people of the po,er delegated ,hich they may not thereafter unilaterally reclaim from the
delegate, there ,ould be no violence donde to such rule, assuming it to be applicable here, inasmuch
as that po,er, under the environmental circumstance adverted to, has not been delegated to anyone
in the first place. he constituent po,er during the first stage of the transition period belongs to and
remains ,ith the people, and accordingly may be e8ercised by them C ho, and ,hen C at their
pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the country proves
revelatory. he people, shocked and revolted by the 4obvious immorality4 of the unabashed manner
by ,hich the delegates to the Constitutional Convention virtually legislated themselves into office as
ipso facto members of the interim ?ational Assembly by the mere fiat of voting for the transitory
provisions of the Constitution. and the stark reality that the un,ieldy political monstrosity that the
interim Assembly portended to be ,ould have proven to be a veritable drain on the meager financial
resources of a nation struggling for survival, have une#uivocally put their foot do,n, as it ,ere, on the
convocation thereof. But this patently salutary decision of the people proved to be doubleCedged. %t
like,ise bound the political machinery of the 3overnment in a virtual straightCjacket and consigned
the political evolution of the nation into a state of suspended animation. 1aced ,ith the ensuing
dilemma, the people understandably agitated for a solution. hrough consultations in the barangays
and sanggunian assemblies, the instrumentalities through ,hich the people$s voice is articulated in
the uni#ue system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy #uickly evolved into an over,helming sentiment to
amend the Constitution in order to replace the discredited interim ?ational Assembly ,ith ,hat the
people believe ,ill be an appropriate agency to eventually take over the la,Cmaking po,er and thus
pave the ,ay for the early lifting of martial rule. %n pursuit of this sentiment, and to translate its
constraints into concrete action, the Pambansang Natipunan ng Barangay, the Pambansang
Natipunan ng mga Nabataang Barangay, the +upong agapagpaganap of the Natipunan ng mga
Barangay, the Pambansang Natipunan ng mga Nabataang Barangay the +upong agapagpaganap of
the Natipunan ng mga -anggunian, and finally the Batasang Bayan, to a man and as one voice, have
come for,ard ,ith definitive proposals for the amendment of the Constitution, and, choosing the
President the only political arm of the -tate at this time through ,hich that decision could be
implemented and the end in vie, attained as their spokesman, proposed the amendments under
challenge in the cases at bar.
%n the light of this milieu and its imperatives, one thing is inescapable7 the proposals no, submitted to
the people for their ratification in the forthcoming referendumCplebiscite are factually not of the
President: they are directly those of the people themselves speaking thru their authori"ed
instrumentalities. he President merely formali"ed the said proposals in Presidential Decree ?o.
&9AA. %t being conceded in all #uarters that sovereignty resides in the people and it having been
demonstrated that their constituent po,er to amend the Constitution has not been delegated by them
to any instrumentality of the 3overnment during the present stage of the transition period of our
political development, the conclusion is ineluctable that their e8ertion of that residuary po,er cannot
be vulnerable to any constitutional challenge as being ultra vires. Accordingly, ,ithout venturing to
rule on ,hether or not the President is vested ,ith constituent po,er 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 ,ith 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
e8ercising said authority has acted as a mere alter ego of the people ,ho made the proposals, but
like,ise because the said authority is legislative in nature rather than constituent.
%%%
hird %ssue
+ittle need be said of the claimed insufficiency and impropriety of the submission of the proposed
amendments for ratification from the standpoint of time. he thesis cannot be disputed that a fair
submission presupposes an ade#uate time lapse to enable the people to be sufficiently enlightened
on the merits or demerits of the amendments presented for their ratification or rejection. >o,ever,
circumstances there are ,hich unmistakably demonstrated that the is met. /ven if the proposal
appear to have been formali"ed only upon the promulgation of Presidential Decree ?o. &9AA on
-eptember **, &('2, they are actually the crystalli"ation of sentiments that for so long have
preoccupied the minds of the people and their authori"ed representatives, from the very lo,est level
of the political hierarchy. >ence, 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 ,hich judicial notice may ,ell be taken that in the not so distant past ,hen the
&('A Constitution ,as submitted to the people for ratification, an allCout campaign, in ,hich all the
delegates of the Constitutional Convention reportedly participated, ,as launched to ac#uaint the
people ,ith the ramifications and ,orking of the ne, system of government sought to be inaugurated
thereunder. %t may thus ,ell be assumed that the people in general have since ac#uired, in the least,
a ,orking kno,ledge of the entirety of the Constitution. he changes no, proposed the most
substantial of ,hich being merely the replacement of the interim ?ational assembly ,ith another
legislative arm for the 3overnment during the transition period until the regular ?ational Assembly
shall have been constituted do not appear to be of such comple8ity as to re#uire considerable time to
be brought home to the full understanding of the people. And, in fact, the massive and ,ideCranging
informational and educational campaign to this end has been and still is in full s,ing, ,ith 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.
%ndeed, ,hen the people cast their votes on 0ctober &2, a negative vote could very ,ell mean an
understanding of the proposals ,hich they reject: ,hile an affirmative vote could e#ually be indicative
0f such understanding andFor an abiding credence in the fidelity ,ith ,hich the President has kept
the trust they have confided to him as President and administrator of martial rule
%6
Conclusion
%t is thus my considered vie, that no #uestion viable for this court to pass judgment upon is posed.
Accordingly, % vote for the outright dismissal of the three petitions at bar.
hese three petitions, the latest in a series of cases starting from Planas v. Commission on /lections
continuing ,ith the epochal resolution in .avellana v. /8ecutive -ecretary and follo,ed successively
in three crucial decisions, A#uino v. Ponce /nrile A#uino v. Commission on /lections, and A#uino v
Military Commission,
5
manifest to the same degree the delicate and a,esome character of the
function of judicial revie,. Ehile 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. %t
is inappropriate to resolve the comple8 problems of a critical period ,ithout full a,areness of the
conse#uences that flo, from ,hatever decision is reached. .ural norms must be read in the conte8t
of social facts, here is need therefore of adjusting inherited principles to ne, needs. 1or la,, much
more so constitutional la,, is simultaneously a reflection of and a force in the society that it controls.
?o #uality then can be more desirable in constitutional adjudication than that intellectual and
imaginative insight ,hich goes into the heart of the matter. he judiciary must survey things as they
are in the light of ,hat they must become %t must in#uire 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. his, on the one side. %t must e#ually 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 ho,ever admittedly salutary or desirable. here is still the need to demonstrate
that the conclusion reached by it in cases appropriate for its determination has support in the la, that
must be applied. o my mind that ,as the norm follo,ed, the conclusion reached being that the three
petitions be dismissed. % am in agreement. %t is ,ith regret ho,ever that based on my reading of past
decisions, both Philippine and American, and more specifically my concurring opinion in A#uino v.
Ponce /nrile, % must dissent from the proposition set forth in the able and scholarly opinion of .ustice
Martin that there is concentration of po,er in the President during a crisis government. Conse#uently,
% cannot see my ,ay clear to accepting the vie, that the authority to propose amendments is not
open to #uestion. At the very least, serious doubts could be entertained on the matter.
&. Eith due respect then, % have to dissociate myself from my brethren ,ho ,ould rule that
governmental po,ers in a crisis government, follo,ing !ossiter, 4are more or less concentrated in the
President.4 Adherence to my concurring and dissenting opinion in A#uino v. Ponce /nrile leaves me
no choice.
%t must be stated at the outset that ,ith the sufficiency of doctrines supplied by our past decisions to
point the ,ay to ,hat % did consider the appropriate response to the basic issue raised in the A#uino
and the other habeas corpus petitions resolved jointly, it ,as only in the latter portion of my opinion
that reference ,as made to =nited -tates -upreme Court pronouncements on martial la,, at the
most persuasive in character and rather fe, in number 4due no doubt to the, absence in the American
Constitution of any provision concerning it.= 7 %t ,as understandable then that it ,as only after the
landmark /8 parte Milligan case, that commentators like Cooley in &)2) and Eatson in &(&9 paid
attention, minimal by that, to the subject.4 %t ,as ne8t set forth that in the ,orks on American
constitutional la, published in this century specially after the leading cases of cases -terling v.
Constant in and Duncan v. Nahanamoku, 4there ,as a fuller treatment of the #uestion of martial la,
Ehile it is the formulation of Eilloughby that for me is most acceptable, my opinion did take note that
another commentator, Burdick, came out earlier ,ith a similar appraisal.
10
hus7 4-o called martial
la,, e8cept in occupied territory of an enemy is merely the calling in of the aid of military forces by the
e8ecutive, ,ho is charged ,ith the enforcement of the la,, ,ith or ,ithout special authori"ation by the
legislature. -uch declaration of martial la, does not suspend the civil la,, though it may interfere ,ith
the e8ercise of one$s ordinary rights. he right to call out the military forces to maintain order and
enforce the la, is simply part of the Police po,er, %t is only justified ,hen it reasonably appears
necessary, and only justifies such acts as reasonably appear necessarily to meet the e8igency,
including the arrest, or in e8treme cases the. killing of those ,ho create the disorder or oppose the
authorities. Ehen the e8igency is over the members of the military forces are criminally and civilly
habit for acts done beyond the scope of reasonable necessity. Ehen honestly and reasonably coping
,ith 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 ,ill not, during the insurrection or
riot, be free by ,rit of habeas corpus.4
11
Ehen the opinion cited Eilloughby$s concept of martial la,,
stress ,as laid on his being 4Partial to the claims of liberty.=14 his is evident in the e8plicit statement
from his ,ork #uoted by me7 4here is, then, strictly speaking, no such thing in American la, as a
declaration of martial la, ,hereby military la, is substituted for civil la,. -oCcalled declarations of
martial la, are, indeed, often made but their legal effect goes no further than to ,arn citi"ens that the
military po,ers have been called upon by the e8ecutive to assist him in the maintenance of la, and
order, and that, ,hile the emergency lasts, they must, upon pain of arrest and punishment not commit
any acts ,hich ,ill in any ,ay render more difficult the restoration of order and the enforcement of
la,. -ome of the authorities stating substantially this doctrine are #uoted in the footnote belo, ?or
did % stop there. he ,ords of Eillis ,ere like,ise cited7 4Martial la, proper, that is, military la, in
case of insurrection, riots, and invasions, is not a substitute for the civil la,, but is rather an aid to the
e8ecution of civil la,. Declarations of martial la, go no further than to ,arn citi"ens that the e8ecutive
has called upon the military po,er to assist him in the maintenance of la, and order. Ehile martial
la, is in force, no ne, po,ers are given to the e8ecutive and no civil rights of the individual, other
than the ,rit of habeas corpus, are suspended. he relations bet,een the citi"en and his stature
unchanged.4
15
he conclusion reached by me as to the state of American federal la, on the #uestion of martial la,
,as e8pressed thus7 J$& %t is readily evident that even ,hen Milligan supplied the only authoritative
doctrine, Burdick and Eilloughby did not ignore the primacy of civil liberties. Eillis ,rote after -terling.
%t ,ould indeed be surprising if his opinion ,ere other,ise. After Duncan, such an approach becomes
even more strongly fortified. -ch,art", ,hose treatise is the latest to be published, has this summary
of ,hat he considers the present state of American la,7 $he Milligan and Duncan cases sho, plainly
that martial la, is the public la, of necessity. ?ecessities alone calls it forth, necessity justifies its
e8ercise: and necessities measures the e8tended degree to ,hich it may be %t is, the high Court has
affirmed, an unbending rule of la, that the e8ercise of military po,er, ,here the rights of the citi"en
are concerned, may, never be pushed beyond ,hat the e8igency re#uires. %f martial la, rule survive
the necessities on ,hich alone it rests, for even a single minute it becomes a mere e8ercise of
la,less violence.$ 1urther7 -terling v. Constantin is of basic importance. Before it, a number of
decisions, including one the highest Court, ,ent or on the theory that the e8ecutive had a free hand in
taking martial la, measures. =nder them, it has been ,idely supposed that in proclamation ,as so
far conclusive that any action taken under it ,as immune from judicial scrutiny. -terling v. Constantin
definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them.
=nder -terling v. Constantin, ,here martial la, measures impinge upon personal or property rightsC
normally beyond the scope of military po,er, ,hose intervention is la,ful only because an abnormal
Actuation has made it necessary the e8ecutive$s ipse di8it is not of itself conclusive of the necessity.$4

15
here ,as like,ise an effort on my part to sho, ,hat for me is the legal effect of martial la, being
e8pressly provided for in the Constitution rather than being solely predicated on the common la,
po,er based on the urgent need for it because of compelling circumstances incident to the state of
actual clash of arms7 4%t is not to be lost sight of that the basis for the declaration of martial la, in the
Philippines is not mere necessity but an e8plicit constitutional provision. 0n the other hand, Milligan,
,hich furnished the foundation for -terling and Duncan had its roots in the /nglish common la,.
here is pertinence therefore in ascertaining its significance under that system. According to the
noted /nglish author, Dicey7 $Martial la,,$ in the proper sense of that term, , in ,hich C it means the
suspension of ordinary la, and the temporary government of a country or parts of it be military
tribunals, is unkno,n to the la, of /ngland. Ee have nothing e#uivalent to ,hat is called in 1rance
the 4Declaration of the -tate of -iege,4 under ,hich the authority ordinarily vested in the civil po,er
for the maintenance of order and police passes entirely to the army ;autorite militaire<. his is an
unmistakable proof of the permanent supremacy of the la, under our constitution. here ,as this
#ualification7 $Martial la, is sometimes employed as a name for the common la, right of the Cro,n
and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the la,. his right, or po,er, is essential to the very e8istence of orderly
government, and is most assuredly recogni"ed in the most ample manner by the la, of /ngland. %t is
a po,er ,hich has in itself no special connection ,ith the e8istence of an armed force. he Cro,n
has the right to put do,n breaches of the peace. /very subject, ,hether a civilian or a soldier,
,hether ,hat is called a servant of the government,$ such for e8ample as a policeman, or a person in
no ,ay connected ,ith the administration, not only has the right, but is, as a matter of legal duty,
bound to assist in putting do,n breaches of the peace. ?o doubt policemen or soldiers are the
persons ,ho, 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.4
1:
Commitment to such an approach results in my inability to subscribe to the belief that martial la, in
terms of ,hat is provided both in the &(AB and the present Constitution, affords sufficient justification
for the concentration of po,ers in the /8ecutive during periods of crisis. he better vie,, considering
the juristic theory on ,hich our fundamental la, rests is that e8pressed by .ustice Black in Duncan v.
Nahanamoku7 4+egislatures and courts are not merely cherished American institutions: they are
indispensable to our government.
17
%f 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 ane,, the
present Constitution ,as adopted, abolishing it and providing for an interim ?ational Assembly, ,hich
has not been convened.
18
-o % did vie, the matter.
*. ?or did % ignore !ossiter in my A#uino v. Ponce /nrile opinion. !eference ,as made to the first
chapter on his ,ork on Constitutional Dictatorship ,here he spoke of martial rule as 4a device
designed for use in the crisis of invasion or rebellion. %t may be most precisely defined as an
e8tension of military government to the civilian population, the substitution of the ,ill of a military
commander for the ,ill of the people$s elected government.4
19
-ince, for me at least, the !ossiter
characteri"ation of martial la, has in it more of the common la, connotation, less than duly mindful of
the jural effects of its inclusion in the Constitution itself as a legitimate device for coping ,ith
emergency conditions in times of grave danger, but al,ays subject to attendant limitations in
accordance ,ith the fundamental postulate of a charter$s supremacy, % felt justified in concluding7
4>appily for the Philippines, the declaration of martial la, lends itself to the interpretation that the
Burdick, Eilloughby, Eillis, -ch,art" formulations paying due regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule concept of !ossiter, latitudinarian in scope, has been
adopted, even on the assumption that it can be reconciled ,ith our Constitution. Ehat is undeniable
is that President Marcos has repeatedly maintained that Proclamation ?o. &9)& ,as precisely based
on the Constitution and that the validity of acts taken there under could be passed upon by the
-upreme court. 1or me that is #uite reassuring, persuaded as % am like,ise that the ,eekC of !ossiter
is opposed to the fundamental concept of our polity, ,hich puts a premium on freedom.4
40
A. Candor and accuracy compel the admission that such a conclusion his to be #ualified. 1or in the
opinion of the Court in the aforecited A#uino v. Commission on /lections, penned by .ustice
Makasiar, the proposition ,as e8pressly affirmed 4that as CommanderCinCChief and enforcer or
administrator of martial la,, the incumbent President of the Philippines can reclamations, orders and
decrees during the period Martial +a, essential to the security and preservation of the !epublic, 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 ,ell as to meet the
impact of a ,orld,ide recession, inflation or economic crisis ,hich presently threatens all nations
including highly developed countries.4
41
o that e8tent, !ossiter$s vie, mainly relied upon, no,
possesses .uristic significant in this jurisdiction. Ehat, for me at least, gives caused for concern is
that ,ith the opinion of the Court this intrusion of ,hat % ,ould consider an alien element in the limited
concept of martial la, as set forth in the Constitution ,ould be allo,ed further incursion into the
corpus of the la,, ,ith the invocation of the vie, e8pressed in the last chapter of his ,ork approving
tile 4concentration of governmental po,er in a democracy GasH a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of po,ers.4
44
%t is to the credit of the late Professor !ossiter
as an objective scholar that in the very same last chapter, just three pages later, he touched e8plicitly
on the undesirable aspect of a constitutional dictatorship. hus7 4Constitutional Dictatorship is a
dangerous thing. A declaration of martial la, or the passage of an enabling act is a step ,hich must
al,ays be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order ,ithin ,hich they function and a too conscious
employment of po,ers and methods long ago outla,ed as destructive of constitutional government.
/8ecutive legislation, state control of popular liberties, military courts, and arbitrary e8ecutive action
,ere governmental features attacked by the men ,ho fought for freedom not because they ,ere
inefficient or unsuccessful, but because they ,ere dangerous and oppressive. he reinstitution of any
of these features is a perilous matter, a step to be taken only ,hen the dangers to a free state ,ill be
greater if the dictatorial institution is not adopted.4
43
J. %t is by virtue of such considerations that % find myself unable to share the vie, of those of my
brethren ,ho ,ould accord recognition to the !ossiter concept of concentration of governmental
po,er in the /8ecutive during periods of crisis. his is not to lose sight of the undeniable fact that in
this country through the "eal, vigor, and energy lavished on projects conducive to the general ,elfare,
considerable progress has been achieved under martial rule. A fair summary may be found in a
recent address of the 1irst +ady before the delegates to the &('2 international Monetary 1undCEorld
Bank .oint Annual Meeting7 4he ,onder is that so much has been done in so brief a time. -ince
-eptember &('*, ,hen 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 ,orld. Ee have liberated
millions of 1ilipino farmers from the bondage of tenancy, in the most vigorous and e8tensive
implementation of agrarian reform.4
45
1urther, she said7 4A dynamic economy has replaced a stagnant
order, and its re,ards are distributed among the many, not hoarded by a fe,. 0ur foreign policy,
once confined by fear and suspicion to a narro, alley of selfCimposed isolation, no, travels the broad
e8press,ays of friendship and constructive interaction ,ith the ,hole ,orld, these in a ne, spirit of
confidence and selfCreliance. And finally, forced to ,ork out our o,n salvation, the 1ilipino has reC
discovered the ,ellCsprings of his strength and resilience As 1ilipinos, ,e have found our true
%dentity. And having broken our crisis of %dentity, ,e are no longer apologetic and afraid. =45 he very
%dea of a crisis, ho,ever, 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.
he full restoration of civilian rule can thus be e8pected. hat is more in accord ,ith the imperatives
of a constitutional order. %t should not go unnoticed either that the President has referred to the
present regime as one of 4constitutional authoritarianism.4 hat has a less objectionable ring,
authority being more %dentified ,ith the %dea of la,, as based on right, the very antithesis of naked
force, ,hich to the popular mind is associated ,ith dictatorship, even if referred to as 4constitutional.4
1or me like,ise, that e#ually eminent scholar Cor,in, also invoked in the opinion of the Court, ,hile
no doubt a partisan of d strong Presidency, ,as not averse to constitutional restraints even during
periods of crisis. -o % ,ould interpret this e8cerpt from the fourth edition of his classic treatise on the
Presidency7 4A regime of martial la, may be compendiously, if not altogether accurately, defined as
one in ,hich the ordinary la,, as administered by the ordinary courts, is superseded for the time
being by the ,ill of a military commander. %t follo,s that, ,hen martial la, is instituted under national
authority, it rests ultimately on the ,ill of the President of the =nited -tates in his capacity as
CommanderCinCChief. %t should be added at once, nevertheless, that the subject is one in ,hich the
record of actual practice fails often to support the niceties of theory. hus, the employment of the
military arm in the enforcement of the civil la, does not invariably, or even usually, involve martial la,
in the strict sense, for, as ,as 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 re#uiring its assistance, the line bet,een such an employment of the
military and a regime of martial la, is fre#uently any but a hard and fast one. And partly because of
these ambiguities the conception itself of martial la, today bifurcates into t,o conceptions, one of
,hich shades off into military government and the other into the situation just described, in ,hich the
civil authority remains theoretically in control although dependent on military aid. 1inally, there is the
situation that obtained throughout the ?orth during the Civil Ear, ,hen the privilege of the ,rit of
habeas corpus ,as suspended as to certain classes of suspects, although other characteristics of
martial la, ,ere generally absent.4
4:
%t is by virtue of the above considerations that, ,ith due respect to the opinion of my brethren, %
cannot yield assent to the !ossiter vie, of concentration of governmental po,ers in the /8ecutive
during martial la,.
B here is necessity then, for me at least, that the specific #uestion raised in all three petitions be
s#uarely faced. %t is to the credit of the opinion of the Court that it did so. he basic issue posed
concerns the boundaries of the po,er of the President during this period of martial la,, more
precisely ,hether it covers proposing amendments to the Constitution. here is the further
#ualification if the stand of respondents be taken into account that the interim ?ational Assembly has
not been convened and is not likely to be called into session in deference to the ,ishes of the people
as e8pressed in three previous referenda. %t is the ruling of the majority that the ans,er be in the
affirmative, such authority being ,ell ,ithin the area of presidential competence. Again % find myself
unable to join readily in that conviction. %t does seem to me that the metes and bounds of the
e8ecutive domain, ,hile still recogni"able, do appear blurred. his 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 A#uino v. Commission on /lections as to the validity of the e8ercise of the legislative
prerogative by the President as long as the interim ?ational Assembly is not 1or me, the stage of
certitude has not been reached. % cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent po,er on the part of the
President, the e8press provision of the Constitution conferring it on the by team ?ational Assembly.
47

he learned advocacy reflected in the pleadings as ,ell as the oral discourse of -olicitor 3eneral
/stelito P. Mendo"a *& failed to erase the grave doubts in my mind that the A#uino doctrine as to the
possession of legislative competence by the President during this period of transition ,ith the interim
la,making body not called into session be thus e8panded. he majority of my brethren took that step.
% am not prepared to go that far. % ,ill e8plain ,hy.
he ,ay for me, is beset ,ith obstacles. %n the first place, such an approach ,ould lose sight of the
distinction bet,een matters legislative and constituent. hat is implicit in the treatise on the &(AB
Constitution by .ustices Malcolm and +aurel %n their casebook published the same year, one of the
four decisions on the subject of constitutional amendments is /llingham v. Dye A& ,hich categorically
distinguished bet,een constituent and legislative po,ers. Dean -inco, a ,ellCkno,n authority on the
subject, ,as #uite e8plicit. hus7 4%f there had been no e8press provision in the Constitution granting
Congress the po,er to propose amendments, it ,ould be outside its authority to assume that po,er.
Congress may not claim it under the general grant of legislative po,er for such grant does not carry
,ith it the right $to erect the state, institute the form of its government,$ ,hich is considered a function
inherent in the people. Congressional la,C making authority is limited to the po,er of approving the
la,s $of civil conduct relating to the details and particulars of the government instituted,$ the
government established by the people.4&* %f that distinction be preserved, then for me the aforecited
A#uino decision does not reach the heart of the matter. ?or is this all. %n the main opinion of .ustice
Makasiar as ,ell as that of the then .ustice, no, Chief .ustice, Castro, support for the ruling that the
President cannot be deemed as devoid of legislative po,er during this transition stage is supplied by
implications from e8plicit constitutional provisions.
13
hat is not the case ,ith the po,er to propose
amendments. %t is solely the interim ?ational Assembly that is mentioned. hat is the barrier that for
me is ,ellCnigh insurmountable. %f % limit myself to entertaining doubts rather than registering a dissent
on this point, it is solely because of the consideration, possessed of ,eight and significance, that
there may be indeed in this farCfromC#uiescent and static period a need for al. amendments. % do not
feel confident therefore that a negative vote on my part ,ould be ,arranted. Ehat ,ould justify the
step taken by the President, even if no complete acceptance be accorded to the vie, that he ,as a
mere conduit of the barangays on this matter, is that as noted in both #ualified concurrences by
.ustices eehankee and Muno" Palma in A#uino, as far as the legislative and appropriately po,ers
are concerned, is the necessity that unless such authority be recogni"ed, there may be paraly"ation
of governmental activities, Ehile not s#uarely applicable, such an approach has, to my mind, a
persuasive #uality as far as the po,er to propose amendments is concerned.
hus % ,ould confine myself to the e8pression of serious doubts on the #uestion rather than a dissent.
2. he constitutional issue posed as thus vie,ed leaves me free to concur in the result that the
petitions be dismissed. hat is to accord respect to the principle that judicial revie, goes no further
than to checking clear infractions of the fundamental la,, e8cept in the field of human rights ,here a
much greater vigilance is re#uired, hat is to make of the Constitution a path,ay to rather than a
barrier against a desirable objective. CAs sho,n by my concurring and dissenting opinion in olentino
Commission on /lections $AJ a preCmartial la, decision, the fundamental postulate that sovereignty
resides in the people e8erts a compelling force re#uiring the judiciary to refrain as much as possible
from denying the people the opportunity to make kno,n their ,ishes on matters of the utmost import
for the life of the nation, Constitutional amendments fall in that category. % am fortified in that
conviction by the teaching of persuasive American decisions here is reinforcement to such a
conclusion from retired Chief .ustice Concepcion$s concurring and dissenting opinion in Aytona v.
Castillo,&' Ehich % consider applicable to the present situation. hese are his ,ords7 4%t is ,ell settled
that the granting of ,rits of prohibition and mandamus is ordinarily ,ithin the sound discretion of the
courts, to be e8ercised on e#uitable principles, and that said ,rits should be issued ,hen the right to
the relief is clear Q Q by As he noted in his ponencia in the later case of 3on"ales v. >echanova,&( an
action for prohibition, ,hile petitioner ,as sustained in his stand, no injunction ,as issued. his ,as
evident in the dispositive portion ,here judgment ,as rendered 4declaring that respondent /8ecutive
-ecretary had and has no po,er to authori"e the importation in #uestion: that he e8ceeded his
jurisdiction in granting said authority: that said importation is not sanctioned by la, and is contrary to
its provisions: and that, for lack of the re#uisite majority, the injunction prayed for must be and is,
accordingly, denied.4
50
Eith the illumination thus supplied, it does not necessarily follo, that even a
dissent on my part ,ould necessarily compel that % vote for the relief prayed for. Certainly this is not to
belittle in any ,ay the action taken by petitioners in filing these suits. hat, for me, is commendable. %t
attests to their belief in the rule of la,. /ven if their contention as to lack of presidential po,er be
accepted in their entirety, ho,ever, there is still discretion that may be e8ercised on the matter,
prohibition being an e#uitable remedy. here are, for me, potent considerations that argue against
acceding to the plea. Eith the prospect of the interim ?ational Assembly being convened being dim, if
not nonC e8istent, if only because of the results in three previous referenda, there ,ould be no
constitutional agency other than the /8ecutive ,ho could propose amendments, ,hich, as noted.
may urgently press for adoption. 0f even greater ,eight, to my mind, is the pronouncement by the
President that the plebiscite is intended not only to solve a constitutional anomaly ,ith the country
devoid of a legislative body but also to provide. the machinery be ,hich the termination of martial la,
could be hastened. hat is a consummation devoutly to be ,ished. hat does militate strongly against
the stand of petitioners. he obstruction they ,ould pose may be fraught ,ith pernicious
conse#uences. %t may not be amiss to refer ane, to ,hat % deem the cardinal character of the jural
postulate e8plicitly affirmed in both the &(AB and the present Constitutions that sovereignty resides in
the people. -o % made clear in olentino v. Commission on /lections and thereafter in my dissent in
.avellana v. he /8ecutive -ecretary4 and my concurrence in A#uino v. Commission on /lections. J*
he destiny of the country lies in their keeping. he role of leadership is not to be minimi"ed. %t is
crucial it is of the essence. ?onetheless, it is their ,ill, if given e8pression in a manner sanctioned by
la, and ,ith due care that there be no mistake in its appraisal, that should be controlling. here is all
the more reason then to encourage their participation in the po,er process. hat is to make the
regime truly democratic. Constitutional orthodo8y re#uires, ho,ever, that the fundamental la, be
follo,ed. -o % ,ould interpret +aski,
53
Cor,in,
55
+erner,
55
, BrynC.ones,
5:
and Mc%ver.57
'. here 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 #uestion. -o, it has been since
the leading case of 3on"ales v. Commission on /lection -.
58
%t has since then been follo,ed in
olentino v. Commission on /lections
59
Planas v. Commission on /lections,4 and lastly, in .avellana
v. he /8ecutive -ecretary his Court did not heed the vigorous plea of the -olicitor 3eneral to
resurrect the political #uestion doctrine announced in Mabanag v. +ope" 6ito.
54
his is not to deny
that the federal rule in the =nited -tates as set forth in the leading case of Coleman v. Miller ,
53
a
&(A( decision, and relatively recent -tate court decisions, supply ammunition to such a contention.,
51

hat may be the case in the =nited -tates, but certainly not in this jurisdiction. Philippine
constitutional tradition is to the contrary. %t can trace its origin to these ,ords in the valedictory
address before the &(AJCAB Constitutional Convention by the illustrious Claro M. !ecto7 4%t is one of
the parado8es a democracy that the people of times place more confidence in instrumentalities of the
-tate other than those directly chosen by them for the e8ercise of their sovereignty %t can be said ,ith
truth, therefore, that there has invariably been a judicial predisposition to activism rather than selfC
restraint. he thinking all these years has been that it goes to the heart of constitutionalism. %t may be
said that this Court has shunned the role of a mere interpreter: it did e8ercise at times creative po,er.
%t has to that e8tent participated in the molding of policy, %t has al,ays recogni"ed that in the large
and undefined field of constitutional la,, adjudication partakes of the #uality of statecraft. he
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 follo, that it should not contribute its thinking to
the e8tent that it can. %t has been asked, it ,ill continue to be asked, to decide momentous #uestions
at each critical stage of this nation$s life.
here must be, ho,ever, this caveat. .udicial activism gives rise to difficulties in an era of
transformation and change. A society in flu8 calls for dynamism in 4he la,, ,hich must be responsive
to the social forces at ,ork. %t cannot remain static. %t must be sensitive to life. his Court then must
avoid the rigidity of legal %deas. %t must resist the temptation of allo,ing in the ,asteland of
meaningless abstractions. %t must face stubborn reality. %t has to have a feel for the comple8ities of
the times. his is not to discount the risk that it may be s,ept too far and too fast in the surge of novel
concepts. he past too is entitled to a hearing: it cannot just be summarily ignored. >istory still has its
uses. %t is not for this Court to renounce the virtue of systematic jural consistency. %t cannot simply
yield to the sovereign s,ay of the accomplished fact. %t must be deaf to the dissonant dialectic of ,hat
appears to be a splintered society. %t should strive to be a factor for unity under a rule of la,. here
must be, on its part, a,areness of the truth that a ne, juridical age born before its appointed time
may be the cause of unprecedented travail that may not end at birth. %t is by virtue of such
considerations that % did strive for a confluence of principle and practicality. % must confess that % did
approach the matter ,ith some misgivings and certainly ,ithout any illusion of omniscience. % am
comforted by the thought that immortality does not inhere in judicial opinions. ). & am thus led by my
studies on the subject of constitutional la, and, much more so, by previous judicial opinions to concur
in the dismissal of the petitions. %f % gave e8pression to byes not currently fashionable, it is solely due
to deeplyCingrained beliefs. Certainly, % am the first to recogni"e the ,orth of$ the social and economic
reforms so needed by the troubled present that have been introduced and implemented. here is no
thought then of minimi"ing, 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, % certainly approve of the adherence to the fundamental principle of
popular sovereignty ,hich, to be meaningful ho,ever, re#uires both freedom in its manifestation and
accuracy in ascertaining ,hat it ,ills. hen, too, it is fitting and proper that a distinction ,as made
bet,een t,o aspects of the coming poll, the referendum and the plebiscite. %t is only the latter that is
impressed ,ith authoritative force. -o the Constitution re#uires. +astly, there should be, as % did
mention in my concurrence in A#uino v. Commission on /lections,B2 full respect for free speech and
press, free assembly and free association. here should be no thought of branding the opposition as
the enemy and the e8pression of its vie,s as anathema, Dissent, it is fortunate to note, has been
encouraged. %t has not been %dentified ,ith disloyalty. hat ought to be the case, and not solely due to
presidential decrees. Constructive criticism is to be ,elcomed not so much because of the right to be
heard but because there may be something ,orth hearing. hat is to ensure a true ferment of %deas,
an interplay of kno,ledgeable minds. here are though ,ellC defined limits, 0ne may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent.. Ehat % mean
to stress is that e8cept on a sho,ing of clear and present danger, there must be respect for the
traditional liberties that make a society truly free.
&. 0n the merits7 % dissent from the majority$s dismissal of the petitions for lack of merit and vote to
grant the petitions for the follo,ing reasons and considerations7
1
. %t is undisputed that neither the
&(AB Constitution nor the &('A Constitution grants to the incumbent President the constituent po,er
to propose and approve amendments to the Constitution to be submitted to the people for ratification
in a plebiscite. he &(AB Constitution e8pressly vests the constituent po,er in Congress, be a threeC
fourths vote of all its members, to propose amendments or call a constitutional convention for the
purpose he &('A Constitution e8pressly vests the constituent po,er in the regular ?ational
Assembly to propose amendments ;by a threeCfourths vote of all its members< or 4call a constitutional
convention4 ;by a t,oCthirds vote of all its members< or 4submit the #uestion of calling such
convention to the electorate in an election4 ;by a majority vote of all its members < .4
he transitory provisions of the &('A Constitution e8pressing vest the constituent po,er during the
period of transition in the interim ?ational Assembly 4upon special call be the Prime Minister ;the
incumbent President A<... by a majority ore of all its members ;to< propose amendments.4
-ince the Constitution provides for the organi"ation of the essential departments of government,
defines and delimits the po,ers of each and prescribes the manner of the e8ercise of such po,ers,
and the constituent po,er has not been granted to but has been ,ithheld from the President or Prime
Minister, it follo,s that the President$s #uestioned decrease proposing and submitting constitutional
amendments directly to the people ;,ithout the intervention of the interim ?ational Assembly in ,hom
the po,er is e8pressly vested< are devoid of constitutional and legal basis.
*. he doctrine in the leading case of olentino vs. Comelec is controlling in the case at bar %n therein
declaring null and void the acts of the &('& Constitutional Convention and of the Comelec in calling a
plebiscite ,ith the general elections scheduled for ?ovember ), &('& for the purpose of submitting for
the people$s ratification an advance amendment reducing the voting age from *& years to &) years,
and issuing ,rits of prohibition and injunction against the holding of the plebiscite, this Court speaking
through Mr. .ustice Barredo ruled that CChe Constitutional provisions on amendments 4dealing ,ith
the procedure or manner of amending the fundamental la, 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 ,hich is not in conformity ,ith the letter, spirit and intent of the Charter for
effecting amendments, cannot receive the sanction of this Court :
8

he real issue here cannot be ,hether or not the amending process delineated by the present
Constitution may be disregarded in favor of allo,ing the sovereign people to e8press their decision on
the proposed amendments, if only because it is evident that the very %dea of departing from the
fundamental la, is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of la,,4: ( and
CAccordingly barred the plebiscite as improper and premature, since 4the provisional nature of the
proposed amendments and the manner of its submission to the people for ratification or rejection4 did
not 4conform ,ith the mandate of the people themselves in such regard, as e8pressed in the
Constitution itself$, &9 i.e. the mandatory re#uirements of the amending process as set forth in the
Article on Amendments.
A. Applying the above rulings of olentino to the case at bar, mutatis, mutandis, it is clear that ,here
the proposed amendments are violative of the Constitutional mandate on the amending process not
merely for being a 4partial amendment4 of a 4temporary or provisional character4 ;as in olentino< but
more so for not being proposed and approved by the department vested by the Constitution ,ith the
constituent po,er to do so, and hence transgressing the substantive provision that it is only the
interim ?ational 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.
J. his is so because the Constitution is a 4superior paramount la,, unchangeable by ordinary
means4 && but only by the particular mode and manner prescribed therein by the people. As stressed
by Cooley, 4by the Constitution ,hich they establish, ;the people< not only tie up the hands of their
official agencies but their o,n hands as ,ell: and neither the officers of the -tate, nor the ,hole
people as an aggregate body, are at liberty to take action in opposition to this fundamental la,.4
14
he vesting of the constituent po,er to propose amendments in the legislative body ;the regular
?ational Assembly< or the interim ?ational Assembly during the transition period< or in a constitutional
convention called for the purpose is in accordance ,ith universal practice. 41rom the very necessity of
the case4 Cooley points out 4amendments to an e8isting constitution, or entire revisions of it, must be
prepared and matured by some body of representatives chosen for the purpose. %t is obviously
impossible for the ,hole people to meet, prepare, and discuss the proposed alterations, and there
seems to be no feasible mode by ,hich an e8pression of their ,ill can be obtained, e8cept by asking
it upon the single point of assent or disapproval.4 his body of representatives vested ,ith the
constituent C po,er 4submits the result of their deliberations4 and 4puts in proper form the #uestions of
amendment upon ,hich the people are to pass4Cfor ratification or rejection.
13

B. he Court in olentino thus rejected the argument 4that the end sought to be achieved is to be
desired4 and in denying reconsideration in paraphrase of the late Claro M. !ecto declared that 4let
those ,ho ,ould 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 someho, others
,ith purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those ,ho laid do,n the precedent of justifying deviations
from the re#uirements of the Constitution the victims of their o,n folly.4
his same apprehension ,as echoed by no, retired .ustice Cali8to 0. 5aldivar in his dissenting
opinion in the !atification cases
15
that 4,e ,ill be opening the gates for a similar disregard to the
Constitution in the future. Ehat % mean is that if this Court no, declares that a ne, Constitution is
no, in force because the members of the citi"ens assemblies had approved said ne, Constitution,
although that approval ,as not in accordance ,ith the procedure and the re#uirements prescribed in
the &(AB 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 e8isting Constitution and the la,, and
then said proposed amendments is submitted to the people in any manner and ,hat ,ill matter is that
a basis is claimed that there ,as approval by the people. here ,ill not be stability in our
constitutional system, and necessarily no stability in our government.4
2. %t is not legally tenable for the majority, ,ithout overruling the controlling precedent of olentino
;and ,ithout mustering the re#uired majority vote to so overrule< to accept the proposed:
amendments as valid not,ithstanding their being 4not in conformity ,ith the letter, spirit and intent of
the provision of the Charter for effecting amendments4 on the reasoning that 4%f the President has
been legitimately discharging the legislative functions of the interim ?ational Assembly, there is no
reason ,hy he cannot validly discharge the functions.=15
%n the earlier leading case of 3on"ales vs. Comelec
1:
, this Court speaking through no, retired Chief
.ustice !oberto Concepcion, pointer out that 4%ndeed, the po,er to Congress4
17
or to the ?ational
Assembly.18 Ehere it not for the e8press grant in the ransitory Provisions of the constituent po,er to
the interim ?ational Assembly, the interim ?ational Assembly could not claim the po,er under the
general grant of legislative po,er during the transition period.
he majority$s ruling in the !eferendum cases
19
that the ransitory Provision in section A;*<
recogni"ed the e8istence of the authority to legislate in favor of the incumbent President during the
period of martial la, manifestly cannot be stretched to encompass the constituent po,er as e8pressly
vested in the interim ?ational Assembly in derogation of the allotment of po,ers defined in the
Constitution.
Paraphrasing Cooley on the nonCdelegation of legislative po,er as one of the settled ma8ims of
constitutional la,,
40
the contituent po,er has been lodged by the sovereign po,er of the people ,ith
the interim ?ational Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.
As ,as aptly stated by .ustice .ose P. +aurel in the &(A2 landmak case of Angara vs. /lectoral
Commissioner
41
, 4;<he Constitution sets forth in no uncertain language and restrictions and
limitations upon governmental po,ers and agencies. %f these restrictions and limitations are
transcended it ,ould be inconceivable if the Constitution had not provided for a mechanism by ,hich
to direct the course of government along constitutional channels, for then the distribution of po,ers
sentiment, and the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they should be in any living Constitution4.
'. ?either is the justification of 4constitutional impasses4 tenable. he sentiment of the people against
the convening of the interim ?ational Assembly and to have no elections for 4at least seven ;'< years4
Concededly could not ament the Constitution insofar as the interim ?ational Assembly is concerned
;since it admittendly came into e8istence 4immediately4 upon the proclamation of ratification of the
&('A Constitution<, much less remove the constituent po,er from said interim ?ational Assembly.
As stressed in the ,riter$s separate opinion in the !eferendum cases
44
, 4;E<hile it has been advanced
that the decision to defer the initial convocation of the interim ?ational Assembly ,as supported by
the results of the referendum in .anuary, &('A ,hen the people voted against the convening of the
interim ?ational Assembly for at least seven years, such sentiment cannot be given any legal force
and effect in the light of the -tate$s admission at the hearing that such referendums are merely
consultative and cannot amend the Constitution or Provisions ,hich call for the $immediate e8istence$
and $initial convening of the interim ?ational 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 B thereof4.
Ehile the people reportedly e8pressed their mandate against the convening of the interim ?ational
Assembly to dischange its legislative tasks during the period of transition under martial la,, they
certainly had no opportunity and did not e8press themselves against convening the interim ?ational
Assembly to discharge the constituent po,er to propose amendments like,ise vested in it by the
people$s mandate in the Constitution.
%n point of fact, ,hen the holding of the 0ctober &2, &('2 referendum ,as first announced, the
ne,spapers reported that among the seven #uestions proposed by the sanggunian and barangay
national e8ecutive committies for the referendum ,as the convening of the interim ?ational
Assembly.
43

%t ,as further reported that the proposals ,hich ,ere termed tentative 4,ill be discussed and studied
by ;the President<, the members of the cabinet, and the security council4 and that the barangays felt,
not,ithstanding the previous referenda on the convening of the interim ?ational Assembly that 4it is
time to again ask the people$s opinion of this matter 4
45
). %f proposals for constitutional amendments are no, deemed necessary to be discussed and
adopted for submittal to the people, strict adherence ,ith the mandatory re#uirements of the
amending process as provided in the Constitution must be complied ,ith. his means, under the
teaching of olentino that the proposed amendments must validly come from the constitutional
agency vested ,ith the constituent po,er to do so, namely, the interim ?ational Assembly, and not
from the e8ecutive po,er as vested in the Prime Minister ;the incumbent President< ,ith the
assistance of the Cabinet
45
from ,hom such po,er has been ,ithheld.
%t ,ill not do to contend that these proposals represent the voice of the people for as ,as aptly stated
by Cooley 4Me voice of the people, acting in their sovereign capacity, can be of legal force only ,hen
e8pressed at the times and under the conditions ,hich they themselves have prescribed and pointed
out by the Constitution. ... .=4:
he same argument ,as put for,ard and rejected by this Court in olentino ,hich rejected the
contention that the 4Convention 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 Courts4 and ruled that the constitutional article on the amending
process4 is nothing more than a part of the Constitution thus ordained by the people. >ence, in
continuing said section, Ee must read it as if the people said, 4he Constitution may be amended, but
it is our ,ill that the amendment must be proposed and submitted to =s for ratification only in the
manner herein provided$4.
47

his Court therein stressed that 4his must be so, because it is plain to =s that the framers of the
Constitution took care that the process of amending the same should not be undertaken ,ith the
same ease and facility in changing an ordinary legislation. Constitution making is the most valued
po,er, second to none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and ,hich ,e 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 ,ithin the country and those subject to its sovereignity, ever constitution
,orthy of the people for ,hich it is intended must not be prepared in haste ,ithout ade#uate
deliberation and study. %t is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the ,hole Constitution itself, and perforce must be conceived and prepared ,ith
as much care and deliberation:4 and that 4,ritten 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
e8igencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. hus, as a rule, the original
constitutions carry ,ith them limitations and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment.4
48

(. he convening of the interim ?ational Assembly to e8ercise the constituent po,er to proposed
amendments is the only ,ay to fulfill the e8press mandate of the Constitution.
As Mr. .ustice 1ernando emphasi"ed for this Court in Mutuc vs. Comelec
49
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 &('9 elections, 4the concept of the Constitution as the
fundamental la,, setting forth the criterion for the validity of any public act ,hether proceeding from
the highest official or the lo,est functionary, is a postulate of our system of government. hat is to
amnifst fealty to the rule of la,, ,ith priority accorded to that ,hich occupies the topmost rung in the
legal heirarchy. he three departments of government in the discharge of the functions ,ith ,hich it is
entrusted have no choice but to yield obedience to its commands. Ehatever limits it imposes must be
observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its
authority, ,hether substantive or formal, be transcended. he Presidency in the e8ecution of the la,s
cannot ignore of disregard ,hat it ordains. %n its task of applying the la, to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate ,hat is decreed by the fundamental
la,.4
his is but to give meaning to the plan and clear mandate of section &B of the ransitory Provisions
;,hich allo,s of no other interpretation< that during the stage of transition the interim ?ational
Assembly alone e8ercises the constituent po,er to propose amendments, upon special call therefor.
his is reinforced by the fact that the cited section does not grant to the regular ?ational Assembly of
calling a constitutional convention, thus e8pressing the ,ill 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 ?ational Assembly alone ,ould discharge the task and no constitutional
convention could be call for the purpose.
As to the alleged costs involved in convening the interim ?ational Assembly to propose amendments,
among them its o,n abolition, ;P*J million annually in salaries alone for its J99 members at
P299,999.99 per annum per member, assuming that its deliberations could last for one year<, suffice
it to recall this Court$s pronouncement in olentino ;in reflecting a similar argument on the costs of
holding a plebiscite separately from the general elections for elective officials< that 4it is a matter of
public kno,ledge that bigger amounts have been spent or thro,n to ,aste for many lesser
objectives. ... -urely, the amount of seventeen million pesos or even more is not too much a price to
pay for fealty and loyalty to the Constitution ... 4
30
and that 4,hile 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 ho, laudable the objective4 and 4no consideration of financial
costs shall deter =s from adherence to the re#uirements of the Constitution4.&&
&9. he imposition of martial la, ;and 4the problems of rebellion, subversion, secession, recession,
inflation and economic crisis a crisis greater than ,ar4<
34
cited by the majority opinion as justifying the
concentration of po,ers in the President, and the recognition no, of his e8ercising the constituent
po,er to propose amendments to the 1undamental +a, 4as agent for and in behalf of the people4
33

has no constitutional basis.
%n the postC,ar /mergency Po,ers
33
>, former Chief .ustice !icardo Paras reaffirmed for the Court
the principle that emergency in itself cannot and should not create po,er. %n our democracy the hope
and survival of the nation lie in the ,isdom and unselfish patriotism of all officials and in their faithful
$Adherence to the Constitution4.
he martial la, clause of the &('A Constitution found in Article %D, section
14
, as stressed by the
,riter in his separate opinion in the !eferendum Cases,&J 4is a verbatim reproduction of Article 6%%,
section &9 ;*< of the &(AB Constitution and provides for the imposition of martial la, only $in case of
invasion, resurrection or rebellion, or imminent danger thereof, ,hen the public safety re#uires it and
hence the use of the legislative po,er or more accurately $military po,er$ under martial rule is limited
to such necessary measures as ,ill safeguard the !epublic and suppress the rebellion ;or invasion<4.
35

&&. Article D6%%, section A ;*< of the &('A Constitution ,hich has been held by the majority in the
!eferendum Cases to be the recognition or ,arrant for the e8ercise of legislative po,er by the
President during the period of martial la, is but a transitory provision. ogether ,ith the martial la,
clause, they constitute but t,o provisions ,hich are not to be considered in isolation from the
Constitution but as mere integral parts thereof ,hich must be harmoni"ed consistently ,ith the entire
Constitution.
As Cooley restated the rule7 4effect is to be given, if possible, to the ,hole instrument, and to every
section and clause. %f different portions seem to conflict, the courts must harmoni"e them, if
practicable, and must lean in favor of a construction ,hich ,ill render every ,ord operative, rather
than one ,hich may make some ,ords %dle and nugatory.
his rule is applicable ,ith special force to ,ritten constitutions, in ,hich the people ,ill be presumed to
have e8pressed themselves in careful and measured terms, corresponding ,ith the immense importance
of the po,ers delegated, leaving as little as possible to implication. %t is scarcelly conceivable that a case
can arise ,here a court ,ould bye justified in declaring any portion of a ,ritten constitution nugatory
because of ambiguity. 0ne part may #ualify another so as to restrict its operation, or apply it other,ise
than the natural construction ,ould re#uire if it stood by itself: but one part is not to be allo,ed to defeat
another, if by any reasonable construction the t,o can be made to stand together.
3:
he transcendental constituent po,er to propose and approve amendments to the Constitution as
,ell as set up the machinery and prescribe the procedure for the ratification of his proposals has
been ,ithheld from the President ;Prime Minister< as sole repository of the /8ecutive Po,er,
presumably in vie, of the immense po,ers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent po,er, such amendments proposals have
to be prepared, deliberated and matured by a deliberative assembly of representatives such as the
interim ?ational Assembly and hence may not be antithetically entrusted to one man.
1ormer Chief .ustice !oberto Concepcion had observed before the elevation of the l('&
Constitutional Convention that the records of past plebiscites sho, that the constitutional agency
vested ,ith the e8ercise of the constituent po,er ;Congress or the Constitutional Convention< really
determined the amendments to the Constitution since the proposals ,ere invariably ratified by the
people
37
thus7 4although the people have the reserved po,er to ratify or reject the action taken by the
Convention, such po,er is not, in vie, of the circumstances attending its e8ercise, as effective as
one might other,ise think7 that, despite the re#uisite ratification by the people, the actual contents of
our fundamental la, ,ill really be determined by the Convention: that, accordingly the people should
e8ercise the greatest possible degree of circumspection in the election of delegates thereto ... 4
38

&*. Martial la, concededly does not abrogate the Constitution nor obliterate its constitutional
boundaries and allocation of po,ers among the /8ecutive, +egislative and .udicial Departments.
39

%t has thus been aptly observed that 4Martial la, is an emergency regime, authori"ed by and subject
to the Constitution. %ts basic premise is to preserve and to maintain the !epublic against the dangers
that threaten it. -uch premise imposes constraints and limitations. 1or the martial la, regime fulfills
the constitutional purpose only if, by reason of martial la, measures, the !epublic is preserved. %f by
reason of such measures the !epublic is so transformed that it is changed in its nature and becomes
a -tate other than republican, then martial la, is a failure: ,orse, martial la, ,ould have become the
enemy of the !epublic rather than its defender and preserver.4
50

%%. 0n the #uestion of the Court$s jurisdiction to pass upon the constitutionality of the #uestioned
presidential decrees7 let it be underscored that the Court has long set at rest the #uestion.
he trail ,as bla"ed for the Court since the benchmark case of Angara vs. /lectoral Commission
,hen .ustice .ose P. +aurel echoed =.-. Chief .ustice Marshall$s 4climactic phrase4 that 4,e must
never forget that it is a Constitution ,e are e8pounding4 and declared the Court$s 4solemn and
sacred4 constitutional obligation of judicial revie, and laid do,n the doctrine that the Philippine
Constitution as 4a definition of the po,ers of government4 placed upon the judiciary the great burden
of 4determining the nature, scope and e8tent of such po,ers4 and stressed that 4,hen the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights ,hich the instrument secures and guarantees to them4.
At the same time, the Court like,ise adhered to the constitutional tenet that political #uestions, i.e.
#uestions ,hich are intended by the Constitutional and relevant la,s to be conclusively determined
by the 4political4, i.e. branches of government ;namely, the /8ecutive and the +egislative< are outside
the Court$s jurisdiction.
51

hus, in 3on"ales,
54
;by a unanimous Court< and in olentino
53
;by the re#uired constitutional
majority<, the Court has since consistently ruled that ,hen 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 ,hether or not
their acts are ,ithin or beyond constitutional limits. 0ther,ise, they could brush aside and set the
same at naught, contrary to the basic tenet that outs is it government of la,som not of men, and to
the rigid nature of our Constitution. -uch rigidity is stressed by the fact that, the Constitution e8pressly
confers upon the -upreme Court, the po,er to declare a treaty unconstitutional, despite the eminently
political character of treatyCmaking po,er4.
55
As amplified by former Chief .ustice Concepcion in .avellana vs /8ecutive -ecretary
55
;by a majority
vote<, 4,hen the grant of po,er is #ualified, conditional or subject to limitations. the issue on ,hether
or not the prescribed #ualifications or conditions have been met, or the limitations by e8pected, is
justiciable or nonCpolitical, the cru8 of the problem being one of legality or validity of the contested act,
not its ,isdom 0ther,ise, said #ualifications, conditions and limitationsCparticularly those prescribed
or imposed by the Constitution ,ould be set at naught4.
he fact that the proposed amendments are to be submitted to the people for ratification by no means
makes the #uestion political and nonC justiciable since as stressed even in .avellana the issue of
validity of the President$s proclamation of ratification of the Constitution presented a justiciable and
nonCpolitical #uestion
-tated other,ise, the #uestion of ,hether the +egislative acting as a constituent assembly or the
Constitutional Convention called folC the purpose, in proposing amendments to the people for
ratification follo,ed the constitutional procedure and on the amending process is perforce a justiciable
#uestion and does not raise a political #uestion of police or ,isdom of the proposed amendments,
,hich if -ubmitted, are reserved for the people$s decision.
he substantive #uestion presented in the case at bar of ,hether the President may legally e8ercise
the constituent po,er vested in the interim ?ational Assembly ;,hich has not been granted to his
office< and propose constitutional amendments is preeminently a justiciable issue.
.ustice +aurel in Angara had duly enjoined that 4in times of social dis#uietude or political e8citement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. %n
cases of conflict, the judicial department is the only constitutional organ ,hich can be called upon to
determine the proper allocation of po,ers bet,een the several departments and among the integral
or constituent units thereof4.
o follo, the easy ,ay out by disclaiming jurisdiction over the issue as a political #uestion ,ould be
judicial abdication.
%%%. 0n the #uestion of ,hether there is a sufficient and proper submittal of the proposed amendments
to the people7 Prescinding from the ,riter$s vie, of the nullity of the #uestioned decree of lack of
authority on the President$s part to e8cercise the constituent po,er, % hold that the doctrine of fair and
proper submission first enunciated by a simple majority of by .ustices in 3on"ales and subse#uently
officially adopted by the re#uired constitutional t,oCthirds majority of the Court in is controlling in the
case at bar.
&. here cannot be said to be fair and proper submission of the proposed amendments. As ruled by
this Court in olentino ,here 4the proposed amendment in #uestion is e8pressly saddled ,ith
reservations ,hich naturally impair, in great measures, its very essence as a proposed constitutional
amendment4 and ,here 4the ,ay the proposal is ,orded, read together ,ith the reservations tacked
to it by the Convention thru -ection A of the #uestioned resolution, it is too much of a speculation to
assume ,hat e8actly the amendment ,ould 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 allo,ed, the Philippines ,ill
appear before the ,orld to be in the absurd position of being the only country ,ith a constitution
containing a provision so ephemeral no one kno,s until ,hen it ,ill bet actually in force4, there can
be no proper submission.
%n olentino a solitary amendment reducing the voting age to &) years ,as struck do,n by this Court
,hich ruled that 4in 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 ,ell as its relation to the other parts of the
Constitution ,ith ,hich it has to form a harmonious ,hole,4 and that there ,as no proper -ubmission
,herein the people are in the dark as to frame of reference they can base their judgment on
*. he no, Chief .ustice and Mr. .ustice Makasiar ,ith t,o other members J2 graphically pointed out
in their joint separate opinion that the solitary #uestion 4,ould seem to be uncomplicated and
innocuous. But it is one of life$s verities that things ,hich appear to be simple may turn out not to be
so simple after all4.
57
hey further e8pressed 4essential agreement4 ,ith Mr. .ustice Conrado 6. -anche"$ separate opinion
in 3on"ales 4on the minimum re#uirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment4 ,hich reads thus7
... ,e take the vie, that the ,ords $submitted to the people for their ratification$, if construed in the light of
the nature of the Constitution a fundamental charter that is legislation direct from the people, an
e8pression of their sovereign ,ill C is that it can only be amended by the people e8pressing themselves
according to the procedure ordained by the Constitution. herefore, amendments must be fairly laid
before the people for their blessing or spurning. he people are not to be mere rubber stamps. hey are
not to vote blindly. hey must be afforded ample opportunity to mull over the original provisions, compare
them ,ith the proposed amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of e8traneous or possibly insidious influences. Ee believe the ,ord
submitted$ can only mean that the government, ,ithin its ma8imum capabilities, should strain every effort
to inform every citi"en of the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, ,e are not to be understood as saying that, if one citi"en or &99
citi"ens or &,999 citi"ens cannot be reached, then there is no submission ,ithin the meaning of the ,ord
as intended by the framers of the Constitution. Ehat the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every instrumentality or agency ,ithin
its structural frame,ork to enlighten the people, educate them ,ith respect to their act of ratification or
rejection. 1or, as ,e have earlier stated, one thing is submission and another is ratification. here must
be fair submission, intelligent. consent or rejection. %f ,ith all these safeguards the people still approve the
amendment no matter ho, prejudicial it is to them, then so be it. 1or the people decree their o,n fate.
58
.ustice -anche" therein ended the passage ,ith an apt citation that 4 ... 4 he great men ,ho builded
Cooley, ,ho has said $A good Constitution should be beyond the reach of temporary e8citement and.
people: not to the ,him of the people, or the thought evolved in e8citement or hot blood, but the sober
second thought, ,hich alone, if the government is to be safe, can be allo,ed efficiency. 888 888 888
Changes in government are to be feared unless the benefit is certain. As Montaign says7 All great
mutations shake and disorder state. 3ood does not necessarily succeed evil :another evil may
succeed and a ,orse$.4
59

.ustice -anche" thus stated the rule that has been adopted by the Court in olentino that there is no
proper submission 4if the people are not sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to e8press their ,ill in a genuine manner. ... ..4
50

A. 1rom the comple8 and complicated proposed amendments set forth in the challenged decree and
the plethora of confused and confusing clarifications reported in the daily ne,spapers, it is manifest
that there is no proper submission of the proposed amendments. ?ine ;(< proposed constitutional
amendments ,ere officially proposed and made kno,n as per Presidential Decree ?o. &9AA dated,
-eptember **, &('2 for submittal at the 4referendumCplebiscite4 called for this coming -aturday,
0ctober &2, &('2 ,herein the &BCyear and under &)CyearC olds are enjoined to vote not,ithstanding
their lack of #ualification under Article 6% of the Constitution. 1ormer -enator Arturo olentino, an
ackno,ledged parliamentarian of the highest order, ,as reported by the ne,spapers last 0ctober A
to have observed that 4there is no urgency in approving the proposed amendments to the
Constitution and suggested that the #uestion regarding charter changes be modified instead of asking
the people to vote on hurriedly prepared amendments4. >e further pointed out that 4apart from lacking
the parliamentary style in the body of the Constitution, they do not indicate ,hat particular provisions
are being repealed or amended4.
54

As of this ,riting, 0ctober &&, &('2, the paper today reported his sevenCpage analysis #uestioning
among others the proposed granting of dual legislative po,ers to both the President and the
Batasang Pambansa and remarking that 4his dual legislative authority can give rise to confusion and
serious constitutional #uestions4.
53

Aside from the inade#uacy 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 ,ritten constitutions that the specific
provisions of the Constitution being repealed or amended as ,ell as ho, the specific provisions as
amended ,ould read, should be clearly stated in careful and measured terms. here 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.
J. Ehile the press and the -olicitor 3eneral at the hearing have stated that the principal thrust of the
proposals is to substitute the interim ?ational Assembly ,ith an interim Batasang Pambansa, a
serious study thereof in detail ,ould lead to the conclusion that the ,hole conte8t of the &('A
Constitution proper ,ould be affected and grave amendments and modifications thereof C,ould
apparently be made, among others, as follo,s7
=nder Amendment ?o. &, the #ualification age of members of the interim Batasang Pambansa is
reduced to &) years:
=nder Amendment ?o. *, the treatyCconcurring po,er of the +egislature is ,ithheld from the interim
Batasang Pambansa:
=nder Amendment ?o A, not ,ithstanding the convening of the interim Batasang Pambansa ,ithin A9
days from the election and selection of the members ;for ,hich there is no fi8ed date< the incumbent
President apparently becomes a regular President and Prime Minister ;not ad interim<:
=nder Amendment ?o. J, the dis#ualifications 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 governmentCo,ned or Ccontrolled corporations ,ould appear to be eliminated, if not
prescribed by the President:
=nder Amendment ?o. B, the President shall continue to e8ercise legislative po,ers until martial la,
is lifted:
=nder Amendment ?o. 2, there is a duality of legislative authority given the President and the interim
Batasang Pambansa as ,ell as the regular ?ational Assembly, as pointed out by -enator olentino,
,ith the President continuing to e8ercise legislative po,ers in case of 4grave emergency or a threat or
imminence thereof4 ;,ithout definition of terms< or ,hen said Assemblies 4fail or are unable to act
ade#uately on any matter for any reason that in his judgment re#uires immediate action4, thus
radically affecting provisions of the Constitution governing the said departments:
=nder Amendment ?o. ', the barangays and -anggunians ,ould apparently be constitutionali"ed,
although their functions, po,er and composition may be altered by la,. !eferendums ;,hich are not
authori"ed in the present &('A Constitution< ,ould also be constitutionali"ed, giving rise to the
possibility fraught ,ith grave conse#uences, as ackno,ledged 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 D6% of the Constitution:
=nder Amendment ?o. ), there is a general statement in general that the unspecified provisions of
the Constitution 4not inconsistent ,ith any of these amendments4 shall continue in full force and
effect: and =nder Amendment ?o. (. the incumbent President is authori"ed to proclaim the ratification
of the amendments by the majority of votes cast. %t has like,ise been stressed by the officials
concerned that the proposed amendments come in a package and may not be voted upon separately
but on an 4all or nothing4 basis.
B. Ehether the people can normally e8press their ,ill in a genuine manner and ,ith due
circumspection on the proposed amendments amidst the constraints of martial la, is yet another
#uestion. hat a period of free debate and discussion has to be declared of itself sho,s the
limitations on free debate and discussion. he facilities for free debate and discussion over the mass
media, print and other,ise are ,anting. he President himself is reported to have observed the
timidity of the media under martial la, and to have directed the press to air the vie,s of the
opposition.
55
%ndeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
-eptember *A, &('2 comes as a ,elcome and refreshing model of conscientious deliberation, as our
youth analy"es the issues 4,hich ,ill affect generations yet to come4 and urge the people to mull over
the pros and cons very carefully4, as follo,s7
>/ !/1/!/?D=M %--=/-
0n 0ctober &2, the people may be asked to decide on t,o important national issues C the creation of a
ne, legislative body and the lifting of martial la,.
0n the first issue, it is almost sure that the interim ?ational Assembly ,ill not be convened, primarily
because of its membership. Majority of the members of the defunct Congress, ,ho are mandated by the
Constitution to become members of the interim ?ational Assembly, have gained so ,idespread a
notoriety that the mere mention of Congress conjures the image of a den of thieves ,ho are out to fool
the people most of the time. Among the three branches of government, it ,as the most discredited. %n
fact, upon the declaration of martial la,, some people ,ere 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 la,s, and perhaps
minimi"e the issuance of illCdrafted decrees ,hich necessitate constant amendments. But care should be
taken that this ne, legislative body ,ould not become a mere rubber stamp akin to those of other
totalitarian countries. %t should be given real po,ers, other,ise ,e ,ill just have another nebulous
creation having the form but lacking the substance. Already the President has e8pressed the desire that
among the po,ers he ,ould like to have ,ith regard to the proposed legislative body is that of abolishing
it in case $there is a need to do so$. As to ,hat ,ould occasion such a need, only the President himself
can determine. his ,ould afford the Chief /8ecutive almost total po,er over the legislature, for he could
al,ays offer the members thereof a carrot and a stick.
0n the matter of lifting martial la, the people have e8pressed ambivalent attitudes. -ome of them,
remembering the turmoil that prevailed before the declaration of martial la,, have e8pressed the fear that
its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil elements
to resurface ,ith their usual tricks. 0thers say that it is about time martial la, ,as lifted since the peace
and order situation has already stabili"ed and the economy seems to have been parked up.
he regime of martial la, has been ,ith us for four years no,. ?o doubt, martial la, has initially secured
some reforms for the country he people ,ere #uite ,illing to participate in the ne, e8periment, thrilled
by the novelty of it all. After the euphoria, ho,ever, the people seem to have gone back to the old ,ays,
,ith the e8ception that some of our freedoms ,ere taken a,ay, and an authoritarian regime established.
Ee must bear in mind that martial la, ,as envisioned only to cope ,ith an e8isting national crisis, %t ,as
not meant to be availed of for a long period of time, other,ise it ,ould undermine our adherence to a
democratic form of government. %n the ,ords of the Constitution. martial la, shall only be declared in
times of $rebellion, insurrection,. invasion, or imminent danger thereof, ,hen the public safety re#uires it$.
-ince ,e no longer suffer from internal disturbances of a gargantuan scale, it is about time ,e seriously
rethink the $necessity$ of prolonging the martial la, regime. %f ,e justify the continuance of martial by
economic or other reasons other than the foregoing constitutional grounds, then our faith in the
Constitution might be #uestioned. /ven ,ithout martial la,,. the incumbent Chief /8ecutive still holds vast
po,ers under the constitution. After all, the gains of the ?e, -ociety can be secured ,ithout sacrificing
the freedom of our people. %f the converse is true, then ,e might have to conclude that the 1ilipinos
deserve a dictatorial form of government. he referendum results ,ill sho, ,hether the people
themselves have adopted this sad conclusion.
he response of the people to the foregoing issues ,ill affect generations yet to come, so they should
mull over the pros and cons very carefully.4
2. his opinion by ,ritten in the same spirit as the President$s e8hortations on the first anniversary of
proclamation of the &('A Constitution that ,e 4let the Constitution remain firm and stable4 so that it
may 4guide the people4, and that ,e 4remain steadfast on the rule of la, and the Constitution4 as he
recalled his rejection of the 4e8ercise ;of< po,er that can be %dentified merely ,ith a revolutionary
government4 that makes its o,n la,, thus7
. . . Ehoever he may be and ,hatever position he may happen to have, ,hether in government or outside
government, it is absolutely necessary no, that ,e look solemnly and perceptively into the Constitution
and try to discover for ourselves ,hat our role is in the successful implementation of that Constitution.
Eith this thought, therefore, ,e can agree on one thing and that is7 +et all of us age, let all of us then pass
a,ay as a pace in the development of our country. but let the Constitution remain firm and stable and let
institutions gro, in strength from day to day, from achievement to achievement, and so long as that
Constitution stands, ,hoever may the man in po,er be, ,hatever may his purpose be, that Constitution
,ill guide the people and no man, ho,ever, po,erful he may be, ,ill dare to destroy and ,reck the
foundation of such a Constitution.
hese are the reasons ,hy % personally, having proclaimed martial la,, having been often induced to
e8ercise po,er that can be %dentified merely ,ith a revolutionary government, have remained steadfast or
the rule of la, and the Constitution.
55
>
%6. A final ,ord on the Court$s resolution of 0ctober B, &('2 ,hich in reply to the Comelec #uery
allo,ed by a vote of ' to A, judges of all courts, after office hours, 4to accept invitations to act as
resource speakers under -ection B of Presidential Decree ?o. ((&, as amended, as ,ell as to take
sides in discussions and debates on the referendumCplebiscite #uestions under -ection ' of the same
Decree.4
55
he ,riter ,ith Mr. .ustice Makasiar and Madame .ustice Muno" Palma had dissented from the
majority resolution, ,ith all due respect, on the ground that the nonCparticipation of judges in such
public discussions and debates on the referendumCplebiscite #uestions ,ould preserve the traditional
nonCinvolvement of the judiciary in public discussions of controversial issues. his is essential for the
maintenance and enhancement of the people$s faith and confidence in the judiciary. he #uestions of
the validity of the scheduled referendumC plebiscite and of ,hether there is proper submission of the
proposed amendments ,ere precisely subjudice by virtue of the cases at bar.
he 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 fi8ing 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 ,ell as a good sector of the public ,ould
be hesitant to air vie,s contrary to that of the.
.udge. .ustices Makasiar and Muno" Palma ,ho share these vie,s have agreed that ,e make them
of record here, since ,e understand that the permission given in the resolution is nevertheless
addressed to the personal decision and conscience of each judge, and these vie,s may he of some
guidance to them.
$ARREDO, J.,: concurring7
Ehile % am in full agreement ,ith the majority of my brethren that the herein petitions should be
dismissed, as in fact % vote for their dismissal, % deem it imperative that % should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that % should start by trying to disabuse the minds of those ,ho have doubts as to
,hether or not % should have taken part in the consideration and resolution of these cases. %ndeed, it
,ould not be befitting my position in this >ighest ribunal of the land for me to leave unmentioned the
circumstances ,hich have given cause, % presume, for others to feel apprehensive that my
participation in these proceedings might detract from that degree of faith in the impartiality that the
Court$s judgment herein should ordinarily command. %n a ,ay, it can be said, of course, that % am the
one most responsible for such a rather problematical situation, and it is precisely for this reason that %
have decided to begin this opinion ,ith a discussion of ,hy % have not inhibited myself, trusting most
confidently that ,hat % have to say ,ill be taken in the same spirit of good faith, sincerity and purity of
purpose in ,hich % am resolved to offer the same.
Plain honesty dictates that % should make of record here the pertinent contents of the official report of
the /8ecutive Committee of the Natipunan ng mga -anggunian submitted to the Natipunan itself
about the proceedings held on August &J, &('2. %t is stated in that public document that7
>/ %--=/ E%> !/3A!D- o >/ C0?6/?%?3 01 A +/3%-+A%6/ body came out ,hen the
President e8press his desire to share his po,ers ,ith other people.
A,are of this, a fiveCman Committee members of the Philippine Constitution Association
;P>%+C0?-A< headed by -upreme Court .ustice Antonio Barredo proposed on .uly *), the
establishment of $-angguniang Pambansa$ or $Batasang Pambansa$ ,hich ,ould help the President
in the performance of his legislative functions. he proposed ne, body ,ill take the place of the
interim ?ational Assembly ,hich is considered not practical to convene at this time considering the
constitution of its membership.
=pon learning the proposal of .ustice Barredo, the country$s J*,999 barangay assemblies on August
& suggested that the people be consulted on a proposal to create a ne, legislative body to replace
the interim assembly provided for by the Constitution. he suggestion of the barangay units ,as
made through their national association, Pambansang Natipunan ng mga Barangay headed by Mrs.
?ora 5. Patines. -he said that the people have sho,n in at least si8 instances including in the t,o
past referenda that they are against the convening of the interim ?ational Assembly. -he 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 -angguniang Pambansa or a legislative advisory body, then the
proposal to create a ne, legislative must necessarily be referred to the people.
he federation of Nabataang Barangay, also numbering J*,999 units like their elder counterparts in
the Natipunan ng mga Barangay also asserted their o,n right to be heard on ,hatever plans are
afoot to convene a ne, legislative body.
0n August 2, a meeting of the national directorate of PNB ,as held to discuss matters pertaining to
the stand of the PNB ,ith regards to the convening of a ne, legislative body. he stand of the PNB is
to create a legislative advisory council in place of the old assembly. ,o days after, August ), the
Nabataang Barangay held a symposium and made a stand ,hich is the creation of a body ,ith full
legislative po,ers.
A nation,ide clamor for the holding of meeting in their respective localities to discuss more
intellegently the proposal to create a ne, legislative body ,as made by various urban and rural
-angguniang Bayans.
?umerous re#uests made by some members coming from 'B provincial and 2& city -B assemblies,
,ere for,arded to the Department of +ocal 3overnment and Community Development ;D+3CD<.
0n August ', +ocal 3overnment -ecretary, .ose A. !ono granted the re#uest by convening the (&
member ?ational /8ecutive Committee of the Pambansang Natipunan ng mga -anggunian on
August &J ,hich ,as held at -ession >all, Pue"on City. %nvited also to participate ,ere &A !egional
1ederation Presidents each coming from the PNB and the PNNB
Actually, the e8tent of my active participation in the events and deliberations that have culminated in
the holding of the proposed referendumC plebiscite on 0ctober &2, &('2, ,hich 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 ?ational Assembly provided for in the
ransitory Provisions of the Constitution, as suggested in the above report, % might say that % ,as the
one most vehement and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite ,hatever amendments of the Constitution might be
considered necessary for the establishment of such substitute interim legislature. %n the
aforementioned session of the /8ecutive Committee of the Natipunan, % discourse on the
indispensability of a ne, interim legislative body as the initial step to,ards the early lifting of martial
la, and on the fundamental considerations ,hy in our present situation a constitutional convention
,ould be superfluous in amending the Constitution.
Moreover, it is a matter of public kno,ledge that in a speech % delivered at the Coral Ballroom of the
>ilton >otel in the evening of August &', &('2, % denounced in no uncertain terms the plan to call a
constitutional convention. % reiterated the same vie,s on -eptember ', &('2 at the initial conference
called by the Comelec in the course of the information and educational campaign it ,as enjoined to
conduct on the subject. And looking back at the subse#uent developments up to -eptember **,
&('2, ,hen the Batasang Bayan approved and the President signed the no, impugned Presidential
Decree ?o. &9AA, it is but human for me to ,ant to believe that to a certain e8tent my strong
criticisms and resolute stand against any other alternative procedure of amending the Constitution for
the purpose intended had borne fruit.
% must hasten to add at this point, ho,ever, that in a larger sense, the initiative for all % have done,
,as not altogether mine alone. he truth of the matter is that throughout the four years of this martial
la, government, it has al,ays been my faith, as a result of casual and occasional e8changes of
thought ,ith President Marcos, that ,hen the appropriate time does come, the President ,ould
someho, make it kno,n 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. ?aturally, this ,ould inevitably involve the establishment of a
legislative body to replace the abortive interim ?ational Assembly. % have kept tract of all the public
and private pronouncements of the President, and it ,as the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one ,ay or another, the materiali"ation
of the forthcoming referendumCplebiscite. %n other ,ords, in the final analysis, it ,as the President$s
o,n attitude on the matter that made it opportune for me to articulate my o,n feelings and %deas as to
ho, the nation can move meaningfully to,ards normali"ation and to publicly raise the issues that
have been ventilated by the parties in the instant cases.
% ,ould not be human, if % 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 la, in our country. %ndeed, % am certain every true 1ilipino is
an8iously looking for,ard to that eventuality. And if for having voiced the sentiments of our people,
,here others ,ould have preferred to be comfortably silent, and if for having made public ,hat every
1ilipino must have been feeling in his heart all these years, % 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, % can only say that % do not believe there is any other 1ilipino
in and out of the Court today ,ho is not e#ually situated as % am .
he 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. he current of history that has passed through the ,hole country in the
,ake of martial la, has s,ept all of us, sparing none, and the problem of national survival and of
restoring democratic institutions and %deals is seeking solution in the minds of all of us. hat % have
preferred to discuss publicly my o,n thoughts on the matter cannot mean that my colleagues in the
Court have been indifferent and apathetic about it, for they too are 1ilipinos. Articulated or not, all of
us must have our o,n preconceived %deas and notions in respect to the situation that confronts the
country. o be sure, our votes and opinions in theC major political cases in the recent past should
more or less indicate our respective basic positions relevant to the issues no, before =s. Certainly,
contending counsels cannot be entirely in the dark in this regard. % feel that it must have been
precisely because of such a,areness that despite my kno,n public participation in the discussion of
the #uestions herein involved, none of the parties have sought my inhibition or dis#ualification.
Actually, although it may be difficult for others to believe it, % have never allo,ed my preconceptions
and personal inclinations to affect the objectivity needed in the resolution of any judicial #uestion
before the Court. % feel % have al,ays been able to appreciate, fully consider and duly ,eigh
arguments and points raised by all counsels, even ,hen they conflict ,ith my previous vie,s. % am
never beyond being convinced by good and substantial ratiocination. ?othing has delighted me more
than to discover that somebody else has thought of more ,eighty arguments refuting my o,n,
regardless of ,hat or ,hose interests are at stake. % ,ould not have accepted my position in the
Court had % felt % ,ould not be able to be above my personal prejudices. o my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to absorb contrary vie,s that
are indispensable for justice to prevail. hat suspicions of prejudgment may likely arise is
unavoidable: but % have al,ays maintained that ,hatever improper factors might influence a judge ,ill
unavoidably al,ays appear on the face of the decision. %n any event, is there better guarantee of
justice ,hen the preconceptions of a judge are concealedI
Eithal, in point of la,, % belong to the school of thought that regards members of the -upreme Court
as not covered by the general rules relative to dis#ualification and inhibition of judges in cases before
them. %f % 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,
any,ay, my vote ,ould not have altered the results therein.
%t is my considered opinion that unlike in the cases of judges in the lo,er courts, the Constitution does
not envisage compulsory dis#ualification or inhibition in any case by any member of the -upreme
Court. he Charter establishes a -upreme Court 4composed of a Chief .ustice and fourteen
Associate .ustices4, ,ith the particular #ualifications therein set forth and to be appointed in the
manner therein provided. ?o,here in the Constitution is there any indication that the legislature may
designate by la, instances ,herein any of the justices should not or may not take part in the
resolution of any case, much less ,ho should take his place. Members of the -upreme Court are
definite constitutional officers: it is not ,ithin the po,er of the la,making body to replace them even
temporarily for any reason. o put it the other ,ay, nobody ,ho has not been duly appointed as a
member of the -upreme Court can sit in it at any time or for any reason. he .udicial po,er is vested
in the -upreme Court composed as the Constitution ordains C that po,er cannot be e8ercised by a
-upreme Court constituted other,ise. And so, ,hen as in the instant ,here, if any of the member of
Court is to abstain from taking part, there ,ould be no #uorum C and no court to render the decision C
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 -ection ( of the .udiciary Act
do not appear to conform ,ith the concept of the office of .ustice of the -upreme Court contemplated
in the Constitution.
he very nature of the office of .ustice of the -upreme Court as the tribunal of last resort and bul,ark
of the rights and liberties of all the people demands that only one of dependable and trust,orthy
probity should occupy the same. Absolute integrity, mental and other,ise, must be by everyone ,ho
is appointed thereto. he moral character of every member of the Court must be assumed to be such
that in no case ,hatsoever. regardless of the issues and the parties involved, may it be feared that
anyone$s life, liberty or property, much less the national interests, ,ould ever be in jeopardy of being
unjustly and improperly subjected to any kind of judicial sanction. %n sum, every .ustice of the
-upreme Court is e8pected to be capable of rising above himself in every case and of having full
control of his emotions and prejudices, such that ,ith the legal training and e8perience he must of
necessity be ade#uately e#uipped ,ith, it ,ould be indubitable that his judgment cannot be but
objectively impartial, %ndeed, even the appointing po,er, to ,hom the .ustices o,e their positions,
should never hope to be unduly favored by any action of the -upreme Court. All appointments to the
Court are based on these considerations, hence the ordinary rules on inhibition and dis#ualification
do not have to be applied to its members.
Eith the preliminary matter of my individual circumstances out of the ,ay, % shall no, address myself
to the grave issues submitted for 0ur resolution.
C % C
%n regard to the first issue as to ,hether the #uestions posed in the petitions herein are political or
justiciable, suffice it for me to reiterate the fundamental position % took in the Martial +a, cases,
1
thus
As Ee enter the e8tremely delicate task of resolving the grave issues thus thrust upon =s. Ee are
immediately encountered by absolute verities to guide =s all the ,ay. he first and most important of
them is that the Constitution ;=nless e8pressly stated other,ise, all references to the Constitution in this
discussion are to both the &(AB and &('A charters, since, after all, the pertinent provisions are practically
%dentical in both is the supreme la, of the land. his means among other things that all the po,ers of the
government and of all its officials from the President do,n to the lo,est emanate from it. ?one of them
may e8ercise any po,er unless it can be traced thereto either te8tually or by natural and logical
implication. 4he second is that it is settled that the .udiciary provisions of the Constitution point to the
-upreme Court as the ultimate arbiter of all conflicts as to ,hat the Constitution or any part thereof
means. Ehile the other Departments may adopt their o,n construction thereof, ,hen such construction is
challenged by the proper party in an appropriate case ,herein a decision ,ould be impossible ,ithout
determining the correct construction, the -upreme Court$s ,ord on the matter controls.
888 888 888
888 888 888
he fifth is that in the same manner that the /8ecutive po,er conferred upon the /8ecutive by the
Constitution is complete, total and unlimited, so also, the judicial po,er vested in the -upreme Court and
the inferior courts, is the very ,hole of that po,er, ,ithout any limitation or #ualification.
888 888 888
888 888 888
1rom these incontrovertible postulates, it results, first of all, that the main #uestion before =s 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 ,ithin the judicial authority
of the courts to hear and decide. he judicial po,er of the courts being unlimited and un#ualified, it
e8tends over all situations that call for the as certainment and protection of the rights of any party
allegedly violated, even ,hen the alleged violator is the highest official of the land or the government
itself. %t is, therefore, evidence that the Court$s jurisdiction to take cogni"ance of and to decide the instant
petitions on their merits is beyond challenge.
%n this connection, ho,ever, it must be borne in mind that in the form of government envisaged by the
framers of the Constitution and adopted by our people, the Court$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. %t is ingrained in the distribution of po,ers in the fundamental la,
that hand in hand ,ith the vesting of the judicial po,er 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, ,hen to refrain from imposing judicial solutions and instead defer to the judgment
of the latter. %t is in the very nature of republican governments that certain matters are left in the residual
po,er 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, ,hen one studiously considers the basic functions and responsibilities entrusted by the
charter to each of the great Departments of the government. o cite an obvious e8ample, the protection,
defense and preservation of the state against internal or e8ternal aggression threatening its very
e8istence is far from being ,ithin the ambit of judicial responsibility. he distinct role then of the -upreme
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 ,ay to the ultimate prerogative of the people
articulated thru suffrage or thru the acts of their political representatives they have elected for the
purpose.
%ndeed, these fundamental considerations are the ones that lie at the base of ,hat is kno,n in
American constitutional la, as the political #uestion doctrine, ,hich in that jurisdiction is
un#uestionably deemed to be part and parcel of the rule of la,, e8actly like its apparently more
attractive or popular opposite, judicial activism, ,hich is the fullest e8ertion of judicial po,er, upon the
theory that unless the courts intervene injustice might prevail. %t 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, B Phil. )': -everino vs. 3overnorC3eneral, &2 Phil. A22: Abueva vs. Eood, JB Phil. 2&*:
Alejandrino vs. Pue"on, J2 Phil. )B: 6era vs. Avelino, '' Phil. &(*: Mabanag vs. +ope" 6ito, ') Phil.
&: Cabin vs. 1rancisco, )) Phil. 2BJ: Montenegro vs. Castaneda, (& Phil. ))*, -antos vs. @atco, BB
0.3. )2J& GMinute !esolution of ?ov. 2, &(B(& 0smena vs. Pendatun, 0ct. *), &(29.< and it is the
main support of the stand of the -olicitor 3eneral on the issue of jurisdiction in the cases at bar. %t is
also referred to as the doctrine of judicial selfCrestraint or abstention. But as the nomenclatures
themselves imply, activism and selfC restraint are both subjective attitudes, not inherent imperatives.
he choice of alternatives in any particular eventuality is naturally dictated by ,hat in the Court$s
considered opinion is ,hat the Constitution envisions should be by in order to accomplish the
objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of
concepts, that Ee are not losing sight of the traditional approach based on the doctrine of separation
of po,ers. %n truth, Ee perceive that even under such mode of rationali"ation, the e8istence of po,er
is secondary, respect for the acts of a coCordinate, coCe#ual and independent Department being the
general rule, particularly ,hen the issue is not encroachment of delimited areas of functions but
alleged abuse of a Department$s o,n basic prerogatives. ;B( -C!A, pp. A'(CA)A.<
Applying the foregoing considerations to the cases at bar, % hold that the Court has jurisdiction to pass
on the merits of the various claims of petitioners. At the same time, ho,ever, % maintain that the basic
nature of the issues herein raised re#uires that the Court should e8ercise its constitutionally endo,ed
prerogative to refrain from e8erting its judicial authority in the premises.
-tripped of incidental aspects, the constitutional problem that confronts =s stems from the absence of
any clear and definite e8press provision in the Charter applicable to the factual milieu herein involved.
he primary issue is, to ,hom, under the circumstances, does the authority to propose amendments
to the Constitution property belongI o say, in the light of -ection &B of Article D6%% of the Charter,
that that faculty lies in the interim ?ational Assembly is to beg the main #uestion. %ndeed, there could
be no occasion for doubt or debate, if it could $ only be assumed that the interim ?ational Assembly
envisaged in -ections & and * of the same Article D6%% may be convoked. But precisely, the
fundamental issue Ee are called upon to decide is ,hether or not it is still constitutionally possible to
convene that body. And relative to that #uestion, the in#uiry centers on ,hether or not the political
developments since the ratification of the Constitution indicate that the people have in effect enjoined
the convening of the interim ?ational Assembly altogether. 0n this score, it is my assessment that the
results of the referenda of .anuary &9C&B, &('A, .uly *'C*), &('A and 1ebruary *', &('B clearly sho,
that the great majority of our people, for reasons plainly obvious to anyone ,ho ,ould consider the
composition of that Assembly, ,hat ,ith its more than J99 members automatically voted into it by the
Constitutional Convention together ,ith its o,n members, are against its being convoked at all.
Ehether or not such a manifest determination of the sentiments of the people should be given effect
,ithout a formal amendment of the Constitution is something that constitutional scholars may
endlessly debate on. Ehat cannot be disputed, ho,ever, is that the government and the nation have
ac#uiesced to, it and have actually operated on the basis thereof. Proclamation &&9A ,hich, on the
predicate that the over,helming 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
other,ise since the date of its promulgation on .anuary &', &('A.
%n these premises, it is conse#uently the task of the Court to determine ,hat, under these
circumstances, is the constitutional relevance of the interim ?ational Assembly to any proposal to
amend the Constitution at this time. %t is my considered opinion that in resolving that #uestion, the
Court must have to grapple ,ith the problem of ,hat to do ,ith the ,ill of the people, ,hich although
manifested in a manner not e8plicitly provided for in the Constitution, ,as nevertheless official, and
reliable, and ,hat is more important clear and unmistakable, despite the kno,n e8istence of ,ellC
meaning, if insufficiently substantial dissent. -uch being the situation, % 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 ,ays and means of resolving the
resulting problem of ho, to amend the Constitution, so long as in choosing the same, the ultimate
constituent po,er is left to be e8ercised by the people themselves in a ,ellC ordered plebiscite as
re#uired by the fundamental la,.
C * C
Assuming Ee have to in#uire 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 &9AA, % hold
that in the peculiar situation in ,hich the government is today, it is not incompatible ,ith 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 /lections. 0n the contrary, in the
absence of any e8press prohibition in the letter of the Charter, the Presidential Decree in #uestion is
entirely consistent ,ith the spirit and the principles underlying the Constitution. he correctness of
this conclusion should become even more patent, ,hen one considers the political developments that
the people have brought about since the ratification of the Constitution on .anuary &',&('A.
% consider it apropos at this juncture to repeat my o,n ,ords in a speech % delivered on the occasion
of the celebration of +a, Day on -eptember &), &('B before the members of the Philippine
Constitution Association and their guests7
o fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as %
have mentioned earlier, the martial la, proclaimed under the &(AB Constitution overtook the drafting of
the ne, charter by the Constitutional Convention of &('&. %t ,as inevitable, therefore, that the delegates
had to take into account not only the developments under it but, most of all, its declared objectives and
,hat the President, as its administrator, ,as doing to achieve them. %n this connection, it is ,orthy of
mention that an attempt to adjourn the convention ,as roundly voted do,n to signify the determination of
the delegates to finish earliest their ,ork, thereby to accomplish the mission entrusted to them by the
people to introduce meaningful reforms in our government and society. %ndeed, the constituent labors
gained rapid tempo, but in the process, the delegates ,ere to reali"e that the reforms they ,ere
formulating could be best implemented if the martial la, po,ers of the President ,ere to be allo,ed to
subsist even after the ratification of the Constitution they ,ere approving. his denouement ,as unusual.
0rdinarily, 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. ?ot so, ,ith our &('A Constitution, @es,
according to the -upreme Court, $there is no more judicial obstacle to the ne, Constitution being
considered in force and effect$, but in truth, it is not yet so in full. +et me e8plain.
o begin ,ith, in analy"ing the ne, Constitution, ,e must be careful to distinguish bet,een the body
or main part thereof and its transitory provisions. %t is imperative to do so because the transitory
provisions of our Constitution are e8traordinary 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 ne, fundamental la,, but also to institutionali"e,
according to the President, the reforms introduced thru the e8ercise of his martial la, po,ers. -tated
differently, the transitory provisions, as it has turned out, has in effect established a transition
government, not, % am sure, perceived by many. %t is a government that is neither presidential nor
parliamentary. %t is headed, of course, by President Marcos ,ho not on retains all his po,ers under
the &(AB Constitution but enjoys as ,ell those of the President and the Prime Minister under the ne,
Constitution. Most importantly, he can and does legislate alone. But to be more accurate, % should say
that he legislates alone in spite of the e8istence of the interim ?ational Assembly une#uivocally
ordained by the Constitution, for the simple reason that he has suspended the convening of said
assembly by issuing Proclamation ?o. &&9A purportedly $in deference to the sovereign ,ill of the
1ilipino people$ e8pressed in the .anuary &9C&B, &('A referendum.
hus, ,e have here the uni#ue case of a #ualified ratification. he ,hole Constitution ,as submitted
for approval or disapproval of the people, and after the votes ,ere counted and the affirmative
majority kno,n, ,e ,ere told that the resulting ratification ,as subject to the condition that the interim
?ational 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, ,ith the conse#uence that ,e have no, a
parliamentary government ,ithout a parliament and a republic ,ithout 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 e8pressed in a referendum. %n other ,ords, in an
unprecedented e8traCconstitutional ,ay, ,e have established, ,ittingly or un,ittingly, a direct
democracy through the Citi"ens Assemblies created by Presidential Decree ?o. )2, ,hich later on
have been transformed into barangays, a system of government proclaimed by the President as $a
real achievement in participatory democracy.$ Ehat % am trying to say, my friends, is that as % perceive
it, ,hat is no, kno,n as constitutional authoritarianism means, in the final analysis, that the
fundamental source of authority of our e8isting government may not be necessarily found ,ithin the
four corners of the Constitution but rather in the results of periodic referendums conducted by the
Commission on /lections in a manner ,ell kno,n to all of us his, as % see it, is perhaps ,hat the
President means by saying that under the ne, Constitution he has e8traCordinary po,ers
independently of martial la, C po,ers sanctioned directly by the people ,hich may not even be read
in the language of the Constitution. in brief, ,hen ,e talk of the rule of la, no,adays, our frame of
reference should not necessarily be the Constitution but the outcome of referendums called from time
to time by the President. he sooner ,e imbibe this vital concept the more intelligent ,ill our
perspective be in giving our support and loyalty to the e8isting government. Ehat is more, the clearer
,ill it be that e8cept for the fact that all the po,ers of government are being e8ercised by the
President, ,e C do not in reality have a dictatorship but an e8perimental type of direct democracy.4
%n the foregoing dis#uisition, % purposely made no mention of the referendum of 1ebruary *', &('B. %t
is important to note, relative to the main issue no, before =s, that it ,as originally planned to ask the
people in that referendum ,hether or not they ,ould like the interim ?ational Assembly to convene,
but the Comelec to ,hom the task of preparing the #uestions ,as assigned ,as prevailed upon not to
include any Csuch #uestion anymore, precisely because it ,as the prevalent vie, even among the
delegates to the Convention as ,ell as the members of the old Congress concerned that that matter
had already been finally resolved in the previous referenda of .anuary and .uly &('A in the sense
that. the Assembly should not be convened comparable to res adjudicata.
%t is my position that as a result of the political developments since .anuary &', &('A the transitory
provisions envisioning the convening of the interim ?ational Assembly have been rendered legally
inoperative. here is no doubt in my mind that for the President to convoke the interim ?ational
Assembly as such ,ould be to disregard the ,ill of the people C something no head of a democratic
republican state like ours should do. And % find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly C the unusually large and unmanageable number of
its members and the controversial morality of its automatic composition consisting of all the
incumbent elective national e8ecutive and legislative officials under the 0ld Constitution ,ho ,ould
agree to join it and the delegates themselves to the Convention ,ho had voted in favor of the
ransitory Provisions C 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 ,ith the formulation of national
policies, there must be more reasons for them to fro,n on said politicians taking part in amendment
of the fundamental la,, specially because the particular amendment herein involved calls for the
abolition of the interim ?ational Assembly to ,hich they belong and its substitution by the Batasang
Pambansa.
%t is argued that in la,, the #ualified or conditional ratification of a constitution is not contemplated. %
disagree. %t is inconsistent ,ith the plenary po,er of the people to give or ,ithhold their assent to a
proposed Constitution to maintain that they can do so only ,holly. % cannot imagine any sound
principle that can be invoked to support the theory that the proposing authority can limit the po,er of
ratification of the people. As long as there are reliable means by ,hich only partial approval can be
manifested, no cogent reason e8ists ,hy the sovereign people may not do so. rue it is that no
proposed Constitution can be perfect and it may therefore be taken ,ith the good and the bad in it,
but ,hen there are feasible ,ays by ,hich it can be determined ,hich portions of it, the people
disapprove. it ,ould be stretching technicality beyond its purported office to render the final authority C
the people impotent to act according to ,hat they deem best suitable to their interests.
%n any event, % feel it ,ould be of no conse#uence to debate at length regarding the legal feasibility of
#ualified ratification. Proclamation &&9A categorically declares that7
E>/!/A-, fourteen million nine hundred seventy si8 thousand five hundred si8tyCone ;&J,('2.B2&<
members of all the Barangays voted for the adoption of the proposed Constitution, as against seven
hundred fortyCthree thousand eight hundred si8tyCnine ;'JA,)2(< ,ho voted for its rejection: but a majority
of those ,ho approved the ne, Constitution conditioned their votes on the demand that the interim
?ational Assembly provided in its ransitory Provisions should not be convened.
and in conse#uence, the President has acted accordingly by not convening the Assembly. he above
factual premises of Proclamation &&9A 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 ,himsical. At this point, it must be emphasi"ed in relation to the contention
that a referendum is only consultative, that Proclamation &&9A, taken together ,ith Proclamation
&&9* ,hich 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. %n the face of the incontrovertible fact that the
sovereign people have voted against the convening of the interim ?ational Assembly, and faced ,ith
the problem of amending the Constitution in order precisely to implement the people$s rejection of that
Assembly, the problem of constitutional dimension that confronts =s, is ho, can any such
amendment be proposed for ratification by the peopleI
o start ,ith, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed amendments
has been rendered inoperative by the people themselves, the people have thereby foreclosed the
possibility of amending the Constitution no matter ho, desirable or necessary this might be. %n this
connection, % submit that by the very nature of the office of the Presidency in the prevailing scheme of
government ,e have C it being the only political department of the government in e8istence C it is
consistent ,ith basic principles of constitutionalism to ackno,ledge the President$s authority to
perform the constituent function, there being no other entity or body lodged ,ith the prerogative to
e8ercise such function.
here is another consideration that leads to the same conclusion. %t is conceded by petitioners that
,ith the nonCconvening of the interim Assembly, the legislative authority has perforce fallen into the
hands of the President, if only to avoid a complete paralysis of la,Cmaking and resulting anarchy and
chaos. %t is like,ise conceded that the provisions of -ection A ;*< of Article D6%% invest the President
,ith legislative po,er for the duration of the transition period. 1rom 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. -uch being the case, the President should be deemed as having been granted
also the cognate prerogative of proposing amendments to the Constitution. %n other ,ords, the force
of necessity and the cognate nature of the act justify that the department e8ercising the legislative
faculty be the one to like,ise perform the constituent function that ,as attached to the body rendered
impotent by the people$s mandate. %ncidentally, % reject most vehemently the proposition that the
President may propose amendments to the Constitution in the e8ercise of his martial la, po,ers.
=nder any standards, such a suggestion cannot be reconciled ,ith the %deal that a Constitution is the
free act of the people.
%t ,as suggested during the oral, argument that instead of e8tending his legislative po,ers by
proposing the amendment to create a ne, legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the !egular ?ational Assembly and call for
an election of the members thereof and thus effect the immediate normali"ation of the parliamentary
government envisaged in the Constitution. Ehile indeed procedurally feasible, the suggestion
overlooks the imperative need recogni"ed by the constitutional convention as may be inferred from
the obvious purpose of the transitory provisions, for a period of preparation and ac#uaintance by all
concerned ,ith the unfamiliar distinctive features and practices of the parliamentary system.
Accustomed as ,e are to the presidential system, the Convention has seen to it that there should be
an interim parliament under the present leadership, ,hich ,ill take the corresponding measures to
effectuate the efficient and smooth transition from the present system to the ne, one. % do not believe
this pattern set by the convention should be abandoned.
he alternative of calling a constitutional convention has also been mentioned. But, in the first place,
,hen it is considered that ,hereas, under -ection & ;&< and ;*< of Article D6%, the regular ?ational
Assembly may call a Constitutional Convention or submit such a call for approval of the people,
-ection &B of Article D6%%, in reference to interim ?ational 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 ,ould be time consuming, cumbersome and e8pensive. And ,hen it is further noted that
the re#uirement as to the number of votes needed for a proposal is only a majority, ,hereas it is
threeCfourths in respect to regular Assembly, and, relating this point to the provision of -ection * of
Article D6% to the effect that all ratification plebiscites must be held 4not later than three months after
the approval4 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 &9AA
suggests itself as the one most in accord ,ith the intent of the fundamental la,.
here is nothing strange in adopting steps not directly based on the letter of the Constitution for the
purpose of amending or changing the same. o cite but one important precedent, as e8plained by Mr.
.ustice Makasiar in his concurring opinion in .avellana *, the present Constitution of the =nited
-tates ,as neither proposed nor ratified in the manner ordained by the original charter of that
country, the Articles of Confederation and Perpetual =nion.
%n brief. if the convening and operation of the interim ?ational Assembly has been effectuated through
a referendumCplebiscite in .anuary, &('A, and ratified e8pressly and impliedly in t,o subse#uent
referenda, those of .uly, &('A and 1ebruary, &('B, ,hy may not a duly held plebiscite suffice for the
purpose of creating a substitute for that AssemblyI %t should be borne in mind that after all, as
indicated in the ,hereas of the impugned Presidential Decree, actually, the proposed amendments
,ere initiated by the barangays and sanggunian members. %n other ,ords, in submitting the
amendments for ratification, the President is merely acting as the conduit thru ,hom a substantial
portion of the people, represented in the Natipunan ng Mga -anggunian, Barangay at Nabataang
Barangay, seek the approval of the people as a ,hole of the amendments in #uestion. %f all these
mean that the sovereign people have arrogated unto themselves the functions relative to the
amendment to the Constitution, % ,ould regard myself as totally devoid of legal standing to #uestion it,
having in mind that the most fundamental tenet on ,hich our ,hole political structure rests is that
4sovereignty resides in the people and all government authority emanates from them.4
%n the light of the foregoing considerations, % hold that Presidential Decree ?o. &9AA does not infringe
the Constitution, if only because the specific provision it is supposed to infringe does not e8ist in legal
contemplation since it ,as coevally made inoperative ,hen the people ratified the Constitution on
.anuary &', &('A. % am fully convinced that there is nothing in the procedure of amendment contained
in said decree that is inconsistent ,ith the fundamental principles of constitutionalism. 0n the
contrary, % find that the Decree, in issue conforms admirably ,ith the underlying tenet of our
government C the sovereignty and plenary po,er of the people.
0n the issue of ,hether or not 0ctober &2, &('2 is too pro8imate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential
Decree &9AA, all % can say is that ,hile perhaps my other colleagues are right in holding that the
period given to the people is ade#uate, % ,ould leave it to the President to consider ,hether or not it
,ould be ,iser to e8tend the same. .ust to avoid adverse comments later % ,ish the President orders
a postponement. But ,hether such postponement is ordered or not, date of the referendumC
plebiscite any,here from 0ctober &2, &('2 to any other later date, ,ould be of no vital import.
%n conclusion, % vote to dismiss all the three petitions before =s.
MA6ASIAR, J., concurring and dissenting7
-ince the validity or effectivity of the proposed amendments is to be decided ultimately by the people
in their sovereign capacity, the #uestion is political as the term is defined in anada, et al. vs.
Cuenco, et al. ;&9A Phil. &9B&<, ,hich is a bar to any judicial in#uiry, for the reasons stated in 0ur
opinion in .avellana, et al. vs. /8ecutive -ecretary, et al. ;+CA2&J*<: an, et al. vs. /8ecutive
-ecretary, et al. ;+,A2&2J<: !o8as, et al. vs /8ecutive -ecretary, et al. ;+CA2&2B<: Monteclaro, etc., et
al. vs$ /8ecutive -ecretary, et al. ;RA2*A2<: and Ditag et al. vs. /8ecutive -ecretary, et al. ;+CE*)A,
March A&, &('A, B9 -C!A A9, *9JC*)A<. he procedure for amendment is not important !atification
by the people is all that is indispensable to validate an amendment. 0nce ratified, the method of
making the proposal and the period for submission become relevant.
he contrary vie, negates the very essence of a republican democracy C that the people are
sovereign C and renders meaningless the emphatic declaration in the very first provision of Article %% of
the &('A Constitution that the Philippines is a republican state, sovereignty resides in the people and
all government authority emanates from them. %t is a8iomatic that sovereignty is illimitable he
representatives cannot dictate to the sovereign people. hey may guide them: but they cannot
supplant their judgment, -uch an opposite vie, like,ise distrusts the ,isdom of the people as much
as it despises their intelligence. %t evinces a presumptuous pretension to intellectual superiority. here
are thousands upon thousands among the citi"enry, ,ho are not in the public service, ,ho are more
learned and better skilled than many of their elected representatives.
Moreover, E/ already ruled in A#uino, et al. vsC Comelec, et al. ;+ J999J, .an. A&, &('B, 2* -C!A
*'B, *()CA9*< that the President as enforcer or administrator of martial rule during the period of
martial la, can legislate: and that he has the discretion as to ,hen the convene the interim ?ational
Assembly depending on prevailing conditions of peace and order. %n vie, of the fact that the interim
?ational Assembly has not been convoked in obedience to the desire of the people clearly e8pressed
in the &('A referenda, the President therefore remains the lone la,Cmaking authority ,hile martial la,
subsists. Conse#uently, he can also e8ercise the po,er of the interim ?ational Assembly to propose
amendments to the ?e, Constitution ;-ec. &B,,Art. D6%% %f, as conceded by petitioner 6icente
3u"man ;+CJJ2)J<, former delegate to the &('& Constitutional Convention ,hich drafted the &('A
Constitution. the President, during the period of martial la,, can call a constitutional convention for
the purpose, admittedly a constituent po,er, it stands to reason that the President can like,ise legally
propose amendments to the fundamental la,.
ANTONIO, J., concurring7
%
At the threshold, it is necessary to clarify ,hat is a 4political #uestion4. %t must be noted that this
device has been utili"ed by the judiciary 4to avoid determining #uestions it is ill e#uipped to determine
or that could be settled in any event only ,ith the effective support of the political branches.4
1

According to Eeston, judges, ,hether 4personal representatives of a truly sovereign king, or taking
their seats as the creatures of a largely popular sovereignty speaking through a ,ritten constitution,
derive their po,er by a delegation, ,hich clearly or obscurely as the case may be, deliminates and
delimits their delegated jurisdiction.Q Q Q .udicial #uestions Q Q Q are those ,hich the sovereign has set
to be decided in the courts. Political #uestions, similarly, are those ,hich the sovereign has entrusted
to the soCcalled political departments of government or has reserved to be settled by its o,n e8traC
government or has reserved to be settled by its o,n e8traCgovernmental action.4
4
!eflecting a similar
concept, this Court has defined a 4political #uestion4 as a 4matter ,hich is to be e8ercised by the
people in their primary political capacity or that has been specifically delegated to some other
department or particular officer of the government, ,ith discretionary po,er to act.4
3
%n other ,ords, it
refers to those #uestions ,hich, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to ,hich full discretionary authority has been delegated to the
legislative or e8ecutive branch of government.
5

%n determining ,hether an issue falls ,ithin the political #uestion 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. his ,as e8plained by .ustice
Brennan in Baker v. Carr,
5
thus 7
Prominent on the surface of any case held to involve political #uestion is found a te8tually demonstrable
constitutional lack of judicially discoverrable and manageable standards for resolving it: or the
impossibility of deciding ,ithout an initial policy determination of a kind clearly for nonCjudicial discretion:
or the impossibility of a court$s undertaking independent resolution ,ithout e8pressing lack of the respect
due coordinate branches of government: or an unusual need for un#uestioning adherence to a political
decision already made: or the potentiality of embarrassment from from multifarious pronouncements by
various departments on one #uestion. . . .
o decide ,hether 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
,hether that branch e8ceeds ,hatever authority has been committed, is indeed a delicate e8ercise in
constitutional interpretation.
%n Coleman v. Miller,
:
the =nited -tates -upreme Court held that the efficacy of the ratification by
state legislatures of a constitutional amendment is a political #uestion. 0n the #uestion of ,hether the
-tate +egislature could constitutionally relative an amendment, after the same had been previously
rejected by it, it ,as held that the ultimate authority over the #uestion ,as in Congress in the e8ercise
of its control over the promulgation of the adoption of the amendment. And in connection ,ith the
second #uestion of ,hether the amendment has lost its, vitality through the lapse of time, the Court
held that the #uestion ,as like,ise political, involving 4as it does ... an appraisal of a great variety of
relevant conditions, political, social and economic, ,hich can hardly be said to be ,ithin the
appropriate range of evidence receivable in a court of justice and as to ,hich it ,ould be an
e8travagant e8tension of juridical authority to assert judicial notice as the basis of deciding a
controversy ,ith respect to the validity of an amendment actually ratified. 0n the other hand, these
conditions are appropriate for the consideration of the political departments of the 3overnment. he
#uestions they involve are essentially political and not justiciable.4 $
%n their concurring opinions, .ustices Black, !oberts, 1rankfurter and Douglas stressed that7
he Constitution grants Congress e8clusive po,er to control submission off constitutional amendments.
1inal determination by Congress their ratification by threeCfourths of the -tates has taken place $is
conclusive upon the courts.$ %n the e8ercise of that po,er, Congress, of course, is governed by the
Constitution. >o,ever, A ,hether submission, intervening procedure for Congressional determination of
ratification conforms to the commands of the Constitution, call for decisions by apolitical department of
#uestions of a tR ,hich this Court has fre#uently designated $political.$ And decision of a $political
#uestion$ by the political department$ to ,hich the Constitution has committed it $conclusively binds the
judges, as ,ell as all other officers, citi"ens and subjects of ... government. Proclamation under authority
of Congress that an amendment has been ratified ,ill carry ,ith it a solemn assurance by the Congress
that ratification has taken place as the Constitution commands. =pon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, learning to the judiciary its traditional authority
of interpretation. o the e8tent that the Court$s opinion in the present case even by implieding assumes a
po,er to make judicial interpretation of the e8clusive constitutional authority of Congress over submission
and by ratification of amendments, ,e are unable to agree.
!elying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. +ope" 6itol,
7
speaking through Mr. .ustice Pedro uason, ruled that the process of constitutional amendment,
involving proposal and ratification, is a political #uestion. %n the Mabang case, the petitioners sought
to prevent the enforcement of a resolution of Congress proposing the 4Parity Amendment4 to the
Philippine Constitution on the ground that it had not been approved by the threeCfourths vote of all the
members of each house as re#uired be Article D6 of the &(AB Constitution. %t ,as claimed that three
;A< -enators and eight ;)< members of the >ouse of !epresentatives had been suspended and that
their membership ,as not considered in the determination of the threeC fourths SC ore %n dismissing
the petition on the ground that the #uestion of the validity of the proposal ,as political, the Court
stated7
4%f ratification of an amendment is a political #uestion, a proposal ,hich leads to ratification has to be
a political #uestion. he #uestion to steps complement each other in a scheme intended to achieve a
single objective. %t is to be noted that amendatory process as provided in -ection % of Article D6 of the
Philippine Constitution $consists of ;only< t,o distinct parts7 proposal and ratification.$ here is no logic
in attaching political character to one and ,ithholding 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. ...4 ;At pages JCB, %talics
supplied.<
%t is true that in 3on"ales v. Comelec,
8
this Court held that 4the issue ,hether or not a !esolution of
Congress, acting as a constituent assembly C violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial revie,.4 Ehat ,as involved in 3on"ales, ho,ever, ,as not a
proposed Ehat ,as involved in 3on"ales, ho,ever, ,as not a proposed amendment to the
Constitution but an act of Congress,
9
submitting proposed amendments to the Constitution. -imilarly,
in olentino v. Commission an /lections, &9 ,hat ,as involved ,as not the validity of the proposal to
lo,er the voting age but rather that of the resolution of the Constitutional Convention submitting the
proposal for ratification. he #uestion ,as ,hether piecemeal amendments to the Constitution could
submitted to the people for approval or rejection.
%%
>ere, 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 #uestion that in the referendums of .anuary, &('A and
in the subse#uent referendums the people had clearly and categorically rejected the calling of the
interim ?ational Assembly. As stated in the main opinion, the +upang agapagpaganap of the
Natipunan ng mga -anggunian, the Pambansang Natipunan ng mga Barangay, representing J*,999
barangays, the Nabataang Barangay organi"ations and the various sectoral groups had proposed the
replacement of the interim ?ational Assembly. hese barangays and the -anggunian assemblies are
effective instrumentalities through ,hich the desires of the people are articulated and e8pressed. he
Batasang Bayan ;+egislative Council<, composed of nineteen ;&(< cabinet members and nine ;(<
officials ,ith cabinet rank, and ninetyCone ;(&< members of the +upang agapagpaganap ;/8ecutive
Committee< of the Natipunan ng mga -angguniang Bayani voted in their special session to submit
directly to the people in a plebiscite on 0ctober &2, &('2 the aforeCmentioned constitutional
amendments. hrough the Pambansang Natipunan by Barangay and the Pampurok ng Natipunan
-angguniang Bayan, the people have e8pressed their desire not only to abolish the interim ?ational
Assembly, but to replace it ,ith a more representative body acceptable to them in order to effect the
desirable constitutional changes necessary to hasten the political evolution of the government
to,ards the parliamentary system, ,hile at the same time ensuring that the gains of the ?e, -ociety,
,hich are vital to the ,elfare of the people, shall be safeguarded. he proposed constitutional
amendments, therefore, represent a consensus of the people.
%t ,ould be futile to insist that the intemi ?ational Assembly should have been convened to propose
those amendments pursuant to -ection &B of Article D6%% of the Constitution. his Court, in the case
of A#uino v. Commission or /lections,
11
took judicial notice of the fact that in the referendum of
.anuary, &('A, a majority of those ,ho approved the ne, Constitution conditioned their votes on the
demand that the interim ?ational Assembly provided in the ransitory Provisions should not be and
the President 4in deference to the sovereign ,ill of the 1ilipino people4 declared that the convening of
said body shall be suspended.
14
As this Court observed in the A#uino case7
>is decision to defer the initial convocation of the byiitttit ?ational Assembly ,as supported by the
sovereign people at the by referendum in .anuary, &('A ,hen the people voted to postpone the
convening of the interim ?ational Assembly until after at least seven ;'< years from the approval of the
ne, Constitution. And the reason ,hy the same #uestion ,as eliminated from the #uestions to be
submitted at the referendum on 1ebruary *', &('B, is that even some members of the Congress and
delegates of the Constitutional Convention, ,ho are already byjso ofitto members of the intetini ?ational
Assembly are against such inclusion: because the issue ,as already bycciled in the .anuary, &('A
referendum by the sovereign people indicating thereby their disenchantment ,ith any Assembly as the
former Congress failed to institutionali"e the reforms they demanded and ,asted public funds through
endless debates ,ithout relieving the suffering of the general mass of citi"enry ;p. A9*.< he action of the
President in suspending the convening of the interim ?ational Assembly has met the over,helming
approval of the people in subse#uent referenda.
-ince it ,as the action by the people that gave binding force and effect to the ne, Constitution, then
it must be accepted as a necessary conse#uence that their objection against the immediate
convening of the interim ?ational Assembly must be respected as a positive mandate of the
sovereign.
%n the Philippines, ,hich is a unitary state, sovereignty 4resides in the people and all government
authority emanates from them.4&A he term 4People4 as sovereign is comprehensive in its conte8t.
he people, as sovereign creator of all political reality, is not merely the enfranchised citi"ens but the
political unity of the people. &J %t connotes, therefore, a people ,hich e8ists not only in the urgent
present but in the continuum of history. he assumption that the opinion of he People as voters can
be treated as the e8pression of the interests of the People as a historic community ,as, to the
distinguished American journalist and public philosopher, Ealter +ipunan, un,arranted.
Because of the discrepancy bet,een he People as 6oters and the People as the corporate nation, the
voters have no title to consider themselves the proprietors of the common,ealth and to claim that their
interests are %dentical to the public interest. A prevailing plurality of the voters are not he People. he
claim that they are is a bogus title invoked to justify the usurpation of the e8ecutive po,er by
representative assemblies and the intimidation of public men by demagogue politicians. %n fact
demagoguery can be described as the sleight of hand by ,hich a faction of he People as voters are
invested ,ith the authority of he People. hat is ,hy so many crimes are committed in the People$s
name
15

%n 3on"ales v. Comelec, supra, the Court clearly emphasi"ed that the po,er to propose amendments
or to amend the Constitution is part of the inherent po,er of the people as the repository of
sovereignty in a republican state. Ehile Congress may propose amendments to the Constitution, it
acts pursuant to authority granted to it by the people through the Constitution. Both the po,er to
propose and the authority to approve, therefore, inhere in the people as the bearer of the Constitution
making po,er.
Absent an interim ?ational Assembly upon ,hom the people, through the Constitution, have
delegated the authority to e8ercise constituent po,ers, it follo,s from necessity that either the people
should e8ercise that po,er themselves or through any other instrumentality they may choose. 1or
+a,, like ?ature, abhors a vacuum ;natural vacuum abhorret<.
he #uestion then is ,hether the President has authority to act for the people in submitting such
proposals for ratification at the plebiscite of 0ctober &2. he political character of the #uestion is,
therefore, particularly manifest, considering that ultimately it is the people ,ho ,ill decide ,hether the
President has such authority. %t certainly involves a matter ,hich is to be e8ercised by the people in
their sovereign capacity, hence, it is essentially political, not judicial.
Ehile it is true that the constituent po,er is not to be confuse ,ith legislative po,er in general
because the prerogative to propose amendments is not embraced ,ithin the conte8t of ordinary
la,making, 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 authori"ed instrumentalities.
As the Chief .ustice aptly stated in his concurring opinion in this case7
... he President merely formali"ed the said proposals in Presidential Decree ?o. &9AA. %t being conceded
in all #uarters that sovereignty resides in the people and it having been demonstrated that their
constituent po,er to amend the Constitution has not been delegated by them to any instrumentality of the
3overnment during the present stage of the transition period of our political development, the conclusion
is ineluctable that their e8ertion of that residuary po,er cannot be vulnerable to any constitutional
challenge as beingultravires. Accordingly, ,ithout venturing to rule on ,hether or not the President is
vested ,ith constituent po,er C as it does not appear necessary to do so in the premises C the proposals
here challenged, being acts of the sovereign people no less, cannot be said to be afflicted ,ith
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 e8ercising said authority, has acted as
a mere ofiffet byf of the people ,ho made the proposals, but like,ise because the said authority is
legislative in nature rather than constituent.
his is but a recognition that the People of the Philippines have the inherent, sole and e8clusive right of
regulating their o,n government, and of altering or abolishing their Constitution ,henever it may be
necessary to their safety or happiness. here appears to be no justification, under the e8isting,
circumstances, for a Court to create by implication a limitation on C the sovereign po,er of the people. As
has been clearly e8plained in a previous case7
here is nothing in the nature of the submission ,hich should cause the free e8ercise 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 bo8, and there can never be danger in
submitting in an established form to a free people, the proposition ,hether they ,ill change their
fundamental la, he means provided for the e8ercise of their -overeign right of changing their
constitution should receive such a construction as not to trammel the e8ercise of the right. Difficulties and
embarrassments in its e8ercise are in derogation of the right of free government, ,hich is inherent in the
people: and the best security against tumult and revolution is the free and unobstructed privilege to the
people of the -tate to change their constitution in the mode prescribed by the instrument.
%%%
he paramount consideration that impelled =s to arrive at the foregoing opinion is the necessity of
ensuring popular control over the constituent po,er. 4%f the people are to control the constituent
po,er C the po,er to make and change the fundamental la, of the -tate,4 observed Eheeler,4 4the
process of Constitutional change must not be based too heavily upon e8isting agencies of
government.4 %ndeed, the basic premise of republicanism is that the ordinary citi"en, the common
man. can be trusted to determine his political destiny. herefore, it is time that the people should be
accorded the fullest opportunity to decide the la,s that shall provide for their governance. 1or in the
ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and % by
ininess of the mo###tai ,ill of every 1ilipino.
%? 6%/E 01 >/ 10!/30%?3 C0?-%D/!A%0?-, Ee vote to dismiss the petitions.
3;uino, J., concur.

M"NO1 .ALMA, J., dissenting7
% concur fully ,ith the remarkably frank ;so characteristic of him< dissenting opinion of my
distinguished colleague, .ustice Claudio eehankee. %f % am ,riting this brief statement it is only to
unburden myself of some thoughts ,hich trouble my mind and leave my conscience ,ith no rest nor
peace.
3enerally, one ,ho dissents from a majority vie, 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,
,hen matters of conscience are at issue, one must be prepared to espouse and embrace a rightful
cause ho,ever unpopular it may be.
&. hat sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government ,hich cannot be disputed, but ,hen the people have
opted to govern themselves under the mantle of a ,ritten Constitution, each and every citi"en, from
the highest to the lo,liest, has the sacred duty to respect and obey the Character they have so
ordained.
By the Constitution ,hich they establish, they not only tie up he hands of their official agencies, but their
o,n hands as ,ell: and neither the officers of the state, nor the ,hole people as an aggregate body, are
at liberty to take action in opposition to this fundamental la,. ;Cooley$s Constitutional +imitations, 'th /d.
p. B2, %talics 0ur<.
he aforeC#uoted passage from the eminent jurist and author .udge Cooley although based on
declarations of la, of more than a century ago, lays do,n a principle ,hich to my mind is one of the
enduring cornerstones of the !ule of +a,. it is a principle ,ith ,hich % have been familiar as a student
of la, under the tutelage of revered Professors, Dr. 6icente 3. -inco and .ustice .ose P. +aurel, and
,hich % pray ,ill prevail at all times to ensure the e8istence of a free, stable, and civili"ed society.
he 1ilipino people,. ,anting to ensure to themselves a democratic republican form of government,
have promulgated a Constitution ,hereby the po,er to govern themselves has been entrusted to and
distributed among three branches of government: they have also mandated in clear and unmistakable
terms the method by ,hich provisions in their fundamental Charter may be amended or revised.
>aving done so, the people are bound by these constitutional limitations. 1or ,hile there is no
surrender or abdication of the people$s ultimate authority to amend, revise, or adopt a ne,
Constitution, sound reason demands that they keep themselves ,ithin the procedural bounds of the
e8isting fundamental la,. he right of the people to amend or change their Constitution if and ,hen
the need arises is not to be denied, but ,e 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.$
% cannot subscribe therefore to the vie, taken by the -olicitor 3eneral that the people, being
sovereign, have the authority to amend the Constitution even in a manner different from and contrary
to that e8pressly provided for in that instrument, and that the amendatory process is intended more as
a limitation of a po,er rather than a grant of po,er to a particular agency and it should not be
construed as limiting the ultimate sovereign ,ill of the people to decide on amendments to the
Constitution .* -uch a vie, ,ill seriously undermine the very e8istence of a constitutional government
and ,ill permit anarchy andFor mob rule to set afoot and prevail. Eas it the 3reek philosopher Plato
,ho ,arned that the rule of the mob is a prelude to the rule of the tyrantI
% ,ould use the follo,ing e8cerpt from Bernas, -... $he &('A Philippine Constitution, ?otes and
Cases4 as relevant to my point7
. . . 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 e8treme popular sovereignty. As one American ,riter put it7
A constitution like the American one serves as a basic check upon the popular ,ill at any given time. %t is
the distinctive function of such ,ritten document to classify certain things as legal fundamentals: these
fundamentals may not be changed e8cept by the slo, and cumbersome process of amendment. he
people themselves have decided, in constitutional convention assembled, to limit themselves ana future
generations in the e8ercise of the sovereign po,er ,hich they ,ould other,ise 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 e8citement and hysteria. he Constitution, in the neat phrase of the
%o,a court, is the protector of the people against injury by the .people. >
ruly, ,hat need is there for providing in the Constitution a process by ,hich the fundamental la,
may be amended if, after all, the people by themselves can set the same at naught even in times of
peace ,hen civil authority reigns supremeI o go along ,ith the respondents$ theory in this regard is
to render ,ritten Constitutions useless or mere 4ropes of sand allo,ing for a government of men
instead of one of la,s. 1or it cannot be discounted that a situation may arise ,here the people are
heralded to action at a point of a gun or by the fiery elo#uence of a demagogue, and ,here passion
overpo,ers reason, and mass action overthro,s legal processes. >istory has recorded such
instances, and % can think of no better e8ample than that of .esus Christ of .udea ,ho ,as follo,ed
and loved by the people ,hile curing the sick, making the lame ,alk and the blind see, but shortly
,as condemned by the same people turned into fanatic rabble crying out 4Crucify >im, Crucify >im4
upon being incited into action by chief priests and elders of .erusalem. @es, to #uote once more from
.udge Cooley7
A good Constitution should be beyond the reason of temporary e8citement and popular caprice or
passion. %t is needed for stability and steadiness: it must yield to the thought of the people: not to the
,him of the people, or the thought evolved in e8citement or hot blood, but the sober second thought,
,hich alone, if the government is to be sale can be allo,ed efficiency. .... Changes in government are to
be feared unless the benefit is certain.4 ;#uoted in /llingham v. Dye, (( ?./. &, &B,<
3

Cra,ford v. 3ilchrist 2J 1la. J&., B(., -o. (2A, Ann. Cas. &(&JB, (&2: -tate v. >all, &B( ?.E., *)&:
0pinion of Marshall, .. in -tate e8. rel. Poster v. Marcus, &B* ?.E., J&(:
1rom Nochier v. >ill, 6ol. &B, ?.E., 29(, ,e #uote7
888 888 888
%t 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 ho, the change
may be effected: and that the change, if revolution, is peaceful resolution. ...
Ee fear that the advocates of this ne, doctrine, in a "eal to accomplish an end ,hich the majority of the
people desire, have looked at but one phase of the #uestion, and have not fully considered the terrible
conse#uences ,hich ,ould almost certainly follo, a recognition of the doctrine for ,hich they contend. %t
may be that the incorporation of this amendment in the constitution, even if the constitution has to be
broken to accomplish it, ,ould not of itself produce any serious results. But if it should be done by
sanctioning the doctrine contended for, a precedent ,ould be set ,hich ,ould plague the state for all
future time. A Ban#uo$s ghost ,ould arise at our incantation ,hich ,ould not do,n at our bidding.
888 888 888
Ee ought to ponder long before ,e adopt a doctrine so fraught ,ith danger to republican institutions. ...
888 888 888
Appellants$ counsel cite and rely upon section *, art. &, of the constitution of the staff his section is a
portion of the bill of rights, and is as follo,s7 $All political po,er is inherent in the people. 3overnment
is instituted for the protection, security, and benefit of of the people: and they have the right at all
times to alter or reform the same, ,henever the public good may re#uire.$ Abstractly considered,
there can bye no doubt of the correctness of the propositions embraced in this suction. hese
principles are older than constitutions and older than governments. he 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 ... .
*. Presidential Decrees ?os. ((& and &9AA ,hich call for a national referendumCplebiscite on 0ctober
&2, &('2 for the purpose, among other things, of amending certain provisions of the &('A Constitution
are null and void as they contravene the e8press provisions on the amending process of the &('A
Constitution laid do,n in Article D6%, -ection & ;&< and Article D6%%, -ection &B, more particularly the
latter ,hich applies during the present transition period. he 0pinion of .ustice eehankee discusses
in detail this particular matter.
% ,ould just ,ish to stress the point that although at present there is no by tterint ?ational Assembly
,hich may propose amendments to the Constitution, the e8istence of a soCcalled 4vacuum4 or
4hiatus4 does not justify a transgression of the constitutional provisions on the manner of amending
the fundamental la,. Ee cannot cure one infirmity C the e8istence of a 4vacuum4 caused by the nonC
convening of the interim ?ational Assembly C ,ith another infirmity, that is, doing violence to the
Charter.
All great mutations shake and disorder a state. 3ood does not necessarily succeed evil: another evil may
succeed and a ,orse. ;Am. +a, !ev. &))(, p. A&&., #uoted in /llingham v. Dye, supra, p. &B<
!espondents contend that the calling of the referendumCplebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. o my mind, the only possible measure that
,ill lead our country and people to a condition of normalcy is the lifting or ending of the state of
martial la,. %f % am constrained to make this statement it is because so much stress ,as given during
the hearings of these cases on this particular point, leaving one ,ith the impression that for
petitioners to contest the holding of the 0ctober &2 referendumCplebiscite is for them to assume a
position of blocking or installing the lifting of martial la,, ,hich % believe is unfair to the petitioners.
1rankly, % cannot see the connection bet,een the t,o. My esteemed colleagues should pardon me
therefore if % had ventured to state that the simple solution to the simple solution to the present
dilemma is the lifting of martial la, and the implementation of the constitutional provisions ,hich ,ill
usher in the parliamentary form of government ordained in the Constitution, ,hich, as proclaimed in
Proclamation &&9*, the people themselves have ratified.
%f the people have indeed ratified the &('A Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable conse#uences thereof, the only y being to set in motion the
constitutional machinery by ,hich the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if ,e
have to maintain and preserve the system of government decreed under the fundamental Charter. As
said by .ustice /nri#ue 1ernando in Mutuc vs. Commission on /lections
... he concept of the Constitution as the fundamental la,, setting forth the criterion for the validity of any
public act ,hether proceeding from the highest official or the lo,est funcitonary, is a postulate of our
system of government. hat is to manifest fealty to the rule of la,, ,ith priority accorded to that ,hich
occupies the topmost rung in the legal hierarchy. ... ;A2 -C!A, **), *AJ, italics 0urs<
A contrary vie, ,ould lead to disastrous conse#uences for, in the ,ords of Chief .ustice Co8 of the
-upreme Court of %ndiana in /llingham v. Dye, ;supra, p. '< liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allo, the e8ercise of po,er by the people
for the general good by tistlercoitaitt restraints of la,.
3
. he true #uestion before =s is is one of
po,er. Does the incumbent President of the Philippines possess constituent po,ersI Again, the
negative ans,er is e8plained in detail in the dissenting opinion of .ustice eehankee.
!espondents ,ould justify the incumbent President$s e8ercise of constituent po,ers on theory that he
is vested ,ith legislative po,ers as held by this Court in Benigno -. A#uino, .r., et al. vs. Commission
on /lections, et al., +CJ999J, .anuary A&, &('B. & ,ish to stress that although in my separate opinion
in said case % agreed that -ection A ;*< of the ransitory provisions grants to the incumbent President
legislative po,ers, % #ualified my statement as follo,s7
.... As to, ,hether, or not, this unlimited legislative ###j,,el of the President continues by e8ist even after
the ratification of the Constitution is a matter ,hich % am not ready to concede at the moment, and ,hich
at any rate % believe is not essential in resolving this Petition for reasons to be given later. ?onetheless, %
hold the vie, that the President is empo,ered to issue proclamations, orders, decrees, etc. to carry out
and implement the objectives of the proclamation of martial la, be it under the &(AB or &('A Constitution,
and for the orderly and efficient functioning of the government, its instrumentalities, and agencies. his
grant of legislative po,er is necessary to fill up a vacuum during the transition period ,hen the interim
?ational Assembly is not yet convened and functioning, for other,ise, there ,ill be a disruption of official
functions resulting in a collapse of the government and of the e8isting social order. ;2* -C!A, pp.
*'B,AJ'<
% believe it is not disputed that legislative po,er is essentially different from constituent po,er: one
does not encompass the other unless so specified in the Charter, and the &('A Constitution contains
provisions in this regard. his is ,ellCe8plained in .ustice eehankee$s 0pinion. he state of
necessity brought about by the current political situation, invoked by the respondents, provides no
source of po,er to propose amendments to the e8isting Constitution. Must ,e 4bend the Constitution
to suit the la, of the hour or cure its defects 4by inflicting upon it a ,ound ,hich nothing can heal
commit one assault after the other 4until all respect for the fundamental la, is lost and the po,ers of
government are just ,hat those in authority please to call themI$4
5
0r can ,e no, ignore ,hat this
Court, speaking through .ustice Barredo, said in olentino vs. Comelec7
... let those ,ho ,ould put aside, invoking grounds at best controversial, any mandate of the fundamental
la, purportedly by order to attain some laudable objective bear in mind that someday someho, others
,ith purportedly more laudable objectives may take advantages of the precedent in continue the
destruction of the Constitution, making those ,ho laid do,n the precedent of justifying deviations from the
re#uirements of the Constitution the victims of their o,n folly.
:

!espondents emphatically assert that the final ,ord is the people$s ,ord and that ultimately it is in the
hands of the people ,here the final decision rests. ;Comment, pp. &), &(, **< 3ranting in gratia
argument that it is so, let it be an e8pression of the ,ill of the people a normal political situation and
not under the aegis of martial rule for as % have stated in A#uino vs. Comelec, et al., supra, a
referendum ;and no, a plebiscite< held under a regime of martial la, can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of fear as it entails a
,ide area of curtailment and infringement of individual rights, such as, human liberty, property rights,
rights of free e8pression and assembly, protection against unreasonable searches and sei"ures,
liberty of abode and of travel, and so on.
J. he other issues such as the sufficiency and proper submission of the proposed amendments for
ratification by the people are e8pounded in .ustice eehankee$s 0pinion. % ,ish to stress indeed that
it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim
?ational Assembly and its substitution ,ith an 4interim Batasang Pambansa their in by in Proposed
amendment ?o. 2 ,ill permit or allo, the concentration of po,er in one man C the /8ecutive C Prime
Minister or President or ,hatever you may call him C for it gives him e8pressly ;,hich the &('A
Constitution or the &(AB Constitution does not< legislative po,ers even during the e8istence of the
appropriate legislative body, dependent solely on the e8ecutive$s judgment on the e8istence of a
grave emergency or a threat or imminence thereof >>
% must be forgiven if, not concerned ,ith the present, % am haunted ho,ever by ,hat can happen in
the future, ,hen ,e shall all be gone. 6erily, this is a matter of grave concern ,hich necessitates full,
mature, sober deliberation of the people but ,hich they can do only in a climate of freedom ,ithout
the restraints of martial la,. % close, remembering ,hat Claro M. !ecto, President of the
Constitutional Convention ,hich drafted the &(AB Philippine Constitution, once said7 .
... ?or is it enough that our people possess a ,ritten constitution in order that their government may be
called constitutional. o be deserving of this name, and to drive a,ay all lanirer of anarchy as ,ell as of
dictatorship ,hether by one man or a fe,, it is necessary that both the government authorities and the
people faithfully observe and obey the constitution, and that the citi"ens be duly conversant not only ,ith
their rights but also ,ith their duties...
7

.ose P. +aurel ,ho served his people as .ustice of the -upreme Court of this country gave this
reminder: the grave and perilous task of halting transgressions and vindicating cherished rights is
reposed mainly oil the .udiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.$ 0n the basis of the foregoing, % vote to declare Presidential Decrees ?os.
((& and &9AA unconstitutional and enjoin the implementation thereof.
CONCE.CION JR., J., concurring7
% vote for the dismissal of the petitions.
&. he issue is not political and therefore justiciable.
he term 4political #uestion4, as this Court has previously defined, refers to those #uestions ,hich,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to
,hich full discretionary authority has been delegated to the +egislature or e8ecutive branch of the
3overnment. %t is concerned ,ith the issues dependent upon the ,isdom, not legality, of a particular
measure.
1

>ere, the #uestion raised is ,hether the President has authority to propose to the people
amendments to the Constitution ,hich the petitioners claim is vested solely upon the ?ational
Assembly, the constitutional convention called for the purpose, and the by the ?ational Assembly.
his is not a political #uestion since it involves the determination of conflicting claims of authority
under the constitution.
%n 3on"ales vs. Comelec, * this Court, resolving the issue of ,hether or not a !esolution of
Congress, acting as a constituent assembly, violates the Constitution, ruled that the #uestion is
essentially justiciable, not political, and hence, subject to judicial revie,.
%n olentino vs. Comelec A this Court finally dispelled all doubts as to its position regarding its
jurisdiction visCaCvis the constitutionality of the acts of Congress, acting as a constituent assembly, as
,ell as those of a constitutional convention called for the purpose of proposing amendments to the
constitution. %nsofar as observance of constitutional provisions on the procedure for amending the
constitution is concerned, the issue is cogni"able by this Court under its po,ers of judicial revie,.
*. As to the merits, a brief backdrop of the decision to hold the referendumCplebiscite ,ill help resolve
the issue. %t is to be noted that under the &('A Constitution, an interim ?ational Assembly ,as
organi"ed to bring about an orderly transition from the presidential to the parliamentary system of
government.$ he people, ho,ever, probably distrustful of the members ,ho are old time politicians
and constitutional delegates ,ho had voted themselves by to membership in the interim ?ational
Assembly, voted against the convening of the said interim assembly for at least seven years thus
creating a political stalemate and a conse#uent delay$ in the transformation of the government into
the parliamentary system. o resolve the impasse, the President, at the instance of the barangays
and sanggunian assemblies through their duly authori"ed instrumentalities ,ho recommended a
study of the feasibility of abolishing and replacing the by interim ?ational Assembly ,ith another
interim body truly representative of the people in a reformed society, issued Presidential Decree ?o.
((&, on -eptember *, &('2, calling for a national referendum on 0ctober C&2, &('2 to ascertain the
,ishes of the people as to the ,ays 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, e8pressing their desire to have the constitution amended, thus
prompting the President to issue Presidential Decree ?o. &9AA, stating the #uestions to R submitted
to the people in the referendumCplebiscite on 0ctober &2,&('2.
As ,ill be seen, the authority to amend the Constitution ,as removed from the interim ?ational
Assembly and transferred to the seat of sovereignty itself. -ince the Constitution emanates from the
people ,ho are the repository of all political po,ers, their authority to amend the Constitution through
the means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid.
?ot much reflection is also needed to sho, that the President did not e8ercise his martial la,
legislative po,ers ,hen he proposed the amendments to the Constitution. >e ,as merely acting as
an instrument to carry out the ,ill of the people. ?either could he convene the interim ?ational
Assembly, as suggested by the petitioners, ,ithout doing violence to the people$s ,ill e8pressed
over,helmingly ,hen they decided against convening the interim assembly for at least seven years.
A. he 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 ((& has re#uired the
barangays to hold assemblies or meetings to discuss and debate on the referendum #uestions, ,hich
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 ,hat stand to take on the proposed amendments come the day for the plebiscite. Besides,
the Constitution itself re#uires the holding of a plebiscite for the ratification of an amendment not later
than three ;A< months after the approval of such amendment or revision but ,ithout setting a definite
period ,ithin ,hich such plebiscite shall not be held. 1rom this % 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.
Footot+s
& -ec. A, PD ((&, -eptember *, &('2.
* -/C. J Eho shall participate.C/very 1ilipino citi"en, literate or not, fifteen years of age or over ,ho has resided in the barangay for at least
si8 months shall participate in the consultation in his barangay. Provided, ho,ever, hat any person ,ho 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.
A -/C. &B. he ?ational Assembly upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. -uch amendments shall take effect ,hen ratified in accordance ,ith Article -i8teen thereof.4
J Pascual v. -ecretary of Public Eorks, &&9 Phil. AA& ;&(29<.
B -ection &).
2 -ection B.
' an v. Macapagal, +CAJ&2&, 1eb. *(, &('*, JA -C!A 2'', 1ernando, .., ponente. -ee also -tanding to -ecure .udicial !evie,, .affe, 'J
>arvard +a, !evie, &*2B ;May &(2&<.
) Concurring and dissenting opinion of .ustice 1ernando in the Plebiscite Cases ;Planas v. Comelec, J( -C!A &9B<. -ee Martial +a, and
the ?e, -ociety in the Philippines, -upreme Court, &('2, at &B*.
( 0rfield Amending the 1ederal Constitution, &&&.
&9 -eparate 0pinion of .ustice Concepcion in the !atification Casts v. the /8ecutive -ecretary B9 -C!A A9<, Martial +a, and the ?e,
-ociety in the Philippines, &('2, -upreme Court, *&9C**J, #uoting anada v. Cuenco, &9A Phil. &9B&.
&& -ee Martial +a, and the ?e, -ociety in the Philippines, -upreme Court, &('2, at &*&.
&* %dem, at *&9.
&A he vie, of the Chief .ustice ,as shared by .ustices Makalintal ;later Chief .ustice<, 5aldivar, Castro ;present Chief .ustice<, 1ernando,
and eehankee. .ustice Barredo #ualified his vote, stating that 4inasmuch as it is claimed that there has been approval by the people, the
Court may in#uire into the #uestion of ,hether or not there has actually been such an approval, and, in the affirmative, the Court should keep
its handsCoff out of respect to the people$s ,ill, but, in the negative, the Court may determine from both factual and legal angles ,hether or
not Article D6 of the &(AB Constitution has been complied ,ith.4 .ustices Makasiar, Antonio and /sguerra hold that the issue is political and
4beyond the ambit of judicial in#uiry.4
&J 2* -C!A *'B, !eferendum Case, Martial +a, and the ?e, -ociety in the Philippines, -upreme Court, &('2, at &9'&.
&B %dem, at &9'(&9)&.
&2 %n the =nited -tates, all amendments to the 1ederal constitution, e8cept the ,entyCfirst Amendment, had been proposed by the =.-.
Congress, Modern Constitutional +a,, Antieau 6ol. *,&(2( ed., at J)*.
&' he Amending of the 1ederal Constitution by 0rfield &(J*, J)CBA: &9AC&9B.
&) Black$s Constitutional +a,, >ornkbook series, at J*.
&( >ollings,orth v. 6irginia, A Dall A').
*9 here are A types of crisis in the life of a democratic nation. 1irst is particularly a ,ar to repel invasions, ,hen a state must convert its
peacetime political and social order into a ,artime fighting machine and overmatch the skill and efficiency of the enemy. -econd, is rebellion,
,hen the authority of a constitutional government is resisted openly by a large numbers of its citi"ens ,ho are engaged in violent insurrection
against the enforcement of its la,s or are bent on capturing it illegally or even destroying it altogether. hird is economic depressionCa crisis
greater than ,ar. !ossiter, Constitutional Dictatorship, at 2.
*& Constitutional Dictatorship by Clinton !ossiter, *))C*(9.
** Cor,in, he President 0ffice and Po,ers, at A'&.
*A -ee -eparate 0pinion of the Chief .ustice ;the .ustice Castro in the !eferendum Case ;A#uino v. Comelec<, at p. &9)J, Martial +a, and
the ?e, -ociety in the Philippines, -upreme Court, &('2.
*2 0rfield, Amending the 1ederal Constitution, at BB.
*' Daily /8press, -ept. *',&('2: imes .ournal, -ept. &', &('2.
*) -unday /8press, -eptember *A, &('2.
*( Daily /8press, -eptember *A, &('2.
A9 -ection &, Article %%, &('A Constitution.
A& -ee 0rfield, Amending the 1ederal Constitution, &J9C&JA. he first meaning includes all persons. living ,ithin the state during the ,hole
time of the e8istence of the state: the second, the sum of all individuals as an organi"ed group living ,ithin the state at the same time7 and
the third, the organi"ed group of individuals living the state ,ith the e8ception of the government.
A* 1riedrich, he Philosophy of +a, in >istorical Perspective, &(2A, at **&.
AA 0rfield Amending the 1ederal Constitution, at &9B.
AJ Abrams v. =nited -tates, *B9 =.-. 2&2, 2A9.
AB 0p Cit., at **&.
A( -eparate opinion of .ustice Palma in the !eferendum Case ;A#uino v. C0M/+/C<, at &&AB, Martial +a, and the ?e, -ociety in the
Philippines, &('2, -upreme Court.
J9 -eparate opinion of .ustices Makalintal and Castro in the !atification Case ;.avellana v. he /8ecutive -ecretary, B9 -C!A A9<, at *(*C
*(A, Martial +a, and the ?e, -ociety in the Philippines
J& -ec. &, Article 6%, &('A Constitution.
J* Daily /8press, -eptember *(, &('2.
JA -ee imes .ournal, -eptember A9, &('2.
JJ imes journal, 0ctober *, &('2.
JB -ee Martial +a, and the ?e, -ociety, &('2, -upreme Court, at &9)*C)A.
J2 A9' =.-. JAA, see Cases in Constitutional +a,, Ard ed., Cushman and Cushman, &*C&A.
J' Dillon v. 3loss, *B2 =.-. A2).
J) Eilloughby on the Constitution of the =ntied -tates, 6ol. &,B(BC(2.
+CAB(*B, .anuary **, &('A, J( -C!A &9B. he other cases disposed of by the Court are not referred to.
* +CA2&J*, March A&, &('A, B9 -C!A A9. Again, no reference is made to the other petitions raising the same #uestion as to te validity of
Proclamation ?o. &&9* announcing the ratification of the Constitution proposed by the Constitutional Convention.
A +CABBJ2, -eptember &', &('J, B( -C!A &)A. %t must be noted that there ,ere other petitions decided like,ise seeking the nullification of
Proclamation ?o. &9)& declaring martial la,.
J +CJ99J, .anuary A&, &('B, 2* -C!A *'B. his decision affirmed the po,er of the incumbent President to issue decrees having the force
and effect of la,. here ,as in the main opinion in this case, penned by .ustice Makasiar, an e8plicit recognition that the incumbent
President possesses legislative competence so that during the period of Martial +a, he could assure 4the security and preservation of the
!epublic, ... 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 ,ell as to meet the impact of a ,orld,ide recession, inflation or economic crisis ,hich
presently threatens all nations including highly developed countries ...4 ;At *()< .ustices Antonio, /sguerra, 1ernande", Muno" Palma and
A#uino concurred, although in a separate opinion, .ustice Muno" Palma #ualified it by saying that the grant of legislative po,er 4is
necessarily to fill up a vacuum during the transition period ,hen the interim ?ational Assembly is not yet convened and functioning, for
other,ise, there ,ill be a disruption of official functions resulting in a collapse of the government and of the e8isting social order.4 ;At AJ'<
here ,as like,ise a concurring opinion by the then .ustice, no, Chief .ustice .ustice Makalintal and .ustices Barredo, Antonio, /sguerra
and 1ernande" concurred ,ith this opinion. %n a concurring and dissenting opinion, .ustice eehankee ,ould confine 4his legislative and
appropriation po,ers under martial la, ... to the la, of necessity of preservation of the state ,hich gave rise to its proclamation ;including
appropriations for operations of the government and its agencies and instrumentalities<.4 ;At A&2CA&'< he ,riter of this opinion had his o,n
concurrence and predicated his vote ,ithout an e8pression of his vie,s as to the grant of legislative po,er to the President. 4
B +CA'A2J, May (,&('B, 2A -C!A BJ2. he Court ruled in this case that military commissions may try civilians for certain specified offenses
according to applicable presidential decrees.
2 -C!A &)A, *)&CA9(.
' %bid, A9&.
) /8 parte Milligan is reported in J Eall. * ;&(22<. %t ,as like,ise noted that -tory, the first eminent commentator in American constitutional
la, made no reference to martial la,. Cooley$s ,ork, no, in its )th edition, is entitled Constitutional +imitations ,hile that of Eatson bears
the title of Constitution of the =nited -tates. At A9*
( %bid. -terling is found in *)' =- A') ;&(A*< and Duncan in A*' =- A9J ;&(J2<. Among the casebooks on constitutional la, referred to are
those by Dodd ;&(J(<, Do,ling ;&(B9<, -holley ;&(B&<, 1rank ;&(A*<, 1reund and Associates ;&(BJ<, Barrett and Associates ;&(2A<, Nauper
;&(22<, +ockhart and Associates ;&('9<.
&9 %bid. %t may be observed parenthetically that ,hen % collaborated ,ith -enator +oren"o M. anada in the Constitution of the Philippines
Annotated published almost thirty ?ears ago in &(J' ;at B))CB)(< ,ith t,o later editions that came out in &(J( ;at 2(JC2(B< and &((A ;at
&9&AC&9&J<, it ,as Eilloughby$s vie, that ,as cited.
&& %bid. A9*CA9A. his ,as the formulation of Burdick in his he +a, of the American Constitution, *2& ;&(**<.
&* %bid. A9A.
&A %bid. he citation is from Eilloughby on the Constitution of the =nited -tates, *nd ed. &B(& ;&(*(<.
&J %bid. he e8cerpt is from Eilliams on Constitutional +a,, JJ( ;&(A2<. %t is to be made clear that in our Constitution, it is only the privilege
of the ,rit, not the ,rit itself that is suspended.
&B %bid. 7A97ACA9J. he #uotation is from volume * of the treatise of -ch,art" on the American Constitution, entitled he Po,ers of
3overnment *JJ ;&(2A< that the citation came from.
&2 %bid. he reference is to Dicey on the +a, of the Constitution, *)'C*)) ;&(2*<.
&' A*' =- A9J, A**.
&) Cf. A#uino v. Commission on /lections, 2* -C!A *'B.
&( %bid, A9B. he citation from !ossiter is from the first chapter of his ,ork on Constitutional Dictatorship. ( ;&(J)<.
*9 %bid. A92.
*& -C!A *'B, *(). .ustice Makasiar cited pages ' and A9A of !ossiter$s Constitutional Dictatorship.
** he e8tensive citation in the opinion of .ustice martin is found in Chapter D%D of !ossiter$s opus entitled Constitutional Dictatorship7 he
1orms, the Dangers, the Criteria, the 1uture. that is the last chapter of his ,ork, after a rather e8haustive discussion of ,hat are referred to
by him as Constitutional Dictatorship in 3ermany ;Chapters %%% to 6<, Crisis 3overnment in the 1rench !epublic ;Chapters 6% to %D<, Crisis
3overnment in the =nited -tates ;chapters D%6 to D6%%<.
*A %bid. *(J.
*J %melda !omualde" Marcos, he 1ilipino Bet,een ,o Eorlds, Philippines Daily /8press lo, 0ctober (,&('2.
*B %bid.
*2 Cor,in, he President 0ffice and Po,ers, Jth rev. ed., &A(C&J9 ;&(B'<.
*' According to Art D6%%, -ec. &B of the present Constitution7 he interim ?ational upon special call by the interim Prime Minister, a majority
vote of all its Members, propose to amendments to this Constitution. -uch amendments shall take effect ,hen ratified in accordance ,ith
Article -i8teen hereof.4
*) >e ,as assisted by Assistant -olicitor 3eneral >ugo /. 3utierre" .r. and rial Attorney ?annette !. de Castro.
*( Malcolm and +aurel, Philippine Constitutional +a,, Ard ed., *9C*& ;&(A2<.
A9 Malcolm and +aurel, Cases on Constitutional +a, ;&(A2<.
A& %bid. /llingham v. Dye is reported in (( ?/ & ;&(&*<.
A* Philippine Political +a,, llth ed. 2A ;&(2*<. %t is precisely /llingham v. Dye that ,as cited.
AA .ustice Makasiar referred to Article D6%%, -ec. A, par. * of the present Constitution. he present Chief .ustice ,ould include paragraph &
to the above. 6ide in. J.
AJ +CAJ&B9, 0ctober &2,&(B&, J& -C!A '9*.
AB According to Article &&, -ection & of the present Constitution7 he Philippines is a republican state. -overeignty resides in the people and
all government authority emanates from them.4
A2 Cf. Crammer v. horson 2) ?/ *9* ;&)(2<7 /d,ards v. +esueur )A -E &&A9 ;&)(2<: People v. Mills, '9 P. A** ;&(9*<: readgill v. Cross,
&9( P BB) ;&(&9<: -cott v. .ames, '2 -/ *)A ;&(&*<: Eeinland v. 1ulton &*& ?/ )&2 ;&(&)<: 3ray v. Mass, &B2 -o. *2* ;&(AJ<: 3ray v.
Einthrop, &B2 -o. *'9 ;&(AJ<: -tate v. Burns, &'* -E *B( ;&(JA<, >illman v. -tockett A( A* )9A ;&(JJ<.
A' +C&(A&A, .anuary &(,&(2*,J -C!A &.
A) %bid, &'C&).
A( +C*&)(', 0ctober **, &(2J, ( -C!A *A9.
J9 %bid, *JJ.
J& B9 -C!A A9, A&9CAAA ;&('A<.
J* B( -C!A *'B, A92CA&B ;&('J<.
JA +aski, 3rammar of Politics, Jth ed., AJ ;&(A'<.
JJ Cor,in, he >igher +a, Background of American Constitutional +a,, -elected /ssays on Constitutional +a, A ;&(A)<.
JB +erner, %deas are Eeapons, J'9 ;&(A(<.
J2 BrynC.ones, o,ard a Democratic ?e, 0rder *A ;&(JB<.
J' Mc%ver, he Eeb of 3overnment )J ;&(J'<.
J) +C*)(&2, ?ovember (, &(2', *& -C!A ''J.
J( +C*AJ&B, 0ctober &2, &('&, J& -C!A '9*.
B9 +CAB(*B, .anuary **, &('A, J( -C!A &9B.
B& +CA2&J*, March A&, &('A, B9 -C!A A9. %f % read correctly the concurring opinion of the then Chief .ustice Makalintal and the no, Chief
.ustice Castro, then an Associate .ustice, ,here the #uestion raised concerns the adoption and enforcement of a ne, Constitution, then it
may be looked upon as political.
B* ') Phil. & ;&(J'<. o be more precise, there ,ere only five .ustices, headed by .ustice uason, ,ith the then Chief .ustice Moran and the
then .ustices Paras, later himself a Chief .ustice, >ilado, Pablo and >ontiveros, ,ho ,ere of that persuasion. he other t,o votes necessary
for a majority for dismissing the prohibition petition ,ere supplied by .ustice, also later a Chief .ustice, Beng"on and .ustice Padilla.
BA A9' =.-. JAA. %n the concurring opinion of .ustice Black, ,ith .ustices !oberts, 1rankfurther and Douglas in agreement, he made the
categorial statement that such process 4is $political$ 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.4 At JB(.
BJ Cf. >atcher v. Meredith, &'A -E *d 22B ;&(JA<: %n re Application of Borg, AB A*d **9 ;&(JJ<: !enck v. -uperior Court of Maricopa
County, &)' P*d 2B2 ;&(J'<: %n re 0pinion of .ustices, J' -0*d 2JA ;&(B9<: 1unk v. 1ielder, *JA -E*d J'J ;&(B&<: Baum v. ?e,bry *2'
P*d **9 ;&(BJ<: Boe v. 1oss, '' ?E*d & ;&(B2<: 3oldner v, Adams, &2' -0*d B'B ;&(2J<: >amilton v. City of -hreveport, &'J -0*d B*(
;&(2B<.
BB +aurel, -., ed., 6%% Proceedings of the Philippine Constitutional Convention ;&(AJC&(AB<, Appendi8 +, )99.
B2 -C!A *'B, A92CA&B.
& Article D6, section &.
* Article D6%, section &, paragraphs ;&< and ;*<.
A Article D6%%. section A ;&<.
J Article D6%%, section &B.
B P.D. ?o. ((& dated -ept. *, &('2, as amended by P.D. ?o. &9A& dated -ept. **, &('2 and P.D. ?o. &9AA dated -ept. **, &('2 4-tating
the #uestions to be submitted to te people i the referendumCplebiscite on 0ctober &2, &('24.
2 Art. D6, sec. &, &(AB Constitution ;see Art. D6%, secs. & and *, &('A Constitution<.
' !esolution on motion for reconsideration in olentino vs. Comelec dated ?ov. J, &('&, at page A.
) %dem, at page J.
( %dem, at page J
&9 %dem, at page J.
&& Marshall, C... in Marburg vs. Madison, & Cranch &A';&)9A<.
&* Cooley$s Constitutional +imitations, )th /d., 6ol. &, p. )&
&A %dem, pp. )'C)).
&J .avellana vs$ /8ec. -ecretary, B9 -C!A A9 ;&('A<.
&B Majority opinion at p.*9.
&2 *& -C!A ''J;&(2'<
&' Citing -ec.&,Art.6%,&(AB Constitution
&) -ee sec.&,Art. 6%%%,&('A Constitution
&( A#uino vs. Comelec, 2* -C!A *'B ;.an. A&, &('B<:see also 3on"ales vs. Comelec, +CJ9&&', 1eb. **, &('B
*9 Cooley, Constitutional +imitations, )th /d., 6ol. &, p. **J
*& 2A Phil. &AJ;&(A2<.
*A -unday /8press ;and imes .ournal< issues of August *(, &('2 reported that 4;A<s proposed by the sanggunian and barangay national
e8ecutive committees, the follo,ing #uestions ,ill be submitted in the discussions and referendums7
& Do you ,ant martial la, to be liftedI
* Do you ,ant to call the interim ?ational AssemblyI
A %f not, do you ,ant to call a body ,ith legislative po,ersI
J Do you ,ant such body to have full legislative po,ersI
B %f not, do you ,ant such body to have limited legislative po,ers as may be determined by the President in a presidential decreeI
2 %f you ,ant to call a body ,ith certain legislative po,ers, do you ,ant to grant such body authority to propose amendments to the
Constitution to make it conform ,ith the aims to the ?e, -ocietyI
' %f you ,ant to call the body referred to #uestions J, B, and 2, do you ,ant the members of such body elected by the people through the
barangays in accordance ,ith an election code to be promulgated in a decree by the PresidentI
4he barangay and sanggunian e8ecutive committees informed the President that it ,as $the thing of the barangays to undertake the
referendum on an informal manner and that they opted to devise their o,n ballots, tally sheets, and all other necessary from.$
4As proposed, and approved by the President, the referendum ,ill be done by secret ballot, e8cept in small barangays ,here the residents
can be gathered in one assembly to decide on the issues by roll call vote if desired by residents.
4he canvassing ,ill be done by the barangay referendum committee.4
*J 4he other issue to be taken up in the public discussions is the #uestion on ,hether the interim national assembly should be convened or
not.
4his #uestion ,as asked in t,o previous referendaCin &('A and &('B C and ,as rejected each time by the people
4he barangays, ho,ever, of feel it is time to again ask the people$s opinion of this matter.4 ;Phil. /8press issue of Aug. A9,&('2<.
*B Art. %D, see. &, &('A Constitution.
*2 Cooleys Constitutional +imitations, )th /d. 6ol. *, p. &AJ(, citing Chief .ustice Davis in 3ibson vs. Mason, B ?ev. *(A, *(& thus: 4he
ma8im ,hich lies at the foundation of our government is that all political po,er originates ,ith the people. But since the organi"ation of
government it cannot be claimed that either the legislative, e8ecutive, or judicial po,ers, either ,holly or in part, can be e8ercised by them.
By the institution of government the people surrender the e8ercise of all these sovereign functions of government to agents chosen by
themselves, ,ho at least theoretically represent the supreme ,ill of their constituents. hus all po,er possessed by the people themselves is
given and centered in their chosen representatives
*' -ee fns. )C&97 note in parenthesis supplied.
*) olentino vs. Comelec, J& -C!A '9*, '*B: emphasis supplied.
*( A2 -C!A **) *AJ ;&('9<.
A9 !esolution denying motion for reconsideration dated ?ov. J, &('&, at page &A.
A& %dem, at page &2 fn. 2.
A* Majority opinion, at page &(.
AA %dem, at page *9.
AAQ !odrigue" vs. 3ella (* Phil. 29A ;&(BA<: see also Araneta vs. Dinglasan, )J Phil. A2) ;&(J(<.
AJ 3on"ales vs. Comelec, +CJ9&&', !esolution of 1eb. **,&('B.
AB %n re /gan ) 1ed. Cas. A2', holding that 4Martial la, is neither more nor less than the ,ill of the general in command of the armyC %t
overreaches and supersedes, all civil la, by the e8ercise of military po,er..4 as cited in the -ecretary of .ustice$s outline of a study on the
e8ercise of +egislative Po,er by the President under Martial +a,, dated Dec. *', &('*, as reported in +a,yers$ .ournal, March A&, &('A
issue, p. (9.
A2 Cooley$s Constitutional +imitations. )th /d., 6ol. &, pp.&*)C&*(.
A' Eith the e8ception of the proposed amendments increasing the membership of the >ouse of !epresentatives from &*9 to &)9 and
authori"ing members of Congress to become ConCCon delegates, ,hich ,ere ,idely publici"ed as a result of the court proceedings and
decision in 3on"ales vs. Comelec, *& -C!A ''J.
A) 4Perspectives and Dimensions of Constitutional !eforms4 delivered as keynote speech at the ?ational Conference on Constitutional
Amendments, .uly *',&('9.
A( Articles 6%%%, %D and D, &('A Constitution.
J9 =.P. Professor Perfecto 6. 1ernande"7 Civil +iberties under Martial +a,.
J& +ouis >. Pollale he Constitution and the -upreme Court, 6ol. &, page &(&.
J* -upra, fn. &2.
JA -upra, fn. *).
JJ -ec. Art. 6%%%, sec. * &(AB Constitution: Art. D, sec. B, &('A Constitution
JB -C!A A9 ;&('A< and cases cited.
J2 ?o, retired .ustices ..B.+. !eyes and Cali8to 9. 5aldivar.
J' -C!A at p. 'AA.
J) *& -C!A at pages )&2C)&', emphasis copied.
J( 1rom Am. +a, !evie,, &))(, p. A&&, citing /llingham vs. Dye (( ?./. pp. J,&B: emphasis copied.
B9 *& -C!A at p. )&'.
B& Phil. Daily /8press issue of 0ct. &&, &('2 reporting the Comelec$s stand that 4@oung voters, from age &B to belo, &) can vote not only on
the #uestion of martial la, but also on the #uestion regarding the proposed constitutional amendments4.
B* Phil. Daily /8press issue of 0ct. A, &('2.
BA imes journal and Phil. Daily /8press issues of 0ct. &&, &('2.
BJ %n the Bulletin oday issue of 0ctober *, &('2, the President is #uoted as himself abstaining from the debates7 4% am trying to steer clear
of the debates because it involves martial la,, and it involves, of course, me personally. -o the less % say about it, the better, % guess, from
my point of vie,4.
BJQ Pres. Marcos$ address on observance of the first anniversary of the &('A Constitution on .an. &', &('J: Phil. +abor !elations .ournal,
6ol. 6%%, .an. &('J, p. 2.
BB he resolution gave the same permission to court personnel by a ( to & vote ,ith .ustice Makasiar and the ,riter presenting no objection
in the case of personnel as classified civil service employees, ,hile .ustice Muno" Palma maintained the same negative vote.
& A#uino, .. vs Ponce /nrile and other cases, B( -C!A &)A.
* B9 -C!A A9, *9( et se#.
& Carl Brent -,isher. he -upreme Court in the Modern !ole, &(B) ed., p. &'A.
* Melville 1uller Eeston, Political #uestions, A) >arv. +. !ev., *(2, %talics supplied.
A anada v. Cuenco, &9A Phil. &9B&, &9B', citing in re McConoughy, &&( ?E J9). %talics supplied.
J &2 C...s. J&A.
B A2( =.-. &)2, *&'.
2 A9' =.-. JAA.
' ') Phil, & ;&(J'<.
) *& -C!A ''J.
( !epublic Act ?o. J&A.
&9 J& -C!A '9*,
&& +CJ999J, .anuary Al, &('B. 2* -C!A *'B.
&* Proclamation ?o. &&9A, .anuary &',&('A.
&A -ection &, Article %%, Constitution.
&J +eibhol"7 Politics and +a,, p. *J.
&B odays !evolution7 Democracy, Marcos, pp. )'C)).
&2 Mabanag v. +ope" 6ito, supra, at page B, citing 3reen v. Eeller, A* Miss., 2B9: note, &9 +.r.a., n.s., &B9.
&' .ohn P. ,heeler, .r., Changing the fundamental +a, -A+%/? %--=/- 01 C0?-%=%0?A+ !/6%-%0?: &(2& ed.
&) -inco. Philippine Political +a,, &9th /d. p. J)
&( .-.?. of hearing, 0ctober ),&('2, pp. ),&&,&*,&B.
Q p. '&2, &('J /d., citing B. -ch,art", % he Po,ers of 3overnment ;&(2A< &9.
888 888 888
%t is ,ell that the po,ers of the people and their relations to organi"ed society should be understood. ?o heresy has ever been taught in this
country so fraught ,ith 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 la,. %t tends directly to the encouragement of
revolution and anarchy. %t is incumbent upon all ,ho influence and mold public opinion to repudiate and discountenance so dangerous a
doctrine before it bears fruits destructive of republican institutions. %t ,ill be ,ell if the people come to understand the difference bet,een
natural and constitutional freedom. before license becomes destructive of liberty .4 ;pp. 2&&C2&2<
J 3reen castle o,nship v. Black, B %nd.,BB', B2,B.
B 0akley vs. Aspin,all, A ?.@., BJ',B2).
2 !esolution on Motion for !econsideration, +CAJ&B9, ?ovember J, &('&, per Barredo, .., pp &(C*9, -upreme Court Decisions, ?ovember
&('&
2 Ehenever in the judgment of the President ;Prime Minister there e8ists a brave emergency or a threat or imminence thereof, or ,henever
the interim Batasang Pambansa or the regular ?ational Assembly fails or is unable to act ade#uately on any matter for any reason that in his
judgment re#uires immediate action, he may in order to meet the e8igency, issue the necessary decrees, orders or letters of instructions,
,hich shall form part of the la, of the land. ;aken from the Barangay Ballot 1orm distributed by C0M/+/C for !eferendumCPlebiscite,
0ctober &2, &('2<
' -peech upon conferment of the Doctor of +a,s, >onoris Causa, by the Manila =niversity, the +a,yers$ .ournal, .une &B, &(A2, italics
0urs.
) he +a,yers$ .ournal, March &B, &(A2,
& agada M by Macapagal v. Cuenco, et al.. &9A Phil. &9B&
* +C*)&(2. ?ov. (,&(2': *& -C!A ''J.
A +CAJ&B9, 0ct. &2, &('&, J& -C!A '9*.
J Article D6%%, -ection &, Constitution.
B A#uino vs.. Comelec, +CJ999J, .an. A&, &('B, 2* -C!A *'B, A9*.
( %dem, at page J.
&9 %dem, at page J.
&& Marshall, C... in Marburg vs. Madison, % Cranch &A' ;&)9A<.
&* Cooley$s Constitutional +imitations, )th /d., 6ol. &, p. )&.
SUPREME COURT
Manila
EN BANC

G.R. No. 147345 Ma,'& 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALE?ANDER .ADILLA, a! MARIA ISA$EL ONG.IN,
petitioners,
vs.
COMMISSION ON ELECTIONS, JES"S DELFIN, AL$ERTO .EDROSA @ CARMEN .EDROSA,
% t&+%, 'a(a'%t%+s as -ou!%g 7+78+,s o- t&+ .+o(0+As I%t%at%*+ -o, R+-o,7s, Mo!+,%/at%o
a! A't%o B.IRMAC, respondents.
SENATOR RA"L S. ROCO, DEMO6RAS9A3I.AGTANGGOL ANG 6ONSTIT"S9ON BDI6C,
MO2EMENT OF ATTORNE9S FOR $ROT#ER#OOD INTEGRIT9 AND NATIONALISM, INC.
BMA$INIC, INTEGRATED $AR OF T#E .#ILI..INES BI$.C, a! LA$AN NG DEMO6RATI6ONG
.ILI.INO BLA$ANC, petitionersCintervenors.

DA2IDE, JR., J.:
he heart of this controversy brought to us by ,ay of a petition for prohibition under !ule 2B of the
!ules of Court is the right of the people to directly propose amendments to the Constitution through
the system of initiative under -ection * of Article D6%% of the &()' Constitution. =ndoubtedly, this
demands special attention, as this system of initiative ,as unkno,n to the people of this country,
e8cept perhaps to a fe, scholars, before the drafting of the &()' Constitution. he &()2
Constitutional Commission itself, through the original proponent
1
and the main sponsor
4
of the
proposed Article on Amendments or !evision of the Constitution, characteri"ed this system as
4innovative4.
3
%ndeed it is, for both under the &(AB and &('A Constitutions, only t,o methods of
proposing amendments to, or revision of, the Constitution ,ere recogni"ed, viz., ;&< by Congress
upon a vote of threeCfourths of all its members and ;*< by a constitutional convention.
5
1or this and
the other reasons hereafter discussed, ,e resolved to give due course to this petition.
0n 2 December &((2, private respondent Atty. .esus -. Delfin filed ,ith public respondent
Commission on /lections ;hereafter, C0M/+/C< a 4Petition to Amend the Constitution, to +ift erm
+imits of /lective 0fficials, by People$s %nitiative4 ;hereafter, Delfin Petition<
5
,herein Delfin asked the
C0M/+/C for an order
&. 1i8ing the time and dates for signature gathering all over the country:
*. Causing the necessary publications of said 0rder and the attached 4Petition for %nitiative on the &()'
Constitution, in ne,spapers of general and local circulation:
A. %nstructing Municipal /lection !egistrars in all !egions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People$s %nitiative,
:
a
group of citi"ens desirous to avail of the system intended to institutionali"e people po,er: that he and
the members of the Movement and other volunteers intend to e8ercise the po,er to directly propose
amendments to the Constitution granted under -ection *, Article D6%% of the Constitution: that the
e8ercise of that po,er shall be conducted in proceedings under the control and supervision of the
C0M/+/C: that, as re#uired in C0M/+/C !esolution ?o. *A99, signature stations shall be
established all over the country, ,ith the assistance of municipal election registrars, ,ho shall verify
the signatures affi8ed 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
fi8ed in an order to be issued by the C0M/+/C: and that to ade#uately inform the people of the
electoral process involved, it is like,ise necessary that the said order, as ,ell as the Petition on ,hich
the signatures shall be affi8ed, be published in ne,spapers of general and local circulation, under the
control and supervision of the C0M/+/C.
he Delfin Petition further alleged that the provisions sought to be amended are -ections J and ' of
Article 6%,
7
-ection J of Article 6%%,
8
and -ection ) of Article D
9
of the Constitution. Attached to the
petition is a copy of a 4Petition for %nitiative on the &()' Constitution4
10
embodying the proposed
amendments ,hich consist in the deletion from the aforecited sections of the provisions concerning
term limits, and ,ith the follo,ing proposition7
D0 @0= APP!06/ 01 +%1%?3 >/ /!M +%M%- 01 A++ /+/C%6/ 306/!?M/? 011%C%A+-,
AM/?D%?3 10! >/ P=!P0-/ -/C%0?- J A?D ' 01 A!%C+/ 6%, -/C%0? J 01 A!%C+/ 6%%,
A?D -/C%0? ) 01 A!%C+/ D 01 >/ &()' P>%+%PP%?/ C0?-%=%0?I
According to Delfin, the said Petition for %nitiative ,ill first be submitted to the people, and after it is
signed by at least t,elve per cent of the total number of registered voters in the country it ,ill be
formally filed ,ith the C0M/+/C.
=pon the filing of the Delfin Petition, ,hich ,as forth,ith given the number EN. %/4F77 :INITI3TI@E<,
the C0M/+/C, through its Chairman, issued an 0rder
11
;a< directing Delfin 4to cause the publication
of the petition, together ,ith the attached Petition for %nitiative on the &()' Constitution ;including the
proposal, proposed constitutional amendment, and the signature form<, and the notice of hearing in
three ;A< daily ne,spapers of general circulation at his o,n e8pense4 not later than ( December
&((2: and ;b< setting the case for hearing on &* December &((2 at &9799 a.m.
At the hearing of the Delfin Petition on &* December &((2, the follo,ing appeared7 Delfin and Atty.
Pete P. Puadra: representatives of the People$s %nitiative for !eforms, Moderni"ation and Action
;P%!MA<: intervenorCoppositor -enator !aul -. !oco, together ,ith his t,o other la,yers, and
representatives of, or counsel for, the %ntegrated Bar of the Philippines ;%BP<, DemokrasyaC
%pagtanggol ang Nonstitusyon ;D%N<, Public %nterest +a, Center, and +aban ng Demokratikong
Pilipino ;+ABA?<.
14
-enator !oco, on that same day, filed a Motion to Dismiss the Delfin Petition on
the ground that it is not the initiatory petition properly cogni"able by the C0M/+/C.
After hearing their arguments, the C0M/+/C directed Delfin and the oppositors to file their
4memoranda andFor oppositionsFmemoranda4 ,ithin five days.
13
0n &) December &((2, the petitioners herein K -enator Miriam Defensor -antiago, Ale8ander
Padilla, and Maria %sabel 0ngpin K filed this special civil action for prohibition raising the follo,ing
arguments7
;&< he constitutional provision on people$s initiative to amend the Constitution can only be implemented
by la, to be passed by Congress. ?o such la, has been passed: in fact, -enate Bill ?o. &*(9 entitled 3n
3ct Prescri#in+ an! >e+ulatin+ Constitution 3(en!(ents # PeopleDs Initiative, ,hich petitioner -enator
-antiago filed on *J ?ovember &((B, is still pending before the -enate Committee on Constitutional
Amendments.
;*< %t is true that !.A. ?o. 2'AB provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. >o,ever, it failed to provide any subtitle on initiative on
the Constitution, unlike in the other modes of initiative, ,hich are specifically provided for in -ubtitle %% and
-ubtitle %%%. his deliberate omission indicates that the matter of people$s initiative to amend the
Constitution ,as left to some future la,. 1ormer -enator Arturo olentino stressed this deficiency in the
la, in his privilege speech delivered before the -enate in &((J7 4here is not a single ,ord in that la,
,hich can be considered as implementing Gthe provision on constitutional initiativeH. -uch implementing
provisions have been obviously left to a separate la,.
;A< !epublic Act ?o. 2'AB provides for the effectivity of the la, after publication in print media. his
indicates that the Act covers only la,s and not constitutional amendments because the latter take effect
only upon ratification and not after publication.
;J< C0M/+/C !esolution ?o. *A99, adopted on &2 .anuary &((& to govern 4the conduct of initiative on
the Constitution and initiative and referendum on national and local la,s, is ultra vires insofar as initiative
on amendments to the Constitution is concerned, since the C0M/+/C has no po,er to provide rules and
regulations for the e8ercise of the right of initiative to amend the Constitution. 0nly Congress is authori"ed
by the Constitution to pass the implementing la,.
;B< he people$s initiative is limited to a(en!(ents to the Constitution, not to revision thereof. /8tending
or lifting of term limits constitutes a revision and is, therefore, outside the po,er of the people$s initiative.
;2< 1inally, Congress has not yet appropriated funds for people$s initiative: neither the C0M/+/C nor any
other government department, agency, or office has realigned funds for the purpose.
o justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the C0M/+/C grants the Delfin Petition, the people$s initiative spearheaded by P%!MA
,ould entail e8penses to the national treasury for general reCregistration of voters amounting to at
least P&)9 million, not to mention the millions of additional pesos in e8penses ,hich ,ould be
incurred in the conduct of the initiative itself. >ence, the transcendental importance to the public and
the nation of the issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a ta8payer$s and
legislator$s suit.
15
Besides, there is no other plain, speedy, and ade#uate remedy in the ordinary
course of la,.
0n &( December &((2, this Court ;a< re#uired the respondents to comment on the petition ,ithin a
nonCe8tendible period of ten days from notice: and ;b< issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent C0M/+/C from
proceeding ,ith the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for people$s initiative to amend the Constitution.
0n * .anuary &((', private respondents, through Atty Puadra, filed their Comment
15
on the petition.
hey argue therein that7
&. % %- ?0 !=/ >A 4% E0=+D /?A%+ /DP/?-/- 0 >/ ?A%0?A+ !/A-=!@ 10!
3/?/!A+ !/3%-!A%0? 01 60/!- AM0=?%?3 0 A +/A- P/-0-7 0?/ >=?D!/D
/%3>@ M%++%0? ;P&)9,999,999.99<4 %1 >/ 4C0M/+/C 3!A?- >/ P/%%0? 1%+/D B@
!/-P0?D/? D/+1%? B/10!/ >/ C0M/+/C.
*. ?0 A -%?3+/ C/?A60 E0=+D B/ -P/? B@ >/ ?A%0?A+ 306/!?M/? %1 >/
C0M/+/C 3!A?- >/ P/%%0? 01 !/-P0?D/? D/+1%?. A++ /DP/?-/- %? >/
-%3?A=!/ 3A>/!%?3 A!/ A++ 10! >/ ACC0=? 01 !/-P0?D/? D/+1%? A?D >%-
60+=?//!- P/! >/%! P!03!AM 01 AC%6%%/- A?D /DP/?D%=!/- -=BM%/D 0 >/
C0M/+/C. >/ /-%MA/D C0- 01 >/ DA%+@ P/! D%/M 01 >/ -=P/!6%-%?3 -C>00+
/AC>/!- %? >/ -%3?A=!/ 3A>/!%?3 0 B/ D/P0-%/D and 0 B/ PA%D B@ D/+1%? A?D
>%- 60+=?//!- %- P*,B'&,*99.99:
A. >/ P/?D%?3 P/%%0? B/10!/ >/ C0M/+/C %- 0?+@ 0? >/ -%3?A=!/ 3A>/!%?3
E>%C> B@ +AE C0M/+/C %- D=@ B0=?D 40 -=P/!6%-/ C+0-/+@4 P=!-=A? 0 %-
4%?%%A0!@ .=!%-D%C%0?4 =P>/+D B@ >/ >0?0!AB+/ C0=! %? %- !/C/? -/P/MB/!
*2, &((2 D/C%-%0? %? >/ CA-/ 01 SE"IC "3Y 'ET>OPO0IT3N 3ETCO>ITY @S. CO'E0EC, ET
30. 3.!. ?0. &*BJ&2:
J. !/P. AC ?0. 2'AB APP!06/D 0? A=3=- J, &()( %- >/ /?AB+%?3 +AE %MP+/M/?%?3
>/ P0E/! 01 P/0P+/ %?%%A%6/ 0 P!0P0-/ AM/?DM/?- 0 >/ C0?-%=%0?.
-/?A0! D/1/?-0!C-A?%A30$- -/?A/ B%++ ?0. &*(9 %- A D=P+%CA%0? 01 E>A A!/
A+!/AD@ P!06%D/D 10! %? !/P. AC ?0. 2'AB:
B. C0M/+/C !/-0+=%0? ?0. *A99 P!0M=+3A/D 0? .A?=A!@ &2, &((& P=!-=A? 0 !/P.
AC 2'AB EA- =P>/+D B@ >/ >0?0!AB+/ C0=! %? >/ !/C/? -/P/MB/! *2, &((2
D/C%-%0? %? >/ CA-/ 01 SE"IC "3Y 'ET>OPO0IT3N 3ETCO>ITY @S. CO'E0EC, ET 30. 3.!.
?0. &*BJ&2 E>/!/ >/ >0?0!AB+/ C0=! -A%D7 4>/ C0MM%--%0? 0? /+/C%0?- CA? D0
?0 +/-- B@ -/A-0?AB+@ A?D .=D%C%0=-+@ P!0M=+3A%?3 3=%D/+%?/- A?D !=+/- 10!
B0> ?A%0?A+ A?D +0CA+ =-/, %? %MP+/M/?%?3 01 >/-/ +AE-.4
2. /6/? -/?A0! D/1/?-0!C-A?%A30$- -/?A/ B%++ ?0. &*(9 C0?A%?- A P!06%-%0?
D/+/3A%?3 0 >/ C0M/+/C >/ P0E/! 0 4P!0M=+3A/ -=C> !=+/- A?D
!/3=+A%0?- A- MA@ B/ ?/C/--A!@ 0 CA!!@ 0= >/ P=!P0-/- 01 >%- AC.4 ;-/C.
&*, -.B. ?0. &*(9, /?C+0-/D A- A??/D /, P/%%0?<:
'. >/ +%1%?3 01 >/ +%M%A%0? 0? >/ /!M 01 011%C/ 01 /+/C%6/ 011%C%A+-
P!06%D/D =?D/! >/ &()' C0?-%=%0? %- ?0 A 4!/6%-%0?4 01 >/ C0?-%=%0?. % %-
0?+@ A? AM/?DM/?. 4AM/?DM/? /?6%-A3/- A? A+/!A%0? 01 0?/ 0! A 1/E
-P/C%1%C P!06%-%0?- 01 >/ C0?-%=%0?. !/6%-%0? C0?/MP+A/- A !/C/DAM%?A%0?
01 >/ /?%!/ D0C=M/? 0 D//!M%?/ >0E A?D 0 E>A /D/? % ->0=+D B/
A+/!/D.4 ;PP. J&*CJ&A, *?D. /D. &((*, &9(' P>%+. C0?-%=%0?, B@ .0AP=%? 3. B/!?A-,
-...<.
Also on * .anuary &((', private respondent Delfin filed in his o,n behalf a Comment
1:
,hich starts
off ,ith an assertion that the instant petition is a 4kneeCjerk reaction to a draft $Petition for %nitiative on
the &()' Constitution$. . . ,hich is not formally filed yet.4 Ehat he filed on 2 December &((2 ,as an
4%nitiatory Pleading4 or 4%nitiatory Petition,4 ,hich ,as legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures under C0M/+/C
po,er and function. 0n the substantive allegations of the petitioners, Delfin maintains as follo,s7
;&< Contrary to the claim of the petitioners, there is a la,, !.A. ?o. 2'AB, ,hich governs the conduct of
initiative to amend the Constitution. he absence therein of a subtitle for such initiative is not fatal, since
subtitles are not re#uirements for the validity or sufficiency of la,s.
;*< -ection (;b< of !.A. ?o. 2'AB 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.
;A< he claim that C0M/+/C !esolution ?o. *A99 is ultra vires is contradicted by ;a< -ection *, Article
%DCC of the Constitution, ,hich grants the C0M/+/C the po,er to enforce and administer all la,s and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall: and ;b<
-ection *9 of !.A. 2'AB, ,hich empo,ers the C0M/+/C to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
;J< he proposed initiative does not involve a revision of, but mere a(en!(ent to, the Constitution
because it seeks to alter only a fe, specific provisions of the Constitution, or more specifically, only those
,hich lay term limits. %t does not seek to ree8amine or overhaul the entire document.
As to the public e8penditures for registration of voters, Delfin considers petitioners$ estimate of P&)9
million as unreliable, for only the C0M/+/C can give the e8act figure. Besides, if there ,ill be a
plebiscite it ,ill be simultaneous ,ith the &((' Barangay /lections. %n any event, fund re#uirements
for initiative ,ill be a priority government e8pense because it ,ill be for the e8ercise of the sovereign
po,er of the people.
%n the Comment
17
for the public respondent C0M/+/C, filed also on * .anuary &((', the 0ffice of
the -olicitor 3eneral contends that7
;&< !.A. ?o. 2'AB deals ,ith, inter alia, people$s initiative to amend the Constitution. %ts -ection * on
-tatement of Policy e8plicitly affirms, recogni"es, and guarantees that po,er: and its -ection A, ,hich
enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as
the po,er to propose amendments to the Constitution. +ike,ise, its -ection B repeatedly mentions
initiative on the Constitution.
;*< A separate subtitle on initiative on the Constitution is not necessary in !.A. ?o. 2'AB because, being
national in scope, that system of initiative is deemed included in the subtitle on ?ational %nitiative and
!eferendum: and -enator olentino simply overlooked pertinent provisions of the la, ,hen he claimed
that nothing therein ,as provided for initiative on the Constitution.
;A< -enate Bill ?o. &*(9 is neither a competent nor a material proof that !.A. ?o. 2'AB does not deal ,ith
;J< /8tension of term limits of elected officials constitutes a mere amendment to the Constitution, not a
revision thereof.
;B< C0M/+/C !esolution ?o. *A99 ,as validly issued under -ection *9 of !.A. ?o. 2'AB and under the
0mnibus /lection Code. he ruleCmaking po,er of the C0M/+/C to implement the provisions of !.A.
?o. 2'AB ,as in fact upheld by this Court in Su#ic "a 'etropolitan 3ut*orit vs. CO'E0EC.
0n &J .anuary &((', this Court ;a< confirmed nunc pro tunc the temporary restraining order: ;b< noted
the aforementioned Comments and the Motion to +ift emporary !estraining 0rder filed by private
respondents through Atty. Puadra, as ,ell as the latter$s Manifestation stating that he is the counsel
for private respondents Alberto and Carmen Pedrosa only and the Comment he filed ,as for the
Pedrosas: and ;c< granted the Motion for %ntervention filed on 2 .anuary &((' by -enator !aul !oco
and allo,ed him to file his Petition in %ntervention not later than *9 .anuary &((': and ;d< set the case
for hearing on *A .anuary &((' at (7A9 a.m.
0n &' .anuary &((', the .e(o-rasa4Ipa+tan++ol an+ Gonstituson ;D%N< and the Movement of
Attorneys for Brotherhood %ntegrity and ?ationalism, %nc. ;MAB%?%<, filed a Motion for %ntervention.
Attached to the motion ,as their Petition in %ntervention, ,hich ,as later replaced by an Amended
Petition in %ntervention ,herein they contend that7
;&< he Delfin proposal does not involve a mere a(en!(ent to, but a revision of, the Constitution
because, in the ,ords of 1r. .oa#uin Bernas, -...,
18
it ,ould 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 synchroni"ation of elections and on the
-tate policy of guaranteeing e#ual access to opportunities for public service and prohibiting political
dynasties.
19
A revision cannot be done by initiative ,hich, by e8press provision of -ection * of Article
D6%% of the Constitution, is limited to a(en!(ents.
;*< he 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, 4to open up the political arena to as
many as there are 1ilipinos #ualified to handle the demands of leadership, to break the concentration of
political and economic po,ers in the hands of a fe,, and to promote effective proper empo,erment for
participation in policy and decisionCmaking for the common good4: hence, to remove the term limits is to
negate and nullify the noble vision of the &()' Constitution.
;A< he Delfin proposal runs counter to the purpose of initiative, particularly in a conflictCofCinterest
situation. Initiative is intended as a fallback position that may be availed of by the people only if they are
dissatisfied ,ith the performance of their elective officials, but not as a premium for good performance.
40
;J< !.A. ?o. 2'AB is deficient and inade#uate in itself to be called the enabling la, that implements the
people$s initiative on amendments to the Constitution. %t fails to state ;a< the proper parties ,ho may file
the petition, ;b< the appropriate agency before ,hom the petition is to be filed, ;c< the contents of the
petition, ;d< the publication of the same, ;e< the ,ays and means of gathering the signatures of the voters
nation,ide and AS per legislative district, ;f< the proper parties ,ho may oppose or #uestion the veracity
of the signatures, ;g< the role of the C0M/+/C in the verification of the signatures and the sufficiency of
the petition, ;h< the appeal from any decision of the C0M/+/C, ;%< the holding of a plebiscite, and ;g< the
appropriation of funds for such people$s initiative. Accordingly, there being no enabling la,, the
C0M/+/C has no jurisdiction to hear Delfin$s petition.
;B< he deficiency of !.A. ?o. 2'AB cannot be rectified or remedied by C0M/+/C !esolution ?o. *A99,
since the C0M/+/C is ,ithout authority to legislate the procedure for a people$s initiative under -ection *
of Article D6%% of the Constitution. hat function e8clusively pertains to Congress. -ection *9 of !.A. ?o.
2'AB does not constitute a legal basis for the !esolution, as the former does not set a sufficient standard
for a valid delegation of po,er.
0n *9 .anuary &((', -enator !aul !oco filed his Petition in
%ntervention.
41
>e avers that !.A. ?o. 2'AB is the enabling la, that implements the people$s right to
initiate constitutional amendments. his la, is a consolidation of -enate Bill ?o. &' and >ouse Bill
?o. *&B9B: he coCauthored the >ouse Bill and even delivered a sponsorship speech thereon. >e
like,ise submits that the C0M/+/C ,as empo,ered under -ection *9 of that la, to promulgate
C0M/+/C !esolution ?o. *A99. ?evertheless, he contends that the respondent Commission is
,ithout jurisdiction to take cogni"ance of the Delfin Petition and to order its publication because the
said petition is not the initiatory pleading contemplated under the Constitution, !epublic Act ?o. 2'AB,
and C0M/+/C !esolution ?o. *A99. Ehat vests jurisdiction upon the C0M/+/C in an initiative on
the Constitution is the filing of a petition for initiative ,hich is si+ne! by the re#uired number of
registered voters. >e also submits that the proponents of a constitutional amendment cannot avail of
the authority and resources of the C0M/+/C to assist them is securing the re#uired number of
signatures, as the C0M/+/C$s role in an initiative on the Constitution is limited to the determination
of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if ,arranted.
0n *9 .anuary &((', +ABA? filed a Motion for +eave to %ntervene.
he follo,ing day, the %BP filed a Motion for %ntervention to ,hich it attached a Petition in %ntervention
raising the follo,ing arguments7
;&< Congress has failed to enact an enabling la, mandated under -ection *, Article D6%% of the &()'
Constitution.
;*< C0M/+/C !esolution ?o. *A99 cannot substitute for the re#uired implementing la, on the initiative to
amend the Constitution.
;A< he Petition for %nitiative suffers from a fatal defect in that it does not have the re#uired number of
signatures.
;J< he petition seeks, in effect a revision of the Constitution, ,hich can be proposed only by Congress or
a constitutional convention.
44
0n *& .anuary &((', ,e promulgated a !esolution ;a< granting the Motions for %ntervention filed by
the D%N and MAB%?% and by the %BP, as ,ell as the Motion for +eave to %ntervene filed by +ABA?: ;b<
admitting the Amended Petition in %ntervention of D%N and MAB%?%, and the Petitions in %ntervention of
-enator !oco and of the %BP: ;c< re#uiring the respondents to file ,ithin a none8tendible period of five
days their Consolidated Comments on the aforesaid Petitions in %ntervention: and ;d< re#uiring
+ABA? to file its Petition in %ntervention ,ithin a none8tendible period of three days from notice, and
the respondents to comment thereon ,ithin a none8tendible period of five days from receipt of the
said Petition in %ntervention.
At the hearing of the case on *A .anuary &((', the parties argued on the follo,ing pivotal issues,
,hich the Court formulated in light of the allegations and arguments raised in the pleadings so far
filed7
&. Ehether !.A. ?o. 2'AB, entitled An Act Providing for a -ystem of %nitiative and !eferendum and
Appropriating 1unds herefor, ,as intended to include or cover initiative on amendments to the
Constitution: and if so, ,hether the Act, as ,orded, ade#uately covers such initiative.
*. Ehether that portion of C0M/+/C !esolution ?o. *A99 ;%n re7 !ules and !egulations 3overning the
Conduct of %nitiative on the Constitution, and %nitiative and !eferendum on ?ational and +ocal +a,s<
regarding the conduct of initiative on amendments to the Constitution is vali!, considering the absence in
the la, of specific provisions on the conduct of such initiative.
A. Ehether the lifting of term limits of elective national and local officials, as proposed in the draft 4Petition
for %nitiative on the &()' Constitution,4 ,ould constitute a revision of, or an amendment to, the
Constitution.
J. Ehether the C0M/+/C can take cogni"ance of, or has jurisdiction over, a petition solely intended to
obtain an order ;a< fi8ing the time and dates for signature gathering: ;b< instructing municipal election
officers to assist Delfin$s movement and volunteers in establishing signature stations: and ;c< directing or
causing the publication of, inter alia, the unsigned proposed Petition for %nitiative on the &()' Constitution.
B. Ehether it is proper for the -upreme Court to take cogni"ance of the petition ,hen there is a pending
case before the C0M/+/C.
After hearing them on the issues, ,e re#uired the parties to submit simultaneously their respective
memoranda ,ithin t,enty days and re#uested intervenor -enator !oco to submit copies of the
deliberations on >ouse Bill ?o. *&B9B.
0n *' .anuary &((', +ABA? filed its Petition in %ntervention ,herein it adopts the allegations and
arguments in the main Petition. %t further submits that the C0M/+/C should have dismissed the
Delfin Petition for failure to state a sufficient cause of action and that the Commission$s failure or
refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.
0n *) .anuary &((', -enator !oco submitted copies of portions of both the .ournal and the !ecord
of the >ouse of !epresentatives relating to the deliberations of >ouse Bill ?o. *&B9B, as ,ell as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on -uffrage and /lectoral !eforms, of 2 .une &()( on >ouse Bill ?o. *&B9B and -enate
Bill ?o. &'.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions
in %ntervention of -enator !oco, D%N and MAB%?%, and %BP.
43
he parties thereafter filed, in due time,
their separate memoranda.
45
As ,e stated in the beginning, ,e resolved to give due course to this special civil action.
1or a more logical discussion of the formulated issues, ,e shall first take up the fifth issue ,hich
appears to pose a prejudicial procedural #uestion.
%
>/ %?-A? P/%%0? %- 6%AB+/ D/-P%/ >/ P/?D/?C@ %? >/ C0M/+/C 01 >/
D/+1%? P/%%0?.
/8cept for the petitioners and intervenor !oco, the parties paid no serious attention to the fifth issue,
i.e., ,hether it is proper for this Court to take cogni"ance of this special civil action ,hen there is a
pending case before the C0M/+/C. he petitioners provide an affirmative ans,er. hus7
*). he Comelec has no jurisdiction to take cogni"ance of the petition filed by private respondent Delfin.
his being so, it becomes imperative to stop the Comelec from proceeding any further, and under the
!ules of Court, !ule 2B, -ection *, a petition for prohibition is the proper remedy.
*(. he ,rit of prohibition is an e8traordinary judicial ,rit 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
,ith ,hich it is not legally vested. ;People v. 6era, supra., p. )J<. %n this case the ,rit is an urgent
necessity, in vie, of the highly divisive and adverse environmental conse#uences on the body politic of
the #uestioned Comelec order. he conse#uent climate of legal confusion and political instability begs for
judicial statesmanship.
A9. %n the final analysis, ,hen the system of constitutional la, is threatened by the political ambitions of
man, only the -upreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution.
45
%t must be recalled that intervenor !oco filed ,ith the C0M/+/C a motion to dismiss the Delfin
Petition on the ground that the C0M/+/C has no jurisdiction or authority to entertain the petition.
4:

he C0M/+/C made no ruling thereon evidently because after having heard the arguments of Delfin
and the oppositors at the hearing on &* December &((2, it re#uired them to submit ,ithin five days
their memoranda or oppositionsFmemoranda.
47
/arlier, or specifically on 2 December &((2, it
practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together ,ith the attached Petition for %nitiative, the signature form, and the notice of hearing:
and by setting the case for hearing. he C0M/+/C$s failure to act on !oco$s motion to dismiss and
its insistence to hold on to the petition rendered ripe and viable the instant petition under -ection * of
!ule 2B of the !ules of Court, ,hich provides7
-ec. *. Petition ,or pro*i#ition. K Ehere the proceedings of any tribunal, corporation, board, or person,
,hether e8ercising functions judicial or ministerial, are ,ithout or in e8cess of its or his jurisdiction, or ,ith
grave abuse of discretion, and there is no appeal or any other plain, speedy and ade#uate remedy in the
ordinary course of la,, a person aggrieved thereby may file a verified petition in the proper court alleging
the facts ,ith certainty and praying that judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.
%t must also be noted that intervenor !oco claims that the C0M/+/C has no jurisdiction over the
Delfin Petition because the said petition is not supported by the re#uired minimum number of
signatures of registered voters. +ABA? also asserts that the C0M/+/C gravely abused its discretion
in refusing to dismiss the Delfin Petition, ,hich does not contain the re#uired number of signatures. %n
light of these claims, the instant case may like,ise be treated as a special civil action for certiorari
under -ection % of !ule 2B of the !ules of Court.
%n any event, as correctly pointed out by intervenor !oco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As ,e stated in Gilos#aan, Inc. v. Guin+ona, Jr.
48
A party$s standing before this Court is a procedural technicality ,hich it may, in the e8ercise of its
discretion, set aside in vie, of the importance of issues raised. %n the landmark /mergency Po,ers
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 ,e must,
technicalities of procedure.
%%
!.A. ?0. 2'AB %?/?D/D 0 %?C+=D/ >/ -@-/M 01 %?%%A%6/ 0? AM/?DM/?-
0 >/ C0?-%=%0?, B= %-, =?10!=?A/+@, %?AD/P=A/ 0 C06/! >A
-@-/M.
-ection * of Article D6%% of the Constitution provides7
-ec. *. Amendments to this Constitution may like,ise be directly proposed by the people through
initiative upon a petition of at least t,elve per centu( of the total number of registered voters, of ,hich
every legislative district must be represented by at least three per centu( of the registered voters therein.
?o amendment under this section shall be authori"ed ,ithin five years follo,ing the ratification of this
Constitution nor oftener than once every five years thereafter.
he Congress shall provide for the implementation of the e8ercise of this right.
his provision is not selfCe8ecutory. %n his book,
49
.oa#uin Bernas, a member of the &()2
Constitutional Commission, stated7
Eithout implementing legislation -ection * cannot operate. hus, although this mode of amending the
Constitution is a mode of amendment ,hich 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 ,ould remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. -tated other,ise, ,hile the Constitution has
recogni"ed or granted that right, the people cannot e8ercise it if Congress, for ,hatever
reason, does not provide for its implementation.
his system of initiative ,as originally included in -ection & of the draft Article on Amendment or
!evision proposed by the Committee on Amendments and ransitory Provisions of the &()2
Constitutional Commission in its Committee !eport ?o. ' ;Proposed !esolution ?o. AA*<.
30
hat
section reads as follo,s7
-ec. &. Any amendment to, or revision of, this Constitution may be proposed7
;a< by the ?ational Assembly upon a vote of threeCfourths of all its members: or
;b< by a constitutional convention: or
;c< directly by the people themselves thru initiative as provided for in ArticleTTT -ection TTTof the
Constitution.
31
After several interpellations, but before the period of amendments, the Committee submitted a
ne, formulation of the concept of initiative ,hich it denominated as -ection *: thus7
M!. -=A!/5. hank you, Madam President. May ,e respectfully call attention of the
Members of the Commission that pursuant to the mandate given to us last night, ,e
submitted this afternoon a complete Committee !eport ?o. ' ,hich embodies the
proposed provision governing the matter of initiative. his is no, covered by -ection * of
the complete committee report. Eith the permission of the Members, may % #uote -ection
*7
he 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.
his completes the blanks appearing in the original Committee !eport ?o. '.
34
he interpellations on -ection * sho,ed that the details for carrying out -ection * are le,t to t*e
le+islature. hus7
1!. B/!?A-. Madam President, just t,o simple, clarificatory #uestions.
1irst, on -ection & on the matter of initiative upon petition of at least &9 percent, t*ere are
no !etails in t*e provision on ho, to carry this out. .o )e un!erstan!, t*ere,ore, t*at )e
are leavin+ t*is (atter to t*e le+islatureI
M!. -=A!/5. T*at is ri+*t, Madam President.
1!. B/!?A-. And do ,e also understand, therefore, that ,or as lon+ as t*e le+islature
!oes not pass t*e necessar i(ple(entin+ la) on t*is, t*is )ill not operateI
M!. -=A!/5. hat matter ,as also taken up during the committee hearing, especially
,ith respect to the budget appropriations ,hich ,ould have to be legislated so that the
plebiscite could be called. Ee deemed it best that this matter be left to the legislature.
he 3entleman is right. %n any event, as envisioned, no amendment through the po,er of
initiative can be called until after five years from the date of the ratification of this
Constitution. herefore, the first amendment that could be proposed through the e8ercise
of this initiative po,er ,ould be after five years. %t is reasonably e8pected that ,ithin that
fiveCyear period, t*e National 3sse(#l can co(e up )it* t*e appropriate rules
+overnin+ t*e e6ercise o, t*is po)er.
1!. B/!?A-. -ince the matter is le,t to t*e le+islature H t*e !etails on *o) t*is is to #e
carrie! out K is it possible that, in effect, ,hat ,ill be presented to the people for
ratification is the ,ork of the legislature rather than of the peopleI Does this provision
e8clude that possibilityI
M!. -=A!/5. ?o, it does not e8clude that possibility because even the legislature itself
as a body could propose that amendment, maybe individually or collectively, if it fails to
muster the threeCfourths 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.
888 888 888
M-. AP=%?0. Do % understand from the sponsor that the intention in the proposal is to
vest constituent po,er in the people to amend the ConstitutionI
M!. -=A!/5. hat is absolutely correct, Madam President.
M-. AP=%?0. % fully concur ,ith the underlying precept of the proposal in terms of
institutionali"ing popular participation in the drafting of the Constitution or in the
amendment thereof, but % ,ould have a lot of difficulties in terms of accepting the draft of
-ection *, as ,ritten. Eould the sponsor agree ,ith me that in the hierarchy of legal
mandate, constituent po,er has primacy over all other legal mandatesI
M!. -=A!/5. he Commissioner is right, Madam President.
M-. AP=%?0. And ,ould the sponsor agree ,ith me that in the hierarchy of legal values,
the Constitution is source of all legal mandates and that therefore ,e re#uire a great deal
of circumspection in the drafting and in the amendments of the ConstitutionI
M!. -=A!/5. hat proposition is nondebatable.
M-. AP=%?0. -uch that in order to underscore the primacy of constituent po,er ,e have
a separate article in the constitution that ,ould specifically cover the process and the
modes of amending the ConstitutionI
M!. -=A!/5. hat is right, Madam President.
M-. AP=%?0. herefore, is the sponsor inclined, as the provisions are drafted no,, to
a+ain conce!e to t*e le+islature t*e process or t*e re;uire(ent o, !eter(inin+ t*e
(ec*anics o, a(en!in+ t*e Constitution # peopleDs initiativeI
M!. -=A!/5. T*e (atter o, i(ple(entin+ t*is coul! ver )ell #e place! in t*e *an!s o,
t*e National 3sse(#l, not unless ,e can incorporate into this provision the mechanics
that ,ould ade#uately cover all the conceivable situations.
33
%t ,as made clear during the interpellations that the aforementioned -ection * is limited to proposals
to AM/?D K not to !/6%-/ K the Constitution: thus7
M!. -=A!/5. . . . his proposal ,as suggested on the theory that this matter of
initiative, ,hich came about because of the e8traordinary developments this year, has to
be separated from the traditional modes of amending the Constitution as embodied in
-ection &. he committee members felt that t*is sste( o, initiative s*oul! not e6ten! to
t*e revision o, t*e entire Constitution, so ,e removed it from the operation of -ection & of
the proposed Article on Amendment or !evision.
35
888 888 888
M-. AP=%?0. %n ,hich case, % am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Eould the sponsor be
amenable to accepting an amendment in terms of realigning -ection * as another
subparagraph ;c< of -ection &, instead of setting it up as another separate section as if it
,ere a selfCe8ecuting provisionI
M!. -=A!/5. Ee ,ould be amenable e8cept that, as ,e clarified a ,hile ago, t*is
process o, initiative is li(ite! to t*e (atter o, a(en!(ent an! s*oul! not e6pan! into a
revision ,hich contemplates a total overhaul of the Constitution. hat ,as the sense that
,as conveyed by the Committee.
M-. AP=%?0. %n other ,ords, the Committee ,as attempting to distinguish the coverage
of modes ;a< and ;b< in -ection & to include the process of revision: ,hereas the process
o, initiation to a(en!, )*ic* is +iven to t*e pu#lic, )oul! onl appl to a(en!(entsI
M!. -=A!/5. hat is right. hose ,ere the terms envisioned in the Committee.
35
Amendments to the proposed -ection * ,ere thereafter introduced by then Commissioner >ilario 3.
Davide, .r., ,hich the Committee accepted. hus7
M!. DA6%D/. hank you Madam President. % propose to substitute the entire -ection *
,ith the follo,ing7
M!. DA6%D/. Madam President, % have modified the proposed amendment after taking
into account the modifications submitted by the sponsor himself and the honorable
Commissioners 3uingona, Monsod, !ama, 0ple, de los !eyes and !omulo. he
modified amendment in substitution of the proposed -ection * ,ill no, read as follo,s7
4-/C%0? *. K AM/?DM/?- 0 >%- C0?-%=%0? MA@ +%N/E%-/ B/
D%!/C+@ P!0P0-/D B@ >/ P/0P+/ >!0=3> %?%%A%6/ =P0? A P/%%0?
01 A +/A- E/+6/ P/!C/? 01 >/ 0A+ ?=MB/! 0f !/3%-/!/D
60/!-, 01 E>%C> /6/!@ +/3%-+A%6/ D%-!%C M=- B/ !/P!/-/?/D B@
A +/A- >!// P/!C/? 01 >/ !/3%-/!/D 60/!- >/!/01. ?0
AM/?DM/? =?D/! >%- -/C%0? ->A++ B/ A=>0!%5/D E%>%? 1%6/ @/A!-
10++0E%?3 >/ !A%1%CA%0? 01 >%- C0?-%=%0? ?0! 01/?/! >A?
0?C/ /6/!@ 1%6/ @/A!- >/!/A1/!.
>/ ?A%0?A+ A--/MB+@ ->A++ B@ +AE P!06%D/ 10! >/ %MP+/M/?A%0?
01 >/ /D/!C%-/ 01 >%- !%3>.
M!. -=A!/5. Madam President, considering that the proposed amendment is reflective
of the sense contained in -ection * of our completed Committee !eport ?o. ', ,e accept
the proposed amendment.
3:
he interpellations ,hich ensued on the proposed modified amendment to -ection * clearly sho,ed
t*at it )as a le+islative act )*ic* (ust i(ple(ent t*e e6ercise o, t*e ri+*t. hus7
M!. !0M=+0. =nder Commissioner Davide$s amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .I
M!. DA6%D/. %t can.
888 888 888
M!. !0M=+0. But the Commissioner$s amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
M!. DA6%D/. he Commissioner is correct. %n other ,ords, the implementation of this
particular right ,ould be subject to legislation, provided the legislature cannot determine
anymore the percentage of the re#uirement.
M!. !0M=+0. "ut t*e proce!ures, inclu!in+ t*e !eter(ination o, t*e proper ,or( ,or
su#(ission to t*e people, (a #e su#5ect to le+islation.
M!. DA6%D/. 3s lon+ as it )ill not !estro t*e su#stantive ri+*t to initiate. %n other ,ords,
none of the procedures to be proposed by the legislative body must diminish or impair the
right conceded here.
M!. !0M=+0. %n that provision of the Constitution can t*e proce!ures )*ic* I *ave
!iscusse! #e le+islate!I
M!. DA6%D/. Yes.
37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AM/?DM/?- to K ?0 !/6%-%0? of K the Constitution. hus7
M!. DA6%D/. Eith pleasure, Madam President.
M!. MAAMB0?3. My first #uestion7 Commissioner Davide$s proposed amendment on
line & refers to 4amendment.4 Does it not cover the ,ord 4revision4 as defined by
Commissioner Padilla ,hen he made the distinction bet,een the ,ords 4amendments4
and 4revision4I
M!. DA6%D/. ?o, it does not, because 4amendments4 and 4revision4 should be covered
by -ection &. -o insofar as initiative is concerned, it can only relate to 4amendments4 not
4revision.4
38
Commissioner Davide further emphasi"ed that the process of proposing amendments through
initiative must be more rigorous and difficult than the initiative on legislation. hus7
M!. DA6%D/. A distinction has to be made that under this proposal, ,hat is involved is
an amendment to the Constitution. o amend a Constitution ,ould ordinarily re#uire a
proposal by the ?ational Assembly by a vote of threeCfourths: and to call a constitutional
convention ,ould re#uire a higher number. Moreover, just to submit the issue of calling a
constitutional convention, a majority of the ?ational Assembly is re#uired, 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 la, proposed by the
?ational Assembly by ,ay of a referendum. % cannot agree to reducing the re#uirement
approved by the Committee on the +egislative because it ,ould re#uire another voting by
the Committee, and the voting as precisely based on a re#uirement of &9 percent.
Perhaps, % might present such a proposal, by ,ay of an amendment, ,hen the
Commission shall take up the Article on the +egislative or on the ?ational Assembly on
plenary sessions.
39
he Davide modified amendments to -ection * ,ere subjected to amendments, and the final version,
,hich the Commission approved by a vote of A& in favor and A against, reads as follo,s7
M!. DA6%D/. hank you Madam President. -ection *, as amended, reads as follo,s7
4AM/?DM/? 0 >%- C0?-%=%0? MA@ +%N/E%-/ B/ D%!/C+@ P!0P0-/D
B@ >/ P/0P+/ >!0=3> %?%%A%6/ =P0? A P/%%0? 01 A +/A- E/+6/
P/!C/? 01 >/ 0A+ ?=MB/! 01 !/3%-/!/D 60/!-, 01 E>%C> /6/!@
+/3%-+A%6/ D%-!%C M=- B/ !/P!/-/?/D B@ A +/A- >!// P/!C/?
01 >/ !/3%-/!/D 60/!- >/!/01. ?0 AM/?DM/? =?D/! >%-
-/C%0? ->A++ B/ A=>0!%5/D E%>%? 1%6/ @/A!- 10++0E%?3 >/
!A%1%CA%0? 01 >%- C0?-%=%0? ?0! 01/?/! >A? 0?C/ /6/!@ 1%6/
@/A!- >/!/A1/!.
>/ ?A%0?A+ A--/MB+@ ->A++ B@ +AE P!06%D/
10! >/ %MP+/M/?A%0? 01 >/ /D/!C%-/ 01 >%- !%3>.
50
he entire proposed Article on Amendments or !evisions ,as approved on second reading on
( .uly &()2.
51
hereafter, upon his motion for reconsideration, Commissioner 3ascon ,as
allo,ed to introduce an amendment to -ection * ,hich, nevertheless, ,as ,ithdra,n. %n vie,
thereof, the Article ,as again approved on -econd and hird !eadings on & August &()2.
54
>o,ever, the Committee on -tyle recommended that the approved -ection * be amended by
changing 4percent4 to 1per centu(1 and 4thereof4 to 4therein4 and deleting the phrase 4by la,4 in the
second paragraph so that said paragraph reads7 T*e Con+ress
53
s*all provi!e ,or t*e i(ple(entation
o, t*e e6ercise o, t*is ri+*t.
55
his amendment ,as approved and is the te8t of the present second
paragraph of -ection *.
he conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
-ection * of Article D6%% of the Constitution is not selfCe8ecutory.
>as Congress 4provided4 for the implementation of the e8ercise of this rightI hose ,ho ans,er the
#uestion in the affirmative, like the private respondents and intervenor -enator !oco, point to us !.A.
?o. 2'AB.
here is, of course, no other better ,ay for Congress to implement the e8ercise of the right than
through the passage of a statute or legislative act. his is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of -ection * of Article
D6%% then reading7
he Congress
55
shall by la, provide for the implementation of the e8ercise of this right.
,ith
his substitute amendment ,as an investiture on Congress of a po,er to provide for the rules
implementing the e8ercise of the right. he 4rules4 means 4the details on ho, Gthe rightH is to be
carried out.4
5:
Ee agree that !.A. ?o. 2'AB ,as, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. he Act is a consolidation of >ouse Bill ?o. *&B9B and -enate Bill
?o. &'. he former ,as prepared by the Committee on -uffrage and /lectoral !eforms of the >ouse
of !epresentatives on the basis of t,o >ouse Bills referred to it, viz., ;a< >ouse Bill ?o. J(',
57
,hich
dealt ,ith the initiative and referendum mentioned
in -ections & and A* of Article 6% of the Constitution: and ;b< >ouse Bill ?o. ()),
58
,hich dealt ,ith
the subject matter of >ouse Bill ?o. J(', as ,ell as ,ith initiative and referendum under -ection A of
Article D ;+ocal 3overnment< and initiative provided for in -ection * of Article D6%% of the Constitution.
-enate Bill ?o. &'
59
solely dealt ,ith initiative and referendum concerning ordinances or resolutions
of local government units. he Bicameral Conference Committee consolidated -enate Bill ?o. &' and
>ouse Bill ?o. *&B9B into a draft bill, ,hich ,as subse#uently approved on ) .une &()( by the
-enate
50
and by the >ouse of !epresentatives.
51
his approved bill is no, !.A. ?o. 2'AB.
But is !.A. ?o. 2'AB a full compliance ,ith the po,er and duty of Congress to 4provide for the
implementation of the e8ercise of the rightI4
A careful scrutiny of the Act yields a negative ans,er.
1irst. Contrary to the assertion of public respondent C0M/+/C, -ection * of the Act does not
suggest an initiative on amendments to the Constitution. he said section reads7
-ec. *. -tatement and Policy. K he po,er of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in ,hole or in part, the Constitution, la,s, ordinances, or
resolutions passed by any legislative body upon compliance ,ith the re#uirements of this Act is hereby
affirmed, recogni"ed and guaranteed. ;/mphasis supplied<.
he inclusion of the ,ord 4Constitution4 therein ,as a delayed afterthought. hat ,ord is
neither germane nor relevant to said section, ,hich e8clusively relates to initiative and
referendum on national la,s and local la,s, ordinances, and resolutions. hat section is silent
as to a(en!(ents on the Constitution. As pointed out earlier, initiative on the Constitution is
confined only to proposals to AM/?D. he people are not accorded the po,er to 4directl
propose, enact, approve, or re5ect, in ,hole or in part, the Constitution4 through the system of
initiative. hey can only do so ,ith respect to 4la,s, ordinances, or resolutions.4
he foregoing conclusion is further buttressed by the fact that this section ,as lifted from -ection & of
-enate Bill ?o. &', ,hich solely referred to a statement of policy on local initiative and referendum
and appropriately used the phrases 4propose and enact,4 4approve or reject4 and 4in ,hole or in part.4
54
-econd. %t is true that -ection A ;Definition of erms< of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that -ection B
;!e#uirements< restates the constitutional re#uirements as to the percentage of the registered voters
,ho 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. -ection B, paragraph ;c<
re#uires, among other things, statement of the propose! la) sou+*t to #e enacte!, approve! or
re5ecte!, a(en!e! or repeale!, as t*e case (a #e. %t 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. -aid paragraph ;c< reads in full as follo,s7
;c< he petition shall state the follo,ing7
c.& contents or te8t of the propose! la) sought to be enacted, approved or rejected, amended or
repealed, as the case may be:
c.* the proposition:
c.A the reason or reasons therefor:
c.J that it is not one of the e8ceptions provided therein:
c.B signatures of the petitioners or registered voters: and
c.2 an abstract or summary proposition is not more than one hundred ;&99< ,ords ,hich shall be legibly
,ritten or printed at the top of every page of the petition. ;/mphasis supplied<.
he use of the clause 4proposed la,s sought to be enacted, approved or rejected, amended or
repealed4 only strengthens the conclusion that -ection *, #uoted earlier, e8cludes initiative on
hird. Ehile the Act provides subtitles for ?ational %nitiative and !eferendum ;-ubtitle %%< and for +ocal
%nitiative and !eferendum ;-ubtitle %%%<, no subtitle is provided for initiative on the Constitution. his
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local la,s. %f Congress intended !.A. ?o. 2'AB 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 la,s.
Ee cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on ?ational %nitiative and !eferendum because it is national in scope. 0ur reading
of -ubtitle %% ;?ational %nitiative and !eferendum< and -ubtitle %%% ;+ocal %nitiative and !eferendum<
leaves no room for doubt that the classification is not based on the scope of the initiative involved, but
on its nature and c*aracter. %t is 4national initiative,4 if ,hat is proposed to be adopted or enacted is a
national la), or a la, ,hich only Congress can pass. %t is 4local initiative4 if ,hat is proposed to be
adopted or enacted is a la), or!inance, or resolution ,hich only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass.
his classification of initiative into national and local is actually based on -ection A of the Act, ,hich
,e #uote for emphasis and clearer understanding7
-ec. A. .e,inition o, ter(s K
888 888 888
here are three ;A< systems of initiative, namely7
a.& %nitiative on the Constitution ,hich refers to a petition proposing amendments to the Constitution:
a.* %nitiative on -tatutes ,hich refers to a petition proposing to enact a national le+islation: and
a.A %nitiative on local le+islation ,hich refers to a petition proposing to enact a regional, provincial, city,
municipal, or barangay la,, resolution or ordinance. ;/mphasis supplied<.
>ence, to complete the classification under subtitles there should have been a subtitle on initiative on
53
A further e8amination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on ?ational %nitiative and !eferendum are placed therein, like ;&< paragraphs
;b< and ;c< of -ection (, ,hich reads7
;b< he 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 ;&B< days after certification and proclamation of the
Commission. ;/mphasis supplied<.
;*< that portion of -ection && ;%ndirect %nitiative< referring to indirect initiative ,ith the legislative bodies
of local governments: thus7
-ec. &&. In!irect Initiative. K Any duly accredited people$s organi"ation, as defined by la,, may file a
petition for indirect initiative ,ith the >ouse of !epresentatives, and ot*er le+islative #o!ies. . . .
and ;A< -ection &* on 3ppeal, since it applies to decisions of the C0M/+/C on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, ,hich could be petitions
for both national and local initiative and referendum.
=pon the other hand, -ection &) on 4Authority of Courts4 under subtitle %%% on +ocal %nitiative and
!eferendum is misplaced,
55
since the provision therein applies to both national and local initiative and
referendum. %t reads7
-ec. &). 3ut*orit o, Courts. K ?othing 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
,ant of capacity of the local legislative body to enact the said measure.
Curiously, too, ,hile !.A. ?o. 2'AB e8erted 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 follo,ing7
;a< he re#uired percentage of registered voters to sign the petition and the contents of the petition:
;b< he conduct and date of the initiative:
;c< he submission to the electorate of the proposition and the re#uired number of votes for its
approval:
;d< he certification by the C0M/+/C of the approval of the proposition:
;e< he publication of the approved proposition in the 0fficial 3a"ette or in a ne,spaper of general
circulation in the Philippines: and
;f< he effects of the approval or rejection of the proposition.
55
As regards local initiative, the Act provides for the follo,ing7
;a< he preliminary re#uirement as to the number of signatures of registered voters for the petition:
;b< he submission of the petition to the local legislative body concerned:
;c< he effect of the legislative body$s failure to favorably act thereon, and the invocation of the po,er
of initiative as a conse#uence thereof:
;d< he formulation of the proposition:
;e< he period ,ithin ,hich to gather the signatures:
;f< he persons before ,hom the petition shall be signed:
;g< he issuance of a certification by the C0M/+/C through its official in the local government unit
concerned as to ,hether the re#uired number of signatures have been obtained:
;h< he setting of a date by the C0M/+/C for the submission of the proposition to the registered
voters for their approval, ,hich must be ,ithin the period specified therein:
;i< he issuance of a certification of the result:
;j< he date of effectivity of the approved proposition:
;k< he limitations on local initiative: and
;l< he limitations upon local legislative bodies.
5:
=pon the other hand, as to initiative on amendments to the Constitution, !.A. ?o. 2'AB, in all of its
t,entyCthree sections, merely ;a< mentions, the ,ord 4Constitution4 in -ection *: ;b< defines 4initiative
on the Constitution4 and includes it in the enumeration of the three systems of initiative in -ection A:
;c< speaks of 4plebiscite4 as the process by ,hich the proposition in an initiative on the Constitution
may be approved or rejected by the people: ;d< reiterates the constitutional re#uirements as to the
number of voters ,ho should sign the petition: and ;e< provides for the date of effectivity of the
approved proposition.
here ,as, therefore, an obvious do,ngrading of the more important or the paramount system of
initiative. !A. ?o. 2'AB thus delivered a humiliating blo, to the system of initiative on amendments to
the Constitution by merely paying it a reluctant lip service.
57
he foregoing brings us to the conclusion that !.A. ?o. 2'AB is incomplete, inade#uate, or ,anting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.
%ts lacunae on this substantive matter are fatal and cannot be cured by 4empo,ering4 the C0M/+/C
4to promulgate such rules and regulations as may be necessary to carry out the purposes of GtheH Act.
58
he rule is that ,hat has been delegated, cannot be delegated or as e8pressed in a +atin ma8im7
potestas !ele+ata non !ele+ari potest.
59
he recogni"ed e8ceptions to the rule are as follo,s7
;&< Delegation of tariff po,ers to the President under -ection *);*< of Article 6% of the Constitution:
;*< Delegation of emergency po,ers to the President under -ection *A;*< of Article 6% of the
Constitution:
;A< Delegation to the people at large:
;J< Delegation to local governments: and
;B< Delegation to administrative bodies.
:0
/mpo,ering the C0M/+/C, an administrative body e8ercising #uasiCjudicial functions, to promulgate
rules and regulations is a form of delegation of legislative authority under no. B above. >o,ever, in
every case of permissible delegation, there must be a sho,ing that the delegation itself is valid. %t is
valid only if the la, ;a< is complete in itself, setting forth therein the policy to be e8ecuted, carried out,
or implemented by the delegate: and ;b< fi8es a standard K the limits of ,hich are sufficiently
determinate and determinable K to ,hich the delegate must conform in the performance of his
functions.
:1
A sufficient standard is one ,hich defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. %t indicates the circumstances under ,hich the
legislative command is to be effected.
:4
%nsofar as initiative to propose amendments to the Constitution is concerned, !.A. ?o. 2'AB
miserably failed to satisfy both re#uirements in subordinate legislation. he delegation of the po,er to
the C0M/+/C is then invalid.
%%%
C0M/+/C !/-0+=%0? ?0. *A99, %?-01A! A- % P!/-C!%B/- !=+/- A?D
!/3=+A%0?- 0? >/ C0?D=C 01 %?%%A%6/ 0? AM/?DM/?- 0 >/
C0?-%=%0?, %- 60%D.
%t logically follo,s that the C0M/+/C cannot validly promulgate rules and regulations to implement
the e8ercise of the right of the people to directly propose amendments to the Constitution through the
system of initiative. %t does not have that po,er under !.A. ?o. 2'AB. !eliance on the C0M/+/C$s
po,er under -ection *;&< of Article %DCC of the Constitution is misplaced, for the la,s and regulations
referred to therein are those promulgated by the C0M/+/C under ;a< -ection A of Article %DCC of the
Constitution, or ;b< a la, ,here subordinate legislation is authori"ed and ,hich satisfies the
4completeness4 and the 4sufficient standard4 tests.
%6
C0M/+/C AC/D E%>0= .=!%-D%C%0? 0! E%> 3!A6/ AB=-/ 01 D%-C!/%0?
%? /?/!A%?%?3 >/ D/+1%? P/%%0?.
/ven if it be conceded e6 +ratia that !.A. ?o. 2'AB is a full compliance ,ith the po,er of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the
C0M/+/C the po,er of subordinate legislation and that C0M/+/C !esolution ?o. *A99 is valid, the
C0M/+/C acted ,ithout jurisdiction or ,ith grave abuse of discretion in entertaining the Delfin
Petition.
=nder -ection * of Article D6%% of the Constitution and -ection B;b< of !.A. ?o. 2'AB, a petition for
initiative on the Constitution must be signed by at least &*S of the total number of registered voters of
,hich every legislative district is represented by at least AS of the registered voters therein. he
Delfin Petition does not contain signatures of the re#uired 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. Eithout the re#uired signatures, the petition cannot be
deemed validly initiated.
he C0M/+/C ac#uires jurisdiction over a petition for initiative only after its filing. he petition then is
the initiator plea!in+. ?othing before its filing is cogni"able by the C0M/+/C, sitting en #anc. he
only participation of the C0M/+/C or its personnel before the filing of such petition are ;&< to
prescribe the form of the petition:
:3
;*< to issue through its /lection !ecords and -tatistics 0ffice a
certificate on the total number of registered voters in each legislative district:
:5
;A< to assist, through
its election registrars, in the establishment of signature stations:
:5
and ;J< 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.
::
-ince the Delfin Petition is not the initiatory petition under !.A. ?o. 2'AB and C0M/+/C !esolution
?o. *A99, it cannot be entertained or given cogni"ance of by the C0M/+/C. he respondent
Commission must have kno,n that the petition does not fall under any of the actions or proceedings
under the C0M/+/C !ules of Procedure or under !esolution ?o. *A99, for ,hich reason it did not
assign to the petition a docket number. >ence, the said petition ,as merely entered as =?D,
meaning, un!oc-ete!. hat petition ,as nothing more than a mere scrap of paper, ,hich should not
have been dignified by the 0rder of 2 December &((2, the hearing on &* December &((2, and the
order directing Delfin and the oppositors to file their memoranda or oppositions. %n so dignifying it, the
C0M/+/C acted ,ithout jurisdiction or ,ith grave abuse of discretion and merely ,asted its time,
energy, and resources.
he foregoing considered, further discussion on the issue of ,hether the proposal to lift the term
limits of elective national and local officials is an a(en!(ent to, and not a revision of, the Constitution
is rendered unnecessary, if not academic.
C0?C+=-%0?
his petition must then be granted, and the C0M/+/C should be permanently enjoined from
entertaining or taking cogni"ance of any petition for initiative on amendments to the Constitution until
a sufficient la, shall have been validly enacted to provide for the implementation of the system.
Ee feel, ho,ever, 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 ,ith the constitutional mandate to provide for the implementation of
the right of the people under that system.
E>/!/10!/, judgment is hereby rendered
a< 3!A?%?3 the instant petition:
b< D/C+A!%?3 !.A. ?o. 2'AB inade#uate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation:
c< D/C+A!%?3 void those parts of !esolution ?o. *A99 of the Commission on /lections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution: and
d< 0!D/!%?3 the Commission on /lections to forth,ith D%-M%-- the D/+1%? petition ;=?DC(2C
9A'<.
he emporary !estraining 0rder issued on &) December &((2 is made permanent as against the
Commission on /lections, but is +%1/D as against private respondents.
!esolution on the matter of contempt is hereby reserved.
-0 0!D/!/D.
Narvasa, C.J., >e+ala!o, >o(ero, "ellosillo, Gapunan, Cer(osisi(a, Jr. an! Torres, Jr., JJ., concur.
Pa!illa, J., too- no part.

S+(a,at+ O(%%os

."NO, J., concurring and dissenting7
% join the groundCbreaking ponencia of our esteemed colleague, Mr. .ustice Davide insofar as it
orders the C0M/+/C to dismiss the Delfin petition. % regret, ho,ever, % cannot share the vie, that
!.A. ?o. B'AB and C0M/+/C !esolution ?o. *A99 are legally defective and cannot implement the
people$s initiative to amend the Constitution. % like,ise submit that the petition ,ith respect to the
Pedrosas has no leg to stand on and should be dismissed. Eith due respect7
%
1irst, % submit that !.A. ?o. 2'AB sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. 0ur effort to discover the meaning of !.A. ?o. 2'AB
should start ,ith the search of the intent of our la,makers. A kno,ledge of this intent is critical for the
intent of the legislature is the la, and the controlling factor in its interpretation.
1
-tated other,ise,
intent is the essence of the la,, the spirit ,hich gives life to its enactment.
4
-ignificantly, the majority decision concedes that 4. . . !.A. ?o. 2'AB ,as intended to cover initiative
to propose amendments to the Constitution.4 %t ought to be so for this intent is crystal clear from the
history of the la, ,hich ,as a consolidation of >ouse Bill ?o. *&B9B
3
and -enate Bill ?o. &'.
5
-enate
Bill ?o. &' ,as entitled 4An Act Providing for a -ystem of %nitiative and !eferendum and the
/8ception herefrom, Ehereby People in +ocal 3overnment =nits Can Directly Propose and /nact
!esolutions and 0rdinances or Approve or !eject any 0rdinance or !esolution Passed by the +ocal
+egislative Body.4 Beyond doubt, -enate Bill ?o. &' did not include people$s initiative to propose
amendments to the Constitution. %n checkered contrast, >ouse Bill ?o. *&B9B
5
e8pressly included
people$s initiative to amend the Constitution. Congressman ;no, -enator< !aul !oco emphasi"ed in
his sponsorship remarks7
:
888 888 888
-P0?-0!->%P !/MA!N- 01 M!. !0C0
At the outset, Mr. !oco provided the follo,ing backgrounder on the constitutional basis of the proposed
measure.
&. As cited in @era vs. 3velino ;&(J2<, the presidential system ,hich ,as introduced by the &(AB
Constitution sa, the application of the principle of separation of po,ers.
*. Ehile under the parliamentary system of the &('A Constitution the principle remained applicable, the
&()& amendments to the Constitution of &('A ensured presidential dominance over the Batasang
Pambansa.
Constitutional history then sa, the shifting and sharing of legislative po,ers bet,een the +egislature and
the /8ecutive departments. ranscending changes in the e8ercise of legislative po,er is the declaration
in the Philippine Constitution that the Philippines is a republican state ,here sovereignty resides in the
people and all sovereignty emanates from them.
A. =nder the &()' Constitution, the la,making po,er is still preserved in Congress: ho,ever, to
institutionali"e direct action of the people as e8emplified in the &()2 !evolution, the Constitution
recogni"es the po,er of the people, through the system of initiative and referendum.
As cited in -ection &, Article 6% of the &()' Constitution, Congress does not have plenary po,ers since
reserve po,ers are given to the people e8pressly. -ection A* of the same Article mandates Congress to
pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative po,ers
,ith the people.
-ection *, Article D6%% of the &()' Constitution, on the other hand, vests in the people the po,er to
directly propose amendments to the Constitution through initiative, upon petition of at least &* percent of
the total number of registered voters.
-tating that >ouse Bill ?o. *&B9B is the Committee$s response to the duty imposed on Congress to
implement the e8ercise by the people of the right to initiative and referendum, Mr. !oco recalled the
beginnings of the system of initiative and referendum under Philippine +a,. >e cited -ection (( of the
+ocal 3overnment Code ,hich vests in the barangay assembly the po,er to initiate legislative processes,
decide the holding of plebiscite and hear reports of the -angguniang Barangay, all of ,hich are variations
of the po,er of initiative and referendum. >e added that the holding of barangay plebiscites and
referendum are like,ise provided in -ections &99 and &9& of the same Code.
hereupon, for the sake of brevity, Mr. !oco moved that pertinent #uotation on the subject ,hich he ,ill
later submit to the -ecretary of the >ouse be incorporated as part of his sponsorship speech.
>e then cited e8amples of initiative and referendum similar to those contained in the instant Bill among
,hich are the constitutions of states in the =nited -tates ,hich recogni"e the right of registered voters to
initiate the enactment of any statute or to project any e8isting la, or parts thereof in a referendum. hese
states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, 0klahoma, 0regon, and
practically all other states.
Mr. !oco e8plained that in certain American states, the kind of la,s to ,hich initiative and referendum
apply is also ,ithout limitation, e8cept for emergency measures, ,hich are like,ise incorporated in >ouse
Bill ?o. *&B9B. >e added that the procedure provided by the Bill from the filing of the petition, the
re#uirements of a certain percentage of supporters to present a proposition, to the submission to electors
are substantially similar to the provisions in American la,s. Although an infant in Philippine political
structure, the system of initiative and referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American e8perience.
>e further e8plained that the bill has only &* sections, and recalled that the Constitutional Commissioners
sa, the system of the initiative and referendum as an instrument ,hich can be used should the
legislature sho, itself to be indifferent to the needs of the people. his is the reason, he claimed, ,hy no,
is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass la,s ,hich
are necessary to safeguard individual rights and liberties.
At this juncture Mr. !oco e8plained the process of initiative and referendum as advocated in >ouse Bill
?o. *&B9B. >e stated that7
&. %nitiative means that the people, on their o,n political judgment, submit a Bill for the consideration of
the general electorate.
*. he instant Bill provides three kinds of initiative, namely: the initiative to amend the Constitution once
every five years: the initiative to amend statutes approved by Congress: and the initiative to amend local
ordinances.
A. he instant Bill gives a definite procedure and allo,s the Commission on /lections ;C0M/+/C< to
define rules and regulations on the po,er of initiative.
J. !eferendum means that the legislators seek the consent of the people on measures that they have
approved.
B. =nder -ection J of the Bill the people can initiate a referendum ,hich is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least
&9 percent of the total of registered voters at ,hich every legislative district is represented by at least
three percent of the registered voters thereof. Eithin A9 days after receipt of the petition, the C0M/+/C
shall determine the sufficiency of the petition, publish the same, and set the date of the referendum ,ithin
JB to (9Cday period.
2. Ehen the matter under referendum or initiative is approved by the re#uired number of votes, it shall
become effective &B days follo,ing the completion of its publication in the 0fficial 3a"ette.
%n concluding his sponsorship remarks, Mr. !oco stressed that the Members cannot ignore the people$s
call for initiative and referendum and urged the Body to approve >ouse Bill ?o. *&B9B.
At this juncture, Mr. !oco also re#uested that the prepared te8t of his speech together ,ith the footnotes
be reproduced as part of the Congressional !ecords.
he same sentiment as to the bill$s intent to implement people$s initiative to amend the
Constitution ,as stressed by then Congressman ;no, -ecretary of Agriculture< -alvador
/scudero %%% in his sponsorship remarks, viz7
7
888 888 888
-P0?-0!->%P !/MA!N- 01 M!. /-C=D/!0
Mr. /scudero first pointed out that the people have been clamoring for a truly popular democracy ever
since, especially in the soCcalled parliament of the streets. A substantial segment of the population feels,
he said, that the form of democracy is there, but not the reality or substance of it because of the
increasingly elitist approach of their representatives to the country$s problem.
Ehereupon, Mr. /scudero pointed out that the Constitution has provided a means ,hereby the people
can e8ercise the reserved po,er of initiative to propose amendments to the Constitution, and re#uested
that -ections & and A*, Article 6%: -ection A, Article D: and -ection *, Article D6%% of the Constitution be
made part of his sponsorship remarks.
Mr. /scudero also stressed that an implementing la, is needed for the aforecited Constitutional
provisions. Ehile the enactment of the Bill ,ill give ,ay to strong competition among causeCoriented and
sectoral groups, he continued, it ,ill hasten the politi"ation of the citi"enry, aid the government in forming
an enlightened public opinion, and produce more responsive legislation. he passage of the Bill ,ill also
give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added.
Mr. /scudero stated that he and Mr. !oco hoped for the early approval of the Bill so that it can be initially
used for the Agrarian !eform +a,. >e said that the passage of >ouse Bill ?o. *&B9B ,ill sho, that the
Members can set aside their personal and political consideration for the greater good of the people.
he disagreeing provisions in -enate Bill ?o. &' and >ouse Bill ?o. *&B9B ,ere threshed out
in a Bicameral Conference Committee.
8
%n the meeting of the Committee on .une 2, &()(,
9
the
members agreed that the t,o ;*< bills should be consolidated and that the consolidated version
should include people$s initiative to amend the Constitution as contemplated by >ouse Bill ?o.
*&B9B. he transcript of the meeting states7
888 888 888
C>A%!MA? 30?5A+/-. But at any rate, as % have said, because this is ne, in our
political system, the -enate decided on a more cautious approach and limiting it only to
the local government units because even ,ith that stage ,here . . . at least this has been
#uite popular, anoI %t has been attempted on a national basis. Alright. here has not
been a single attempt. ?o,, so, kami limitado doon. And, second, ,e consider also that it
is only fair that the local legislative body should be given a chance to adopt the legislation
bill proposed, rightI %yong sinasabing indirect system of initiative. %f after all, the local
legislative assembly or body is ,illing to adopt it in full or in toto, there ought to be any
reason for initiative, ano for initiative. And, number A, ,e feel that there should be some
limitation on the fre#uency ,ith ,hich it should be applied. ?umber J, na the people, thru
initiative, cannot enact any ordinance that is beyond the scope of authority of the local
legislative body, other,ise, my 3od, magCaassume sila ng po,er that is broader and
greater than the grant of legislative po,er to the -anggunians. And ?umber B, because
of that, then a proposition ,hich has been the result of a successful initiative can only
carry the force and effect of an ordinance and therefore that should not deprive the court
of its jurisdiction to declare it null and void for ,ant of authority. >a, di baI % mean it is
beyond po,ers of local government units to enact. %yon ang main essence namin, so ,e
concentrated on that. And that is ,hy . . . so ang sa inyo naman includes iyon sa
Constitution, amendment to the Constitution eh . . . national la,s. -a amin, if you insist
on that, alright, although ,e feel na it ,ill in effect become a dead statute. Alright, and ,e
can agree, ,e can agree. -o ang mangyayari dito, and magiging basic nito, let us not
discuss anymore kung alin and magiging basic bill, ano, ,hether it is the -enate Bill or
,hether it is the >ouse bill. +ogically it should be ours sapagkat una iyong sa amin eh. %t
is one of the first bills approved by the -enate kaya ang number niyan, makikita mo, &',
eh. >u,ag na nating pagusapan. ?o,, if you insist, really iyong features ng national at
saka constitutional, okay. TTTT gaga,in na natin na consolidation of both bills.
>0?. !0C0. @es, ,e shall consolidate.
C>A%!MA? 30?5A+/-. Consolidation of the -enate and >ouse Bill ?o. so and so.
10
Ehen the consolidated bill ,as presented to the >ouse for approval, then Congressman !oco
upon interpellation by Congressman !odolfo Albano, again confirmed that it covered people$s
initiative to amend the Constitution. he record of the >ouse !epresentative states7
11
888 888 888
>/ -P/AN/! P!0 /MP0!/. he 3entleman from Camarines -ur is recogni"ed.
M!. !0C0. 0n the Conference Committee !eport on the disagreeing provisions
bet,een -enate Bill ?o. *&B9B ,hich refers to the system providing for the initiative and
referendum, fundamentally, Mr. -peaker, ,e consolidated the -enate and the >ouse
versions, so both versions are totally intact in the bill. he -enators ironically provided for
local initiative and referendum and the >ouse !epresentatives correctly provided for
initiative and referendum on the Constitution and on national legislation.
% move that ,e approve the consolidated bill.
M!. A+BA?0. Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. Ehat is the pleasure of the Minority 1loor +eaderI
M!. A+BA?0. Eill the distinguished sponsor ans,er just a fe, #uestionsI
>/ -P/AN/! P!0 /MP0!/. he 3entlemen ,ill please proceed.
M!. A+BA?0. % heard the sponsor say that the only difference in the t,o bills ,as that in
the -enate version there ,as a provision for local initiative and referendum, ,hereas the
>ouse version has none.
M!. !0C0. %n fact, the -enate version provide purely for local initiative and referendum,
,hereas in the >ouse version, ,e provided purely for national and constitutional
legislation.
M!. A+BA?0. %s it our understanding therefore, that the t,o provisions ,ere
incorporatedI
M!. !0C0. @es, Mr. -peaker.
M!. A+BA?0. -o that ,e ,ill no, have a complete initiative and referendum both in the
constitutional amendment and national legislation.
M!. !0C0. hat is correct.
M!. A+BA?0. And provincial as ,ell as municipal resolutionsI
M!. !0C0. Do,n to barangay, Mr. -peaker.
M!. A+BA?0. And this initiative and referendum is in consonance ,ith the provision of
the Constitution ,hereby it mandates this Congress to enact the enabling la,, so that ,e
shall have a system ,hich can be done every five years. %s it five years in the provision of
the ConstitutionI
M!. !0C0. hat is correct, Mr. -peaker. 1or constitutional amendments in the &()'
Constitution, it is every five years.
M!. A+BA?0. 1or every five years, Mr. -peakerI
M!. !0C0. Eithin five years, ,e cannot have multiple initiatives and referenda.
M!. A+BA?0. herefore, basically, there ,as no substantial difference bet,een the t,o
versionsI
M!. !0C0. he gaps in our bill ,ere filled by the -enate ,hich, as % said earlier,
ironically ,as about local, provincial and municipal legislation.
M!. A+BA?0. And the t,o bills ,ere consolidatedI
M!. A+BA?0. hank you, Mr. -peaker.
APP!06A+ 01 C.C.!.
0? -.B. ?0. &' A?D >.B. ?0. *&B9B
;he %nitiative and !eferendum Act<
>/ -P/AN/! P!0 /MP0!/. here ,as a motion to approve this consolidated bill on -enate Bill ?o.
&' and >ouse Bill ?o. *&B9B.
%s there any objectionI ;Silence. he Chair hears none: the motion is approved.
-ince it is crystalline that the intent of !.A. ?o. 2'AB is to implement the people$s initiative to
amend the Constitution, it is our bounden duty to interpret the la, as it ,as intended by the
legislature. Ee have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent ,ith the strict letter of the la, and this ruling is as old as the mountain. Ee
have also held that ,here a la, is susceptible of more than one interpretation, that
interpretation ,hich ,ill most tend to effectuate the manifest intent of the legislature ,ill be
adopted.
14
he te8t of !.A. ?o. 2'AB should therefore be reasonably construed to effectuate its intent to
implement the people$s initiative to amend the Constitution. o be sure, ,e need not torture the te8t
of said la, to reach the conclusion that it implements people$s initiative to amend the Constitution.
!.A. ?o. 2'AB is replete ,ith references to this prerogative of the people.
1irst, the policy statement declares7
-ec. *. State(ent o, Polic. K he po,er of the people under a system of initiative and referendum to
affirmed, recogni"ed and guaranteed. ;emphasis supplied<
-econd, the la, defines 4initiative4 as 4the po,er of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose,4 and
4plebiscite4 as 4the electoral process by ,hich an initiative on the Constitution is approved or rejected
by the people.
hird, the la, provides the re#uirements for a petition for initiative to amend the Constitution. -ection
B;b< states that 4;a< petition for an initiative on the &()' Constitution must have at least t,elve per
centu( ;&*S< of the total number of registered voters as signatories, of ,hich every legislative district
must be represented by at least three per centu( ;AS< of the registered voters therein.4 %t also states
that 4;i<nitiative on the Constitution may be e8ercised only after five ;B< years from the ratification of
the &()' Constitution and only once every five ;B< years thereafter.
1inally, !.A. ?o. 2'AB fi8es the effectivity date of the amendment. -ection (;b< states that 4;t<he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.
%t is unfortunate that the majority decision resorts to a strained interpretation of !.A. ?o. 2'AB to
defeat its intent ,hich it itself concedes is to implement people$s initiative to propose amendments to
the Constitution. hus, it laments that the ,ord 4Constitution4 is neither germane nor relevant to the
policy thrust of section * and that the statute$s subtitling is not accurate. hese lapses are to be
e8pected for la,s are not al,ays ,ritten in impeccable /nglish. !ightly, the Constitution does not
re#uire our legislators to be ,ordCsmiths ,ith the ability to ,rite bills ,ith poetic commas like .ose
3arcia 6illa or in lyrical prose like Einston Churchill. But it has al,ays been our good policy not to
refuse to effectuate the intent of a la, on the ground that it is badly ,ritten. As the distinguished
6icente 1rancisco
13
reminds us7 4Many la,s contain ,ords ,hich have not been used accurately. But
the use of inapt or inaccurate language or ,ords, ,ill not vitiate the statute if the legislative intention
can be ascertained. he same is e#ually true ,ith reference to a,k,ard, slovenly, or ungrammatical
e8pressions, that is, such e8pressions and ,ords ,ill be construed as carrying the meaning the
legislature intended that they bear, although such a construction necessitates a departure from the
literal meaning of the ,ords used.
%n the same vein, the argument that !.A. ?o. 'BAB does not include people$s initiative to amend the
Constitution simply because it lacks a subCtitle on the subject should be given the ,eight of helium.
Again, the hoary rule in statutory construction is that headings prefi8ed to titles, chapters and sections
of a statute may be consulted in aid of interpretation, but inferences dra,n therefrom are entitled to
very little ,eight, and they can never control the plain terms of the enacting clauses.
15
All said, it is difficult to agree ,ith the majority decision that refuses to enforce the manifest intent or
spirit of !.A. ?o. 2'AB to implement the people$s initiative to amend the Constitution. %t blatantly
disregards the rule cast in concrete that the letter of the la, must yield to its spirit for the letter of the
la, is its body but its spirit is its soul.
15
%%
C0M/+/C !esolution ?o. *A99,
1:
promulgated under the ste,ardship of Commissioner >aydee
@orac, then its Acting Chairman, spelled out the procedure on ho, to e8ercise the people$s initiative
to amend the Constitution. his is in accord ,ith the delegated po,er granted by section *9 of !.A.
?o. 2'AB to the C0M/+/C ,hich e8pressly states7 4he Commission is hereby empo,ered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act.4 By
no means can this delegation of po,er be assailed as infirmed. %n the benchmark case of Pelaez v.
3u!itor General,
17
this Court, thru former Chief .ustice !oberto Concepcion laid do,n the test to
determine ,hether there is undue delegation of legislative po,er, viz7
888 888 888
Although Congress may delegate to another branch of the 3overnment the po,er to fill details in the
e8ecution, enforcement or administration of a la,, it is essential, to forestall a violation of the principle of
separation of po,ers, that said la,7 ;a< be complete in itself K it must set forth therein the policy to be
e8ecuted, carried out or implemented by the delegate K and ;b< to fi8 standard K the limits of ,hich are
sufficiently determinate or determinable K to ,hich the delegate must conform in the performance of his
functions. %ndeed, ,ithout a statutory declaration of policy, ,hich is the essence of every la,, and, ,ithout
the aforementioned standard, there ,ould be no means to determine, ,ith reasonable certainty, ,hether
the delegate has acted ,ithin or beyond the scope of his authority. >ence, he could thereby arrogate
upon himself the po,er, not only to make the la,, but, also K and this is ,orse K to unmake it, by
adopting measures inconsistent ,ith the end sought to be attained by the Act of Congress, thus nullifying
the principle of separation of po,ers and the system of checks and balances, and, conse#uently,
undermining the very foundation of our republican system.
-ection 2) of the !evised Administrative Code does not meet these ,ellCsettled re#uirements for a valid
delegation of the po,er to fi8 the details in the enforcement of a la,. %t does not enunciate any policy to
be carried out or implemented by the President. ?either does it give a standard sufficiently precise to
avoid the evil effects above referred to.
!.A. ?o. 2'AB sufficiently states the policy and the standards to guide the C0M/+/C in promulgating
the la,$s implementing rules and regulations of the la,. As aforestated, section * spells out the policy
of the la,: viz7 4he po,er of the people under a system of initiative and referendum to directly
propose, enact, approve or reject, in ,hole or in part, the Constitution, la,s, ordinances, or
resolutions passed by any legislative body upon compliance ,ith the re#uirements of this Act is
hereby affirmed, recogni"ed and guaranteed.4 -pread out all over !.A. ?o. 2'AB are the standards to
canali"e the delegated po,er to the C0M/+/C to promulgate rules and regulations from overflo,ing.
hus, the la, states the number of signatures necessary to start a people$s initiative,
18
directs ho,
initiative proceeding is commenced,
19
,hat the C0M/+/C should do upon filing of the petition for
initiative,
40
ho, a proposition is approved,
41
,hen a plebiscite may be held,
44
,hen the amendment
takes effect
43
and ,hat matters may not be the subject of any initiative.
45
By any measure, these
standards are ade#uate.
1ormer .ustice %sagani A. Cru", similarly elucidated that 4a sufficient standard is intended to map out
the boundaries of the delegates$ authority by defining the legislative policy and indicating the
circumstances under ,hich it is to be pursued and effected. he purpose of the sufficient standard is
to prevent a total transference of legislative po,er from the la,making body to the delegate.4
45
%n
enacting !.A. ?o. 2'AB, it cannot be said that Congress totally transferred its po,er to enact the la,
implementing people$s initiative to C0M/+/C. A close look at C0M/+/C !esolution ?o. *A99 ,ill
sho, that it merely provided the procedure to effectuate the policy of !.A. ?o. 2'AB giving life to the
people$s initiative to amend the Constitution. he debates
4:
in the Constitutional Commission make it
clear that the rules of procedure to enforce the people$s initiative can be delegated, thus7
M!. !0M=+0. =nder Commissioner Davide$s amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . I
M!. DA6%D/. %t can.
888 888 888
M!. DA6%D/. As long as it ,ill not destroy the substantive right to initiate. %n other ,ords,
M!. !0M=+0. %n that provision of the Constitution can the procedures ,hich % have
discussed be legislatedI
M!. DA6%D/. @es.
%n his book, he %ntent of the &()2 Constitution Eriters,
47
1ather Bernas like,ise affirmed7 4%n
response to #uestions of Commissioner !omulo, Davide e8plained the e8tent of the po,er of
the legislature over the process7 it could for instance, prescribe the $proper form before ;the
amendment< is submitted to the people,$ it could authori"e another body to check the proper
form. %t could also authori"e the C0M/+/C, for instance, to check the authenticity of the
signatures of petitioners. Davide concluded7 $As long as it ,ill not destroy the substantive right
to initiate. %n other ,ords, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.$4 Puite clearly, the prohibition against the
legislature is to impair the substantive right of the people to initiate amendments to the
Constitution. %t is not, ho,ever, prohibited from legislating the procedure to enforce the
people$s right of initiative or to delegate it to another body like the C0M/+/C ,ith proper
standard.
A survey of our case la, ,ill sho, that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of ade#uate legislative standard to guide their
promulgation. As aptly perceived by former .ustice Cru", 4even if the la, itself does not e8pressly
pinpoint the standard, the courts ,ill bend back,ard to locate the same else,here in order to spare
the statute, if it can, from constitutional infirmity.4
48
>e cited the ruling in Cira#aas*i v. Enite! States,
49
viz7
888 888 888
%t is true that the Act does not in terms establish a particular standard to ,hich orders of the military
commander are to conform, or re#uire findings to be made as a prere#uisite to any order. But the
/8ecutive 0rder, the Proclamations and the statute are not to be read in isolation from each other. hey
,ere parts of a single program and must be judged as such. he Act of March *&, &(J*, ,as an adoption
by Congress of the /8ecutive 0rder and of the Proclamations. he Proclamations themselves follo,ed a
standard authori"ed by the /8ecutive 0rder K the necessity of protecting military resources in the
designated areas against espionage and sabotage.
%n the case at bar, the policy and the standards are brightClined in !.A. ?o. 2'AB. A *9C*9 look
at the la, cannot miss them. hey ,ere not ,ritten by our legislators in invisible ink. he policy
and standards can also be found in no less than section *, Article D6%% of the Constitution on
Amendments or !evisions. here is thus no reason to hold that the standards provided for in
!.A. ?o. 2'AB are insufficient for in other cases ,e have upheld as ade#uate more general
standards such as 4simplicity and dignity,4
30
4public interest,4
31
4public ,elfare,4
34
4interest of
la, and order,4
33
4justice and e#uity,4
35
4ade#uate and efficient instruction,4
35
4public safety,4
3:

4public policy4,
37
4greater national interest4,
38
4protect the local consumer by stabili"ing and
subsidi"ing domestic pump rates4,
39
and 4promote simplicity, economy and efficiency in
government.4
50
A due regard and respect to the legislature, a coCe#ual and coordinate branch
of government, should counsel this Court to refrain from refusing to effectuate la,s unless they
are clearly unconstitutional.
%%%
%t is also respectfully submitted that the petition should he dismissed ,ith respect to the Pedrosas.
he inclusion of the Pedrosas in the petition is utterly baseless. he records sho, that the case at bar
started ,hen respondent Delfin alone and by himself filed ,ith the C0M/+/C a Petition to Amend
the Constitution to +ift erm +imits of /lective 0fficials by People$s %nitiative. he Pedrosas did not
join the petition. %t ,as -enator !oco ,ho moved to intervene and ,as allo,ed to do so by the
C0M/+/C. he petition ,as heard and before the C0M/+/C could resolve the Delfin petition, the
case at bar ,as filed by the petitioners ,ith this Court. Petitioners sued the C0M/+/C. .esus Delfin,
Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People$s
%nitiative for !eform, Moderni"ation and Action ;P%!MA<. he suit is an original action for prohibition
,ith prayer for temporary restraining order andFor ,rit of preliminary injunction.
he petition on its face states no cause of action against the Pedrosas. he only allegation against
the Pedrosas is that they are founding members of the P%!MA ,hich proposes to undertake the
signature drive for people$s initiative to amend the Constitution. -trangely, the P%!MA itself as an
organi"ation ,as not impleaded as a respondent. Petitioners then prayed that ,e order the Pedrosas
4. . . to desist from conducting a signature drive for a people$s initiative to amend the Constitution.4 0n
December &(, &((2, ,e temporarily enjoined the Pedrosas 4. . . from conducting a signature drive for
people$s initiative to amend the Constitution.4 %t is not enough for the majority to lift the temporary
restraining order against the Pedrosas. %t should dismiss the petition and all motions for contempt
against them ,ithout e#uivocation.
0ne need not dra, a picture to impart the proposition that in soliciting signatures to start a people$s
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. heir
solicitation of signatures is a right guaranteed in black and ,hite by section * of Article D6%% of the
Constitution ,hich provides that 4. . . amendments to this Constitution may like,ise be directly
proposed by the people through initiative. . .4 his right springs from the principle proclaimed in
section &, Article %% of the Constitution that in a democratic and republican state 4sovereignty resides
in the people and all government authority emanates from them.4 he Pedrosas are part of the people
and their voice is part of the voice of the people. hey may constitute but a particle of our sovereignty
but no po,er can triviali"e them for sovereignty is indivisible.
But this is not all. -ection &2 of Article D%%% of the Constitution provides7 4he right of the people and
their organi"ations to effective and reasonable participation at all levels of social, political and
economic decisionCmaking shall not be abridged. he -tate shall by la,, facilitate the establishment
of ade#uate consultation mechanisms.4 his is another novel provision of the &()' Constitution
strengthening the sine,s of the sovereignty of our people. %n soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decisionCmaking process of our people.
he Constitution says their right cannot be abridged ,ithout any ifs and buts. Ee cannot put a
#uestion mark on their right.
0ver and above these ne, provisions, the Pedrosas$ campaign to amend the Constitution is an
e8ercise of their freedom of speech and e8pression and their right to petition the government for
redress of grievances. Ee have memoriali"ed this universal right in all our fundamental la,s from the
Malolos Constitution to the &()' Constitution. Ee have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matri8 of other important rights of our people. =ndeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. 1or this
reason, the Constitution encourages speech even if it protects the speechless.
%t is thus evident that the right of the Pedrosas to solicit signatures to start a people$s initiative to
amend the Constitution does not depend on any la,, much less on !.A. 2'AB or C0M/+/C
!esolution ?o. *A99. ?o la,, no Constitution can chain the people to an undesirable status #uo. o
be sure, there are no irrepealable la,s just as there are no irrepealable Constitutions. Change is the
predicate of progress and ,e should not fear change. Mankind has long recogni"ed the truism that
the only constant in life is change and so should the majority.
%6
%n a stream of cases, this Court has rhapsodi"ed people po,er as e8panded in the &()' Constitution.
0n 0ctober B, &((A, ,e observed that people$s might is no longer a myth but an article of faith in our
Constitution.
51
0n -eptember A9, &((J, ,e postulated that people po,er can be trusted to check
e8cesses of government and that any effort to triviali"e the effectiveness of people$s initiatives ought
to be rejected.
54
0n -eptember *2, &((2, ,e pledged that 4. . . this Court as a matter of policy and
doctrine ,ill e8ert every effort to nurture, protect and promote their legitimate e8ercise.4
53
.ust a fe,
days ago, or on March &&, &((', by a unanimous decision,
55
,e allo,ed a recall election in Caloocan
City involving the mayor and ordered that he submits his right to continue in office to the judgment of
the tribunal of the people. hus far, ,e have succeeded in transforming people po,er from an
opa#ue abstraction to a robust reality. he Constitution calls us to encourage people empo,erment
to blossom in full. he Court cannot halt any and all signature campaigns to amend the Constitution
,ithout setting back the flo,ering of people empo,erment. More important, the Court cannot seal the
lips of people ,ho are proCchange but not those ,ho are antiCchange ,ithout concerting the debate
on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a
monologue for in a democracy nobody can claim any infallibility.
'elo an! 'en!oza, JJ., concur.

2IT"G, J., concurring and dissenting7
he C0M/+/C should have dismissed, outrightly, the Delfin Petition.
%t does seem to me that there is no real e8igency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. Ehat is essential at this time
,ould only be to resolve ,hether or not the petition filed ,ith the C0M/+/C, signed by Atty. .esus -.
Delfin in his capacity as a 4founding member of the Movement for People$s %nitiative4 and seeking
through a people initiative certain modifications on the &()' Constitution, can properly be regarded
and given its due course. he Constitution, relative to any proposed amendment under this method,
is e8plicit. -ection *, Article D6%%, thereof provides7
he Delfin petition is thus utterly deficient. %nstead of complying ,ith the constitutional imperatives,
the petition ,ould rather have much of its burden passed on, in effect, to the C0M/+/C. he petition
,ould re#uire C0M/+/C to schedule 4signature gathering all over the country,4 to cause the
necessary publication of the petition 4in ne,spapers of general and local circulation,4 and to instruct
4Municipal /lection !egistrars in all !egions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.
% submit, even then, that the !0 earlier issued by the Court ,hich, conse#uentially, is made
permanent under the ponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. he
grant of such a right is clearly implicit in the constitutional mandate on people initiative.
he distinct greatness of a democratic society is that those ,ho reign are the governed themselves.
he postulate is no longer lightly taken as just a perceived myth but a veritable reality. he past has
taught us that the vitality of government lies not so much in the strength of those ,ho lead as in the
consent of those ,ho are led. he role of free speech is pivotal but it can only have its true meaning if
it comes ,ith the correlative end of being heard.
Pending a petition for a people$s initiative that is sufficient in form and substance, it behooves the
Court, % most respectfully submit, to yet refrain from resolving the #uestion of ,hether or not !epublic
Act ?o. 2'AB has effectively and sufficiently implemented the Constitutional provision on right of the
people to directly propose constitutional amendments. Any opinion or vie, formulated by the Court at
this point ,ould at best be only a nonCbinding, al#eit possibly persuasive, o#iter !ictu(.
% vote for granting the instant petition before the Court and for clarifying that the !0 earlier issued by
the Court did not prescribe the e8ercise by the Pedrosas of their right to campaign for constitutional
amendments.

FRANCISCO, J., dissenting and concurring7
here is no #uestion that my esteemed colleague Mr. .ustice Davide has prepared a scholarly and
,ellC,ritten ponencia. ?onetheless, % cannot fully subscribe to his vie, that !. A. ?o. 2'AB is
inade#uate to cover the system of initiative on amendments to the Constitution.
o begin ,ith, sovereignty under the constitution, resides in the people and all government authority
emanates from them.
1
=nlike our previous constitutions, the present &()' Constitution has given
more significance to this declaration of principle for the people are no, vested ,ith po,er not only to
propose, enact or reject any act or la, passed by Congress or by the local legislative body, but to
propose amendments to the constitution as ,ell.
4
o implement these constitutional edicts, Congress
in &()( enacted !epublic Act ?o. 2'AB, other,ise kno,n as 4T*e initiative an! >e,eren!u( 3ct4.
his la,, to my mind, amply covers an initiative on the constitution. he contrary vie, maintained by
petitioners is based principally on the alleged lack of subCtitle in the la, on initiative to amend the
constitution and on their allegation that7
!epublic Act ?o. 2'AB provides for the effectivity of the la, after publication in print media. GAndH GtHhis
indicates that !epublic Act ?o. 2'AB covers only la,s and not constitutional amendments, because
constitutional amendments take effect upon ratification not after publication.
3
,hich allegation manifests petitioners$ selective interpretation of the la,, for under -ection ( of
!epublic Act ?o. 2'AB on the E,,ectivit o, Initiative or >e,eren!u( Proposition paragraph ;b<
thereof is clear in providing that7
he proposition in an initiative on the constitution approved by a majority of the votes cast in the
%t is a rule that every part of the statute must be interpreted ,ith reference the conte8t, i.e., that every
part of the statute must be construed together ,ith the other parts and kept subservient to the general
intent of the ,hole enactment.
5
hus, the provisions of !epublic Act ?o. 2'AB may not be interpreted
in isolation. he legislative intent behind every la, is to be e8tracted from the statute as a ,hole.
5
%n its definition of terms, !epublic Act ?o. 2'AB defines initiative as 4t*e po)er o, t*e people to
propose a(en!(ents to t*e constitution or to propose an! enact le+islations t*rou+* an election
calle! ,or t*e purpose4.
:
he same section, in enumerating the three systems of initiative, included an
4initiative on the constitution ,hich refers to a petition proposing amendments to the constitution4
7

Paragraph ;e< again of -ection A defines 4plebiscite4 as 4the electoral process # )*ic* an initiative
on t*e constitution is approve! or re5ecte! # t*e people4 And as to the material re#uirements for an
initiative on the Constitution, -ection B;b< distinctly enumerates the follo,ing7
A petition for an initiative on the &()' Constitution must have at least t,elve per centu( ;&*S< of the total
number of the registered voters as signatories, of ,hich every legislative district must be represented by
at least three per centu( ;AS< of the registered voters therein. %nitiative on the constitution may be
e8ercised only after five ;B< years from the ratification of the &()' Constitution and only once every five
years thereafter.
hese provisions ,ere inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by ,ay of initiative.
4A legal provision4, the Court has previously said, 4must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the la, or having
no effect ,hatsoever thereon4.
8
hat this is the legislative intent is further sho,n by the
deliberations in Congress, thus7
. . . More significantly, in the course of the consideration of the Conference Committee !eport on the
disagreeing provisions of -enate Bill ?o. &' and >ouse Bill ?o. *&B9B, it ,as noted7
bet,een -enate Bill ?o. &' and the consolidated >ouse Bill ?o. *&B9B ,hich refers to
the system providing for the initiative and referendum, fundamentally, Mr. -peaker, ,e
consolidated the -enate and the >ouse versions, so both versions are totally intact in the
bill. he -enators ironically provided for local initiative and referendum and the >ouse of
!epresentatives correctly provided for initiative and referendum an the Constitution and
on national legislation.
M!. A+BA?0, Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. Ehat does the sponsor sayI
M!. !0C0. Eillingly, Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. he 3entleman ,ill please proceed.
M!. !0C0. %n fact, the -enate version provided purely for local initiative and
referendum, ,hereas in the >ouse version, ,e provided purely for national and
constitutional legislation.
M!. A+BA?0. %s it our understanding, therefore, that the t,o provisions ,ere
incorporatedI
the Constitution to enact the enabling la,, so that ,e shall have a system ,hich can be
done every five years. %s it five years in the provision of the ConstitutionI
M!. !0C0. hat is correct, Mr. -peaker. 1or constitutional amendments to the &()'
Constitution, it is every five years.4 ;I!. G.ournal and !ecord of the >ouse of
!epresentativesH, 6ol. 6%%%, ) .une &()(, p. (29: #uoted in 3arcia v. Comelec, *A' -C!A
*'(, *(*C*(A G&((JH: emphasis supplied<
. . . he -enate version of the Bill may not have comprehended initiatives on the Constitution. Ehen
consolidated, though, ,ith the >ouse version of the Bill and as approved and enacted into la,, the
proposal included initiative on both the Constitution and ordinary la,s.
9
Clearly then, !epublic Act ?o. 2'AB covers an initiative on the constitution. Any other
construction as ,hat petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.
At any rate, % agree ,ith the ponencia that the Commission on /lections, at present, cannot take any
action ;such as those contained in the Commission$s orders dated December 2, (, and &*, &((2
GAnne8es B, C and BC&H< indicative of its having already assumed jurisdiction over private
respondents$ petition. his is so because from the tenor of -ection B ;b< of !.A. ?o. 2'AB it ,ould
appear that proof of procurement of the re#uired percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional re#uirement.
hus7
A petition ,or an initiative on the &()' Constitution must have at least t,elve per centu( ;&*S< of the total
number of registered voters as signatories, of ,hich every legislative district must be represented by at
least three per centu( ;AS< of the registered voters therein. %nitiative on the Constitution may be
;B< years thereafter.
>ere private respondents$ petition is unaccompanied by the re#uired signatures. his defect
not,ithstanding, it is ,ithout prejudice to the refiling of their petition once compliance ,ith the
re#uired percentage is satisfactorily sho,n by private respondents. %n the absence, therefore,
of an appropriate petition before the Commission on /lections, any determination of ,hether
private respondents$ proposal constitutes an amendment or revision is premature.
ACC0!D%?3+@, % take e8ception to the conclusion reached in the ponencia that !.A. ?o. 2'AB is an
4inade#uate4 legislation to cover a people$s initiative to propose amendments to the Constitution. %,
ho,ever, register my concurrence ,ith the dismissal, in the meantime, of private respondents$ petition
for initiative before public respondent Commission on /lections until the same be supported by proof
of strict compliance ,ith -ection B ;b< of !.A. ?o. 2'AB.

.ANGANI$AN, J., concurring and dissenting7
0ur distinguished colleague, Mr. .ustice >ilario 3. Davide .r., ,riting for the majority, holds that7
;&< he Comelec acted ,ithout jurisdiction or ,ith grave abuse of discretion in entertaining the
4initiatory4 Delfin Petition.
;*< Ehile the Constitution allo,s amendments to 4be directly proposed by the people through
initiative,4 there is no implementing la, for the purpose. !A 2'AB is 4incomplete, inade#uate, or
,anting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned.4
;A< Comelec !esolution ?o. *AA9, 4insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void.4
I concur )it* t*e ,irst ite( a#ove. =ntil and unless an initiatory petition can sho, the re#uired number
of signatures K in this case, &*S of all the registered voters in the Philippines ,ith at least AS in
every legislative district K no public funds may be spent and no government resources may be used
in an initiative to amend the Constitution. 6erily, the Comelec cannot even entertain any petition
absent such signatures. Co)ever, I !issent (ost respect,ull ,ro( t*e (a5oritDs t)o ot*er rulin+s. 0et
(e e6plain.
En!er t*e a#ove restrictive *ol!in+s espouse! # t*e CourtDs (a5orit, t*e Constitution cannot #e
a(en!e! at all t*rou+* a peopleDs initiative. Not # .el,in, not # Pir(a, not # anone, not even #
all t*e voters o, t*e countr actin+ to+et*er. T*is !ecision )ill e,,ectivel #ut unnecessaril curtail,
nulli,, a#ro+ate an! ren!er inutile t*e peopleDs ri+*t to c*an+e t*e #asic la). 3t t*e ver least, t*e
(a5orit *ol!s t*e ri+*t *osta+e to con+ressional !iscretion on )*et*er to pass a ne) la) to
i(ple(ent it, )*en t*ere is alrea! one e6istin+ at present. his right to amend through initiative, it
bears stressing, is guaranteed by -ection *, Article D6%% of the Constitution, as follo,s7
Eith all due respect, % find the majority$s position all too s,eeping and all too e8tremist. %t is e#uivalent
to burning the ,hole house to e8terminate the rats, and to killing the patient to relieve him of pain.
Ehat Citi"en Delfin ,ants the Comelec to do ,e should reject. But ,e should not thereby preempt
any future effort to e8ercise the right of initiative correctl an! 5u!iciousl. T*e ,act t*at t*e .el,in
Petition proposes a (isuse o, initiative !oes not 5usti, a #an a+ainst its proper use. In!ee!, t*ere is a
ri+*t )a to !o t*e ri+*t t*in+ at t*e ri+*t ti(e an! ,or t*e ri+*t reason.
Ta-en To+et*er an! Interprete! Properl, t*e Constitution, >3 /778 an! Co(elec >esolution
27FF 3re Su,,icient to I(ple(ent Constitutional Initiatives
Ehile !A 2'AB may not be a perfect la,, it ,as K as the majority openly concedes K intended by
the legislature to cover and, % respectfully submit, it contains enough provisions to effectuate an
1
% completely agree ,ith the inspired and inspiring opinions of Mr.
.ustice !eynato -. Puno and Mr. .ustice !icardo .. 1rancisco that !A 2'AB, the !oco la, on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
-uch vie,s, ,hich % shall no longer repeat nor elaborate on, are thoroughly consistent ,ith this
Court$s unanimous en #anc rulings in Su#ic "a 'etropolitan 3ut*orit vs. Co((ission on Elections,
4
that 4provisions for initiative . . . are ;to be< liberally construed to effectuate their purposes, to
facilitate and not hamper the e8ercise by the voters of the rights granted thereby4: and in Garcia vs.
Co(elec,
3
that any 4effort to triviali"e the effectiveness of people$s initiatives ought to be rejected.4
?o la, can completely and absolutely cover all administrative details. %n recognition of this, !A 2'AB
,isely empo,ered
5
the Commission on /lection 4to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act.4 And pursuant thereto, the Comelec issued its
!esolution *A99 on &2 .anuary &((&. -uch !esolution, by its very ,ords, ,as promulgated 4to
govern the conduct of initiative on the Constitution and initiative and referendum on national and local
la,s,4 not by the incumbent Commission on /lections but by one then composed of Acting
Chairperson >aydee B. @orac, Comms. Alfredo /. Abueg .r., +eopoldo +. Africa, Andres !. 1lores,
Dario C. !ama and Magdara B. Dimaampao. All of these Commissioners ,ho signed !esolution
*A99 have retired from the Commission, and thus ,e cannot ascribe any vile motive unto them, other
than an honest, sincere and e8emplary effort to give life to a cherished right of our people.
he majority argues that ,hile !esolution *A99 is valid in regard to national la,s and local
legislations, it is void in reference to constitutional amendments. here is no basis for such
differentiation. he source of and authority for the !esolution is the same la,, !A 2'AB.
I respect,ull su#(it t*at ta-en to+et*er an! interprete! properl an! li#erall, t*e Constitution
:particularl 3rt. I@II, Sec. 2<, >J /778 an! Co(elec >esolution 27FF provi!e (ore t*an su,,icient
aut*orit to i(ple(ent, e,,ectuate an! realize our peopleDs po)er to a(en! t*e Constitution.
Petitioner .el,in an! t*e Pe!rosa
Spouses S*oul! Not "e 'uzzle!
% am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on &) December &((2 insofar as it prohibited Petitioner Delfin and the -pouses Pedrosa from
e8ercising their right of initiative. %n fact, % believe that such restraining order as against private
respondents should not have been issued, in the first place. Ehile % agree that the Comelec should be
stopped from using public funds and government resources to help them gather signatures, % firmly
believe that this Court has no po,er to restrain them from e8ercising their right of initiative. he right
to propose amendments to the Constitution is really a species of the right of free speech and free
assembly. And certainly, it ,ould be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to hisFher beliefs. As the eminent 6oltaire once said, 4% may disagree
,ith ,hat you say, but % ,ill defend to the death your right to say it.4 After all, freedom is not really for
the thought ,e agree ,ith, but as .ustice >olmes ,rote, 4freedom for the thought that ,e hate.4
5
Epilo+ue
By ,ay of epilogue, let me stress the guiding tenet of my -eparate 0pinion. %nitiative, like referendum
and recall, is a ne, and treasured feature of the 1ilipino constitutional system. All three are
institutionali"ed legacies of the ,orldCadmired /D-A people po,er. +ike elections and plebiscites,
they are hallo,ed e8pressions of popular sovereignty. hey are sacred democratic rights of our
people to be used as their final ,eapons against political e8cesses, opportunism, inaction, oppression
and misgovernance: as ,ell as their reserved instruments to e8act transparency, accountability and
faithfulness from their chosen leaders. K*ile on t*e one *an!, t*eir (isuse an! a#use (ust #e
resolutel struc- !o)n, on t*e ot*er, t*eir le+iti(ate e6ercise s*oul! #e care,ull nurture! an!
zealousl protecte!.
E>/!/10!/, % vote to 3!A? the petition of -en. Miriam D. -antiago et al. and to D%!/C
!espondent Commission on /lections to D%-M%-- the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. % also vote to +%1 the temporary restraining
order issued on &) December &((2 insofar as it prohibits .esus Delfin, Alberto Pedrosa and Carmen
Pedrosa from e8ercising their right to free speech in proposing amendments to the Constitution.

S+(a,at+ O(%%os
."NO, J., concurring and dissenting7
% join the groundCbreaking ponencia of our esteemed colleague, Mr. .ustice Davide insofar as it
orders the C0M/+/C to dismiss the Delfin petition. % regret, ho,ever, % cannot share the vie, that
!.A. ?o. B'AB and C0M/+/C !esolution ?o. *A99 are legally defective and cannot implement the
people$s initiative to amend the Constitution. % like,ise submit that the petition ,ith respect to the
Pedrosas has no leg to stand on and should be dismissed. Eith due respect7
%
1irst, % submit that !.A. ?o. 2'AB sufficiently implements the right of the people to initiate
amendments to the Constitution thru initiative. 0ur effort to discover the meaning of !.A. ?o. 2'AB
should start ,ith the search of the intent of our la,makers. A kno,ledge of this intent is critical for the
intent of the legislature is the la, and the controlling factor in its interpretation.
1
-tated other,ise,
intent is the essence of the la,, the spirit ,hich gives life to its enactment.
4
-ignificantly, the majority decision concedes that 4. . . !.A. ?o. 2'AB ,as intended to cover initiative
to propose amendments to the Constitution.4 %t ought to be so for this intent is crystal clear from the
history of the la, ,hich ,as a consolidation of >ouse Bill ?o. *&B9B
3
and -enate Bill ?o. &'.
5
-enate
Bill ?o. &' ,as entitled 4An Act Providing for a -ystem of %nitiative and !eferendum and the
/8ception herefrom, Ehereby People in +ocal 3overnment =nits Can Directly Propose and /nact
!esolutions and 0rdinances or Approve or !eject any 0rdinance or !esolution Passed by the +ocal
+egislative Body.4 Beyond doubt, -enate Bill ?o. &' did not include people$s initiative to propose
amendments to the Constitution. %n checkered contrast, >ouse Bill ?o. *&B9B
5
e8pressly included
people$s initiative to amend the Constitution. Congressman ;no, -enator< !aul !oco emphasi"ed in
his sponsorship remarks7
:
888 888 888
-P0?-0!->%P !/MA!N- 01 M!. !0C0
At the outset, Mr. !oco provided the follo,ing backgrounder on the constitutional basis of the proposed
measure.
&. As cited in @era vs. 3velino ;&(J2<, the presidential system ,hich ,as introduced by the &(AB
Constitution sa, the application of the principle of separation of po,ers.
*. Ehile under the parliamentary system of the &('A Constitution the principle remained applicable, the
&()& amendments to the Constitution of &('A ensured presidential dominance over the Batasang
Pambansa.
Constitutional history then sa, the shifting and sharing of legislative po,ers bet,een the +egislature and
the /8ecutive departments. ranscending changes in the e8ercise of legislative po,er is the declaration
in the Philippine Constitution that the Philippines is a republican state ,here sovereignty resides in the
people and all sovereignty emanates from them.
A. =nder the &()' Constitution, the la,making po,er is still preserved in Congress: ho,ever, to
institutionali"e direct action of the people as e8emplified in the &()2 !evolution, the Constitution
recogni"es the po,er of the people, through the system of initiative and referendum.
As cited in -ection &, Article 6% of the &()' Constitution, Congress does not have plenary po,ers since
reserve po,ers are given to the people e8pressly. -ection A* of the same Article mandates Congress to
pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative po,ers
,ith the people.
-ection *, Article D6%% of the &()' Constitution, on the other hand, vests in the people the po,er to
directly propose amendments to the Constitution through initiative, upon petition of at least &* percent of
the total number of registered voters.
-tating that >ouse Bill ?o. *&B9B is the Committee$s response to the duty imposed on Congress to
implement the e8ercise by the people of the right to initiative and referendum, Mr. !oco recalled the
beginnings of the system of initiative and referendum under Philippine +a,. >e cited -ection (( of the
+ocal 3overnment Code ,hich vests in the barangay assembly the po,er to initiate legislative processes,
decide the holding of plebiscite and hear reports of the -angguniang Barangay, all of ,hich are variations
of the po,er of initiative and referendum. >e added that the holding of barangay plebiscites and
referendum are like,ise provided in -ections &99 and &9& of the same Code.
hereupon, for the sake of brevity, Mr. !oco moved that pertinent #uotation on the subject ,hich he ,ill
later submit to the -ecretary of the >ouse be incorporated as part of his sponsorship speech.
>e then cited e8amples of initiative and referendum similar to those contained in the instant Bill among
,hich are the constitutions of states in the =nited -tates ,hich recogni"e the right of registered voters to
initiate the enactment of any statute or to project any e8isting la, or parts thereof in a referendum. hese
states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, 0klahoma, 0regon, and
practically all other states.
Mr. !oco e8plained that in certain American states, the kind of la,s to ,hich initiative and referendum
apply is also ,ithout limitation, e8cept for emergency measures, ,hich are like,ise incorporated in >ouse
Bill ?o. *&B9B. >e added that the procedure provided by the Bill from the filing of the petition, the
re#uirements of a certain percentage of supporters to present a proposition, to the submission to electors
are substantially similar to the provisions in American la,s. Although an infant in Philippine political
structure, the system of initiative and referendum, he said, is a tried and tested system in other
jurisdictions, and the Bill is patterned after American e8perience.
>e further e8plained that the bill has only &* sections, and recalled that the Constitutional Commissioners
sa, the system of the initiative and referendum as an instrument ,hich can be used should the
legislature sho, itself to be indifferent to the needs of the people. his is the reason, he claimed, ,hy no,
is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass la,s ,hich
are necessary to safeguard individual rights and liberties.
At this juncture Mr. !oco e8plained the process of initiative and referendum as advocated in >ouse Bill
?o. *&B9B. >e stated that7
&. %nitiative means that the people, on their o,n political judgment, submit a Bill for the consideration of
the general electorate.
*. he instant Bill provides three kinds of initiative, namely: the initiative to amend the Constitution once
every five years: the initiative to amend statutes approved by Congress: and the initiative to amend local
ordinances.
A. he instant Bill gives a definite procedure and allo,s the Commission on /lections ;C0M/+/C< to
define rules and regulations on the po,er of initiative.
J. !eferendum means that the legislators seek the consent of the people on measures that they have
approved.
B. =nder -ection J of the Bill the people can initiate a referendum ,hich is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least
&9 percent of the total of registered voters at ,hich every legislative district is represented by at least
three percent of the registered voters thereof. Eithin A9 days after receipt of the petition, the C0M/+/C
shall determine the sufficiency of the petition, publish the same, and set the date of the referendum ,ithin
JB to (9Cday period.
2. Ehen the matter under referendum or initiative is approved by the re#uired number of votes, it shall
become effective &B days follo,ing the completion of its publication in the 0fficial 3a"ette.
%n concluding his sponsorship remarks, Mr. !oco stressed that the Members cannot ignore the people$s
call for initiative and referendum and urged the Body to approve >ouse Bill ?o. *&B9B.
At this juncture, Mr. !oco also re#uested that the prepared te8t of his speech together ,ith the footnotes
be reproduced as part of the Congressional !ecords.
he same sentiment as to the bill$s intent to implement people$s initiative to amend the
Constitution ,as stressed by then Congressman ;no, -ecretary of Agriculture< -alvador
/scudero %%% in his sponsorship remarks, viz7
7
888 888 888
-P0?-0!->%P !/MA!N- 01 M!. /-C=D/!0
Mr. /scudero first pointed out that the people have been clamoring for a truly popular democracy ever
since, especially in the soCcalled parliament of the streets. A substantial segment of the population feels,
he said, that the form of democracy is there, but not the reality or substance of it because of the
increasingly elitist approach of their representatives to the country$s problem.
Ehereupon, Mr. /scudero pointed out that the Constitution has provided a means ,hereby the people
can e8ercise the reserved po,er of initiative to propose amendments to the Constitution, and re#uested
that -ections & and A*, Article 6%: -ection A, Article D: and -ection *, Article D6%% of the Constitution be
made part of his sponsorship remarks.
Mr. /scudero also stressed that an implementing la, is needed for the aforecited Constitutional
provisions. Ehile the enactment of the Bill ,ill give ,ay to strong competition among causeCoriented and
sectoral groups, he continued, it ,ill hasten the politi"ation of the citi"enry, aid the government in forming
an enlightened public opinion, and produce more responsive legislation. he passage of the Bill ,ill also
give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added.
Mr. /scudero stated that he and Mr. !oco hoped for the early approval of the Bill so that it can be initially
used for the Agrarian !eform +a,. >e said that the passage of >ouse Bill ?o. *&B9B ,ill sho, that the
Members can set aside their personal and political consideration for the greater good of the people.
he disagreeing provisions in -enate Bill ?o. &' and >ouse Bill ?o. *&B9B ,ere threshed out
in a Bicameral Conference Committee.
8
%n the meeting of the Committee on .une 2, &()(,
9
the
members agreed that the t,o ;*< bills should be consolidated and that the consolidated version
should include people$s initiative to amend the Constitution as contemplated by >ouse Bill ?o.
*&B9B. he transcript of the meeting states7
888 888 888
C>A%!MA? 30?5A+/-. But at any rate, as % have said, because this is ne, in our
political system, the -enate decided on a more cautious approach and limiting it only to
the local government units because even ,ith that stage ,here . . . at least this has been
#uite popular, anoI %t has been attempted on a national basis. Alright. here has not
been a single attempt. ?o,, so, kami limitado doon. And, second, ,e consider also that it
is only fair that the local legislative body should be given a chance to adopt the legislation
bill proposed, rightI %yong sinasabing indirect system of initiative. %f after all, the local
legislative assembly or body is ,illing to adopt it in full or in toto, there ought to be any
reason for initiative, ano for initiative. And, number A, ,e feel that there should be some
limitation on the fre#uency ,ith ,hich it should be applied. ?umber J, na the people, thru
initiative, cannot enact any ordinance that is beyond the scope of authority of the local
legislative body, other,ise, my 3od, magCaassume sila ng po,er that is broader and
greater than the grant of legislative po,er to the -anggunians. And ?umber B, because
of that, then a proposition ,hich has been the result of a successful initiative can only
carry the force and effect of an ordinance and therefore that should not deprive the court
of its jurisdiction to declare it null and void for ,ant of authority. >a, di baI % mean it is
beyond po,ers of local government units to enact. %yon ang main essence namin, so ,e
concentrated on that. And that is ,hy . . . so ang sa inyo naman includes iyon sa
Constitution, amendment to the Constitution eh . . . national la,s. -a amin, if you insist
on that, alright, although ,e feel na it ,ill in effect become a dead statute. Alright, and ,e
can agree, ,e can agree. -o ang mangyayari dito, and magiging basic nito, let us not
discuss anymore kung alin and magiging basic bill, ano, ,hether it is the -enate Bill or
,hether it is the >ouse bill. +ogically it should be ours sapagkat una iyong sa amin eh. %t
is one of the first bills approved by the -enate kaya ang number niyan, makikita mo, &',
eh. >u,ag na nating pagusapan. ?o,, if you insist, really iyong features ng national at
saka constitutional, okay. TTTT gaga,in na natin na consolidation of both bills.
>0?. !0C0. @es, ,e shall consolidate.
C>A%!MA? 30?5A+/-. Consolidation of the -enate and >ouse Bill ?o. so and so.
10
Ehen the consolidated bill ,as presented to the >ouse for approval, then Congressman !oco
upon interpellation by Congressman !odolfo Albano, again confirmed that it covered people$s
initiative to amend the Constitution. he record of the >ouse !epresentative states7
11
888 888 888
>/ -P/AN/! P!0 /MP0!/. he 3entleman from Camarines -ur is recogni"ed.
bet,een -enate Bill ?o. *&B9B ,hich refers to the system providing for the initiative and
referendum, fundamentally, Mr. -peaker, ,e consolidated the -enate and the >ouse
versions, so both versions are totally intact in the bill. he -enators ironically provided for
local initiative and referendum and the >ouse !epresentatives correctly provided for
initiative and referendum on the Constitution and on national legislation.
M!. A+BA?0. Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. he 3entlemen ,ill please proceed.
M!. !0C0. %n fact, the -enate version provide purely for local initiative and referendum,
,hereas in the >ouse version, ,e provided purely for national and constitutional
legislation.
M!. A+BA?0. %s it our understanding therefore, that the t,o provisions ,ere
incorporatedI
the Constitution ,hereby it mandates this Congress to enact the enabling la,, so that ,e
shall have a system ,hich can be done every five years. %s it five years in the provision of
the ConstitutionI
M!. !0C0. hat is correct, Mr. -peaker. 1or constitutional amendments in the &()'
Constitution, it is every five years.
M!. A+BA?0. 1or every five years, Mr. -peakerI
M!. !0C0. Eithin five years, ,e cannot have multiple initiatives and referenda.
M!. A+BA?0. herefore, basically, there ,as no substantial difference bet,een the t,o
versionsI
M!. !0C0. he gaps in our bill ,ere filled by the -enate ,hich, as % said earlier,
ironically ,as about local, provincial and municipal legislation.
M!. A+BA?0. And the t,o bills ,ere consolidatedI
M!. A+BA?0. hank you, Mr. -peaker.
APP!06A+ 01 C.C.!.
0? -.B. ?0. &' A?D >.B. ?0. *&B9B
;he %nitiative and !eferendum Act<
>/ -P/AN/! P!0 /MP0!/. here ,as a motion to approve this consolidated bill on -enate Bill ?o.
&' and >ouse Bill ?o. *&B9B.
%s there any objectionI ;Silence. he Chair hears none: the motion is approved.
-ince it is crystalline that the intent of !.A. ?o. 2'AB is to implement the people$s initiative to
amend the Constitution, it is our bounden duty to interpret the la, as it ,as intended by the
legislature. Ee have ruled that once intent is ascertained, it must be enforced even if it may
not be consistent ,ith the strict letter of the la, and this ruling is as old as the mountain. Ee
have also held that ,here a la, is susceptible of more than one interpretation, that
interpretation ,hich ,ill most tend to effectuate the manifest intent of the legislature ,ill be
adopted.
14
he te8t of !.A. ?o. 2'AB should therefore be reasonably construed to effectuate its intent to
implement the people$s initiative to amend the Constitution. o be sure, ,e need not torture the te8t
of said la, to reach the conclusion that it implements people$s initiative to amend the Constitution.
!.A. ?o. 2'AB is replete ,ith references to this prerogative of the people.
1irst, the policy statement declares7
-ec. *. State(ent o, Polic. K he po,er of the people under a system of initiative and referendum to
affirmed, recogni"ed and guaranteed. ;emphasis supplied<
-econd, the la, defines 4initiative4 as 4the po,er of the people to propose amendments to the
constitution or to propose and enact legislations through an election called for the purpose,4 and
4plebiscite4 as 4the electoral process by ,hich an initiative on the Constitution is approved or rejected
by the people.
hird, the la, provides the re#uirements for a petition for initiative to amend the Constitution. -ection
B;b< states that 4;a< petition for an initiative on the &()' Constitution must have at least t,elve per
centu( ;&*S< of the total number of registered voters as signatories, of ,hich every legislative district
must be represented by at least three per centu( ;AS< of the registered voters therein.4 %t also states
that 4;i<nitiative on the Constitution may be e8ercised only after five ;B< years from the ratification of
the &()' Constitution and only once every five ;B< years thereafter.
1inally, !.A. ?o. 2'AB fi8es the effectivity date of the amendment. -ection (;b< states that 4;t<he
proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.
%t is unfortunate that the majority decision resorts to a strained interpretation of !.A. ?o. 2'AB to
defeat its intent ,hich it itself concedes is to implement people$s initiative to propose amendments to
the Constitution. hus, it laments that the ,ord 4Constitution4 is neither germane nor relevant to the
policy thrust of section * and that the statute$s subtitling is not accurate. hese lapses are to be
e8pected for la,s are not al,ays ,ritten in impeccable /nglish. !ightly, the Constitution does not
re#uire our legislators to be ,ordCsmiths ,ith the ability to ,rite bills ,ith poetic commas like .ose
3arcia 6illa or in lyrical prose like Einston Churchill. But it has al,ays been our good policy not to
refuse to effectuate the intent of a la, on the ground that it is badly ,ritten. As the distinguished
6icente 1rancisco
13
reminds us7 4Many la,s contain ,ords ,hich have not been used accurately. But
the use of inapt or inaccurate language or ,ords, ,ill not vitiate the statute if the legislative intention
can be ascertained. he same is e#ually true ,ith reference to a,k,ard, slovenly, or ungrammatical
e8pressions, that is, such e8pressions and ,ords ,ill be construed as carrying the meaning the
legislature intended that they bear, although such a construction necessitates a departure from the
literal meaning of the ,ords used.
%n the same vein, the argument that !.A. ?o. 'BAB does not include people$s initiative to amend the
Constitution simply because it lacks a subCtitle on the subject should be given the ,eight of helium.
Again, the hoary rule in statutory construction is that headings prefi8ed to titles, chapters and sections
of a statute may be consulted in aid of interpretation, but inferences dra,n therefrom are entitled to
very little ,eight, and they can never control the plain terms of the enacting clauses.
15
All said, it is difficult to agree ,ith the majority decision that refuses to enforce the manifest intent or
spirit of !.A. ?o. 2'AB to implement the people$s initiative to amend the Constitution. %t blatantly
disregards the rule cast in concrete that the letter of the la, must yield to its spirit for the letter of the
la, is its body but its spirit is its soul.
15
%%
C0M/+/C !esolution ?o. *A99,
1:
promulgated under the ste,ardship of Commissioner >aydee
@orac, then its Acting Chairman, spelled out the procedure on ho, to e8ercise the people$s initiative
to amend the Constitution. his is in accord ,ith the delegated po,er granted by section *9 of !.A.
?o. 2'AB to the C0M/+/C ,hich e8pressly states7 4he Commission is hereby empo,ered to
promulgate such rules and regulations as may be necessary to carry out the purposes of this Act.4 By
no means can this delegation of po,er be assailed as infirmed. %n the benchmark case of Pelaez v.
3u!itor General,
17
this Court, thru former Chief .ustice !oberto Concepcion laid do,n the test to
determine ,hether there is undue delegation of legislative po,er, viz7
888 888 888
Although Congress may delegate to another branch of the 3overnment the po,er to fill details in the
e8ecution, enforcement or administration of a la,, it is essential, to forestall a violation of the principle of
separation of po,ers, that said la,7 ;a< be complete in itself K it must set forth therein the policy to be
e8ecuted, carried out or implemented by the delegate K and ;b< to fi8 standard K the limits of ,hich are
sufficiently determinate or determinable K to ,hich the delegate must conform in the performance of his
functions. %ndeed, ,ithout a statutory declaration of policy, ,hich is the essence of every la,, and, ,ithout
the aforementioned standard, there ,ould be no means to determine, ,ith reasonable certainty, ,hether
the delegate has acted ,ithin or beyond the scope of his authority. >ence, he could thereby arrogate
upon himself the po,er, not only to make the la,, but, also K and this is ,orse K to unmake it, by
adopting measures inconsistent ,ith the end sought to be attained by the Act of Congress, thus nullifying
the principle of separation of po,ers and the system of checks and balances, and, conse#uently,
undermining the very foundation of our republican system.
-ection 2) of the !evised Administrative Code does not meet these ,ellCsettled re#uirements for a valid
delegation of the po,er to fi8 the details in the enforcement of a la,. %t does not enunciate any policy to
be carried out or implemented by the President. ?either does it give a standard sufficiently precise to
avoid the evil effects above referred to.
!.A. ?o. 2'AB sufficiently states the policy and the standards to guide the C0M/+/C in promulgating
the la,$s implementing rules and regulations of the la,. As aforestated, section * spells out the policy
of the la,: viz7 4he po,er of the people under a system of initiative and referendum to directly
propose, enact, approve or reject, in ,hole or in part, the Constitution, la,s, ordinances, or
resolutions passed by any legislative body upon compliance ,ith the re#uirements of this Act is
hereby affirmed, recogni"ed and guaranteed.4 -pread out all over !.A. ?o. 2'AB are the standards to
canali"e the delegated po,er to the C0M/+/C to promulgate rules and regulations from overflo,ing.
hus, the la, states the number of signatures necessary to start a people$s initiative,
18
directs ho,
initiative proceeding is commenced,
19
,hat the C0M/+/C should do upon filing of the petition for
initiative,
40
ho, a proposition is approved,
41
,hen a plebiscite may be held,
44
,hen the amendment
takes effect
43
and ,hat matters may not be the subject of any initiative.
45
By any measure, these
standards are ade#uate.
1ormer .ustice %sagani A. Cru", similarly elucidated that 4a sufficient standard is intended to map out
the boundaries of the delegates$ authority by defining the legislative policy and indicating the
circumstances under ,hich it is to be pursued and effected. he purpose of the sufficient standard is
to prevent a total transference of legislative po,er from the la,making body to the delegate.4
45
%n
enacting !.A. ?o. 2'AB, it cannot be said that Congress totally transferred its po,er to enact the la,
implementing people$s initiative to C0M/+/C. A close look at C0M/+/C !esolution ?o. *A99 ,ill
sho, that it merely provided the procedure to effectuate the policy of !.A. ?o. 2'AB giving life to the
people$s initiative to amend the Constitution. he debates
4:
in the Constitutional Commission make it
clear that the rules of procedure to enforce the people$s initiative can be delegated, thus7
M!. !0M=+0. =nder Commissioner Davide$s amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . I
M!. DA6%D/. %t can.
888 888 888
M!. DA6%D/. As long as it ,ill not destroy the substantive right to initiate. %n other ,ords,
M!. !0M=+0. %n that provision of the Constitution can the procedures ,hich % have
discussed be legislatedI
M!. DA6%D/. @es.
%n his book, he %ntent of the &()2 Constitution Eriters,
47
1ather Bernas like,ise affirmed7 4%n
response to #uestions of Commissioner !omulo, Davide e8plained the e8tent of the po,er of
the legislature over the process7 it could for instance, prescribe the $proper form before ;the
amendment< is submitted to the people,$ it could authori"e another body to check the proper
form. %t could also authori"e the C0M/+/C, for instance, to check the authenticity of the
signatures of petitioners. Davide concluded7 $As long as it ,ill not destroy the substantive right
to initiate. %n other ,ords, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.$4 Puite clearly, the prohibition against the
legislature is to impair the substantive right of the people to initiate amendments to the
Constitution. %t is not, ho,ever, prohibited from legislating the procedure to enforce the
people$s right of initiative or to delegate it to another body like the C0M/+/C ,ith proper
standard.
A survey of our case la, ,ill sho, that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of ade#uate legislative standard to guide their
promulgation. As aptly perceived by former .ustice Cru", 4even if the la, itself does not e8pressly
pinpoint the standard, the courts ,ill bend back,ard to locate the same else,here in order to spare
the statute, if it can, from constitutional infirmity.4
48
>e cited the ruling in Cira#aas*i v. Enite! States,
49
viz7
888 888 888
%t is true that the Act does not in terms establish a particular standard to ,hich orders of the military
commander are to conform, or re#uire findings to be made as a prere#uisite to any order. But the
/8ecutive 0rder, the Proclamations and the statute are not to be read in isolation from each other. hey
,ere parts of a single program and must be judged as such. he Act of March *&, &(J*, ,as an adoption
by Congress of the /8ecutive 0rder and of the Proclamations. he Proclamations themselves follo,ed a
standard authori"ed by the /8ecutive 0rder K the necessity of protecting military resources in the
designated areas against espionage and sabotage.
%n the case at bar, the policy and the standards are brightClined in !.A. ?o. 2'AB. A *9C*9 look
at the la, cannot miss them. hey ,ere not ,ritten by our legislators in invisible ink. he policy
and standards can also be found in no less than section *, Article D6%% of the Constitution on
Amendments or !evisions. here is thus no reason to hold that the standards provided for in
!.A. ?o. 2'AB are insufficient for in other cases ,e have upheld as ade#uate more general
standards such as 4simplicity and dignity,4
30
4public interest,4
31
4public ,elfare,4
34
4interest of
la, and order,4
33
4justice and e#uity,4
35
4ade#uate and efficient instruction,4
35
4public safety,4
3:

4public policy4,
37
4greater national interest4,
38
4protect the local consumer by stabili"ing and
subsidi"ing domestic pump rates4,
39
and 4promote simplicity, economy and efficiency in
government.4
50
A due regard and respect to the legislature, a coCe#ual and coordinate branch
of government, should counsel this Court to refrain from refusing to effectuate la,s unless they
are clearly unconstitutional.
%%%
%t is also respectfully submitted that the petition should he dismissed ,ith respect to the Pedrosas.
he inclusion of the Pedrosas in the petition is utterly baseless. he records sho, that the case at bar
started ,hen respondent Delfin alone and by himself filed ,ith the C0M/+/C a Petition to Amend
the Constitution to +ift erm +imits of /lective 0fficials by People$s %nitiative. he Pedrosas did not
join the petition. %t ,as -enator !oco ,ho moved to intervene and ,as allo,ed to do so by the
C0M/+/C. he petition ,as heard and before the C0M/+/C could resolve the Delfin petition, the
case at bar ,as filed by the petitioners ,ith this Court. Petitioners sued the C0M/+/C. .esus Delfin,
Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People$s
%nitiative for !eform, Moderni"ation and Action ;P%!MA<. he suit is an original action for prohibition
,ith prayer for temporary restraining order andFor ,rit of preliminary injunction.
he petition on its face states no cause of action against the Pedrosas. he only allegation against
the Pedrosas is that they are founding members of the P%!MA ,hich proposes to undertake the
signature drive for people$s initiative to amend the Constitution. -trangely, the P%!MA itself as an
organi"ation ,as not impleaded as a respondent. Petitioners then prayed that ,e order the Pedrosas
4. . . to desist from conducting a signature drive for a people$s initiative to amend the Constitution.4 0n
December &(, &((2, ,e temporarily enjoined the Pedrosas 4. . . from conducting a signature drive for
people$s initiative to amend the Constitution.4 %t is not enough for the majority to lift the temporary
restraining order against the Pedrosas. %t should dismiss the petition and all motions for contempt
against them ,ithout e#uivocation.
0ne need not dra, a picture to impart the proposition that in soliciting signatures to start a people$s
initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. heir
solicitation of signatures is a right guaranteed in black and ,hite by section * of Article D6%% of the
Constitution ,hich provides that 4. . . amendments to this Constitution may like,ise be directly
proposed by the people through initiative. . .4 his right springs from the principle proclaimed in
section &, Article %% of the Constitution that in a democratic and republican state 4sovereignty resides
in the people and all government authority emanates from them.4 he Pedrosas are part of the people
and their voice is part of the voice of the people. hey may constitute but a particle of our sovereignty
but no po,er can triviali"e them for sovereignty is indivisible.
But this is not all. -ection &2 of Article D%%% of the Constitution provides7 4he right of the people and
their organi"ations to effective and reasonable participation at all levels of social, political and
economic decisionCmaking shall not be abridged. he -tate shall by la,, facilitate the establishment
of ade#uate consultation mechanisms.4 his is another novel provision of the &()' Constitution
strengthening the sine,s of the sovereignty of our people. %n soliciting signatures to amend the
Constitution, the Pedrosas are participating in the political decisionCmaking process of our people.
he Constitution says their right cannot be abridged ,ithout any ifs and buts. Ee cannot put a
#uestion mark on their right.
0ver and above these ne, provisions, the Pedrosas$ campaign to amend the Constitution is an
e8ercise of their freedom of speech and e8pression and their right to petition the government for
redress of grievances. Ee have memoriali"ed this universal right in all our fundamental la,s from the
Malolos Constitution to the &()' Constitution. Ee have iterated and reiterated in our rulings that
freedom of speech is a preferred right, the matri8 of other important rights of our people. =ndeniably,
freedom of speech enervates the essence of the democratic creed of think and let think. 1or this
reason, the Constitution encourages speech even if it protects the speechless.
%t is thus evident that the right of the Pedrosas to solicit signatures to start a people$s initiative to
amend the Constitution does not depend on any la,, much less on !.A. 2'AB or C0M/+/C
!esolution ?o. *A99. ?o la,, no Constitution can chain the people to an undesirable status #uo. o
be sure, there are no irrepealable la,s just as there are no irrepealable Constitutions. Change is the
predicate of progress and ,e should not fear change. Mankind has long recogni"ed the truism that
the only constant in life is change and so should the majority.
%6
%n a stream of cases, this Court has rhapsodi"ed people po,er as e8panded in the &()' Constitution.
0n 0ctober B, &((A, ,e observed that people$s might is no longer a myth but an article of faith in our
Constitution.
51
0n -eptember A9, &((J, ,e postulated that people po,er can be trusted to check
e8cesses of government and that any effort to triviali"e the effectiveness of people$s initiatives ought
to be rejected.
54
0n -eptember *2, &((2, ,e pledged that 4. . . this Court as a matter of policy and
doctrine ,ill e8ert every effort to nurture, protect and promote their legitimate e8ercise.4
53
.ust a fe,
days ago, or on March &&, &((', by a unanimous decision,
55
,e allo,ed a recall election in Caloocan
City involving the mayor and ordered that he submits his right to continue in office to the judgment of
the tribunal of the people. hus far, ,e have succeeded in transforming people po,er from an
opa#ue abstraction to a robust reality. he Constitution calls us to encourage people empo,erment
to blossom in full. he Court cannot halt any and all signature campaigns to amend the Constitution
,ithout setting back the flo,ering of people empo,erment. More important, the Court cannot seal the
lips of people ,ho are proCchange but not those ,ho are antiCchange ,ithout concerting the debate
on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a
monologue for in a democracy nobody can claim any infallibility.

2IT"G, J., concurring and dissenting7
he C0M/+/C should have dismissed, outrightly, the Delfin Petition.
%t does seem to me that there is no real e8igency on the part of the Court to engross, let alone to
commit, itself on all the issues raised and debated upon by the parties. Ehat is essential at this time
,ould only be to resolve ,hether or not the petition filed ,ith the C0M/+/C, signed by Atty. .esus -.
Delfin in his capacity as a 4founding member of the Movement for People$s %nitiative4 and seeking
through a people initiative certain modifications on the &()' Constitution, can properly be regarded
and given its due course. he Constitution, relative to any proposed amendment under this method,
is e8plicit. -ection *, Article D6%%, thereof provides7
he Delfin petition is thus utterly deficient. %nstead of complying ,ith the constitutional imperatives,
the petition ,ould rather have much of its burden passed on, in effect, to the C0M/+/C. he petition
,ould re#uire C0M/+/C to schedule 4signature gathering all over the country,4 to cause the
necessary publication of the petition 4in ne,spapers of general and local circulation,4 and to instruct
4Municipal /lection !egistrars in all !egions of the Philippines to assist petitioners and volunteers in
establishing signing stations at the time and on the dates designated for the purpose.
% submit, even then, that the !0 earlier issued by the Court ,hich, conse#uentially, is made
permanent under the ponencia should be held to cover only the Delfin petition and must not be so
understood as having intended or contemplated to embrace the signature drive of the Pedrosas. he
grant of such a right is clearly implicit in the constitutional mandate on people initiative.
he distinct greatness of a democratic society is that those ,ho reign are the governed themselves.
he postulate is no longer lightly taken as just a perceived myth but a veritable reality. he past has
taught us that the vitality of government lies not so much in the strength of those ,ho lead as in the
consent of those ,ho are led. he role of free speech is pivotal but it can only have its true meaning if
it comes ,ith the correlative end of being heard.
Pending a petition for a people$s initiative that is sufficient in form and substance, it behooves the
Court, % most respectfully submit, to yet refrain from resolving the #uestion of ,hether or not !epublic
Act ?o. 2'AB has effectively and sufficiently implemented the Constitutional provision on right of the
people to directly propose constitutional amendments. Any opinion or vie, formulated by the Court at
this point ,ould at best be only a nonCbinding, al#eit possibly persuasive, o#iter !ictu(.
% vote for granting the instant petition before the Court and for clarifying that the !0 earlier issued by
the Court did not prescribe the e8ercise by the Pedrosas of their right to campaign for constitutional
amendments.

FRANCISCO, J., dissenting and concurring7
here is no #uestion that my esteemed colleague Mr. .ustice Davide has prepared a scholarly and
,ellC,ritten ponencia. ?onetheless, % cannot fully subscribe to his vie, that !. A. ?o. 2'AB is
inade#uate to cover the system of initiative on amendments to the Constitution.
o begin ,ith, sovereignty under the constitution, resides in the people and all government authority
emanates from them.
1
=nlike our previous constitutions, the present &()' Constitution has given
more significance to this declaration of principle for the people are no, vested ,ith po,er not only to
propose, enact or reject any act or la, passed by Congress or by the local legislative body, but to
propose amendments to the constitution as ,ell.
4
o implement these constitutional edicts, Congress
in &()( enacted !epublic Act ?o. 2'AB, other,ise kno,n as 4T*e initiative an! >e,eren!u( 3ct4.
his la,, to my mind, amply covers an initiative on the constitution. he contrary vie, maintained by
petitioners is based principally on the alleged lack of subCtitle in the la, on initiative to amend the
constitution and on their allegation that7
!epublic Act ?o. 2'AB provides for the effectivity of the la, after publication in print media. GAndH GtHhis
indicates that !epublic Act ?o. 2'AB covers only la,s and not constitutional amendments, because
constitutional amendments take effect upon ratification not after publication.
3
,hich allegation manifests petitioners$ selective interpretation of the la,, for under -ection ( of
!epublic Act ?o. 2'AB on the E,,ectivit o, Initiative or >e,eren!u( Proposition paragraph ;b<
thereof is clear in providing that7
he proposition in an initiative on the constitution approved by a majority of the votes cast in the
%t is a rule that every part of the statute must be interpreted ,ith reference the conte8t, i.e., that every
part of the statute must be construed together ,ith the other parts and kept subservient to the general
intent of the ,hole enactment.
5
hus, the provisions of !epublic Act ?o. 2'AB may not be interpreted
in isolation. he legislative intent behind every la, is to be e8tracted from the statute as a ,hole.
5
%n its definition of terms, !epublic Act ?o. 2'AB defines initiative as 4t*e po)er o, t*e people to
propose a(en!(ents to t*e constitution or to propose an! enact le+islations t*rou+* an election
calle! ,or t*e purpose4.
:
he same section, in enumerating the three systems of initiative, included an
4initiative on the constitution ,hich refers to a petition proposing amendments to the constitution4
7

Paragraph ;e< again of -ection A defines 4plebiscite4 as 4the electoral process # )*ic* an initiative
on t*e constitution is approve! or re5ecte! # t*e people4 And as to the material re#uirements for an
initiative on the Constitution, -ection B;b< distinctly enumerates the follo,ing7
A petition for an initiative on the &()' Constitution must have at least t,elve per centu( ;&*S< of the total
number of the registered voters as signatories, of ,hich every legislative district must be represented by
at least three per centu( ;AS< of the registered voters therein. %nitiative on the constitution may be
years thereafter.
hese provisions ,ere inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by ,ay of initiative.
4A legal provision4, the Court has previously said, 4must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the la, or having
no effect ,hatsoever thereon4.
8
hat this is the legislative intent is further sho,n by the
deliberations in Congress, thus7
. . . More significantly, in the course of the consideration of the Conference Committee !eport on the
disagreeing provisions of -enate Bill ?o. &' and >ouse Bill ?o. *&B9B, it ,as noted7
bet,een -enate Bill ?o. &' and the consolidated >ouse Bill ?o. *&B9B ,hich refers to
the system providing for the initiative and referendum, fundamentally, Mr. -peaker, ,e
consolidated the -enate and the >ouse versions, so both versions are totally intact in the
bill. he -enators ironically provided for local initiative and referendum and the >ouse of
!epresentatives correctly provided for initiative and referendum an the Constitution and
on national legislation.
M!. A+BA?0, Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. Ehat does the sponsor sayI
M!. !0C0. Eillingly, Mr. -peaker.
>/ -P/AN/! P!0 /MP0!/. he 3entleman ,ill please proceed.
M!. !0C0. %n fact, the -enate version provided purely for local initiative and
referendum, ,hereas in the >ouse version, ,e provided purely for national and
constitutional legislation.
M!. A+BA?0. %s it our understanding, therefore, that the t,o provisions ,ere
incorporatedI
the Constitution to enact the enabling la,, so that ,e shall have a system ,hich can be
done every five years. %s it five years in the provision of the ConstitutionI
M!. !0C0. hat is correct, Mr. -peaker. 1or constitutional amendments to the &()'
Constitution, it is every five years.4 ;I!. G.ournal and !ecord of the >ouse of
!epresentativesH, 6ol. 6%%%, ) .une &()(, p. (29: #uoted in 3arcia v. Comelec, *A' -C!A
*'(, *(*C*(A G&((JH: emphasis supplied<
. . . he -enate version of the Bill may not have comprehended initiatives on the Constitution. Ehen
consolidated, though, ,ith the >ouse version of the Bill and as approved and enacted into la,, the
proposal included initiative on both the Constitution and ordinary la,s.
9
Clearly then, !epublic Act ?o. 2'AB covers an initiative on the constitution. Any other
construction as ,hat petitioners foist upon the Court constitute a betrayal of the intent and
spirit behind the enactment.
At any rate, % agree ,ith the ponencia that the Commission on /lections, at present, cannot take any
action ;such as those contained in the Commission$s orders dated December 2, (, and &*, &((2
GAnne8es B, C and BC&H< indicative of its having already assumed jurisdiction over private
respondents$ petition. his is so because from the tenor of -ection B ;b< of !.A. ?o. 2'AB it ,ould
appear that proof of procurement of the re#uired percentage of registered voters at the time the
petition for initiative is filed, is a jurisdictional re#uirement.
hus7
A petition ,or an initiative on the &()' Constitution must have at least t,elve per centu( ;&*S< of the total
number of registered voters as signatories, of ,hich every legislative district must be represented by at
least three per centu( ;AS< of the registered voters therein. %nitiative on the Constitution may be
;B< years thereafter.
>ere private respondents$ petition is unaccompanied by the re#uired signatures. his defect
not,ithstanding, it is ,ithout prejudice to the refiling of their petition once compliance ,ith the
re#uired percentage is satisfactorily sho,n by private respondents. %n the absence, therefore,
of an appropriate petition before the Commission on /lections, any determination of ,hether
private respondents$ proposal constitutes an amendment or revision is premature.
ACC0!D%?3+@, % take e8ception to the conclusion reached in the ponencia that !.A. ?o. 2'AB is an
4inade#uate4 legislation to cover a people$s initiative to propose amendments to the Constitution. %,
ho,ever, register my concurrence ,ith the dismissal, in the meantime, of private respondents$ petition
for initiative before public respondent Commission on /lections until the same be supported by proof
of strict compliance ,ith -ection B ;b< of !.A. ?o. 2'AB.

.ANGANI$AN, J., concurring and dissenting7
0ur distinguished colleague, Mr. .ustice >ilario 3. Davide .r., ,riting for the majority, holds that7
;&< he Comelec acted ,ithout jurisdiction or ,ith grave abuse of discretion in entertaining the
4initiatory4 Delfin Petition.
;*< Ehile the Constitution allo,s amendments to 4be directly proposed by the people through
initiative,4 there is no implementing la, for the purpose. !A 2'AB is 4incomplete, inade#uate, or
,anting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned.4
;A< Comelec !esolution ?o. *AA9, 4insofar as it prescribes rules and regulations on the conduct of
initiative on amendments to the Constitution, is void.4
I concur )it* t*e ,irst ite( a#ove. =ntil and unless an initiatory petition can sho, the re#uired number
of signatures K in this case, &*S of all the registered voters in the Philippines ,ith at least AS in
every legislative district K no public funds may be spent and no government resources may be used
in an initiative to amend the Constitution. 6erily, the Comelec cannot even entertain any petition
absent such signatures. Co)ever, I !issent (ost respect,ull ,ro( t*e (a5oritDs t)o ot*er rulin+s. 0et
(e e6plain.
En!er t*e a#ove restrictive *ol!in+s espouse! # t*e CourtDs (a5orit, t*e Constitution cannot #e
a(en!e! at all t*rou+* a peopleDs initiative. Not # .el,in, not # Pir(a, not # anone, not even #
all t*e voters o, t*e countr actin+ to+et*er. T*is !ecision )ill e,,ectivel #ut unnecessaril curtail,
nulli,, a#ro+ate an! ren!er inutile t*e peopleDs ri+*t to c*an+e t*e #asic la). 3t t*e ver least, t*e
(a5orit *ol!s t*e ri+*t *osta+e to con+ressional !iscretion on )*et*er to pass a ne) la) to
i(ple(ent it, )*en t*ere is alrea! one e6istin+ at present. his right to amend through initiative, it
bears stressing, is guaranteed by -ection *, Article D6%% of the Constitution, as follo,s7
Eith all due respect, % find the majority$s position all too s,eeping and all too e8tremist. %t is e#uivalent
to burning the ,hole house to e8terminate the rats, and to killing the patient to relieve him of pain.
Ehat Citi"en Delfin ,ants the Comelec to do ,e should reject. But ,e should not thereby preempt
any future effort to e8ercise the right of initiative correctl an! 5u!iciousl. T*e ,act t*at t*e .el,in
Petition proposes a (isuse o, initiative !oes not 5usti, a #an a+ainst its proper use. In!ee!, t*ere is a
ri+*t )a to !o t*e ri+*t t*in+ at t*e ri+*t ti(e an! ,or t*e ri+*t reason.
Ta-en To+et*er an! Interprete! Properl, t*e Constitution, >3 /778 an! Co(elec >esolution
27FF 3re Su,,icient to I(ple(ent Constitutional Initiatives
Ehile !A 2'AB may not be a perfect la,, it ,as K as the majority openly concedes K intended by
the legislature to cover and, % respectfully submit, it contains enough provisions to effectuate an
1
% completely agree ,ith the inspired and inspiring opinions of Mr.
.ustice !eynato -. Puno and Mr. .ustice !icardo .. 1rancisco that !A 2'AB, the !oco la, on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
-uch vie,s, ,hich % shall no longer repeat nor elaborate on, are thoroughly consistent ,ith this
Court$s unanimous en #anc rulings in Su#ic "a 'etropolitan 3ut*orit vs. Co((ission on Elections,
4
that 4provisions for initiative . . . are ;to be< liberally construed to effectuate their purposes, to
facilitate and not hamper the e8ercise by the voters of the rights granted thereby4: and in Garcia vs.
Co(elec,
3
that any 4effort to triviali"e the effectiveness of people$s initiatives ought to be rejected.4
?o la, can completely and absolutely cover all administrative details. %n recognition of this, !A 2'AB
,isely empo,ered
5
the Commission on /lection 4to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act.4 And pursuant thereto, the Comelec issued its
!esolution *A99 on &2 .anuary &((&. -uch !esolution, by its very ,ords, ,as promulgated 4to
govern the conduct of initiative on the Constitution and initiative and referendum on national and local
la,s,4 not by the incumbent Commission on /lections but by one then composed of Acting
Chairperson >aydee B. @orac, Comms. Alfredo /. Abueg .r., +eopoldo +. Africa, Andres !. 1lores,
Dario C. !ama and Magdara B. Dimaampao. All of these Commissioners ,ho signed !esolution
*A99 have retired from the Commission, and thus ,e cannot ascribe any vile motive unto them, other
than an honest, sincere and e8emplary effort to give life to a cherished right of our people.
he majority argues that ,hile !esolution *A99 is valid in regard to national la,s and local
legislations, it is void in reference to constitutional amendments. here is no basis for such
differentiation. he source of and authority for the !esolution is the same la,, !A 2'AB.
I respect,ull su#(it t*at ta-en to+et*er an! interprete! properl an! li#erall, t*e Constitution
:particularl 3rt. I@II, Sec. 2<, >J /778 an! Co(elec >esolution 27FF provi!e (ore t*an su,,icient
aut*orit to i(ple(ent, e,,ectuate an! realize our peopleDs po)er to a(en! t*e Constitution.
Petitioner .el,in an! t*e Pe!rosa
Spouses S*oul! Not "e 'uzzle!
% am glad the majority decided to heed our plea to lift the temporary restraining order issued by this
Court on &) December &((2 insofar as it prohibited Petitioner Delfin and the -pouses Pedrosa from
e8ercising their right of initiative. %n fact, % believe that such restraining order as against private
respondents should not have been issued, in the first place. Ehile % agree that the Comelec should be
stopped from using public funds and government resources to help them gather signatures, % firmly
believe that this Court has no po,er to restrain them from e8ercising their right of initiative. he right
to propose amendments to the Constitution is really a species of the right of free speech and free
assembly. And certainly, it ,ould be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to hisFher beliefs. As the eminent 6oltaire once said, 4% may disagree
,ith ,hat you say, but % ,ill defend to the death your right to say it.4 After all, freedom is not really for
the thought ,e agree ,ith, but as .ustice >olmes ,rote, 4freedom for the thought that ,e hate.4
5
Epilo+ue
By ,ay of epilogue, let me stress the guiding tenet of my -eparate 0pinion. %nitiative, like referendum
and recall, is a ne, and treasured feature of the 1ilipino constitutional system. All three are
institutionali"ed legacies of the ,orldCadmired /D-A people po,er. +ike elections and plebiscites,
they are hallo,ed e8pressions of popular sovereignty. hey are sacred democratic rights of our
people to be used as their final ,eapons against political e8cesses, opportunism, inaction, oppression
and misgovernance: as ,ell as their reserved instruments to e8act transparency, accountability and
faithfulness from their chosen leaders. K*ile on t*e one *an!, t*eir (isuse an! a#use (ust #e
resolutel struc- !o)n, on t*e ot*er, t*eir le+iti(ate e6ercise s*oul! #e care,ull nurture! an!
zealousl protecte!.
E>/!/10!/, % vote to 3!A? the petition of -en. Miriam D. -antiago et al. and to D%!/C
!espondent Commission on /lections to D%-M%-- the Delfin Petition on the ground of prematurity,
but not on the other grounds relied upon by the majority. % also vote to +%1 the temporary restraining
order issued on &) December &((2 insofar as it prohibits .esus Delfin, Alberto Pedrosa and Carmen
Pedrosa from e8ercising their right to free speech in proposing amendments to the Constitution.
Footot+s
& Commissioner Blas 0ple.
* Commissioner .ose -uare".
A % !ecord of the Constitutional Commission, A'&, A').
J -ection &, Article D6 of the &(AB Constitution and -ection &;&<, Article D6% of the &('A Constitution.
B Anne8 4A4 of Petition, >ollo, &B.
2 +ater identified as the People$s %nitiative for !eforms, Moderni"ation and Action, or P%!MA for brevity.
' hese sections read7
-ec. J. he term of office of the -enators shall be si8 years and shall commence, unless other,ise
provided by la,, at noon on the thirtieth day of .une ne8t follo,ing their election.
?o -enator shall serve for more than t,o consecutive terms. 6oluntary 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
,hich he ,as elected.
888 888 888
-ec. '. he Members of the >ouse of !epresentatives shall be elected for a term of three years ,hich
shall begin, unless other,ise provided by la,, at noon on the thirtieth day of .une ne8t follo,ing their
election.
?o Member of the >ouse of !epresentatives shall serve for more than three consecutive terms. 6oluntary
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 ,hich he ,as elected.
) he section reads7
-ec. J. he President and the 6iceCPresident shall be elected by direct vote of the people for a term of si8
years ,hich shall begin at noon on the thirtieth day of .une ne8t follo,ing the day of the election and shall
end at noon of the same date si8 years thereafter. he President shall not be eligible for any reelection.
?o person ,ho has succeeded as President and has served as such for more than four years shall be
#ualified for election to the same office at any time.
?o 6iceCPresident shall serve for more than t,o successive terms. 6oluntary renunciation of the office for
any length or time shall not be considered as an interruption in the continuity of the service for the full
term for ,hich he ,as elected.
( he section reads7
-ec. ). he term of office of elective local officials, e8cept barangay officials, ,hich shall be determined
by la,, shall be three years and no such official shall serve for more than three consecutive terms.
6oluntary 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 ,hich he ,as elected.
&9 >ollo, &(.
&& Anne8 4B4 of Petition, >ollo, *B.
&* 0rder of &* December &((2, Anne8 4BC&4 of Petition, >ollo, *'.
&A I!.
&J Citin+ Araneta v. Dinglasan, )J Phil. A2) G&(J(H: -anidad v. C0M/+/C, 'A -C!A AAA G&('2H.
&B >ollo, 2).
&2 >ollo, &99.
&' >ollo, &A9.
&) A Member of the &()2 Constitutional Commission.
&( -ection *2, Article %%, Constitution.
*9 Citin+ Commissioner 0ple of the Constitutional Commission, % !ecord of the Constitutional
Commission, J9B.
*& >ollo, *A(.
** >ollo, A9J.
*A >ollo, B2).
*J hese ,ere submitted on the follo,ing dates7
;a< Private respondent Delfin K A& .anuary &((' ;>ollo, J*(<:
;b< Private respondents Alberto and Carmen Pedrosa K &9 1ebruary &((' ;I!., JJ2<:
;c< Petitioners K &* 1ebruary &((' ;I!., B)B<:
;d< %BP K &* 1ebruary &((' ;I!., J'2<:
;e< -enator !oco K &* 1ebruary &((' ;I!., 292<:
;f< D%N and MAB%?% K &* 1ebruary &((' ;I!., J2B<:
;g< C0M/+/C K &* 1ebruary &((' ;I!., J)(<:
;h< +ABA? K &A 1ebruary &((' ;I!., BBA<.
*B >ollo, B(J.
*2 Anne8 4D4 of !oco$s Motion for %ntervention in this case, >ollo, &)J.
*' >ollo, *).
*) *A* -C!A &&9, &AJ G&((JH.
*( %% he Constitution of the !epublic of the Philippines, A Commentary B'& G&())H.
A9 % !ecord of the Constitutional Commission A'9CA'&.
A& I!., A'&.
A* I!., A)2.
AA I!., A(&CA(*. ;/mphasis supplied<.
AJ I!., A)2.
AB I!., A(*.
A2 I!., A()CA((.
A' I!., A((. /mphasis supplied.
A) I!., J9*CJ9A.
A( I!., J9&CJ9*.
J9 I!., J&9.
J& I!., J&*.
J* %% !ecord of the Constitutional Commission BB(CB29.
JA T*e Con+ress originally appeared as T*e National 3sse(#l. he change came about as a logical
conse#uence of the a(en!e! Committee !eport ?o. ** of the Committee on +egislative ,hich changed
T*e National 3sse(#l to 4he Congress of the Philippines4 in vie, of the approval of the amendment to
adopt the bicameral system ;%% !ecord of the Constitutional Commission &9*C&9B<. he proposed ne,
Article on the +egislative Department ,as, after various amendments approved on -econd and hird
!eadings on ( 0ctober &()2 ;I!., '9*C'9A<
JJ 6 !ecord of the Constitutional Commission )92.
JB See footnote ?o. J*.
J2 As -tated by Commissioner Bernas in his interpellation of Commissioner -uare", footnote *).
J' /ntitled 4%nitiative and !eferendum Act of &()',4 introduced by then Congressmen !aul !oco, !aul
del Mar and ?arciso Monfort.
J) /ntitled 4An Act %mplementing the Constitutional Provisions on %nitiative and !eferendum and for 0ther
Purposes,4 introduced by Congressmen -alvador /scudero.
J( /ntitled 4An Act Providing for a -ystem of %nitiative and !eferendum, and the /8ceptions herefrom,
Ehereby People in +ocal 3overnment =nits Can Directly Propose and /nact !esolutions and 0rdinances
or Approve or !eject Any 0rdinance or !esolution Passed By the +ocal +egislative Body,4 introduced by
-enators 3on"ales, !omulo, Pimentel, .r., and +ina, .r.
B9 %6 !ecord of the -enate, ?o. &JA, pp. &B9(C&B&9.
B& 6%%% .ournal and !ecord of the >ouse of !epresentatives, (B'C(2&.
B* hat section reads7
-ec. &. State(ent o, Polic. he po,er of the people under a system of initiative and referendum to
directly propose and enact resolutions and ordinances or approve or reject, in ,hole or in part, any
ordinance or resolution passed by any local legislative body upon compliance ,ith the re#uirements of
this Act is hereby affirmed, recogni"ed and guaranteed.
BA %t must be pointed out that -enate Bill ?o. &' and >ouse Bill ?o. *&B9B, as approved on hird
!eading, did not contain any subtitles.
BJ %f 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 ,as because there
,as in the Bicameral Conference Committee an initial agreement for the -enate panel to draft that portion
on local initiative and for the >ouse of !epresentatives panel to draft that portion covering national
initiative and initiative on the Constitution: eventually, ho,ever, the Members thereof agreed to leave the
drafting of the consolidated bill to their staff. hus7
C>A%!MA? 30?5A+/-.
. . . All right, and ,e can agree, ,e can agree. -o ang mangyayari dito, ang magiging basic nito, let us not
discuss anymore kung alin ang magiging basic bill, ano, ,hether it is the -enate Bill or ,hether it is the
>ouse Bill. +ogically it should be ours sapagkat una iyong sa amin, eh. %t is one of the first bills approved
by the -enate kaya ang number niyan, makikita mo, &', eh. >u,ag na nating pagCusapan. ?o,, if you
insist, really ion+ ,eatures n+ national at saka constitutional, okay. Pero gaga,in na nating consolidation
of both bills. ;-?, proceedings of the Bicameral Conference Committee on 2 .une &()( submitted by
?ora, !, pp. &CJ K &CB<.
888 888 888
>0?. !0C0. -o ho, do ,e proceed from thisI he staff ,ill consolidate.
>0?. 30?5A+/-. 3uma,a lang ng isang draft. -ubmit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,
>0?. !0C0. Eithin todayI
>0?. 30?5A+/-. Eithin today and early tomorro,. >anggang >u,ebes lang tayo, eh.
>0?. AP=%?0. Ninakailangang palusutin natin ito. Nung mabigyan tayo ng kopya bukas and you are not
objecting naman kayo naman ganoon din.
>0?. !0C0. /diting na lang because on a physical consolidation nga ito, eh. @ung mga provisions
naman namin ,ala sa inyo. ;-?, proceedings of Bicameral Conference Committee of 2 .une &()(,
submitted by /.-. Bongon, pp. %%%CJ K %%%CB<.
BB -ec. B;a M c<, -ec. ), -ection (;a<.
B2 -ections &A, &J, &B and &2.
B' %t ,ould thus appear that the -enate$s 4cautious approach4 in the implementation of the system of
initiative as a mode of proposing amendments to the Constitution, as e8pressed by -enator 3on"ales in
the course of his sponsorship of -enate Bill ?o. &' in the Bicameral Conference Committee meeting and
in his sponsorship of the Committee$s !eport, might have insidiously haunted the preparation of the
consolidated version of -enate Bill ?o. &' and >ouse Bill ?o. *&B9B. %n the first he said7
-enate Bill ?o. &' recogni"es the initiatives and referendum are recent innovations in our political
system. And recogni"ing that, it has adopted a cautious approach by7 first, allo,ing them only
,hen the local legislative body had refused to act: second, not more fre#uently than once a year:
and, third, limiting them to the national level. ;% !ecord of the -enate, ?o. AA, p. )'&<.
888 888 888
1irst, as % have said Mr. President, and % am saying for the nth time, that ,e are introducing a
novel and ne, system in politics. Ee have to adopt first a cautious approac*. Ee feel it is
prudent and ,ise at this point in time, to limit those po,ers that may be the subject of initiatives
and referendum to those e8ercisable or ,ithin the authority of the local government units. ;I!., p.
))9<.
%n the second he stated7
But at any rate, as % have said, because this is ne, in our political system, the -enate decided on
a (ore cautious approac* and limiting it only to the local general units. ;-? of the proceedings
of the Bicameral Conference Committee on 2 .une &()(, submitted by stenographer ?ora !, pp.
&C* to &CA<.
%n the last he declared7
he initiatives and referendum are ne, tools of democracy: therefore, ,e have decided to be cautious in
our approac*. >ence, &< ,e limited initiative and referendum to the local government units: *< that
initiative can only be e8ercised if the local legislative cannot be e8ercised more fre#uently that once every
year. ;%6 !ecords of the -enate, ?o. &JA, pp. &BC(C&B&9<.
B) -ection *9, !A. ?o. 2'AB.
B( People v. !osenthal, 2) Phil. A*) G&(A(H: %-A3A?% A. C!=5, Philippine Political +a, )2 G&((2H
;hereafter C!=5<.
29 People v. 6era, 2B Phil. B2 G&(A'H: C!=5, supra, )'.
2& Pelae" v. Auditor 3eneral, &** Phil. (2B, ('J G&(2BH.
2* /du v. /ricta, AB -C!A J)&,J(' G&('9H.
2A -ec. ', C0M/+/C !esolution ?o. *A99.
2J -ec. *), i!.
2B -ec. *(, i!.
22 -ec. A9, i!.
P=?0, .., concurring and dissenting77
& Agpalo, -tatutory Construction, &()2 ed., p. A), citin+, inter alia, =- v. amparong A& Phil. A*&:
>ernani v. /8port Control Committee, &99 Phil. ('A: People v. Purisima, )2 -C!A BJ*.
* I#i!, citin+ orres v. +imjap, B2 Phil. &J&.
A Prepared and sponsored by the >ouse Committee on -uffrage and /lectoral !eforms on the basis of
>.B. ?o. J(' introduced by Congressmen !aul !oco, !aul del Mar and ?arciso Monfort and >.B. ?o.
()) introduced by Congressman -alvador /scudero.
J %ntroduced by -enators ?eptali 3on"ales, Alberto !omulo, A#uilino Pimentel, .r., and .ose +ina, .r.
B %t ,as entitled 4An Act Providing a -ystem of %nitiative and !eferendum and Appropriating 1unds
therefor.
2 .ournal ?o. )B, 1ebruary &J, &()(, p. &*&.
' I#i!.
) he -enate Committee ,as chaired by -enator ?eptali 3on"ales ,ith -enators Agapito A#uino and
.ohn 0smena as members. he >ouse Committee ,as chaired by Congressman Magdaleno M. Palacol
,ith Congressmen !aul !oco, -alvador >. /scudero %%% and .oa#uin Chipeco, .r., as members.
( >eld at Constancia !oom, Ciudad 1ernandina, 3reenhills, -an .uan, Metro Manila.
&9 See Compliance submitted by intervenor !oco dated .anuary *), &(('.
&& !ecord ?o. &A', .une ), &()(, pp. (29C(2&.
&* Agpalo, op cit., p. A) citin+ =- v. oribio, &B Phil ' ;&(&9<: =- v. ?avarro, &( Phil &AJ ;&(&&<.
&A 1rancisco, -tatutory Construction, Ard ed., ;&(2)< pp. &JBC&J2 citin+ Cra,ford, -tatutory Construction,
pp. AA'CAA).
&J Black, >andbook on the Construction and %nterpretation of the +a,s ;*nd ed<, pp. *B)C*B(. See also
Commissioner of Custom v. !elunia, &9B Phil )'B ;&(B(<: People v. @abut, B) Phil J(( ;&(AA<.
&B Alcantara, -tatutes, &((9 ed., p. *2 citin+ D,arris on -tatutes, p. *A'.
&2 /ntitled %n re7 !ules and !egulations 3overning the Conduct of %nitiative on the Constitution, and
%nitiative and !eferendum on ?ational and +ocal +a,s and promulgated on .anuary &2, &((& by the
C0M/+/C ,ith Commissioner >aydee B. @orac as Acting Chairperson and Commissioners Alfredo /.
Abueg, .r., +eopoldo +. Africa, Andres !. 1lores, Dario C. !ama and Magdara B. Dimaampao.
&' &B -C!A B2(.
&) -ec. B;b<, !.A. ?o. 2'AB.
&( -ec. B;b<, !.A. ?o. 2'AB.
*9 -ec. ', !.A. ?o. 2'AB.
*& -ec. (;b<, !.A. ?o. 2'AB.
** -ec. ), !.A. ?o. 2'AB in relation to -ec. J, Art. D6%% of the Constitution.
*A -ec. (;b<, !.A. ?o. 2'AB.
*J -ec. &9, !.A. ?o. 2'AB.
*B Cru", Philippine Political +a,, &((B ed., p. ().
*2 See .uly ), &()2 Debates of the Concom, p. A((.
*' &((B ed., p. &*9'.
*) Cru", op cit., p. ((.
*( A*9 =- ((.
A9 Balbuena v. -ecretary of /ducation, &&9 Phil &B9 ;&(&9<.
A& People v. !osenthal, 2) Phil A*) ;&(A(<.
A* Calalang v. Eilliams, '9 Phil '*2 ;&(J9<.
AA !ubi v. Provincial Board of Mindoro, A( Phil 22( ;&(&(<.
AJ %nternational >ard,ood v. Pangil 1ederation of +abor, '9 Phil 29* ;&(J9<.
AB Phil. Association of Colleges and =niversities v. -ecretary of /ducation, (' Phil )92 ;&(BB<.
A2 /du v. /ricta, AB -C!A J)& ;&((9<: Agustin v. /du, )) -C!A &(B ;&('(<.
A' Pepsi Cola Bottling Co. vs. Municipality of ana,an +eyte, 2( -C!A J29 ;&('2<.
A) Maceda v. Macaraig, &(' -C!A ''& ;&((&<.
A( 0smena v. 0rbos, **9 -C!A '9A ;&((A<.
J9 Chiongbian v. 0rbos, *JB -C!A *BA ;&((B<.
J& 3arcia v. C0M/+/C, et al., 3.!. ?o. &&&B&&, 0ctober B, &((A.
J* 3arcia, et al. v. C0M/+/C, et al., 3.!. ?o. &&&*A9, -eptember A9, &((J.
JA -ubic Bay Metropolitan Authority v. C0M/+/C, et al., 3.!. ?o. &*BJ&2, -eptember *2, &((2.
JJ Malon"o vs. C0M/+/C, et al., 3.!. ?o. &*'922, March &&, &(('.
1!A?C%-C0, .., concurring and dissenting7
& Article %%, -ection &, &()' Constitution.
* Article 6%, -ection A*, and Article D6%%, -ection *, &()' Constitution.
A Petition, p. B.
J Paras v. Commission on /lections, 3.!. ?o. &*A2&(, December J, &((2.
B amayo v. 3sell, AB Phil. (BA, ()9.
2 -ection A ;a<, !epublic Act ?o 2'AB.
' -ection A;a< Ga.&H, !epublic Act ?o 2'AB.
) =ytengsu v. !epublic, (B Phil. )(9, )(A
( Petition in %ntervention filed by -en. !aul !oco, pp. &BC&2.
PA?3A?%BA?, .., concurring and dissenting7
& Apart from its te8t on 4national initiative4 ,hich could be used by analogy, !A 2'AB contains sufficient
provisions covering initiative on the Constitution, ,hich are clear enough and speak for themselves, like7
-ec. *. -tatement of Policy. K he po,er of the people under a system of initiative and referendum to
directly propose, enact, approve or reject, in ,hole or in part, t*e Constitution, la,s, ordinances, or
resolution passed by any legislative body upon compliance ,ith the re#uirements of this Act is hereby
affirmed, recogni"ed and guaranteed.
-ec. A. Definition of erms. K 1or purposes of this Act, the follo,ing terms shall mean7
;a< 4%nitiative4 is the po,er of the people to propose a(en!(ents to t*e Constitution or to
propose and enact legislation$s through an election called for the purpose.
here are three ;A< systems of initiative, namely7
a.& %nitiative on the Constitution ,hich refers to a petition proposing amendments to the
Constitution:
a.* %nitiative on statutes ,hich refers to a petition proposing to enact a national
legislation: and
a.A %nitiative on local legislation ,hich refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay la,, resolution or ordinance.
888 888 888
;e< 4Plebiscite4 is the electoral process by ,hich an initiative on the Constitution is
approved or rejected by the people
;f< 4Petition4 is the ,ritten instrument containing the proposition and the re#uired number
of signatories. %t shall be in a form to be determined by and submitted to the Commission
on /lections, hereinafter referred to as the Commission
888 888 888
-ec. B !e#uirements. K . . .
;b< A petition for an initiative on the &()' Constitution must have at least t,elve per
centu( ;&* S< of the total number of registered voters as signatories, of ,hich every
legislative district must be represented by at least three per centu( ;AS< of the registered
voters therein. %nitiative on the Constitution may be e8ercised only after five ;B< years
from the ratification of the &()' Constitution and only once every five ;B< years thereafter.
-ec. (. /ffectivity of %nitiative or !eferendum Proposition. K
888 888 888
;b< he proposition in an initiative on the Constitution approved by a majority of the votes
cast in the plebiscite shall become effective as to the day of the plebiscite.
888 888 888
;c< he petition shall state the follo,ing7
c.& contents or te8t of the proposed la, sought to be enacted, approved
or rejected, amended or repealed, as the case may be:
c.* the proposition:
c.A the reason or reasons therefor:
c.J that it is not one of the e8ceptions provided herein:
c.B signatures of the petitioners or registered voters: and
c.2 an abstract or summary proposition in not more than one hundred
;&99< ,ords ,hich shall be legibly ,ritten or printed at the top of every
page of the petition.
888 888 888
-ec. &(. Applicability of the 0mnibus /lection Code. K he 0mnibus /lection Code and other election
la,s, not inconsistent ,ith the provisions of this Act, shall apply to all initiatives and referenda.
-ec. *9. !ules and !egulations. K he Commission is hereby empo,ered to promulgate such rules and
regulations as may be necessary to carry out the purposes of this Act. ;/mphasis supplied<
* 3.!. ?o. &*BJ&2, -eptember *2, &((2.
A *A' -C!A *'(, *)*, -eptember A9, &((J.
J -ec. *9, !.A. 2'AB.
B =nited -tates vs. !osika -ch,immer, *'( =.-. 2JJ, 2BB ;&(*(<.
SUPREME COURT
Manila
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED
VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
:--------------------------------------------------------:
ALTERNATIVE LAW GROUPS, INC., 9ntervenor.
: ------------------------------------------------------ :
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BEN1AMIN T. TOLOSA, 1R., SUSAN V. OPLE, and CARLOS P. MEDINA, 1R., 9ntervenors.
:------------------------------------------------------ :
ATTY. PETE QUIRINO QUADRA, 9ntervenor.
:--------------------------------------------------------:
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
1oel 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 1esus,
GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented
by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, 1O1O 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, 9ntervenors.
:--------------------------------------------------------:
LORETTA ANN P. ROSALES, MARIO 1OYO AGU1A, and ANA THERESA HONTIVEROS-
BARAQUEL, 9ntervenors.
:--------------------------------------------------------:
ARTURO M. DE CASTRO, 9ntervenor.
: ------------------------------------------------------- :
TRADE UNION CONGRESS OF THE PHILIPPINES, 9ntervenor.
:---------------------------------------------------------:
LUWALHATI RICASA ANTONINO, 9ntervenor.
: ------------------------------------------------------- :
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TA1ON, FROILAN M. BACUNGAN, 1OAQUIN T. VENUS, 1R.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, 9ntervenors.
: ------------------------------------------------------- :
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, 9ntervenors.
: -------------------------------------------------------- :
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.
VICTORINO F. BALAIS, 9ntervenors.
: -------------------------------------------------------- :
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, 1R., 9ntervenor.
: ------------------------------------------------------- :
SULONG BAYAN MOVEMENT FOUNDATION, INC., 9ntervenor.
: ------------------------------------------------------- :
1OSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, 9ntervenors.
: -------------------------------------------------------- :
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS,
9ntervenors.
: --------------------------------------------------------:
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, 1R. and SENATORS SERGIO R.
OSMENA III, 1AMBY MADRIGAL, 1INGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, 9ntervenors.
: -----------------------------------------------------:
1OSEPH E1ERCITO ESTRADA and PWERSA NG MASANG PILIPINO, 9ntervenors.
: -----------------------------------------------------:
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BEN1AMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, 1R., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and 1ohn Doe and Peter Doe,,
Respondent.
D E C I S I O N
CARPIO, J.:
The Case
4hese are consolidated petitions on the Resolution dated ." Au%ust ;;$ of the Co''ission on Elections
,<C5MELEC<+ den(in% due course to an initiative petition to a'end the "#!1 Constitution.
Antecedent Facts
5n "7 Aebruar( ;;$, petitioners in G.R. No. "1-"7., na'el( Raul L. La'bino and Erico B. Au'entado
,<La'bino Group<+, &ith other %roups
"
and individuals, co''enced %atherin% si%natures for an initiative
petition to chan%e the "#!1 Constitution. 5n 7 Au%ust ;;$, the La'bino Group filed a petition &ith the
C5MELEC to hold a plebiscite that &ill ratif( their initiative petition under 6ection 7,b+ and ,c+
and 6ection 1
.
of Republic Act No. $1.7 or the 9nitiative and Referendu' Act ,<RA $1.7<+.
4he La'bino Group alle%ed that their petition had the support of $,.1,#7 individuals constitutin% at least
t&elve per #entum ,"M+ of all re%istered voters, &ith each le%islative district represented b( at least three per
#entum ,.M+ of its re%istered voters. 4he La'bino Group also clai'ed that C5MELEC election re%istrars had
verified the si%natures of the $.. 'illion individuals.
4he La'bino GroupHs initiative petition chan%es the "#!1 Constitution b( 'odif(in% 6ections "-1 of Article 89
,Le%islative 3epart'ent+
-
and 6ections "-- of Article 899 ,E:ecutive 3epart'ent+
7
and b( addin% Article D8999
entitled <4ransitor( Provisions.<
$
4hese proposed chan%es &ill shift the present Bica'eral-Presidential s(ste'
to a Enica'eral-Parlia'entar( for' of %overn'ent. 4he La'bino Group pra(ed that after due publication of
their petition, the C5MELEC should sub'it the follo&in% proposition in a plebiscite for the votersH ratification*
35 G5E APPR58E 40E AMEN3MEN4 5A AR49CLE6 89 AN3 899 5A 40E "#!1
C5N6494E495N, C0ANG9NG 40E A5RM 5A G58ERNMEN4 AR5M 40E PRE6EN4
B9CAMERAL-PRE693EN49AL 45 A EN9CAMERAL-PARL9AMEN4ARG 6G64EM, AN3
PR58939NG AR49CLE D8999 A6 4RAN6945RG PR589695N6 A5R 40E 5R3ERLG 609A4
AR5M 5NE 6G64EM 45 40E 540ERI
5n .; Au%ust ;;$, the La'bino Group filed an A'ended Petition &ith the C5MELEC indicatin%
'odifications in the proposed Article D8999 ,4ransitor( Provisions+ of their initiative.
1
The Ruling of the COMELEC
5n ." Au%ust ;;$, the C5MELEC issued its Resolution den(in% due course to the La'bino GroupHs petition
for lac@ of an enablin% la& %overnin% initiative petitions to a'end the Constitution. 4he C5MELEC invo@ed
this CourtHs rulin% in %antia(o ". ,ommission on +le#tions
!
declarin% RA $1.7 inade>uate to i'ple'ent the
initiative clause on proposals to a'end the Constitution.
#
9n G.R. No. "1-"7., the La'bino Group pra(s for the issuance of the &rits of certiorari and 'anda'us to set
aside the C5MELEC Resolution of ." Au%ust ;;$ and to co'pel the C5MELEC to %ive due course to their
initiative petition. 4he La'bino Group contends that the C5MELEC co''itted %rave abuse of discretion in
den(in% due course to their petition since Santiago is not a bindin% precedent. Alternativel(, the La'bino
Group clai's that Santiago binds onl( the parties to that case, and their petition deserves co%ni=ance as an
e:pression of the <&ill of the soverei%n people.<
9n G.R. No. "1-##, petitioners ,<Bina( Group<+ pra( that the Court re>uire respondent C5MELEC
Co''issioners to sho& cause &h( the( should not be cited in conte'pt for the C5MELECHs verification of
si%natures and for <entertainin%< the La'bino GroupHs petition despite the per'anent in)unction in Santiago.
4he Court treated the Bina( GroupHs petition as an opposition-in-intervention.
9n his Co''ent to the La'bino GroupHs petition, the 6olicitor General )oined causes &ith the petitioners,
ur%in% the Court to %rant the petition despite the Santiago rulin%. 4he 6olicitor General proposed that the Court
treat RA $1.7 and its i'ple'entin% rules <as te'porar( devises to i'ple'ent the s(ste' of initiative.<
8arious %roups and individuals sou%ht intervention, filin% pleadin%s supportin% or opposin% the La'bino
GroupHs petition. 4he supportin% intervenors
";
unifor'l( hold the vie& that the C5MELEC co''itted %rave
abuse of discretion in rel(in% on Santiago. 5n the other hand, the opposin% intervenors
""
hold the contrar( vie&
and 'aintain that Santiago is a bindin% precedent. 4he opposin% intervenors also challen%ed ,"+ the La'bino
GroupHs standin% to file the petition2 ,+ the validit( of the si%nature %atherin% and verification process2 ,.+ the
La'bino GroupHs co'pliance &ith the 'ini'u' re>uire'ent for the percenta%e of voters supportin% an
initiative petition under 6ection , Article D899 of the "#!1 Constitution2
"
,-+ the nature of the proposed
chan%es as revisions and not 'ere a'end'ents as provided under 6ection , Article D899 of the "#!1
Constitution2 and ,7+ the La'bino GroupHs co'pliance &ith the re>uire'ent in 6ection ";,a+ of RA $1.7
li'itin% initiative petitions to onl( one sub)ect.
4he Court heard the parties and intervenors in oral ar%u'ents on $ 6epte'ber ;;$. After receivin% the
partiesH 'e'oranda, the Court considered the case sub'itted for resolution.
The Issues
4he petitions raise the follo&in% issues*
". Chether the La'bino GroupHs initiative petition co'plies &ith 6ection , Article D899 of the Constitution on
a'end'ents to the Constitution throu%h a peopleHs initiative2
. Chether this Court should revisit its rulin% in Santiago declarin% RA $1.7 <inco'plete, inade>uate or
&antin% in essential ter's and conditions< to i'ple'ent the initiative clause on proposals to a'end the
Constitution2 and
.. Chether the C5MELEC co''itted %rave abuse of discretion in den(in% due course to the La'bino GroupHs
petition.
The Ruling of the Court
4here is no 'erit to the petition.
4he La'bino Group 'iserabl( failed to co'pl( &ith the basic re>uire'ents of the Constitution for conductin%
a peopleHs initiative. 4hus, there is even no need to revisit Santiago, as the present petition &arrants dis'issal
based alone on the La'bino GroupHs %larin% failure to co'pl( &ith the basic re>uire'ents of the Constitution.
Aor follo&in% the CourtHs rulin% in 6antia%o, no %rave abuse of discretion is attributable to the Co''ision on
Elections.
1. The Initiative Petition Does Not Comply with Section 2, !ticle "#II o$ the Constit%tion on Di!ect
P!oposal &y the People
6ection , Article D899 of the Constitution is the %overnin% constitutional provision that allo&s a peopleHs
initiative to propose a'end'ents to the Constitution. 4his section states*
6ec. . A'end'ents to this Constitution 'a( li@e&ise be directly proposed by the people through
initiative upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters of &hich
ever( le%islative district 'ust be represented b( at least three per #entum of the re%istered voters therein.
: : : : ,E'phasis supplied+
4he deliberations of the Constitutional Co''ission vividl( e:plain the 'eanin% of an a'end'ent <directly
proposed by the people through initiative upon a petition,< thus*
MR. R53R9G5* Let us loo@ at the 'echanics. Let us sa( so'e voters &ant to propose a constitutional
a'end'ent. Is the draft of the proposed constitutional amendment ready to be shown to the people
when they are asked to signI
MR. 6EAREK* That can be reasonably assumed, Mada' President.
MR. R53R9G5* Chat does the sponsor 'eanI The draft is ready and shown to them before they
sign. No&, &ho prepares the draftI
MR. 6EAREK* 4he people the'selves, Mada' President.
MR. R53R9G5* No, because before they sign there is already a draft shown to them and the( are
as@ed &hether or not the( &ant to propose this constitutional a'end'ent.
MR. 6EAREK* As it is envisioned, an( Ailipino can prepare that proposal and pass it around for
signature.
".
,E'phasis supplied+
Clearl(, the fra'ers of the Constitution intended that the <draft of the proposed constitutional amendment<
should be <ready and shown< to the people <before< the( si%n such proposal. 4he fra'ers plainl( stated that
<before they sign there is already a draft shown to them.< 4he fra'ers also <envisioned< that the people
should si%n on the proposal itself because the proponents 'ust <prepare that proposal and pass it around
for signature.<
4he essence of a'end'ents <directly proposed by the people through initiative upon a petition< is that the
entire proposal on its face is a petition by the people. 4his 'eans t&o essential ele'ents 'ust be present.
Airst, the people 'ust author and thus si%n the entire proposal. No a%ent or representative can si%n on their
behalf. 6econd, as an initiative upon a petition, the proposal 'ust be e'bodied in a petition.
4hese essential ele'ents are present onl( if the full te:t of the proposed a'end'ents is first shown to the
people &ho e:press their assent b( si%nin% such co'plete 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.
4he full te:t of the proposed a'end'ents 'a( be either &ritten on the face of the petition, or attached to it. 9f
so attached, the petition 'ust state the fact of such attach'ent. 4his is an assurance that ever( one of the several
'illions of si%natories to the petition had seen the full te:t of the proposed a'end'ents before si%nin%.
5ther&ise, it is ph(sicall( i'possible, %iven the ti'e constraint, to prove that ever( one of the 'illions of
si%natories had seen the full te:t of the proposed a'end'ents before si%nin%.
4he fra'ers of the Constitution directl( borro&ed
"-
the concept of peopleHs initiative fro' the Enited 6tates
&here various 6tate constitutions incorporate an initiative clause. 9n al'ost all 6tates
"7
&hich allo& 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.
"$

4he rationale for this re>uire'ent has been repeatedl( e:plained in several decisions of various courts. 4hus, in
Cape''%to v. State (allot Commission, the S%p!eme Co%!t o$ )assach%setts, affir'ed b( the Airst 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. Aurther, and 'ore i'portantl(, loose interpretation of the
subscription re>uire'ent can pose a si%nificant potential for fraud. A person per'itted to describe orall(
the contents of an initiative petition to a potential si%ner, &ithout the si%ner havin% actuall( e:a'ined
the petition, could easil( 'islead the si%ner b(, for e:a'ple, o'ittin%, do&npla(in%, or even flatl(
'isrepresentin%, portions of the petition that 'i%ht not be to the si%nerHs li@in%. 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.
"1
,Boldfacin% and underscorin% supplied+
Li@e&ise, in *e!! v. (!a+&%!y,
"!
the Court of Appeals of 5re%on e:plained*
4he purposes of <full te:t< provisions that appl( to a'end'ents b( initiative co''onl( are described in
si'ilar ter's. : : : ,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.<+2 : : :
,publication of full te:t of a'ended constitutional provision re>uired because it is <essential for the
elector to have : : : the section &hich is proposed to be added to or subtracted fro'. 9f he is to vote
intelli%entl(, he 'ust have this @no&led%e. 5ther&ise in 'an( instances he &ould be re>uired to vote in
the dar@.<+ ,E'phasis supplied+
Moreover, <an initiative si%ner 'ust be infor'ed at the ti'e of si%nin% of the nature and effect of that &hich is
proposed< and failure to do so is <deceptive and misleading< &hich renders the initiative void.
"#

6ection , Article D899 of the Constitution does not e:pressl( state that the petition 'ust set forth the full te:t
of the proposed a'end'ents. 0o&ever, the deliberations of the fra'ers of our Constitution clearl( sho& that
the fra'ers intended to adopt the relevant A'erican )urisprudence on peopleHs initiative. 9n particular, the
deliberations of the Constitutional Co''ission explicitly reveal that the fra'ers 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. 9ndeed, 6ection 7,b+ of Republic Act No. $1.7, the 9nitiative and
Referendu' Act that the La'bino Group invo@es as valid, re>uires that the people 'ust si%n the <petition x x x
as signatories.<
4he proponents of the initiative secure the si%natures fro' the people. 4he proponents secure the si%natures in
their private capacit( and not as public officials. 4he proponents are not disinterested parties &ho can
i'partiall( e:plain the advanta%es and disadvanta%es of the proposed a'end'ents to the people. 4he
proponents present favorabl( their proposal to the people and do not present the ar%u'ents a%ainst their
proposal. 4he proponents, or their supporters, often pa( those &ho %ather the si%natures.
4hus, there is no presu'ption that the proponents observed the constitutional re>uire'ents in %atherin% the
si%natures. 4he proponents bear the burden of provin% that the( co'plied &ith the constitutional re>uire'ents
in %atherin% the si%natures - that the petition contained, or incorporated by attachment, the full text of the
proposed amendments.
4he La'bino Group did not attach to their present petition &ith this Court a cop( of the paper that the people
si%ned as their initiative petition. 4he La'bino Group sub'itted to this Court a cop( of a signature sheet
;

after the oral ar%u'ents of $ 6epte'ber ;;$ &hen the( filed their Me'orandu' on "" 5ctober ;;$. 4he
si%nature sheet &ith this Court durin% the oral ar%u'ents &as the si%nature sheet attached
"
to the opposition in
intervention filed on 1 6epte'ber ;;$ b( intervenor Att(. Pete Luirino-Luadra.
4he si%nature sheet attached to Att(. LuadraHs opposition and the si%nature sheet attached to the La'bino
GroupHs Me'orandu' are the same. Ce reproduce belo& the si%nature sheet in full*
Province* Cit(FMunicipalit(* No. of
8erified
6i%natures*

Le%islative
3istrict*
Baran%a(*
PR5P569495N* <35 G5E APPR58E 5A 40E AMEN3MEN4 5A AR49CLE6 89 AN3 899 5A 40E "#!1
C5N6494E495N, C0ANG9NG 40E A5RM 5A G58ERNMEN4 AR5M 40E PRE6EN4 B9CAMERAL-
PRE693EN49AL 45 A EN9CAMERAL-PARL9AMEN4ARG 6G64EM 5A G58ERNMEN4, 9N 5R3ER
45 AC09E8E GREA4ER EAA9C9ENCG, 69MPL9C94G AN3 EC5N5MG 9N G58ERNMEN42 AN3
PR58939NG AN AR49CLE D8999 A6 4RAN6945RG PR589695N6 A5R 40E 5R3ERLG 609A4 AR5M
5NE 6G64EM 45 AN540ERI<
= hereb/ A88R$*+ the proposed amendment to the 1983 ,onstitution. '/ si(nature herein whi#h shall form
part of the petition for initiati"e to amend the ,onstitution si(nifies m/ support for the filin( thereof.
Precinct
Nu'ber
Na'e
Last Na'e, Airst
Na'e, M.9.
Address Birthdate
MMF33FGG
6i%nature 8erification
"

.
-
7
$
1
!
#
";
NNNNNNNNNNNNNNNNN
Baran%a( 5fficial
NNNNNNNNNNNNNNNNN
Citness
NNNNNNNNNNNNNNNNNN
Citness
,Print Na'e and 6i%n+ ,Print Na'e and 6i%n+ ,Print Na'e and 6i%n+
There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the
signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to
it. Petitioner Att(. Raul La'bino ad'itted this durin% the oral ar%u'ents before this Court on $ 6epte'ber
;;$.
4he si%nature sheet 'erel( as@s a >uestion &hether the people approve a shift fro' the Bica'eral-Presidential
to the Enica'eral-Parlia'entar( s(ste' of %overn'ent. The signature sheet does not show to the people the
draft of the proposed changes before they are asked to sign the signature sheet. Clearl(, the si%nature sheet
is not the <petition< that the fra'ers of the Constitution envisioned &hen the( for'ulated the initiative clause in
6ection , Article D899 of the Constitution.
Petitioner Att(. La'bino, ho&ever, e:plained that durin% the si%nature-%atherin% fro' Aebruar( to Au%ust
;;$, the La'bino Group circulated, to%ether &ith the si%nature sheets, printed copies of the La'bino GroupHs
draft petition &hich the( later filed on 7 Au%ust ;;$ &ith the C5MELEC. Chen as@ed if his %roup also
circulated the draft of their a'ended petition filed on .; Au%ust ;;$ &ith the C5MELEC, Att(. La'bino
initiall( replied that the( circulated both. 0o&ever, Att(. La'bino chan%ed his ans&er and stated that &hat his
%roup circulated &as the draft of the .; Au%ust ;;$ a'ended petition, not the draft of the 7 Au%ust ;;$
petition.
4he La'bino Group &ould have this Court believe that the( prepared the draft of the .; Au%ust ;;$ a'ended
petition almost seven months earlier in February 2006 &hen the( started %atherin% si%natures. Petitioner
Erico B. Au'entadoHs <8erificationFCertification< of the 7 Au%ust ;;$ petition, as &ell as of the .; Au%ust
;;$ a'ended petition, filed &ith the C5MELEC, states as follo&s*
9 have caused the preparation of the fore%oin% OA'endedP Petition in '( personal capacit( as a
re%istered 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 'ass of si%natories
hereto. ,E'phasis supplied+
4he La'bino Group failed to attach a cop( of ELAP Resolution No. ;;$-; to the present petition. 0o&ever,
the <5fficial Cebsite of the Enion of Local Authorities of the Philippines<
has posted the full te:t of

Resolution No. ;;$-;, &hich provides*
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Enion of Local Authorities of the Philippines ,ELAP+ to adopt a
co''on stand on the approach to support the proposals of the PeopleHs Consultative Co''ission on
Charter Chan%e2
WHEREAS, ELAP 'aintains its un>ualified support to the a%enda of 0er E:cellenc( President Gloria
Macapa%al-Arro(o for constitutional refor's as e'bodied in the ELAP /oint 3eclaration for
Constitutional Refor's si%ned b( the 'e'bers of the ELAP and the 'a)orit( coalition of the 0ouse of
Representatives in Manila 0otel so'eti'e in 5ctober ;;72
WHEREAS, the PeopleHs Consultative Co''ission on Charter Chan%e created b( 0er E:cellenc( to
reco''end a'end'ents to the "#!1 Constitution has sub'itted its final report so'eti'e in 3ece'ber
;;72
WHEREAS, the ELAP is 'indful of the current political develop'ents in Con%ress &hich 'ilitates
a%ainst the use of the e:peditious for' of a'endin% the "#!1 Constitution2
WHEREAS, sub)ect to the ratification of its institutional 'e'bers and the failure of Con%ress to a'end
the Constitution as a constituent asse'bl(, ELAP has unani'ousl( a%reed to pursue the constitutional
refor' a%enda throu%h PeopleHs 9nitiative and Referendu' &ithout pre)udice to other pra%'atic 'eans
to pursue the sa'e2
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE
MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, durin% the ELAP National E:ecutive Board special 'eetin% held on "- /anuar( ;;$ at the
Centur( Par@ 0otel, Manila.
.
,Enderscorin% supplied+
ELAP Resolution No. ;;$-; does not authorize petitioner Au'entado to prepare the 7 Au%ust ;;$
petition, or the .; Au%ust ;;$ a'ended petition, filed &ith the C5MELEC. ELAP Resolution No. ;;$-;
<support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change throu%h peopleHs
initiative and referendu' as a 'ode of a'endin% the "#!1 Constitution.< 4he proposals of the Consultative
Co''ission
-
are vastly different fro' the proposed chan%es of the La'bino Group in the 7 Au%ust ;;$
petition or .; Au%ust ;;$ a'ended petition filed &ith the C5MELEC.
Aor e:a'ple, the proposed revisions of the Consultative Co''ission affect all provisions of the e:istin%
Constitution, from the Preamble to the Transitory Provisions. 4he proposed revisions have profound i'pact
on the /udiciar( and the National Patri'on( provisions of the e:istin% Constitution, provisions that the La'bino
GroupHs proposed chan%es do not touch. 4he La'bino GroupHs proposed chan%es purport to affect onl( Articles
89 and 899 of the e:istin% Constitution, includin% the introduction of ne& 4ransitor( Provisions.
4he ELAP adopted Resolution No. ;;$-; on "- /anuar( ;;$ or 'ore than si: 'onths before the filin% of
the 7 Au%ust ;;$ petition or the .; Au%ust ;;$ a'ended petition &ith the C5MELEC. 0o&ever, ELAP
Resolution No. ;;$-; does not establish that ELAP or the La'bino Group caused the circulation of the draft
petition, to%ether &ith the si%nature sheets, si: 'onths before the filin% &ith the C5MELEC. 5n the contrar(,
ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the
draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the
draft petition or to the Lambino Group's proposed changes.
9n their Manifestation e:plainin% their a'ended petition before the C5MELEC, the La'bino Group declared*
After the Petition &as filed, Petitioners belatedl( reali=ed that the proposed a'end'ents alle%ed in the
Petition, 'ore specificall(, para%raph . of 6ection - and para%raph of 6ection 7 of the 4ransitor(
Provisions &ere inaccuratel( stated and failed to correctl( reflect their proposed a'end'ents.
4he La'bino Group did not alle%e that the( &ere a'endin% the petition because the a'ended petition &as &hat
the( had sho&n to the people durin% the Aebruar( to Au%ust ;;$ si%nature-%atherin%. 9nstead, the La'bino
Group alle%ed that the petition of 7 Au%ust ;;$ <inaccuratel( stated and failed to correctl( reflect their
proposed a'end'ents.<
4he La'bino Group never alleged in the 7 Au%ust ;;$ petition or the .; Au%ust ;;$ a'ended petition &ith
the C5MELEC that the( circulated printed copies of the draft petition to%ether &ith the si%nature sheets.
Li@e&ise, the La'bino Group did not alle%e in their present petition before this Court that the( circulated
printed copies of the draft petition to%ether &ith the si%nature sheets. 4he si%nature sheets do not also contain
an( indication that the draft petition is attached to, or circulated &ith, the si%nature sheets.
9t is onl( in their Consolidated Repl( to the 5pposition-in-9nterventions that the La'bino Group first clai'ed
that the( circulated the <petition for initiative filed &ith the C5MELEC,< thus*
O4Phere is persuasive authorit( 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." O! C./.6. 6"!h. Mo. 6tate v. 6ullivan, -, 6.C.
.1, !. Mo. 7-$.P 4hus, the registered voters who signed the signature sheets circulated together
with the petition for initiative filed with the COMELEC below, are presu'ed to have understood the
proposition contained in the petition. ,E'phasis supplied+
4he La'bino GroupHs state'ent that the( circulated to the people <the petition for initiative filed with the
COMELEC< appears an afterthou%ht, 'ade after the intervenors 9nte%rated Bar of the Philippines ,Cebu Cit(
Chapter and Cebu Province Chapters+ and Att(. Luadra had pointed out that the si%nature sheets did not contain
the te:t of the proposed chan%es. 9n their Consolidated Repl(, the La'bino Group alle%ed that the( circulated
<the petition for initiative< but failed to 'ention the amended petition. 4his contradicts &hat Att(. La'bino
finall( stated durin% the oral ar%u'ents that &hat the( circulated &as the draft of the amended petition of .;
Au%ust ;;$.
4he La'bino Group cites as authorit( ,orpus Juris %e#undum, statin% that <a si%ner &ho did not read the
measure attache+ to a referendum petition cannot >uestion his si%nature on the %round that he did not
understand the nature of the act.< 4he La'bino Group >uotes an authorit( that cites a proposed change
attache+ to the petition signed by the people. Even the authorit( the La'bino Group >uotes re>uires that the
proposed chan%e 'ust be attached to the petition. 4he sa'e authorit( the La'bino Group >uotes re>uires the
people to si%n on the petition itself.
9ndeed, it is basic in A'erican )urisprudence that the proposed a'end'ent 'ust be incorporated &ith, or
attached to, the initiative petition si%ned b( the people. 9n the present initiative, the La'bino GroupHs proposed
chan%es &ere not incorporated &ith, or attached to, the si%nature sheets. 4he La'bino GroupHs citation of
,orpus Juris %e#undum pulls the ru% fro' under their feet.
9t is e:tre'el( doubtful that the La'bino Group prepared, printed, circulated, fro' Aebruar( to Au%ust ;;$
durin% the si%nature-%atherin% period, the draft of the petition or a'ended petition the( filed later &ith the
C5MELEC. 4he La'bino Group are less than candid &ith this Court in their belated clai' that the( printed
and circulated, to%ether &ith the si%nature sheets, the petition or a'ended petition. Nevertheless, even
ass%ming the Lambino Group circulated the amended petition during the signature-gathering period, the
Lambino Group admitted circulating only ve!y limite+ copies of the petition.
3urin% the oral ar%u'ents, Atty. Lambino e,p!essly a+mitte+ that they printed only 100,000 copies of the
draft petition they filed more than six months later with the COMELEC. Att(. La'bino added that he also
as@ed other supporters to print additional copies of the draft petition but he could not state &ith certaint( ho&
'an( 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.
Li@e&ise, in the La'bino GroupHs Me'orandu' filed on "" 5ctober ;;$, 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."
7
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.
4hus, of the $.. 'illion si%natories, onl( ";;,;;; si%natories could have received &ith certaint( one cop( each
of the petition, assu'in% a ";; percent distribution &ith no &asta%e. 9f Att(. La'bino and co'pan( attached
one cop( of the petition to each si%nature sheet, onl( ";;,;;; si%nature sheets could have circulated &ith the
petition. Each si%nature sheet contains space for ten si%natures. Assu'in% ten people si%ned each of these
";;,;;; si%nature sheets &ith the attached petition, the 'a:i'u' nu'ber of people &ho sa& the petition before
the( si%ned the si%nature sheets &ould not e:ceed ",;;;,;;;.
Cith onl( ";;,;;; printed copies of the petition, it &ould be ph(sicall( i'possible for all or a %reat 'a)orit( of
the $.. 'illion si%natories to have seen the petition before the( si%ned the si%nature 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. 9f ever, not 'ore than one 'illion si%natories sa& the petition before the( si%ned the
si%nature sheets.
9n an( event, the La'bino GroupHs si%nature sheets do not contain the full te:t of the proposed chan%es, either
on the face of the si%nature sheets, or as attach'ent &ith an indication in the si%nature sheet of such attach'ent.
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. 4he
failure to so include the te:t of the proposed chan%es in the si%nature sheets renders the initiative void for non-
co'pliance &ith the constitutional re>uire'ent that the a'end'ent 'ust be <directly proposed by the people
through initiative upon a petition.< 4he si%nature sheet is not the <petition< envisioned in the initiative clause
of the Constitution.
Aor sure, the %reat 'a)orit( of the $.. 'illion people &ho si%ned the si%nature sheets did not see the full te:t of
the proposed chan%es before si%nin%. 4he( could not have @no&n the nature and effect of the proposed chan%es,
a'on% &hich are*
". 4he term limits on members of the legislature will be lifted and thus 'e'bers of Parlia'ent can be
re-elected indefinitel(2
$

. 4he interi' Parlia'ent can continue to function indefinitel( until its 'e'bers, &ho are al'ost all the
present 'e'bers of Con%ress, decide to call for ne& parlia'entar( elections. 4hus, the members of the
interim Parliament will determine the expiration of their own term of office2
1
.. Cithin -7 da(s fro' the ratification of the proposed chan%es, the interim Parliament shall convene
to propose further amendments or revisions to the Constitution.
!

4hese three specific a'end'ents are not stated or even indicated in the La'bino GroupHs si%nature sheets. 4he
people &ho si%ned the si%nature sheets had no idea that the( &ere proposin% these a'end'ents. 4hese three
proposed chan%es are hi%hl( controversial. 4he people could not have inferred or divined these proposed
chan%es 'erel( fro' a readin% or rereadin% of the contents of the si%nature sheets.
3urin% the oral ar%u'ents, petitioner Att(. La'bino stated that he and his %roup 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 chan%es &ere ratified before the ;;1 local elections. 0o&ever, the te:t of the
proposed chan%es belies this.
4he proposed 6ection 7,+, Article D8999 on 4ransitor( Provisions, as found in the a'ended petition, states*
6ection 7,+. 4he interi' Parlia'ent shall provide for the election of the 'e'bers of Parlia'ent, which
shall be synchronized and held simultaneously with the election of all local government officials. :
: : : ,E'phasis supplied+
6ection 7,+ does not state that the elections for the re%ular Parlia'ent &ill be held si'ultaneousl( &ith the
;;1 local elections. 4his section 'erel( re>uires that the elections for the re%ular Parlia'ent shall be held
si'ultaneousl( &ith the local elections without specifying the year.
Petitioner Att(. La'bino, &ho clai's to be the principal drafter of the proposed chan%es, could have easil(
&ritten the &ord <ne:t< before the phrase <election of all local %overn'ent officials.< 4his &ould have insured
that the elections for the re%ular Parlia'ent &ould be held in the ne:t local elections follo&in% the ratification
of the proposed chan%es. 0o&ever, the absence of the &ord <next< allo&s the interi' Parlia'ent to schedule
the elections for the re%ular Parlia'ent si'ultaneousl( &ith any future local elections.
4hus, the 'e'bers of the interi' Parlia'ent &ill decide the e:piration of their o&n ter' of office. 4his allo&s
incu'bent 'e'bers of the 0ouse of Representatives to hold office be(ond their current three-(ear ter' of
office, and possibl( even be(ond the five-(ear ter' of office of re%ular 'e'bers of the Parlia'ent. 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.
4his lucidl( sho&s the absolute need for the people to si%n an initiative petition that contains the full te:t of the
proposed a'end'ents to avoid fraud or 'isrepresentation. 9n the present initiative, the $.. 'illion si%natories
had to rel( on the verbal representations of Att(. La'bino and his %roup because the si%nature sheets did not
contain the full te:t of the proposed chan%es. 4he result is a grand deception on the $.. 'illion si%natories &ho
&ere led to believe that the proposed chan%es &ould re>uire the holdin% in ;;1 of elections for the re%ular
Parlia'ent si'ultaneousl( &ith the local elections.
4he La'bino GroupHs initiative sprin%s another surprise on the people &ho si%ned the si%nature sheets. 4he
proposed chan%es 'andate the interi' Parlia'ent to 'a@e further a'end'ents or revisions to the Constitution.
4he proposed 6ection -,-+, Article D8999 on 4ransitor( Provisions, provides*
6ection -,-+. Cithin fort(-five da(s fro' ratification of these a'end'ents, the interi' Parlia'ent shall
convene to propose amendments to, or revisions of, this Constitution consistent &ith the principles
of local autono'(, decentrali=ation and a stron% bureaucrac(. ,E'phasis supplied+
3urin% the oral ar%u'ents, Att(. La'bino stated that this provision is a <surplusa%e< and the Court and the
people should si'pl( i%nore it. Aar fro' bein% a surplusa%e, this provision invalidates the La'bino GroupHs
initiative.
6ection -,-+ is a sub)ect 'atter totally unrelated to the shift fro' the Bica'eral-Presidential to the
Enica'eral-Parlia'entar( s(ste'. A'erican )urisprudence on initiatives outla&s this as logrolling - &hen the
initiative petition incorporates an unrelated sub)ect 'atter in the sa'e petition. 4his puts the people in a
dile''a since the( can ans&er onl( either (es or no to the entire proposition, forcin% the' to si%n a petition
that effectivel( contains t&o propositions, one of &hich the( 'a( find unacceptable.
Ender A'erican )urisprudence, the effect of lo%rollin% is to nullify the entire proposition and not onl( the
unrelated sub)ect 'atter. 4hus, in Fine v. Fi!estone,
#
the 6upre'e Court of Alorida declared*
Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial
responsibility is to mean anything, we cannot permit. 4he ver( broadness of the proposed
a'end'ent a'ounts to lo%rollin% because the electorate cannot @no& &hat it is votin% on - the
a'end'entHs proponentsH si'plistic e:planation reveals onl( the tip of the iceber%. : : : : 4he ballot
'ust %ive the electorate fair notice of the proposed a'end'ent bein% voted on. : : : : 4he ballot
lan%ua%e in the instant case fails to do that. 4he ver( broadness of the proposal 'a@es it i'possible to
state &hat it &ill affect and effect and violates the re>uire'ent that proposed a'end'ents e'brace onl(
one sub)ect. ,E'phasis supplied+
Lo%rollin% confuses and even deceives the people. 9n -%te i! las.a v. )clpine,
.;
the 6upre'e Court of
Alas@a &arned a%ainst <inadvertence, stealth and fraud< in lo%rollin%*
Chenever a bill beco'es la& throu%h the initiative process, all of the proble's that the sin%le-sub)ect rule &as
enacted to prevent are e:acerbated. 4here is a %reater dan%er of lo%rollin%, or the deliberate inter'in%lin% of
issues to increase the li@elihood of an initiativeHs passa%e, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-initiative process. 4he drafters of an initiative
operate independentl( of an( structured or supervised process. 4he( often e'phasi=e particular provisions of
their proposition, &hile re'ainin% silent on other ,'ore co'ple: or less appealin%+ provisions, &hen
co''unicatin% to the public. : : : Indeed, initiative promoters typically use simplistic advertising to
present their initiative to potential petition-signers and eventual voters. Man( voters &ill never read the full
te:t of the initiative before the election. More i'portantl(, there is no process for a'endin% or splittin% the
several provisions in an initiative proposal. 4hese difficulties clearl( distin%uish the initiative fro' the
le%islative process. ,E'phasis supplied+
4hus, the present initiative appears 'erel( a preli'inar( step for further a'end'ents or revisions to be
underta@en b( the interi' Parlia'ent as a constituent asse'bl(. 4he people &ho si%ned the si%nature sheets
could not have @no&n that their si%natures &ould be used to propose an a'end'ent mandating the interi'
Parlia'ent to propose further a'end'ents or revisions to the Constitution.
Apparentl(, the La'bino Group inserted the proposed 6ection -,-+ to compel the interi' Parlia'ent to a'end
or revise a%ain the Constitution &ithin -7 da(s fro' ratification of the proposed chan%es, or before the May
2007 elections. 9n the absence of the proposed 6ection -,-+, the interi' Parlia'ent has the discretion &hether to
a'end or revise a%ain the Constitution. Cith the proposed 6ection -,-+, the initiative proponents &ant the
interi' Parlia'ent mandated to i''ediatel( a'end or revise a%ain the Constitution.
0o&ever, the si%nature sheets do not e:plain the reason for this rush in a'endin% or revisin% a%ain so soon the
Constitution. 4he si%nature sheets do not also e:plain &hat specific a'end'ents or revisions the initiative
proponents &ant the interi' Parlia'ent to 'a@e, and &h( there is a need for such further a'end'ents or
revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes.
Certainl(, such an initiative is not <directl( proposed b( the people< because the people do not even @no& the
nature and effect of the proposed chan%es.
4here is another intri%uin% provision inserted in the La'bino GroupHs a'ended petition of .; Au%ust ;;$. 4he
proposed 6ection -,.+ of the 4ransitor( Provisions states*
6ection -,.+. 6enators &hose ter' of office ends in ;"; shall be 'e'bers of Parlia'ent until noon of
the thirtieth da( of /une ;";.
After .; /une ;";, not one of the present 6enators &ill re'ain as 'e'ber of Parlia'ent if the interi'
Parlia'ent does not schedule elections for the re%ular Parlia'ent b( .; /une ;";. 0o&ever, there is no
counterpart provision for the present 'e'bers of the 0ouse of Representatives even if their ter' of office &ill
all end on .; /une ;;1, three (ears earlier than that of half of the present 6enators. 4hus, all the present
'e'bers of the 0ouse &ill re'ain 'e'bers of the interi' Parlia'ent after .; /une ;";.
4he ter' of the incu'bent President ends on .; /une ;";. 4hereafter, the Pri'e Minister e:ercises all the
po&ers of the President. 9f the interi' Parlia'ent does not schedule elections for the re%ular Parlia'ent b( .;
/une ;";, the Pri'e Minister &ill co'e onl( fro' the present 'e'bers of the 0ouse of Representatives to the
exclusion of the present 6enators.
4he si%nature sheets do not e:plain this discri'ination a%ainst the 6enators. 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
1une 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that %athers si%natures fro' the people &ithout first showin% to the people the full te:t of the
proposed a'end'ents is 'ost li@el( a deception, and can operate as a gigantic fraud on the people. 4hat is
&h( the Constitution re>uires that an initiative 'ust be <directly proposed by the people x x x in a petition< -
'eanin% that the people 'ust si%n on a petition that contains the full te:t of the proposed a'end'ents. 5n so
vital an issue as a'endin% the nationHs funda'ental la&, the &ritin% of the te:t of the proposed a'end'ents
cannot be hidden from the people under a %eneral or special po&er of attorne( to unna'ed, faceless, and
unelected individuals.
4he Constitution entrusts to the people the po&er to directl( propose a'end'ents to the Constitution. 4his
Court trusts the &isdo' of the people even if the 'e'bers of this Court do not personall( @no& the people &ho
si%n 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.
9n short, the La'bino GroupHs initiative is void and unconstitutional because it dis'all( fails to co'pl( &ith the
re>uire'ent of 6ection , Article D899 of the Constitution that the initiative 'ust be <directly proposed by the
people through initiative upon a petition.<
2. The Initiative #iolates Section 2, !ticle "#II o$ the Constit%tion Disallowing /evision th!o%gh Initiatives
A peopleHs initiative to chan%e the Constitution applies onl( to an a'end'ent of the Constitution and not to its
revision. 9n contrast, Con%ress or a constitutional convention can propose both a'end'ents and revisions to the
Constitution. Article D899 of the Constitution provides*
ARTICLE XVII
AMENDMENTS OR REVISIONS
6ec. ". Any amendment to, or revision of, this Constitution 'a( be proposed b(*
,"+ 4he Congress, upon a vote of three-fourths of all its Me'bers, or
,+ A constitutional convention.
6ec. . Amendments to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative : : :. ,E'phasis supplied+
Article D899 of the Constitution spea@s of three 'odes of a'endin% the Constitution. 4he first 'ode is throu%h
Con%ress upon three-fourths vote of all its Me'bers. 4he second 'ode is throu%h a constitutional convention.
4he third 'ode is throu%h a peopleHs initiative.
6ection " of Article D899, referrin% to the first and second 'odes, applies to <OAPn( a'end'ent to, or revision
of, this Constitution.< 9n contrast, 6ection of Article D899, referrin% to the third 'ode, applies onl( to
<OAP'end'ents to this Constitution.< 4his distinction &as intentional as sho&n b( the follo&in% deliberations
of the Constitutional Co''ission*
MR. 6EAREK* 4han@ (ou, Mada' President.
Ma( &e respectfull( call the attention of the Me'bers of the Co''ission that pursuant to the 'andate
%iven to us last ni%ht, &e sub'itted this afternoon a co'plete Co''ittee Report No. 1 &hich e'bodies
the proposed provision %overnin% the 'atter of initiative. 4his is no& covered b( 6ection of the
co'plete co''ittee report. Cith the per'ission of the Me'bers, 'a( 9 >uote 6ection *
4he people 'a(, after five (ears fro' the date of the last plebiscite held, directl( propose a'end'ents
to this Constitution thru initiative upon petition of at least ten percent of the re%istered voters.
4his co'pletes the blan@s appearin% in the ori%inal Co''ittee Report No. 1. 4his proposal &as
su%%ested on the theor( that this 'atter of initiative, &hich ca'e about because of the e:traordinar(
develop'ents this (ear, has to be separated fro' the traditional 'odes of a'endin% the Constitution as
e'bodied in 6ection ". 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. : : : :
: : : :
M6. ALE9N5* O9P a' seriousl( bothered b( providin% this process of initiative as a separate section in
the Article on A'end'ent. Could the sponsor be a'enable to acceptin% an a'end'ent in ter's of
reali%nin% 6ection as another subpara%raph ,c+ of 6ection ", instead of settin% it up as another separate
section as if it &ere a self-e:ecutin% provisionI
MR. 6EAREK* Ce &ould be a'enable e:cept that, as &e clarified a &hile a%o, 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. 4hat &as the sense that &as conve(ed b( the
Co''ittee.
M6. ALE9N5* 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. 6EAREK* That is right. Those were the terms envisioned in the Committee.
M6. ALE9N5* 9 than@ the sponsor2 and than@ (ou, Mada' President.
: : : :
MR. MAAMB5NG* 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. 3A893E* 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. MAAMB5NG* 4han@ (ou.
."
,E'phasis supplied+
4here can be no 'ista@e about it. 4he fra'ers of the Constitution intended, and wrote, a clear distinction
bet&een <a'end'ent< and <revision< of the Constitution. 4he fra'ers intended, and wrote, that onl( Con%ress
or a constitutional convention 'a( propose revisions to the Constitution. 4he fra'ers intended, and wrote, that
a peopleHs initiative 'a( propose onl( a'end'ents to the Constitution. Chere the intent and lan%ua%e of the
Constitution clearl( &ithhold fro' the people the po&er to propose revisions to the Constitution, the people
cannot propose revisions even as the( are e'po&ered to propose a'end'ents.
4his has been the consistent rulin% of state supre'e courts in the Enited 6tates. 4hus, in )cFa++en v. Jo!+an,
.
the 6upre'e Court of California ruled*
The initiative power reserved by the people by amendment to the Constitution x x x applies only to
the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and
does not purport to extend to a constitutional revision. : : : : 9t is thus clear that a revision of the
Constitution 'a( be acco'plished onl( throu%h ratification b( the people of a revised constitution
proposed b( a convention called for that purpose as outlined hereinabove. Conse>uentl( if the scope of
the proposed initiative 'easure ,hereinafter ter'ed Hthe 'easureH+ no& before us is so broad that if such
'easure beca'e la& a substantial revision of our present state Constitution &ould be effected, then the
'easure 'a( not properl( be sub'itted to the electorate until and unless it is first a%reed upon b( a
constitutional convention, and the &rit sou%ht b( petitioner should issue. : : : : ,E'phasis supplied+
Li@e&ise, the 6upre'e Court of 5re%on ruled in 0olmes v. ppling*
..

9t is &ell established that &hen a constitution specifies the 'anner in &hich it 'a( be a'ended or
revised, it can be altered b( those &ho favor a'end'ents, revision, or other chan%e onl( throu%h the use
of one of the specified 'eans. 4he constitution itself reco%ni=es that there is a difference bet&een an
a'end'ent and a revision2 and it is obvious fro' an e:a'ination of the 'easure here in >uestion that it
is not an a'end'ent as that ter' is %enerall( understood and as it is used in Article 98, 6ection ". 4he
docu'ent appears to be based in lar%e part on the revision of the constitution drafted b( the
HCo''ission for Constitutional RevisionH authori=ed b( the "#$" Le%islative Asse'bl(, : : : and
sub'itted to the "#$. Le%islative Asse'bl(. 9t failed to receive in the Asse'bl( the t&o-thirdHs 'a)orit(
vote of both houses re>uired b( Article D899, 6ection , and hence failed of adoption, : : :.
Chile differin% fro' that docu'ent in 'aterial respects, the 'easure sponsored b( the plaintiffs is,
nevertheless, a thorou%h overhaulin% of the present constitution : : :.
4o call it an a'end'ent is a 'isno'er.
Chether it be a revision or a ne& constitution, it is not such a 'easure as can be sub'itted to the people
throu%h the initiative. 9f a revision, it is sub)ect to the re>uire'ents of Article D899, 6ection ,"+2 if a
ne& constitution, it can onl( be proposed at a convention called in the 'anner provided in Article D899,
6ection ". : : : :
6i'ilarl(, in this )urisdiction there can be no dispute that a peopleHs initiative can onl( propose a'end'ents to
the Constitution since the Constitution itself li'its initiatives to a'end'ents. 4here can be no deviation fro'
the constitutionall( prescribed 'odes of revising the Constitution. A popular cla'or, even one bac@ed b( $..
'illion si%natures, cannot )ustif( a deviation fro' the specific 'odes prescribed in the Constitution itself.
As the 6upre'e Court of 5@laho'a ruled in In !e Initiative Petition No. 123*
.-
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. : : : : <Chile it is universall( conceded that the people are soverei%n and that the(
have po&er to adopt a constitution and to chan%e their o&n &or@ at &ill, the( 'ust, in doin% so, act in an
orderl( 'anner and accordin% to the settled principles of constitutional la&. And &here the people, in
adoptin% a constitution, have prescribed the 'ethod b( &hich the people 'a( alter or a'end it, an
atte'pt to chan%e the funda'ental la& in violation of the self-i'posed restrictions, is unconstitutional.<
: : : : ,E'phasis supplied+
4his Court, &hose 'e'bers are s&orn to defend and protect the Constitution, cannot shir@ fro' its sole'n oath
and dut( to insure co'pliance &ith the clear co''and of the Constitution Q that a peopleHs initiative 'a( onl(
a'end, never revise, the Constitution.
4he >uestion is, does the La'bino GroupHs initiative constitute an a'end'ent or revision of the ConstitutionI 9f
the La'bino GroupHs initiative constitutes a revision, then the present petition should be dis'issed for bein%
outside the scope of 6ection , Article D899 of the Constitution.
Courts have lon% reco%ni=ed the distinction bet&een an a'end'ent and a revision of a constitution. 5ne of the
earliest cases that reco%ni=ed the distinction described the funda'ental difference in this 'anner*
O4Phe ver( ter' <constitution< i'plies an instru'ent of a per'anent and abidin% 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 li@e
per'anent and abidin% nature. 5n the other hand, the si%nificance of the ter' <a'end'ent< i'plies
such an addition or chan%e &ithin the lines of the ori%inal instru'ent as &ill effect an i'prove'ent, or
better carr( out the purpose for &hich it &as fra'ed.
.7
,E'phasis supplied+
Revision broadl( i'plies a chan%e that alters a basic principle in the constitution, li@e alterin% the principle
of separation of po&ers or the s(ste' of chec@s-and-balances. 4here is also revision if the chan%e alters the
substantial entirety of the constitution, as when the change affects substantial provisions of the
constitution. 5n the other hand, a'end'ent broadl( refers to a change that adds, reduces, or deletes without
altering the basic principle involved. Revision %enerall( affects several provisions of the constitution, &hile
a'end'ent %enerall( affects onl( the specific provision bein% a'ended.
9n California &here the initiative clause allo&s a'end'ents but not revisions to the constitution )ust li@e in our
Constitution, courts have developed a two-part test* the >uantitative test and the >ualitative test. 4he
>uantitative test as@s &hether the proposed chan%e is <so e:tensive in its provisions as to chan%e directl( the
Hsubstantial entiret(H of the constitution b( the deletion or alteration of nu'erous e:istin% provisions.<
.$
4he
court e:a'ines onl( the nu'ber of provisions affected and does not consider the de%ree of the chan%e.
4he >ualitative test in>uires into the >ualitative effects of the proposed chan%e in the constitution. 4he 'ain
in>uir( is &hether the chan%e &ill <acco'plish such far reachin% chan%es in the nature of our basic
%overn'ental plan as to a'ount to a revision.<
.1
Chether there is an alteration in the structure of %overn'ent is
a proper sub)ect of in>uir(. 4hus, <a chan%e in the nature of OtheP basic %overn'ental plan< includes <chan%e in
its funda'ental fra'e&or@ or the funda'ental po&ers of its Branches.<
.!
A chan%e in the nature of the basic
%overn'ental plan also includes chan%es that <)eopardi=e the traditional for' of %overn'ent and the s(ste' of
chec@ and balances.<
.#
Ender both the >uantitative and >ualitative tests, the La'bino GroupHs initiative is a revision and not 'erel( an
a'end'ent. Luantitativel(, the La'bino GroupHs proposed chan%es overhaul t&o articles - Article 89 on the
Le%islature and Article 899 on the E:ecutive - affectin% a total of ";7 provisions in the entire Constitution.
-;

Lualitativel(, the proposed chan%es alter substantiall( the basic plan of %overn'ent, fro' presidential to
parlia'entar(, and fro' a bica'eral to a unica'eral le%islature.
A chan%e in the structure of %overn'ent is a revision of the Constitution, as &hen the three %reat co-e>ual
branches of %overn'ent in the present Constitution are reduced into t&o. This alters the separation of powers
in the Constitution. A shift fro' the present Bica'eral-Presidential s(ste' to a Enica'eral-Parlia'entar(
s(ste' is a revision of the Constitution. Mer%in% the le%islative and e:ecutive branches is a radical chan%e in
the structure of %overn'ent.
4he abolition alone of the 5ffice of the President as the locus of E:ecutive Po&er alters the separation of
po&ers and thus constitutes a revision of the Constitution. Li@e&ise, the abolition alone of one cha'ber of
Con%ress alters the s(ste' of chec@s-and-balances &ithin the le%islature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift fro' a Bica'eral-Presidential to a Enica'eral-
Parlia'entar( s(ste', involvin% the abolition of the 5ffice of the President and the abolition of one cha'ber of
Con%ress, is be(ond doubt a revision, not a 'ere a'end'ent. 5n the face alone of the La'bino GroupHs
proposed chan%es, it is readil( apparent that the chan%es &ill radically alter the framework of government as
set forth in the Constitution. Aather /oa>uin Bernas, 6./., a leadin% 'e'ber of the Constitutional Co''ission,
&rites*
An a'end'ent envisa%es an alteration of one or a fe& specific and separable provisions. 4he %uidin% ori%inal
intention of an a'end'ent is to i'prove specific parts or to add ne& provisions dee'ed necessar( to 'eet ne&
conditions or to suppress specific portions that 'a( have beco'e obsolete or that are )ud%ed to be dan%erous. 9n
revision, ho&ever, the %uidin% ori%inal intention and plan conte'plates a re-e:a'ination of the entire
docu'ent, or of provisions of the docu'ent &hich have over-all i'plications for the entire docu'ent, to
deter'ine ho& and to &hat e:tent the( 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.
-"
,E'phasis supplied+
9n +ams v. 4%nte!,
-
an initiative petition proposed the a'end'ent of the Alorida 6tate constitution to shift
from a bicameral to a unicameral legislature. 4he issue turned on &hether the initiative <&as defective and
unauthori=ed &here OtheP proposed a'end'ent &ould : : : affect several other provisions of OtheP
Constitution.< 4he 6upre'e Court of Alorida, stri@in% do&n the initiative as outside the scope of the initiative
clause, ruled as follo&s*
4he proposal here to a'end 6ection " of Article 999 of the "#$! Constitution to provide for a Enica'eral
Le%islature affects not only many other provisions of the Constitution but provides for a change in
the form of the legislative branch of government, &hich has been in e:istence in the Enited 6tates
Con%ress and in all of the states of the nation, e:cept one, since the earliest da(s. It would be difficult
to visualize a more revolutionary change. 4he concept of a 0ouse and a 6enate is basic in the
A'erican for' of %overn'ent. It would not only radically change the whole pattern of government
in this state and tear apart the whole fabric of the Constitution, but would even affect the physical
facilities necessary to carry on government.
: : : :
Ce conclude &ith the observation that if such proposed a'end'ent &ere adopted b( the people at the
General Election and if the Le%islature at its ne:t session should fail to sub'it further a'end'ents to
revise and clarif( the nu'erous inconsistencies and conflicts &hich &ould result, or if after sub'ission
of appropriate a'end'ents the people should refuse to adopt the', si'ple chaos &ould prevail in the
%overn'ent of this 6tate. 4he sa'e result &ould obtain fro' an a'end'ent, for instance, of 6ection "
of Article 8, to provide for onl( a 6upre'e Court and Circuit Courts-and there could be other e:a'ples
too nu'erous to detail. 4hese e:a'ples point unerrin%l( to the ans&er.
4he purpose of the lon% and arduous &or@ of the hundreds of 'en and &o'en and 'an( sessions of the
Le%islature in brin%in% about the Constitution of "#$! &as to eli'inate inconsistencies and conflicts and
to %ive the 6tate a &or@able, accordant, ho'o%enous and up-to-date docu'ent. All of this could
disappear ver( >uic@l( if &e &ere to hold that it could be a'ended in the 'anner proposed in the
initiative petition here.
-.
,E'phasis supplied+
4he rationale of the +ams decision applies &ith %reater force to the present petition. 4he La'bino GroupHs
initiative not onl( see@s a shift fro' a bica'eral to a unica'eral le%islature, it also see@s to 'er%e the e:ecutive
and le%islative depart'ents. 4he initiative in +ams did not even touch the e:ecutive depart'ent.
9n +ams, the 6upre'e Court of Alorida enu'erated "! sections of the Alorida Constitution that &ould be
affected b( the shift fro' a bica'eral to a unica'eral le%islature. 9n the La'bino GroupHs present initiative, no
less than 105 provisions of the Constitution would be affected based on the count of Associate /ustice
Ro'eo /. Calle)o, 6r.
--
4here is no doubt that the La'bino GroupHs present initiative see@s far 'ore radical
chan%es in the structure of %overn'ent than the initiative in +ams.
4he La'bino Group theori=es that the difference bet&een <a'end'ent< and <revision< is onl( one of
procedure, not of substance. 4he La'bino Group posits that &hen a deliberative bod( drafts and proposes
chan%es to the Constitution, substantive chan%es are called <revisions< because members of the deliberative
body work full-time on the changes. 0o&ever, the sa'e substantive chan%es, &hen proposed throu%h an
initiative, are called <a'end'ents< because the changes are made by ordinary people who do not make an
"occupation, profession, or vocation" out of such endeavor.
4hus, the La'bino Group 'a@es the follo&in% e:position of their theor( in their Me'orandu'*
##. Cith this distinction in 'ind, &e note that the constitutional provisions e:pressl( provide for both
<a'end'ent< and <revision< &hen it spea@s of le%islators and constitutional dele%ates, &hile the sa'e
provisions e:pressl( provide onl( for <a'end'ent< &hen it spea@s of the people. 9t &ould see' that the
apparent distinction is based on the actual e:perience of the people, that on one hand the co''on
people in %eneral are not e:pected to &or@ full-ti'e on the 'atter of correctin% the constitution because
that is not their occupation, profession or vocation2 &hile on the other hand, the le%islators and
constitutional convention dele%ates are e:pected to &or@ full-ti'e on the sa'e 'atter 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 interpretin% the constitutional provisions.
";;. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be
in the substance or extent of the correction. : : : : ,Enderlinin% in the ori%inal2 boldfacin% supplied+
4he La'bino Group in effect ar%ues that if Con%ress or a constitutional convention had drafted the sa'e
proposed chan%es that the La'bino Group &rote in the present initiative, the chan%es &ould 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.
0o&ever, since the La'bino Group as private individuals drafted the proposed chan%es, the chan%es are 'erel(
a'end'ents to the Constitution. 4he La'bino Group triviali=es the serious 'atter of chan%in% the funda'ental
la& of the land.
4he express intent of the framers and the plain language of the Constitution contradict the La'bino
GroupHs theor(. Chere the intent of the fra'ers and the lan%ua%e of the Constitution are clear and plainl( stated,
courts do not deviate fro' such cate%orical intent and lan%ua%e.
-7
An( theor( espousin% a construction contrar(
to such intent and lan%ua%e deserves scant consideration. More so, if such theor( &rea@s havoc b( creatin%
inconsistencies in the for' of %overn'ent established in the Constitution. 6uch a theor(, devoid of an(
)urisprudential 'oorin% and invitin% inconsistencies in the Constitution, onl( e:poses the fli'siness of the
La'bino GroupHs position. An( theor( advocatin% that a proposed chan%e involvin% a radical structural chan%e
in %overn'ent does not constitute a revision )ustl( deserves re)ection.
4he La'bino Group si'pl( rec(cles a theor( that initiative proponents in A'erican )urisdictions have
atte'pted to advance &ithout an( success. 9n 5owe v. *eisling,
-$
the 6upre'e Court of 5re%on rejected this
theory, thus*
Mabon ar%ues that Article D899, section , does not appl( to chan%es to the constitution proposed b(
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 ar%ue that the proposed ballot 'easure constitutes a &holesale chan%e to the constitution that
cannot be enacted throu%h the initiative process. 4he( assert that the distinction bet&een a'end'ent
and revision is deter'ined b( revie&in% the scope and sub)ect 'atter of the proposed enact'ent, and
that revisions are not li'ited to <a for'al overhaulin% of the constitution.< 4he( ar%ue that this ballot
'easure proposes far reachin% chan%es outside the lines of the ori%inal instru'ent, includin% profound
i'pacts on e:istin% funda'ental ri%hts and radical restructurin% of the %overn'entHs relationship &ith a
defined %roup of citi=ens. Plaintiffs assert that, because the proposed ballot 'easure <&ill refashion the
'ost basic principles of 5re%on constitutional la&,< the trial court correctl( held that it violated Article
D899, section , and cannot appear on the ballot &ithout the prior approval of the le%islature.
Ce first address MabonHs ar%u'ent that Article D899, section ,"+, does not prohibit revisions instituted
b( initiative. 9n Holmes ". Applin(- : : :- the 6upre'e Court concluded that a revision of the
constitution 'a( not be acco'plished b( initiative, because of the provisions of Article D899, section .
After revie&in% Article D899, section", relatin% to proposed a'end'ents- the court said*
<Aro' the fore%oin% it appears that Article 98, 6ection ", authori=es the use of the initiative as a 'eans
of a'endin% the 5re%on Constitution, but it contains no si'ilar sanction for its use as a 'eans of
revisin% the constitution.< : : : :
9t then revie&ed Article D899, section , relatin% to re"isions- and said* <9t is the onl( section of the
constitution &hich provides the 'eans for constitutional revision and it e:cludes the idea that an
individual, throu%h the initiative, 'a( place such a 'easure before the electorate.< : : : :
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. ,E'phasis supplied+
6i'ilarl(, this Court 'ust re)ect the La'bino GroupHs theor( &hich ne%ates the e:press intent of the fra'ers
and the plain lan%ua%e of the Constitution.
Ce can visuali=e a'end'ents and revisions as a spectru', at one end %reen for a'end'ents and at the other
end red for revisions. 4o&ards the 'iddle of the spectru', colors fuse and difficulties arise in deter'inin%
&hether there is an a'end'ent or revision. 4he present initiative is indisputabl( located at the far end of the red
spectru' &here revision be%ins. 4he present initiative see@s a radical overhaul of the e:istin% separation of
po&ers a'on% the three co-e>ual depart'ents of %overn'ent, re>uirin% far-reachin% a'end'ents in several
sections and articles of the Constitution.
Chere the proposed chan%e applies onl( to a specific provision of the Constitution &ithout affectin% an( other
section or article, the chan%e 'a( %enerall( be considered an a'end'ent and not a revision. Aor e:a'ple, a
chan%e reducin% the votin% a%e fro' "! (ears to "7 (ears
-1
is an a'end'ent and not a revision. 6i'ilarl(, a
chan%e reducin% Ailipino o&nership of 'ass 'edia co'panies fro' ";; percent to $; percent is an a'end'ent
and not a revision.
-!
Also, a chan%e re>uirin% a colle%e de%ree as an additional >ualification for election to the
Presidenc( is an a'end'ent and not a revision.
-#

4he chan%es in these e:a'ples do not entail an( 'odification of sections or articles of the Constitution other
than the specific provision bein% a'ended. 4hese chan%es do not also affect the structure of %overn'ent or the
s(ste' of chec@s-and-balances a'on% or &ithin the three branches. 4hese three e:a'ples are located at the far
%reen end of the spectru', opposite the far red end &here the revision sou%ht b( the present petition is located.
0o&ever, there can be no fi:ed rule on &hether a chan%e is an a'end'ent or a revision. A chan%e in a sin%le
&ord of one sentence of the Constitution 'a( be a revision and not an a'end'ent. Aor e:a'ple, the
substitution of the &ord <republican< &ith <'onarchic< or <theocratic< in 6ection ", Article 99
7;
of the
Constitution radicall( overhauls the entire structure of %overn'ent and the funda'ental ideolo%ical basis of the
Constitution. 4hus, each specific chan%e &ill have to be e:a'ined case-b(-case, dependin% on ho& it affects
other provisions, as &ell as ho& it affects the structure of %overn'ent, the carefull( crafted s(ste' of chec@s-
and-balances, and the underl(in% ideolo%ical basis of the e:istin% Constitution.
6ince a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative
body with recorded proceedings is best suited to underta@e a revision. A revision re>uires har'oni=in% not
onl( several provisions, but also the altered principles &ith those that re'ain unaltered. 4hus, constitutions
nor'all( authori=e deliberative bodies li@e constituent asse'blies or constitutional conventions to underta@e
revisions. 5n the other hand, constitutions allo& peopleHs initiatives, &hich do not have fi:ed and identifiable
deliberative bodies or recorded proceedin%s, to underta@e onl( a'end'ents and not revisions.
9n the present initiative, the La'bino GroupHs proposed 6ection of the 4ransitor( Provisions states*
6ection . Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith the
e:ception of 6ections ", , ., -, 7, $ and 1 of Article 89 of the "#!1 Constitution &hich shall hereb( be
a'ended and 6ections "! and - &hich shall be deleted, all other 6ections of Article 89 are hereb(
retained and renu'bered se>uentiall( as 6ection , ad seriati' up to $, 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 government2 : : : : ,E'phasis supplied+
4he basic rule in statutor( construction is that if a later la& is irreconcilabl( inconsistent &ith a prior la&, the
later la& prevails. 4his rule also applies to construction of constitutions. 0o&ever, the La'bino GroupHs draft of
6ection of the 4ransitor( Provisions turns on its head this rule of construction b( statin% that in case of such
irreconcilable inconsistenc(, the earlier provision <shall be amended to confor' &ith a unica'eral
parlia'entar( for' of %overn'ent.< 4he effect is to free=e the t&o irreconcilable provisions until the earlier one
<shall be a'ended,< &hich re>uires a future separate constitutional a'end'ent.
Reali=in% the absurdit( of the need for such an a'end'ent, petitioner Att(. La'bino readil( conceded durin%
the oral ar%u'ents that the re>uire'ent of a future a'end'ent is a <surplusa%e.< 9n short, Att(. La'bino &ants
to reinstate the rule of statutor( construction so that the later provision auto'aticall( prevails in case of
irreconcilable inconsistenc(. 0o&ever, it is not as si'ple as that.
4he irreconcilable inconsistenc( envisioned in the proposed 6ection of the 4ransitor( Provisions is not
bet&een a provision in Article 89 of the "#!1 Constitution and a provision in the proposed chan%es. 4he
inconsistenc( is bet&een a provision in Article 89 of the "#!1 Constitution and the <Parliamentary system of
government,< and the inconsistenc( shall be resolved in favor of a <unicameral parliamentary form of
government.<
No&, &hat <unicameral parliamentary form of government< do the La'bino GroupHs proposed chan%es refer
to Q the Ban%ladeshi, 6in%aporean, 9sraeli, or Ne& Kealand 'odels, &hich are a'on% the few countries &ith
unicameral parliamentsI 4he proposed chan%es could not possibl( refer to the traditional and &ell-@no&n
parlia'entar( for's of %overn'ent Q the British, Arench, 6panish, Ger'an, 9talian, Canadian, Australian, or
Mala(sian 'odels, &hich have all bicameral parlia'ents. 3id the people &ho si%ned the si%nature sheets
reali=e that the( &ere adoptin% the Ban%ladeshi, 6in%aporean, 9sraeli, or Ne& Kealand parlia'entar( for' of
%overn'entI
4his drives ho'e the point that the peopleHs initiative is not 'eant for revisions of the Constitution but onl( for
a'end'ents. A shift fro' the present Bica'eral-Presidential to a Enica'eral-Parlia'entar( s(ste' re>uires
har'oni=in% several provisions in 'an( articles of the Constitution. Revision of the Constitution throu%h a
peopleHs initiative &ill onl( result in %ross absurdities in the Constitution.
9n su', there is no doubt &hatsoever that the La'bino GroupHs initiative is a revision and not an a'end'ent.
4hus, the present initiative is void and unconstitutional because it violates 6ection , Article D899 of the
Constitution li'itin% the scope of a peopleHs initiative to "A]mendments to this Constitution."
.. /evisit o$ Santiago v. C6)757C is Not Necessa!y
4he present petition &arrants dis'issal for failure to co'pl( &ith the basic re>uire'ents of 6ection , Article
D899 of the Constitution on the conduct and scope of a peopleHs initiative to a'end the Constitution. 4here is no
need to revisit this CourtHs rulin% in Santiago declarin% RA $1.7 <inco'plete, inade>uate or &antin% in
essential ter's and conditions< to cover the s(ste' of initiative to a'end the Constitution. An affir'ation or
reversal of Santiago &ill not chan%e the outco'e of the present petition. 4hus, this Court 'ust decline to revisit
Santiago &hich effectivel( ruled that RA $1.7 does not co'pl( &ith the re>uire'ents of the Constitution to
i'ple'ent the initiative clause on a'end'ents to the Constitution.
4his Court 'ust avoid revisitin% a rulin% involvin% the constitutionalit( of a statute if the case before the Court
can be resolved on so'e other %rounds. 6uch avoidance is a lo%ical conse>uence of the &ell-settled doctrine
that courts &ill not pass upon the constitutionalit( of a statute if the case can be resolved on so'e other
%rounds.
7"
Nevertheless, even assu'in% that RA $1.7 is valid to i'ple'ent the constitutional provision on initiatives to
a'end the Constitution, this &ill not chan%e the result here because the present petition violates 6ection ,
Article D899 of the Constitution. 4o be a valid initiative, the present initiative 'ust first comply &ith 6ection ,
Article D899 of the Constitution even before co'pl(in% &ith RA $1.7.
Even then, the present initiative violates 6ection 7,b+ of RA $1.7 &hich re>uires that the <petition for an
initiative on the "#!1 Constitution 'ust have at least t&elve per #entum ,"M+ of the total nu'ber of re%istered
voters as signatories.< 6ection 7,b+ of RA $1.7 re>uires that the people 'ust si%n the "petition x x x as
signatories."
4he $.. 'illion si%natories did not si%n the petition of 7 Au%ust ;;$ or the a'ended petition of .; Au%ust
;;$ filed &ith the C5MELEC. 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.< 9n the C5MELEC, the La'bino Group, clai'in% to act <to%ether &ith< the $..
'illion si%natories, 'erel( attached the si%nature sheets to the petition and a'ended petition. 4hus, the petition
and a'ended petition filed &ith the C5MELEC did not even co'pl( &ith the basic re>uire'ent of RA $1.7
that the La'bino Group clai's as valid.
4he La'bino GroupHs lo%rollin% initiative also violates 6ection ";,a+ of RA $1.7 statin%, <No petition
embracing more than one (1) subject shall be submitted to the electorate2 : : :.< 4he proposed 6ection -,-+
of the 4ransitor( Provisions, 'andatin% the interi' Parlia'ent to propose further a'end'ents or revisions to
the Constitution, is a sub)ect 'atter totall( unrelated to the shift in the for' of %overn'ent. 6ince the present
initiative e'braces 'ore than one sub)ect 'atter, RA $1.7 prohibits sub'ission of the initiative petition to the
electorate. 4hus, even if RA $1.7 is valid, the La'bino GroupHs initiative &ill still fail.
3. The C6)757C Di+ Not Commit 4!ave &%se o$ Disc!etion in Dismissing the 5am&ino 4!o%p8s Initiative
9n dis'issin% the La'bino GroupHs initiative petition, the C5MELEC en banc 'erel( follo&ed this CourtHs
rulin% in Santiago and People8s Initiative $o! /e$o!m, )o+e!ni'ation an+ ction 9PI/): v. C6)757C.
7

Aor follo&in% this CourtHs rulin%, no %rave abuse of discretion is attributable to the C5MELEC. 5n this %round
alone, the present petition &arrants outri%ht dis'issal. 4hus, this Court should reiterate its unanimous rulin% in
PI/)*
4he Court ruled, first, b( a unani'ous vote, that no %rave abuse of discretion could be attributed to the
public respondent C5MELEC in dis'issin% the petition filed b( P9RMA therein, it appearin% that it
onl( co'plied &ith the dispositions in the 3ecisions of this Court in G.R. No. "1.7, pro'ul%ated on
March "#, "##1, and its Resolution of /une ";, "##1.
;. Concl%sion
4he Constitution, as the funda'ental la& of the land, deserves the ut'ost respect and obedience of all the
citi=ens of this nation. No one can triviali=e the Constitution b( cavalierl( a'endin% or revisin% it in blatant
violation of the clearl( specified 'odes of a'end'ent and revision laid do&n in the Constitution itself.
4o allo& such chan%e in the funda'ental la& is to set adrift the Constitution in unchartered &aters, to be tossed
and turned b( ever( do'inant political %roup of the da(. 9f this Court allo&s toda( a cavalier chan%e in the
Constitution outside the constitutionall( prescribed 'odes, to'orro& the ne& do'inant political %roup that
co'es &ill de'and its o&n set of chan%es in the sa'e cavalier and unconstitutional fashion. A revolvin%-door
constitution does not au%ur &ell for the rule of la& in this countr(.
An over&hel'in% 'a)orit( R 16,622,111 voters comprising 76.3 percent of the total votes cast
7.
R approved
our Constitution in a national plebiscite held on "" Aebruar( "#!1. That approval is the unmistakable voice
of the people, the full expression of the people's sovereign will. That approval included the prescribed
modes for amending or revising the Constitution.
No a'ount of si%natures, not even the $,.1,#7 'illion si%natures %athered b( the La'bino Group, can chan%e
our Constitution contrar( to the specific 'odes that the people, in their soverei%n capacit(, prescribed &hen
the( ratified the Constitution. 4he alternative is an e:tra-constitutional chan%e, &hich 'eans subverting the
people's sovereign will and discarding the Constitution. 4his is one act the Court cannot and should never
do. As the ulti'ate %uardian of the Constitution, this Court is s&orn to perfor' its sole'n dut( to defend and
protect the Constitution, &hich e'bodies the real soverei%n &ill of the people.
9ncantations of <peopleHs voice,< <peopleHs soverei%n &ill,< or <let the people decide< cannot override the
specific 'odes of chan%in% the Constitution as prescribed in the Constitution itself. 5ther&ise, the Constitution
Q the peopleHs funda'ental covenant that provides endurin% stabilit( to our societ( Q beco'es easil(
susceptible to 'anipulative chan%es b( political %roups %atherin% si%natures throu%h false pro'ises. 4hen, the
Constitution ceases to be the bedroc@ of the nationHs stabilit(.
4he La'bino Group clai's that their initiative is the <peopleHs voice.< 0o&ever, the La'bino Group
unabashedl( states in ELAP Resolution No. ;;$-;, in the verification of their petition &ith the C5MELEC,
that <ELAP 'aintains its unqualified support to the agenda of 0er E:cellenc( President Gloria Macapa%al-
Arro(o for constitutional refor's.< 4he La'bino Group thus ad'its that their <peopleHs< initiative is an
<un>ualified support to the a%enda< of the incu'bent President to chan%e the Constitution. 4his fore&arns the
Court to be &ar( of incantations of <peopleHs voice< or <soverei%n &ill< in the present initiative.
4his Court cannot betra( its pri'ordial dut( to defend and protect the Constitution. 4he Constitution, &hich
e'bodies the peopleHs soverei%n &ill, is the bible of this Court. This Court exists to defend and protect the
Constitution. 4o allo& this constitutionall( infir' initiative, propelled b( deceptivel( %athered si%natures, to
alter basic principles in the Constitution is to allo& a desecration of the Constitution. 4o allo& such alteration
and desecration is to lose this CourtHs raison d>etre.
WHEREFORE, &e DISMISS the petition in G.R. No. "1-"7..
SO ORDERED.
8an(aniban- ,.J.- 8uno- Nuisumbin(- @naresD%antia(o- %ando"alDGutierrez- AustriaD'artinez- ,orona- ,arpio
'orales- ,alle2o- %r.- Az#una- in(a- ,hi#oDNazario- Gar#ia- and *elas#o- Jr.- JJ.- concur.
NNNNNNNNNNNNNNNNNNNN
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED
VOTERS V. COMMISSION ON ELECTIONS ET AL.
SEPARATE CONCURRING OPINION
PANGANIBAN, CJ.:
Cithout the rule of la&, there can be no lastin% prosperit( and certainl( no
libert(.
Beverle( McLachlin
"
Chief /ustice of Canada
After a deep reflection on the issues raised and a careful evaluation of the partiesH respective ar%u'ents -- both
oral and &ritten -- as &ell as the enli%htened and enli%htenin% 5pinions sub'itted b( '( estee'ed collea%ues, 9
a' full( convinced that the present Petition 'ust be dis'issed.
9 &rite, ho&ever, to sho& that '( present disposition is co'pletel( consistent &ith '( previous 5pinions and
votes on the t&o e:tant 6upre'e Court cases involvin% an initiative to chan%e the Constitution.
9n '( 6eparate 5pinion in %antia(o ". ,omele#,
9 opined <that ta@en to%ether and interpreted properl( and

liberall(, the Constitution ,particularl( Art. D899, 6ec. +, Republic Act $1.7 and Co'elec Resolution .;;
provide 'ore than sufficient
NNNNNNNNNNNNNNNNNN
H6EC. . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative upon a petition of at least t&elve per centu' of the total nu'ber of re%istered voters, of &hich
ever( le%islative district 'ust be represented b( at least three per centu' of the re%istered voters therein.
No a'end'ent under this section shall be authori=ed &ithin five (ears follo&in% the ratification of this
Constitution nor oftener than once ever( five (ears thereafter.H
<Cith all due respect, 9 find the 'a)orit(Hs position all too s&eepin% and all too e:tre'ist. 9t is e>uivalent
to burnin% the &hole house to e:ter'inate the rats, and to @illin% the patient to relieve hi' of pain. Chat
Citi=en 3elfin &ants the Co'elec to do &e should re)ect. But &e should not thereb( pree'pt an( future
effort to e:ercise the ri%ht of initiative correctl( and )udiciousl(. 4he fact that the 3elfin Petition
proposes a 'isuse of initiative does not )ustif( a ban a%ainst its proper use. 9ndeed, there is a ri%ht &a(
to do the ri%ht thin% at the ri%ht ti'e and for the ri%ht reason.
Ta.en Togethe! an+ Inte!p!ete+ P!ope!ly,
the Constit%tion, /.. 2<1; an+ Comelec /esol%tion
21== !e S%$$icient to Implement Constit%tional Initiatives
<Chile R.A. $1.7 'a( not be a perfect la&, it &as ? as the 'a)orit( openl( concedes ? intended b(
the le%islature to cover and, 9 respectfull( sub'it, it contains enou%h provisions to effectuate an
initiative on the Constitution. 9 co'pletel( a%ree &ith the inspired and inspirin% opinions of Mr. /ustice
Re(nato 6. Puno and Mr. /ustice Ricardo /. Arancisco that RA $1.7, the Roco la& on initiative,
sufficientl( i'ple'ents the ri%ht of the people to initiate a'end'ents to the Constitution. 6uch vie&s,
&hich 9 shall no lon%er repeat nor elaborate on, are thorou%hl( consistent &ith this CourtHs unani'ous en
banc rulin%s in %ubi# 4a/ 'etropolitan Authorit/ "s. ,ommission on +le#tions, that <provisions for
initiative . . . are ,to be+ liberall( construed to effectuate their purposes, to facilitate and not ha'per the
e:ercise b( the voters of the ri%hts %ranted thereb(<2 and in Garcia vs. Co'elec, that an( <effort to
triviali=e the effectiveness of peopleHs initiatives ou%ht to be re)ected.<
<No la& can co'pletel( and absolutel( cover all ad'inistrative details. 9n reco%nition of this, R.A. $1.7
&isel( e'po&ered the Co''ission on Election <to pro'ul%ate such rules and re%ulations as 'a( be
necessar( to carr( out the purposes of this Act.< And pursuant thereto, the Co'elec issued its Resolution
.;; on "$ /anuar( "##". 6uch Resolution, b( its ver( &ords, &as pro'ul%ated <to %overn the conduct
of initiative on the Constitution and initiative and referendu' on national and local la&s,< not b( the
incu'bent Co''ission on Elections but b( one then co'posed of Actin% Chairperson 0a(dee B.
Gorac, Co''s. Alfredo
authorit( to i'ple'ent, effectuate and reali=e our peopleHs po&er to a'end the Constitution.<
NNNNNNNNNNNNNNNNNN
E. Abue%, /r., Leopoldo L. Africa, Andres R. Alores, 3ario C. Ra'a and Ma%dara B. 3i'aa'pao. All of
these Co''issioners &ho si%ned Resolution .;; have retired fro' the Co''ission, and thus &e
cannot ascribe an( vile 'otive unto the', other than an honest, sincere and e:e'plar( effort to %ive life
to a cherished ri%ht of our people.
<4he 'a)orit( ar%ues that &hile Resolution .;; is valid in re%ard to national la&s and local
le%islations, it is void in reference to constitutional a'end'ents. 4here is no basis for such
differentiation. 4he source of and authorit( for the Resolution is the sa'e la&, R.A. $1.7.
<9 respectfull( sub'it that ta@en to%ether and interpreted properl( and liberall(, the Constitution
,particularl( Art. D899, 6ec. +, R.A. $1.7 and Co'elec Resolution .;; provide 'ore than sufficient
authorit( to i'ple'ent, effectuate and reali=e our peopleHs po&er to a'end the Constitution.
Petitione! Del$in an+ the Pe+!osa
Spo%ses Sho%l+ Not (e )%''le+
<9 a' %lad the 'a)orit( decided to heed our plea to lift the te'porar( restrainin% order issued b( this
Court on "! 3ece'ber "##$ insofar as it prohibited Petitioner 3elfin and the 6pouses Pedrosa fro'
e:ercisin% their ri%ht of initiative. 9n fact, 9 believe that such restrainin% order as a%ainst private
respondents should not have been issued, in the first place. Chile 9 a%ree that the Co'elec should be
stopped fro' usin% public funds and %overn'ent resources to help the' %ather si%natures, 9 fir'l(
believe that this Court has no po&er to restrain the' fro' e:ercisin% their ri%ht of initiative. 4he ri%ht to
propose a'end'ents to the Constitution is reall( a species of the ri%ht of free speech and free asse'bl(.
And certainl(, it &ould be t(rannical and despotic to stop an(one fro' spea@in% freel( and persuadin%
others to confor' to hisFher beliefs. As the e'inent 8oltaire once said, H9 'a( disa%ree &ith &hat (ou
sa(, but 9 &ill defend to the death (our ri%ht to sa( it.H After all, freedo' is not reall( for the thou%ht &e
a%ree &ith, but as /ustice 0ol'es &rote, Hfreedo' for the thou%ht that &e hate.H
Epilogue
<B( &a( of epilo%ue, let 'e stress the %uidin% tenet of '( 6eparate 5pinion. 9nitiative, li@e referendu'
and recall, is a ne& and treasured feature of the Ailipino constitutional s(ste'. All three are
institutionali=ed le%acies of the &orld-ad'ired E36A people po&er. Li@e elections and plebiscites, the(
are hallo&ed e:pressions of popular soverei%nt(. 4he( are sacred de'ocratic ri%hts of our people to be
used as
6i: 'onths after, in '( 6eparate 5pinion in 8eople>s =nitiati"e for Reform- 'odernization and A#tion A8=R'AC
". ,omele#-
.
9 )oined the rest of the 'e'bers of the Court in rulin% <b( a unani'ous vote, that no %rave abuse of
discretion could be attributed to the Co'elec in dis'issin% the petition filed b(
NNNNNNNNNNNNNNNNNN
Constitution : : :.< Chile concededl(, petitioners in this case &ere not direct parties in %antia(o,
nonetheless the CourtHs in)unction a%ainst the Co'elec covered ANG petition, not )ust the 3elfin
petition &hich &as the i''ediate sub)ect of said case. As a dissenter in Santiago, I believed, and still
do, that the majority gravely erred in rendering such a sweeping injunction, but I cannot fault the
Comelec for complying with the ruling even if it, too, disagreed with said decision's !atio +eci+en+i.
Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but
to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the P9RMA
petition &as the onl( recourse open to the Co'elec. An( other 'ode of action &ould have constituted
defiance of the Court and &ould have been struc@ do&n as %rave abuse of discretion and contu'acious
disre%ard of this CourtHs supre'ac( as the final arbiter of )usticiable controversies.
Second Issue:
S%$$iciency o$ / 2<1;
"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution,
and that whatever administrative details may have been omitted in said law are satisfactorily
provided by Comelec Resolution 2300. 4he pro'ul%ation of Resolution .;; is sanctioned b( 6ection
, Article 9D-C of the Constitution, &hich vests upon the Co'elec the po&er to <enforce and ad'inister
all la&s and re%ulations relative to the conduct of an election, plebiscite, initiative, referendu' and
recall.< 4he 5'nibus Election Code li@e&ise e'po&ers the electoral bod( to <pro'ul%ate rules and
re%ulations i'ple'entin% the provisions of this Code or other la&s &hich the Co''ission is re>uired to
enforce and ad'inister : : :.< Ainall( and 'ost relevantl(, 6ection ; of Ra $1.7 specificall( authori=es
Co'elec <to pro'ul%ate rules and re%ulations as 'a( be necessar( to carr( out the purposes of this
Act.<
<9n '( dissent in %antia(o, 9 &rote that <there is a right way to do the right thing at the right time and
for the right reason.< Let 'e e:plain further.
The /ight Thing
<A peopleHs initiative is direct de'ocrac( in action. 9t is the ri%ht thin% that citi=ens 'a( avail
the'selves of to articulate their &ill. 9t is a ne& and treasured feature of the Ailipino constitutional
s(ste'. Even the 'a)orit( i'plicitl( conceded its value and &orth in our le%al fir'a'ent &hen it
i'plored Con%ress <not to tarr( an( lon%er in co'pl(in% &ith the constitutional 'andate to provide for
i'ple'entation of the ri%ht ,of initiative+ of the people : : :.< 0ence, in the en ban# case of %ubi# 4a/
'etropolitan Authorit/ "s. ,omele#, OG.R. No. "7-"$, 6epte'ber $, "##$P, this Court unani'ousl(
held that <,l+i@e elections, initiative and referendu' are po&erful and valuable 'odes of e:pressin%
popular
P9RMA therein,< since the Co''ission had <onl( co'plied< &ith the Santiago 3ecision.
NNNNNNNNNNNNNNNNNN
soverei%nt(. And this Court as a 'atter of polic( and doctrine &ill e:ert ever( effort to nurture, protect
and pro'ote their le%iti'ate e:ercise.<
The /ight >ay
<Aro' the outset, 9 have alread( 'aintained the vie& that <ta@en to%ether and interpreted properl( and
liberall(, the Constitution ,particularl( Art. D899, 6ec. +, RA $1.7 and Co'elec Resolution .;;
provide 'ore than sufficient authorit( to i'ple'ent, effectuate and reali=e our peopleHs po&er to a'end
the Constitution.< Let 'e no& de'onstrate the ade>uac( of RA $1.7 b( outlinin%, in concrete ter's, the
steps to be ta@en S the ri%ht &a( S to a'end the Constitution throu%h a peopleHs initiative.
<Pursuant to 6ection .,f+ of the la&, the Co'elec shall prescribe the for' of the petition &hich shall
contain the proposition and the re>uired nu'ber of si%natories. Ender 6ec. 7,c+ thereof, the petition shall
state the follo&in%*
Hc." contents or te:t of the Oprovision or provisionsP sou%ht to be : : : a'ended, : : :2
c. the proposition Oin full te:tP2
c.. the reason or reasons therefor Ofull( and clearl( e:plainedP2
c.- that it is not one of e:ceptions provided herein2
c.7 si%natures of the petitioners or re%istered voters2 and
c.$ an abstract or su''ar( proposition in not 'ore than one hundred ,";;+ &ords &hich shall be
le%ibl( &ritten or printed at the top of ever( pa%e of the petition.H
<6ection !,f+ of Co'elec Resolution .;; additionall( re>uires that the petition include a for'al
desi%nation of the dul( authori=ed representatives of the si%natories.
<Bein% a constitutional re>uire'ent, the nu'ber of si%natures beco'es a condition precedent to the
filin% of the petition, and is )urisdictional. Cithout such re>uisite si%natures, the Co''ission shall motu
proprio re)ect the petition.
<Chere the initiators have substantiall( co'plied &ith the above re>uire'ents, the( 'a( thence file the
petition &ith the Co'elec &hich is tas@ed to deter'ine the sufficienc( thereof and to verif( the
si%natures on the basis of the re%istr( list of voters, votersH affidavits and votersH identification cards. 9n
decidin% &hether the petition is sufficient, the Co'elec shall also deter'ine if the proposition is proper
for an initiative, i.e.- if it consists of an a'end'ent, not a revision, of the Constitution. An( decision of
the electoral bod( 'a( be appealed to the 6upre'e Court &ithin thirt( ,.;+ da(s fro' notice.
9 added <that '( position upholdin% the ade>uac( of RA $1.7 and the validit( of Co'elec Resolution .;; &ill
not ipso
OOOOOOOOOOOOOOOOOO
<Cithin thirt( ,.;+ da(s fro' receipt of the petition, and after the deter'ination of its sufficienc(, the
Co'elec shall publish the sa'e in Ailipino and En%lish at least t&ice in ne&spapers of %eneral and local
circulation, and set the date of the plebiscite. 4he conduct of the plebiscite should not be earlier than
si:t( ,$;+ da(s, but not later than ninet( ,#;+ da(s after certification b( the Co'elec of the sufficienc(
of the petition. 4he proposition, if approved b( a 'a)orit( of the votes cast in the plebiscite, beco'es
effective as of the da( of the plebiscite.
<Aro' the fore%oin%, it should be clear that '( position upholdin% the ade>uac( of RA $1.7 and the
validit( of Co'elec Resolution .;; &ill not ipso fa#to validate the P9RMA petition and auto'aticall(
lead to a plebiscite to a'end the Constitution. Aar fro' it. A'on% others, P9RMA 'ust still
satisfactoril( hurdle the follo&in% searchin% issues*
". 3oes the proposed chan%e S the liftin% of the ter' li'its of elective officials -- constitute a 'ere
a'end'ent and not a revision of the ConstitutionI
. Chich re%istr( of voters &ill be used to verif( the si%natures in the petitionI 4his >uestion is relevant
considerin% that under RA !"!#, the old re%istr( of voters used in the "##7 national elections &as
voided after the baran%a( elections on Ma( ", "##1, &hile the ne& list 'a( be used startin% onl( in the
elections of Ma( "##!.
.. 3oes the cla'or for the proposed chan%e in the Constitution reall( e'anate fro' the people &ho
si%ned the petition for initiativeI 5r it is the beneficiaries of ter' e:tension &ho are in fact orchestratin%
such 'ove to advance their o&n political self-interestI
-. Are the si: 'illion si%natures %enuine and verifiableI 3o the( reall( belon% to >ualified &ar' bodies
co'prisin% at least "M of the re%istered voters nation&ide, of &hich ever( le%islative district is
represented b( at least .M of the re%istered voters thereinI
<9 shall e:pound on the third >uestion in the ne:t section, 4he Ri%ht Reason. Luestion Nos. " and
above, &hile i'portant, are basicall( le%al in character and can be deter'ined b( ar%u'entation and
'e'oranda. 0o&ever, Luestion No. - involves not onl( le%al issues but %ar%antuan hurdles of factual
deter'ination. 4his to '( 'ind is the crucible, the lit'us test, of a peopleHs petition for initiative. 9f
herein petitioners, led b( P9RMA, succeed in pro"in( -- not )ust alle%in% -- that si: 'illion voters of this
countr( indeed &ant to a'end the Constitution, &hat po&er on earth can stop the'I Not this Court, not
the Co'elec, not even the President or Con%ress.
fa#to validate the P9RMA petition and auto'aticall( lead to a plebiscite to a'end the Constitution. Aar fro' it.<
9 stressed that P9RMA 'ust sho& the follo&in%, among others*
NNNNNNNNNNNNNNNNNN
<9t too@ onl( one 'illion people to sta%e a peaceful revolution at E36A, and the ver( rafters and
foundations of the 'artial la& societ( tre'bled, >ua@ed and cru'bled. 5n the other hand, P9RMA and
its co-petitioners are clai'in% that the( have %athered si: 'illion si%natures. 9f, as clai'ed b( 'an(,
these si: 'illion si%natures are fraudulent, then let the' be e:posed and da'ned for all histor( in a
si%nature-verification process conducted under our open s(ste' of le%al advocac(.
<More than an(thin% else, it is the truth that 9, as a 'e'ber of this Court and as a citi=en of this countr(,
&ould li@e to see@* Are these si: 'illion si%natures realI B( insistin% on an entirel( ne& doctrine of
statutor( inade>uac(, the 'a)orit( effectivel( suppressed the >uest for that truth.
he Ri(ht Reason
<As 'entioned, the third >uestion that 'ust be ans&ered, even if the ade>uac( of RA $1.7 and the
validit( of Co'elec Resolution .;; &ere upheld b( the 'a)orit( is* 3oes the cla'or for the proposed
chan%e to the Constitution reall( e'anate fro' the people &ho si%ned the petition for initiativeI 5r is it
the beneficiaries of ter' e:tension &ho are in fact orchestratin% such 'ove to advance their o&n
political self-interestsI 9n other &ords, is P9RMAHs e:ercise of the ri%ht to initiative bein% done in
accordance &ith our Constitution and our la&sI 9s such atte'pted e:ercise le%iti'ateI
<9n Gar#ia "s. ,ommission on +le#tions- &e described initiative, alon% &ith referendu', as the Hulti'ate
&eapon of the people to ne%ate %overn'ent 'alfeasance and 'isfeasance.H 9n %ubi# 4a/- &e specified
that Hinitiative is entirel( the &or@ of the electorate : : : a process of la&'a@in% b( the people
the'selves &ithout the participation and a%ainst the &ishes of their elected representatives.H As ponente
of S%&ic (ay, I stand foursquare on this principle: The right to amend through initiative belongs
only to the people - not to the government and its minions. 4his principle finds clear support fro'
utterances of 'an( constitutional co''issioners li@e those >uoted belo&*
<O9nitiative isP a reserve po&er of the soverei%n people, &hen the( are dissatisfied &ith the National
Asse'bl( : : : OandP precisel( a fallbac@ position of the people in the event that the( are dissatisfied.<
-- Co''issioner 5ple
<O9nitiative isP a chec@ on a le%islative that is not responsive Oand resorted toP onl( if the le%islature is not
as responsive to the vital and ur%ent needs of people.< -- Co''issioner Gascon
,"+ 4he proposed chan%e -- the liftin% of ter' li'its of elective officials -- <constituteOsP a 'ere a'end'ent and
not a revision of the Constitution.<
NNNNNNNNNNNNNNNNN
<O9nitiative is anP e:traordinar( po&er %iven to the people OandP reserved for the people O&hichP should
not be frivolousl( resorted to.< -- Co''issioner Ro'ulo
<9ndeed, if the po&ers-that-be desire to a'end the Constitution, or even to revise it, our Charter itself
provides the' other &a(s of doin% so, na'el(, b( callin% a constitutional convention or constitutin%
Con%ress into a constituent asse'bl(. 4hese are officialdo'Hs &eapons. But initiative belon%s to the
people.
<9n the present case, are P9RMA and its co-petitioners le%iti'ate peopleHs or%ani=ations or are the(
'erel( fronts for incu'bents &ho &ant to e:tend their ter'sI 4his is a factual >uestion &hich,
unfortunatel(, cannot be 2udi#iall/ ans&ered an('ore, because the 6upre'e Court 'a)orit( ruled that
the la& that i'ple'ents it, RA $1.7, is inade>uate or insufficient insofar as initiatives to the
Constitutions are concerned. Cith such rulin%, the 'a)orit( effectivel( abro%ated a constitutional ri%ht
of our people. 4hat is &h( in '( 6eparate 5pinion in %antia(o- 9 e:clai'ed that such precipitate action
<is e>uivalent to burnin% the &hole house to e:ter'inate the rats, and to @illin% the patient to relieve hi'
of pain.< 9 fir'l( 'aintain that to defeat P9RMAHs effort, there is no need to <burn< the constitutional
ri%ht to initiative. 9f P9RMAHs e:ercise is not <le%iti'ate,< it can be e:posed as such in the &a(s 9 have
discussed S short of abro%atin% the ri%ht itself. 5n the other hand, if P9RMAHs position is proven to be
le%iti'ate S if it hurdles the four issues 9 outlined earlier S b( all 'eans, &e should allo& and encoura%e
it. But the 'a)orit(Hs theor( of statutor( inade>uac( has pre-e'pted S unnecessaril( and invalidl(, in '(
vie& S an( )udicial deter'ination of such le%iti'ac( or ille%iti'ac(. 9t has silenced the >uest for truth
into the interstices of the P9RMA petition.
The /ight Time
<4he Constitution itself sets a ti'e li'itation on &hen chan%es thereto 'a( be proposed. 6ection of
Article D899 precludes a'end'ents <&ithin five (ears follo&in% OitsP ratification : : : nor oftener than
once ever( five (ears thereafter.< 6ince its ratification, the "#!1 Constitution has never been a'ended.
0ence, the five-(ear prohibition is no& inoperative and a'end'ents 'a( theoreticall( be proposed at
an( ti'e.
<Be that as it 'a(, 9 believe S %iven the present circu'stances S that there is no 'ore ti'e to lift ter'
li'its to enable incu'bents to see@ reelection in the Ma( "", "##! polls. Bet&een toda( and the ne:t
national
,+ 4he <si: 'illion si%natures are %enuine and verifiable<2 and the( <reall( belon% to >ualified &ar' bodies
co'prisin% at
NNNNNNNNNNNNNNNNNN
elections, less than ei%ht ,!+ 'onths re'ain. %antia(o- &here the sin%le issue of the sufficienc( of RA
$1.7 &as resolved, too@ this Court three ,.+ 'onths, and another t&o ,+ 'onths to decide the 'otion
for reconsideration. 4he instant case, &here the sa'e issue is also raised b( the petitioners, too@ t&o
'onths, not countin% a possible 'otion for reconsideration. 4hese ti'e spans could not be abbreviated
an( further, because due process re>uires that all parties be %iven sufficient ti'e to file their pleadin%s.
<4hus, even if the Court &ere to rule no& in favor of the ade>uac( of RA $1.7 S as 9 believe it should S
and allo& the Co'elec to act on the P9RMA petition, such ei%ht-'onth period &ill not be enou%h to
tac@le the four &ei%ht( issues 9 'entioned earlier, considerin% that t&o of the' involve tedious factual
>uestions. 4he Co'elecHs decision on an( of these issues can still be elevated to this Court for revie&,
and reconsiderations on our decisions on each of those issues 'a( a%ain be sou%ht.
<Co'elecHs herculean tas@ alone of verif(in% each of the si: 'illion si%natures is enor'ousl( ti'e-
consu'in%, considerin% that an( person 'a( >uestion the authenticit( of each and ever( si%nature,
initiall( before the election re%istrar, then before the Co'elec on appeal and finall(, before this Court in
a separate proceedin%. Moreover, the plebiscite itself S assu'in% such sta%e can be reached S 'a( be
scheduled onl( after si:t( ,$;+ but not 'ore than ninet( ,#;+ da(s, fro' the ti'e the Co'elec and this
Court, on appeal, finall( declare the petition to be sufficient.
<Mean&hile, under Co'elec Resolution #-$, political parties, %roups or%ani=ations or coalitions 'a(
start selectin% their official candidates for President, 8ice President and 6enators on Nove'ber 1,
"##12 the period for filin% certificates of candidac( is fro' /anuar( "" to Aebruar( #, "##!2 the election
period and ca'pai%n for national officials start on Aebruar( ";, "##!, &hile the ca'pai%n period for
other elective officials, on March "1, "##!. 4his 'eans, b( the ti'e P9RMAHs proposition is read( S if
ever S for sub'ission directl( to the voters at lar%e, it &ill have been overco'e b( the elections. 4i'e
&ill si'pl( run out on P9RMA, if the intention is to lift term limits in time for the 1998 ele#tions.
<4hat ter' li'its 'a( no lon%er be lifted prior to the "##! elections via a peopleHs initiative does not
detract one &hit fro' ,"+ '( fir' conviction that RA $1.7 is sufficient and ade>uate to i'ple'ent this
constitutional ri%ht and, 'ore i'portant, ,+ '( faith in the po&er of the people to initiate chan%es in
local and national la&s and the Constitution. 9n fact, 9 thin@ the Court can deliberate on these t&o ite's
even 'ore serenel( and &isel( no& that the debates &ill be free fro' the din and distraction of the "##!
elections. After all, )urisprudence is not 'erel( for the here and no& but, 'ore so, for the hereafter and
the 'orro&. Let 'e therefore stress, b( &a( of epilo%ue, '( unbendin% credo in favor of our peopleHs
ri%ht to initiative.
least "M of the re%istered voters nation&ide, of &hich ever( le%islative district is represented b( at least .M of
the re%istered voters therein.<
NNNNNNNNNNNNNNNNNN
7pilog%e
<9 believe in de'ocrac( S in our peopleHs natural ri%ht to deter'ine our o&n destin(.
<9 believe in the process of initiative as a de'ocratic 'ethod of enablin% our people to e:press their &ill
and chart their histor(. 9nitiative is an alternative to blood( revolution, internal chaos and civil strife. 9t
is an inherent ri%ht of the people S as basic as the ri%ht to elect, the ri%ht to self-deter'ination and the
ri%ht to individual liberties. 9 believe that Ailipinos have the abilit( and the capacit( to rise above
the'selves, to use this ri%ht of initiative &isel( and 'aturel(, and to choose &hat is best for the'selves
and their posterit(.
<6uch beliefs, ho&ever, should not be e>uated &ith a desire to perpetuate a particular official or %roup of
officials in po&er. Aar fro' it. 6uch perpetuation is anathe'a to de'ocrac(. M( fir' conviction that
there is an ade>uate la& i'ple'entin% the constitutional ri%ht of initiative does not ipso fa#to result in
the victor( of the P9RMA petition or of an( proposed constitutional chan%e. 4here are, after all,
sufficient safe%uards to %uarantee the proper use of such constitutional ri%ht and to forestall its 'isuse
and abuse. 9irst- initiative cannot be used to revise the Constitution, onl( to a'end it. %e#ond- the
petitionersH si%natures 'ust be validated a%ainst an e:istin% list of voters andFor votersH identification
cards. hird- initiative is a reverse po&er of and b( the people, not of incu'bent officials and their
'achinators. 9ourth and 'ost i'portant of all, the si%natures 'ust be verified as real and %enuine2 not
concocted, fictitious or fabricated. 4he onl( le%al &a( to do this is to enable the Co''ission on
Elections to conduct a nation&ide verification process as 'andated b( the Constitution and the la&.
6uch verification, it bears stressin%, is sub)ect to revie& b( this Court.
<4here &ere, b( the 'ost %enerous esti'ate, onl( a 'illion people &ho %athered at E36A in "#!$, and
(et the( chan%ed the histor( of our countr(. P9RMA clai's si: ti'es that nu'ber, not )ust fro' the
National Capital Re%ion but fro' all over the countr(. 9s this clai' throu%h the invention of its novel
theor( of statutor( insufficienc(, the CourtHs 'a)orit( has stifled the onl( le%al 'ethod of deter'inin%
&hether P9RMA is real or not, &hether there is indeed a popular cla'or to lift ter' li'its of elected
officials, and &hether si: 'illion voters &ant to initiate a'end'ents to their 'ost basic la&. 9n
suppressin% a )udicial ans&er to such >uestions, the Court 'a( have un&ittin%l( (ielded to P9RMA the
benefit of the le%al presu'ption of le%alit( and re%ularit(. 9n its 'isplaced =eal to e:ter'inate the rats, it
burned do&n the &hole house. 9t uncere'oniousl( divested the people of a basic constitutional ri%ht.
9n both 5pinions, 9 concluded that &e 'ust i'ple'ent <the ri%ht thin% OinitiativeP in the ri%ht &a( at the ri%ht
ti'e and for the ri%ht reason.<
9n the present case, 9 steadfastl( stand b( '( fore%oin% 5pinions in %antia(o and 8=R'A. 4ested a%ainst the',
the present Petition of Raul La'bino and Erico Au'entado 'ust be 396M966E3. Unfortunately, the !ight
thing is being rushed in the w!ong way and for the w!ong !easons. Let 'e e:plain.
No 4!ave &%se
o$ Disc!etion &y Comelec
As in 8=R'A, 9 find no %rave abuse of discretion in Co'elecHs dis'issal of the La'bino Petition. After all, the
Co''ission 'erel( follo&ed the holdin% in %antia(o per'anentl(
<9n the ulti'ate, the 'ission of the )udiciar( is to discover truth and to 'a@e it prevail. 4his 'ission is
underta@en not onl( to resolve the va%aries of present events but also to build the path&a(s of to'orro&.
4he su' total of the entire process of adversarial liti%ation is the verit( of facts and the application of
la& thereto. B( the 'a)orit( cop-out in this 'ission of discover(, our countr( and our people have been
deprived not onl( of a basic constitutional ri%ht, as earlier noted, but also of the )udicial opportunit( to
verif( the truth.<
en)oinin% the poll bod( <fro' entertainin% or ta@in% co%ni=ance of an( petition for initiative on a'end'ents to
the Constitution until a sufficient la& shall have been validl( enacted to provide for the i'ple'entation of the
s(ste'.<
Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.
-
Neither can whim,
caprice, arbitrariness or personal bias be attributed to the Commission.
7
Luite the contrar(, it prudentl(
follo&ed this CourtHs )urisprudence in %antia(o and 8=R'A. Even assu'in% ar%uendo that Co'elec erred in
rulin% on a ver( difficult and unsettled >uestion of la&, this Court still cannot attribute %rave abuse of discretion
to the poll bod( &ith respect to that action.
$
4he present La'bino Petition is in e:actl( the sa'e situation as that of P9RMA in "##1. 4he differences
pointed out b( /ustice Re(nato 6. Puno are, &ith due respect, superficial. 9t is ar%ued that, unli@e the present
La'bino Petition, 8=R'A did not contain verified si%natures. 4hese are distinctions that do not 'a@e a
difference. Precisel(, /ustice Puno is ur%in% a re'and, because the verification issue is <contentious< and
re'ains unproven b( petitioners. Clearly, both the PIRMA and the Lambino Petitions contain unverified
signatures. Therefore, they both deserve the same treatment: DISMISSAL.
Besides, the only reason %iven in the unani'ous Resolution on 8=R'A ". ,omele# &as that the Co''ission
had <onl( co'plied< &ith this CourtHs 3ecision in %antia(o, the sa'e reason %iven b( Co'elec in this case. 4he
6eparate 5pinions in P9RMA %ave no other reason. No one argued, even remotely, that the PIRMA Petition
should have been dismissed because the signatures were unverified.
4o stress, 9 adhere to '( 5pinion in 8=R'A that, <ObPein% a constitutional re>uire'ent, the nu'ber of
si%natures beco'es a condition precedent to the filin% of the petition, and is )urisdictional.
1
Cithout those
si%natures, the Co'elec shall motu proprio re)ect the petition.<
6o, until and unless %antia(o is revisited and chan%ed b( this Court or the le%al 'oorin%s of the e:ercise of the
ri%ht are substantiall( chan%ed, the Comelec cannot be faulted for acting in accord with this Court's
pronouncements. Respondent Co''ission has no discretion, under any guise, to refuse enforcement of any
final decision of this Court.
!
4he refusal of the poll bod( to act on the La'bino Petition &as its onl( recourse.
An( other 'ode of action &ould appear not onl( presu'ptuous, but also conte'ptuous. 9t &ould have
constituted defiance of the Court and &ould have surel( been struc@ do&n as %rave abuse of discretion and
contu'acious disre%ard of the supre'ac( of this Court as the final arbiter of )usticiable controversies.
Even assu'in% further that this Court rules, as 9 believe it should ,for the reasons %iven in '( 5pinions in
6antia%o and P9RMA+, that Republic Act $1.7 is indeed sufficient to i'ple'ent an initiative to a'end the
Constitution, still, no %rave abuse of discretion can be attributed to the Co'elec for 'erel( follo&in% prevailin%
)urisprudence e:tant at the ti'e it rendered its rulin% in >uestion.
6nly men+ments,
Not /evisions
9 reiterate that only amendments, not revisions, may be the proper subject of an initiative to chan%e the
Constitution. 4his principle is cr(stal clear fro' even a la(personHs readin% of the basic la&.
#

9 sub'it that chan%in% the s(ste' of %overn'ent fro' presidential to parlia'entar( and the for' of the
le%islature fro' bica'eral to unica'eral conte'plates an overhaul of the structure of government. 4he
ponencia has a'pl( de'onstrated that the 'er%er of the le%islative and the e:ecutive branches under a
unica'eral-parlia'entar( s(ste', <ObP( an( le%al test and under an( )urisdiction,< &ill <radicall( alter the
fra'e&or@ of %overn'ent as set forth in the Constitution.< 9ndeed, the proposed chan%es have an overall
i'plication on the entire Constitution2 the( effectivel( re&rite its 'ost i'portant and basic provisions. 4he
proli:it( and co'ple:it( of the chan%es cannot be cate%ori=ed, even b( se'antic %enerosit(, as <a'end'ents.<
9n addition, 'a( 9 sa( that of the three 'odes of chan%in% the Constitution, revisions ,or a'end'ents+ 'a( be
proposed onl( throu%h the first t&o* b( Con%ress or b( a constitutional convention. Ender the third 'ode --
peopleHs initiative -- onl( a'end'ents are allo&ed. Man( of the )usticesH 5pinions have cited the historical,
philosophical and )urisprudential bases of their respective positions. 9 &ill not add to the &oes of the reader b(
reiteratin% the' here.
6uffice it to sa( that, to 'e, the practical test to differentiate an a'end'ent fro' a revision is found in the
Constitution itself* a revision may be done only when the proposed change can be drafted, defined,
articulated, discussed and agreed upon after a mature and democratic debate in a deliberative body like
Congress or a Convention. 4he chan%es proposed 'ust necessaril( be scrutini=ed, as their adoption or non-
adoption 'ust result fro' an informed judgment.
9ndeed, the constitutional bodies that drafted the "#.7, the "#1 and the "#!1 Constitutions had to spend 'an(
'onths of purposeful discussions, de'ocratic debates and rounds of votin% before the( could a%ree on the
&ordin%s coverin% the philosoph(, the underl(in% principles, and the structure of %overn'ent of our Republic.
8eril(, even bills creatin% or chan%in% the ad'inistrative structure of local %overn'ents ta@e several &ee@s or
even 'onths of draftin%, readin%, and debatin% before Con%ress can approve the'. 0o& 'uch 'ore &hen it
co'es to constitutional chan%esI
A chan%e in the for' of %overn'ent of our countr( fro' presidential-bica'eral to parlia'entar(-unica'eral is
'onu'ental. Even the initiative proponents ad'it this fact. 6o, &h( should a revision be ra''ed do&n our
peopleHs throats &ithout the benefit of intelli%ent discussion in a deliberative asse'bl(I
Added to the constitutional 'andate barrin% revisions is the provision of RA $1.7 e:pressl( prohibitin%
petitions for initiative fro' <e'bracin% 'ore than one sub)ect 'atter.<
";
4he present initiative covers at least
t&o sub)ects* ,"+ the shift fro' a presidential to a parlia'entar( for' of %overn'ent2 and ,+ the chan%e fro' a
bica'eral to a unica'eral le%islature.
""
4hus, even under Republic Act $1.7 -- the la& that /ustice Puno and 9
hold to be sufficient and valid -- the La'bino Petition deserves dis'issal.
12 Pe!cent an+ 1 Pe!cent Th!eshol+s
Not P!oven &y Petitione!s
4he litmus test of a peopleHs petition for initiative is its abilit( to 'uster the constitutional re>uire'ent that it be
supported b( at least " percent of the re%istered voters nation&ide, of &hich at least . percent of the re%istered
voters in ever( le%islative district 'ust be represented. As pointed out b( 9ntervenors 5ne 8oice, 9nc., et al.,
ho&ever, records sho& that there &as a failure to 'eet the 'ini'u' percenta%es re>uired.
"

Even /ustice Puno concedes that the " percent and . percent constitutional re>uire'ents involve <contentious
facts,< &hich have not been proven b( the La'bino Petition. 4hus, he is ur%in% a re'and to the Co'elec.
But a re'and is both imprudent and futile. 9t is i'prudent because the Constitution itself 'andates the said
re>uisites of an initiative petition. 9n other &ords, a petition that does not show the required percentages is
fatally defective and must be dismissed, as the 3elfin Petition &as, in %antia(o.
Aurther'ore, as the ponencia had discussed e:tensivel(, the present Petition is void and unconstitutional. 9t
points out that the Petition dis'all( fails to co'pl( &ith the constitutional re>uire'ent that an initiative 'ust be
directl( proposed b( the people. 6pecificall(, the ponencia has a'pl( established that petitioners &ere unable to
sho& that the La'bino Petition contained, or incorporated b( attach'ent, the full te:t of the proposed chan%es.
6o, too, a re'and is futile. Even if the required percentages are proven before the Commission, the
Petition must still be dismissed for proposing a revision, not an amendment, in gross violation of the
Constitution. At the ver( least, it proposes 'ore than one sub)ect, in violation of Republic Act $1.7.
Summation
Petitioners plead &ith this Court to hear the voice of the people because, in the &ords of /ustice Puno &ho
supports the', the <peopleHs voice is soverei%n in a de'ocrac(.<
I, too, believe in heeding the people's voice. 9 reiterate '( 6eparate 5pinion in P9RMA that <initiative is a
de'ocratic 'ethod of enablin% our people to e:press their &ill and chart their histor(. : : :. 9 believe that
Ailipinos have the abilit( and the capacit( to rise above the'selves, to use this ri%ht of initiative &isel( and
'aturel(, and to choose &hat is best for the'selves and their posterit(.<
4his belief &ill not, ho&ever, auto'aticall( and blindl( result in an initiative to chan%e the Constitution,
because the present Petition violates the follo&in%*
T 4he Constitution ,specificall( Article D899, &hich allo&s onl( a'end'ents, not revisions, and re>uires
definite percenta%es of verified si%natures+
T 4he law ,specificall(, Republic Act $1.7, &hich prohibits petitions containin% 'ore than one sub)ect+
T 1urisprudence ,specificall(, 8=R'A ". ,omele#, &hich dis'issed the Petition then under consideration on the
%round that, b( follo&in% the %antia(o rulin%, the Co'elec had not %ravel( abused its discretion+.
9 sub'it further that a re'and of the La'bino Petition is both i'prudent and futile. More tellin%l(, it is a cop-
out, a hand-washing alread( discredited ;;; (ears a%o. Instead of finger-pointing, 9 believe &e 'ust
confront the issues head on, because the people e:pect no less fro' this au%ust and venerable institution of
supre'e )ustice.
Epilogue
At botto', the issue in this case is simply the Rule of Law.
".
9nitiative, li@e referendu' and recall, is a
treasured feature of the Ailipino constitutional s(ste'. 9t &as born out of our &orld-ad'ired and often-i'itated
People Po&er, but its misuse and abuse must be resolutely rejected. 3e'ocrac( 'ust be cherished, but 'ob
rule van>uished.
4he Constitution is a sacred social compact, for%ed bet&een the %overn'ent and the people, bet&een each
individual and the rest of the citi=enr(. 4hrou%h it, the people have sole'nl( e:pressed their &ill that all of
the' shall be %overned b( la&s, and their ri%hts li'ited b( a%reed-upon covenants to pro'ote the co''on
%ood. 9f &e are to uphold the Rule of La& and re)ect the rule of the 'ob, we must faithfully abide by the
processes the Constitution has ordained in order to brin% about a peaceful, just and humane society.
Assu'in% ar(uendo that si: 'illion people alle%edl( %ave their assent to the proposed chan%es in the
Constitution, the( are nevertheless still bound by the social covenant -- the present Constitution -- &hich &as
ratified b( a far %reater 'a)orit( al'ost t&ent( (ears a%o.
"-
9 do not deni%rate the 'a)est( of the soverei%n &ill2
rather, 9 elevate our societ( to the loftiest perch, because our government must remain as one of laws and not
of men.
Epon assu'in% office, each of the )ustices of the 6upre'e Court too@ a sole'n oath to uphold the Constitution.
Bein% the protectors of the funda'ental la& as the hi%hest e:pression of the soverei%n &ill, the( 'ust sub)ect to
the strictest scrutin( any attempt to change it, lest it be trivialized and degraded by the assaults of the mob
and of ill-conceived designs. 4he Court 'ust sin%le-'indedl( defend the Constitution from bogus efforts
falsel( attributed to the soverei%n people.
4he )udiciar( 'a( be the &ea@est branch of %overn'ent. Nonetheless, &hen ran%ed a%ainst incessant voices
fro' the 'ore po&erful branches of %overn'ent, it should never co&er in sub'ission. 5n the other hand, 9
daresa( that the sa'e &ea@ness of the Court beco'es its stren%th &hen it spea@s independentl( throu%h
decisions that ri%htfull( uphold the supremacy of the Constitution and the Rule of Law. 4he stren%th of the
)udiciar( lies not in its lac@ of brute po&er, but in its 'oral coura%e to perfor' its constitutional dut( at all
ti'es a%ainst all odds. Its might is in its being right.
"7
3urin% the past &ee@s, 'edia outfits have been abla=e &ith reports and innuendoes about alle%ed carrots
offered and stic@s dra&n b( those interested in the outco'e of this case.
"$
4here bein% no )udicial proof of these
alle%ations, 9 shall not co''ent on the' for the nonce, e:cept to >uote the Good Boo@, &hich sa(s, <4here is
nothin% hidden that &ill not be revealed, and nothin% secret that &ill not be @no&n and co'e to li%ht.<
"1
8eril(, the 6upre'e Court is no& on the crossroads of histor(. B( its decision, the Court and each of its
'e'bers shall be )ud%ed b( posterit(. 4en (ears, fift( (ears, a hundred (ears -- or even a thousand (ears -- fro'
no&, &hat the Court did here, and ho& each )ustice opined and voted, &ill still be tal@ed about, either in sha'e
or in pride. 9ndeed, the hand-&ashin% of Pontius Pilate, the abo'ination of !red %#ott- and the loathin% of
Ja"ellana still lin%er and haunt to this da(.
Let not this case fall into the sa'e da'nation. Rather, let this Court be @no&n throu%hout the nation and the
&orld for its independence, integrity, industry and intelligence.
C0EREA5RE, 9 vote to DIS)ISS the Petition.
ARTEMIO V. PANGANIBAN
Chief /ustice
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS,
Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BEN1AMIN S. ABALOS, 1R. and
BRAWNER, RENE V. SARMIENTO, and 1ohn Doe and Peter Doe, Respondents.
: ---------------------------------------------------------------------------------------- :
SEPARATE OPINION
YNARES-SANTIAGO, J.:
9 a%ree &ith the opinion of our estee'ed collea%ue, /ustice Re(nato Puno, that the CourtHs rulin% in %antia(o ".
,$'+)+,
"
is not a bindin% precedent. 0o&ever, it is '( position that even if %antia(o &ere reversed and
Republic Act No. $1.7 ,R.A. $1.7+ be held as sufficient la& for the purpose of peopleHs initiative to a'end the
Constitution, the petition for initiative in this case 'ust nonetheless be dis'issed.
4here is absolutel( no sho&in% here that petitioners co'plied &ith R.A. $1.7, even as the( blindl( invo@e the
said la& to )ustif( their alle%ed peopleHs initiative. 6ection 7,b+ of R.A. $1.7 re>uires that <OaP petition for an
initiative on the "#!1 Constitution 'ust have at least t&elve per #entum ,"M+ of the total nu'ber of re%istered
voters as signatories, of &hich ever( le%islative district 'ust be represented b( at least three per #entum ,.M+
of the re%istered voters therein.< 5n the other hand, 6ection 7,c+
of the sa'e la& re>uires that the petition

should state, a'on% others, the proposition
.
or the <contents or te:t of the proposed la& sou%ht to be enacted,
approved or re)ected, a'ended or repealed.< 9f &e &ere to appl( 6ection 7,c+ to an initiative to a'end the
Constitution, as petitioners sub'it, the petition for initiative si%ned b( the re>uired nu'ber of voters should
incorporate therein a te:t of the proposed chan%es to the Constitution. 0o&ever, such re>uire'ent &as not
follo&ed in the case at bar.
3urin% the oral ar%u'ents, petitioner La'bino ad'itted that the( printed a 'ere ";;,;;; copies of the te:t of
the proposed chan%es to the Constitution. Accordin% to hi', these &ere subse>uentl( distributed to their a%ents
all over the countr(, for attach'ent to the sheets of paper on &hich the si%natures &ere to be affi:ed. Epon
bein% as@ed, ho&ever, if he in fact @ne& &hether the te:t &as actuall( attached to the si%nature sheets &hich
&ere distributed for si%nin%, he said that he merely assumed that the( &ere. 9n other &ords, he could not tell
the Court for certain &hether their representatives co'plied &ith this re>uire'ent.
4he petition filed &ith the C5MELEC, as &ell as that &hich &as sho&n to this Court, indubitabl( establish that
the full te:t of the proposed chan%es &as not attached to the si%nature sheets. All that the si%nature sheets
contained &as the %eneral proposition and abstract, &hich falls short of the full te:t re>uire'ent of R.A. $1.7.
4he necessit( of settin% forth the te:t of the proposed constitutional chan%es in the petition for initiative to be
si%ned b( the people cannot be seriousl( disputed. 4o be%in &ith, Article D899, 6ection of the Constitution
une>uivocall( states that <OaP'end'ents to this Constitution 'a( li@e&ise be directly proposed b( the people
throu%h initiative upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters, of
&hich ever( le%islative district 'ust be represented b( at least three per #entum of the re%istered voters therein.<
Evidentl(, for the people to propose a'end'ents to the Constitution, the( 'ust, in the first instance, @no&
e:actl( &hat the( are proposin%. 9t is not enou%h that the( 'erel( possess a %eneral idea of the proposed
chan%es, as the Constitution spea@s of a <direct< proposal b( the people.
Althou%h the fra'ers of the Constitution left the 'atter of i'ple'entin% the constitutional ri%ht of initiative to
Con%ress, it 'i%ht be noted that the( the'selves reasonabl( assu'ed that the draft of the proposed
constitutional a'end'ents &ould be sho&n to the people durin% the process of si%nature %atherin%. 4hus S
MR. R53R9G5. 6ection of the co'plete co''ittee report provides* <upon petition of at least ";
percent of the re%istered voters.< 0o& &ill &e deter'ine that "; percent has been achievedI 0o& &ill
the voters 'anifest their desire, is it b( si%natureI
MR. 6EAREK. Ges, b( si%natures.
MR. R53R9G5. Let us loo@ at the 'echanics. Let us sa( so'e voters &ant to propose a constitutional
a'end'ent. 9s the draft of the proposed constitutional a'end'ent read( to be sho&n to the people &hen
the( are as@ed to si%nI
MR. 6EAREK. 4hat can be reasonabl( assu'ed, Mada' President.
MR. R53R9G5* Chat does the sponsor 'eanI 4he draft is read( and sho&n to the' before the( si%n.
No&, &ho prepares the draftI
MR. 6EAREK* 4he people the'selves, Mada' President.
-
9t 'a( thus be lo%icall( assu'ed that even &ithout 6ection 7,c+ of R.A. $1.7, the full te:t of the proposed
chan%es 'ust necessaril( be stated in or attached to the initiative petition. 4he si%natories to the petition 'ust
be %iven an opportunit( to full( co'prehend the 'eanin% and effect of the proposed chan%es to enable the' to
'a@e a free, intelli%ent and &ell-infor'ed choice on the 'atter.
Needless to sa(, the re>uire'ent of settin% forth the co'plete te:t of the proposed chan%es in the petition for
initiative is a safe%uard a%ainst fraud and deception. 9f the &hole te:t of the proposed chan%es is contained in or
attached to the petition, intercalations and riders 'a( be dul( avoided. 5nl( then can &e be assured that the
proposed chan%es are trul( of the people and that the si%natories have been full( apprised of its i'plications.
9f a statutor( provision is essential to %uard a%ainst fraud, corruption or deception in the initiative and
referendu' process, such provision 'ust be vie&ed as an indispensable re>uire'ent and failure to substantiall(
co'pl( there&ith is fatal.
7
4he failure of petitioners in this case to co'pl( &ith the full te:t re>uire'ent
resultantl( rendered their petition for initiative fatall( defective.
4he petition for initiative is li@e&ise irretrievabl( infir' because it violates the one sub)ect rule under 6ection
";,a+ of R.A. $1.7*
6EC. ";. 8rohibited 'easures.? 4he follo&in% cannot be the sub)ect of an initiative or referendu'
petition*
,a+ No petition e'bracin% 'ore than one sub)ect shall be sub'itted to the electorate2 : : :
4he one sub)ect rule, as relatin% to an initiative to a'end the Constitution, has the sa'e ob)ect and purpose as
the one sub)ect-one bill rule e'bodied in Article 89, 6ection $,"+
$
1
4o elaborate, the one
sub)ect-one bill rule &as desi%ned to do a&a( &ith the practice of insertin% t&o or 'ore unrelated provisions in
one bill, so that those favorin% one provision &ould be co'pelled to adopt the others. B( this process of lo%-
rollin%, the adoption of both provisions could be acco'plished and ensured, &hen neither, if standin% alone,
could succeed on its o&n 'erits.
As applied to the initiative process, the one sub)ect rule is essentiall( desi%ned to prevent surprise and fraud on
the electorate. 9t is 'eant to safe%uard the inte%rit( of the initiative process b( ensurin% that no unrelated riders
are concealed &ithin the ter's of the proposed a'end'ent. 4his in turn %uarantees that the si%natories are full(
a&are of the nature, scope and purpose of the proposed a'end'ent.
Petitioners insist that the proposed chan%es e'bodied in their petition for initiative relate onl( to one sub)ect
'atter, that is S the shift fro' presidential to a parlia'entar( s(ste' of %overn'ent. Accordin% to petitioners,
all of the other proposed chan%es are 'erel( incidental to this 'ain proposal and are reasonabl( %er'ane and
necessar( thereto.
!
An e:a'ination of the te:t of the proposed chan%es reveals, ho&ever, that this is not the
case.
4he proposed chan%es to the Constitution cover other sub)ects that are be(ond the 'ain proposal espoused b(
the petitioners. Apart fro' a shift fro' the presidential to a parlia'entar( for' of %overn'ent, the proposed
chan%es include the abolition of one 0ouse of Con%ress,
#
and the convenin% of a constituent asse'bl( to
propose additional a'end'ents to the Constitution.
";
Also included &ithin its ter's is an o'nibus declaration
that those constitutional provisions under Articles 89 and 899, &hich are inconsistent &ith the unica'eral-
parlia'entar( for' of %overn'ent, shall be dee'ed a'ended to confor' thereto.
9t is not difficult to see that &hile the proposed chan%es appear to relate onl( to a shift in the for' of
%overn'ent, it actuall( see@s to affect other sub)ects that are not reasonabl( %er'ane to the constitutional
alteration that is purportedl( sou%ht. Aor one, a shift to a parlia'entar( s(ste' of %overn'ent does not
necessaril( result in the adoption of a unica'eral le%islature. A parlia'entar( s(ste' can e:ist in 'an(
different <h(brid< for's of %overn'ent, &hich 'a( or 'a( not e'brace unica'eralis'.
""
9n other &ords, the
shift fro' presidential to parlia'entar( structure and fro' a bica'eral to a unica'eral le%islature is neither the
cause nor effect of the other.
9 also fail to see the relation of convenin% a constituent asse'bl( &ith the proposed chan%e in our s(ste' of
%overn'ent. As a sub)ect 'atter, the convenin% of a constituent asse'bl( to a'end the Constitution presents a
ran%e of issues that is far re'oved fro' the sub)ect of a shift in %overn'ent. Besides, the constituent asse'bl(
is supposed to convene and propose a'end'ents to the Constitution after the proposed chan%e in the s(ste' of
%overn'ent has alread( ta@en place. 4his onl( %oes to sho& that the convenin% of the constituent asse'bl( is
not necessar( to effectuate a chan%e to a parlia'entar( s(ste' of %overn'ent.
4he o'nibus state'ent that all provisions under Articles 89 and 899 &hich are inconsistent &ith a unica'eral-
parlia'entar( s(ste' of %overn'ent shall be dee'ed a'ended is e>uall( botherso'e. 4he state'ent does not
specif( &hat these inconsistencies and a'end'ents 'a( be, such that ever(one is left to %uess the provisions
that could eventuall( be affected b( the proposed chan%es. 4he sub)ect and scope of these auto'atic
a'end'ents cannot even be spelled out &ith certaint(. 4here is thus no reasonable 'easure of its i'pact on the
other constitutional provisions.
4he fore%oin% proposed chan%es cannot be the sub)ect of a peopleHs initiative under 6ection , Article D899 of
the Constitution. 4a@en to%ether, the proposed chan%es indicate that the intend'ent is not si'pl( to effect
substantial amendments to the Constitution, but a revision thereof. 4he distinction bet&een an a'end'ent and
revision &as e:plained b( 3ean 8icente G. 6inco, as follo&s*
<6trictl( spea@in%, the act of revisin% a constitution involves alterations of different portions of the entire
docu'ent. 9t 'a( result in the re&ritin% either of the &hole constitution, or the %reater portion of it, or
perhaps onl( so'e of its i'portant provisions. But &hatever results the revision 'a( produce, the factor
that characteri=es it as an act of revision is the ori%inal intention and plan authori=ed to be carried out.
4hat intention and plan 'ust conte'plate a consideration of all the provisions of the constitution to
deter'ine &hich one should be altered or suppressed or &hether the &hole docu'ent should be replaced
&ith an entirel( ne& one.
4he act of a'endin% a constitution, on the other hand, envisa%es a chan%e of onl( a fe& specific
provisions. 4he intention of an act to a'end is not to consider the advisabilit( of chan%in% the entire
constitution or of considerin% that possibilit(. 4he intention rather is to i'prove specific parts of the
e:istin% constitution or to add to it provisions dee'ed essential on account of chan%ed conditions or to
suppress portions of it that see' obsolete, or dan%erous, or 'isleadin% in their effect.<
"

4he fore%oin% traditional e:position of the difference bet&een a'end'ent and revision has indeed %uided us
throu%hout our constitutional histor(. 0o&ever, the distinction bet&een the t&o ter's is not, to '( 'ind, as
si%nificant in the conte:t of our past constitutions, as it should be no& under the "#!1 Constitution. 4he reason
for this is apparent. Ender our past constitutions, it &as Con%ress alone, actin% either as a constituent asse'bl(
or b( callin% out a constitutional convention, that e:ercised authorit( to either a'end or revise the Constitution
throu%h the procedures therein described. Althou%h the distinction bet&een the t&o ter's &as theoreticall(
reco%ni=ed under both the "#.7 and "#1. Constitutions, the need to hi%hli%ht the difference &as not as 'aterial
because it &as onl( Con%ress that could effect constitutional chan%es b( choosin% bet&een the t&o 'odalities.
0o&ever, it is different no& under the "#!1 Constitution. Apart fro' providin% for the t&o 'odes of either
Con%ress constitutin% itself as a constituent asse'bl( or callin% out for a constitutional convention, a third 'ode
&as introduced for proposin% chan%es to the Constitution. 4his 'ode refers to the peopleHs ri%ht to propose
a'end'ents to the funda'ental la& throu%h the filin% of a petition for initiative.
5ther&ise stated, our e:perience of &hat constitutes a'end'ent or revision under the past constitutions is not
deter'inative of &hat the t&o ter's 'ean no&, as related to the e:ercise of the ri%ht to propose either
a'end'ents or revision. 4he chan%es introduced to both the Constitutions of "#.7 and "#1. could have indeed
been dee'ed an a'end'ent or revision, but the authority for effecting either would never have been
questioned since the same belonged solely to Congress. 9n contrast, the "#!1 Constitution clearl( li'its the
ri%ht of the people to directl( propose constitutional chan%es to a'end'ents onl(. Ce 'ust conse>uentl( not be
s&a(ed b( e:a'ples of constitutional chan%es effected prior to the present funda'ental la&, in deter'inin%
&hether such chan%es are revisor( or a'endator( in nature.
9n this re%ard, it should be noted that the distinction laid do&n b( /ustice Aeli: L. Antonio in Javellana v.
7,ec%tive Sec!eta!y
".
related to the procedure to be follo&ed in ratif(in% a co'pletel( ne& charter proposed b(
a constitutional convention. 4he authorit( or ri%ht of the constitutional convention itself to effect such a revision
&as not put in issue in that case. As far as deter'inin% &hat constitutes <a'end'ents< for the purpose of a
peopleHs initiative, therefore, &e have neither relevant precedent nor prior e:perience. Ce 'ust thus confine
ourselves to 3ean 6incoHs basic articulation of the t&o ter's.
9t is clear fro' 3ean 6incoHs e:planation that a revision 'a( either be of the &hole or onl( part of the
Constitution. 4he part need not be a substantial part as a chan%e 'a( >ualif( as a revision even if it onl(
involves so'e of the i'portant provisions. Aor as lon% as the intention and plan to be carried out conte'plate a
consideration of all the provisions of the Constitution <to deter'ine &hich should be altered or suppressed, or
&hether the &hole docu'ent should be replaced &ith an entirel( ne& one,< the proposed chan%e 'a( be
dee'ed a revision and not 'erel( an a'end'ent.
4hus, it is not b( the sheer nu'ber alone of the proposed chan%es that the sa'e 'a( be considered as either an
a'end'ent or revision. 9n so deter'inin%, another overridin% factor is the <ori%inal intention and plan
authori=ed to be carried out< b( the proposed chan%es. 9f the sa'e relates to a re-e:a'ination of the entire
docu'ent to see &hich provisions re'ain relevant or if it has far-reachin% effects on the entire docu'ent, then
the sa'e constitutes a revision and not a 'ere a'end'ent of the Constitution.
Aro' the fore%oin%, it is readil( apparent that a co'bination of the >uantitative and >ualitative test is necessar(
in assessin% &hat 'a( be considered as an a'end'ent or revision. 9t is not enou%h that &e focus si'pl( on the
ph(sical scope of the proposed chan%es, but also consider &hat it 'eans in relation to the entire docu'ent. No
clear de'arcation line can be dra&n to distin%uish the t&o ter's and each circu'stance 'ust be )ud%ed on the
basis of its o&n peculiar conditions. 4he deter'ination lies in assessin% the i'pact that the proposed chan%es
'a( have on the entire instru'ent, and not si'pl( on an arith'etical appraisal of the specific provisions &hich
it see@s to affect.
9n )cFa++en v. Jo!+an,
"-
the California 6upre'e Court laid do&n the %round&or@ for the co'bination of
>uantitative and >ualitative assess'ent of proposed constitutional chan%es, in order to deter'ine &hether the
sa'e is revisor( or 'erel( a'endator(. 9n that case, the '#9adden court found the proposed chan%es e:tensive
since at least "7 of the 7 articles contained in the California Constitution &ould either be repealed in their
entiret( or substantiall( altered, and four ne& topics &ould be introduced. 0o&ever, it &ent on to consider the
>ualitative effects that the proposed initiative 'easure &ould have on CaliforniaHs basic plan of %overn'ent. 9t
observed that the proposal &ould alter the checks and balances inherent in such plan, b( dele%atin% far-
reachin% and 'i:ed po&ers to an independent co''ission created under the proposed 'easure. Conse>uentl(,
the proposal in '#9adden &as not onl( dee'ed as broad and nu'erous in ph(sical scope, but &as also held as
havin% a substantive effect on the funda'ental %overn'ental plan of the 6tate of California.
4he dual aspect of the a'end'entFrevision anal(sis &as reiterated b( the California 6upre'e Court in /aven v.
De%.mei?an.
"7
Proposition ""7, as the initiative in that case &as called, &ould vest in the Enited 6tates
6upre'e Court all )udicial interpretative po&ers of the California courts over funda'ental cri'inal defense
ri%hts in that state. 9t &as observed that althou%h >uantitativel(, the proposition did <not see' so e:tensive as to
chan%e directl( the substantial entiret( of the Constitution b( the deletion or alteration of nu'erous e:istin%
provisions,< the sa'e, nonetheless, <&ould substantiall( alter the substance and inte%rit( of the state
Constitution as a docu'ent of independent force and effect.< Luotin% ma+o! #alley Joint @nion 0igh
School Dist!ict v. State (oa!+ o$ 7A%ali'ation,
"$
the /aven court said*
<. . . apart fro' a 'easure effectin% &idespread deletions, additions and a'end'ents involvin% 'an(
constitutional articles, Heven a relativel( si'ple enact'ent 'a( acco'plish such far reachin% chan%es in
the nature of our basic %overn'ental plan as to a'ount to a revision alsoUOAPn enact'ent &hich
purported to vest all )udicial po&er in the Le%islature &ould a'ount to a revision &ithout re%ard either
to the len%th or co'ple:it( of the 'easure or the nu'ber of e:istin% articles or sections affected b( such
chan%e.H< ,Enderscorin% supplied and citations o'itted+
4hus, in resolvin% the a'end'entFrevision issue, the California Court e:a'ines both the >uantitative and
>ualitative effects of a proposed 'easure on its constitutional sche'e. 6ubstantial chan%es in either respect
could a'ount to a revision.
"1
9 a' persuaded that &e can approach the present issue in the sa'e 'anner. 4he e:perience of the courts in
California is not far re'oved fro' the standards e:pounded on b( 3ean 6inco &hen he set out to differentiate
bet&een a'end'ent and revision. 9t is actuall( consistent, not onl( &ith our traditional concept of the t&o
ter's, but also &ith the 'indset of our constitutional fra'ers &hen the( referred to the dis>uisition of /ustice
Antonio in Javellana.
"!
Ce 'ust thus consider &hether the proposed chan%es in this case affect our
Constitution in both its substantial ph(sical entiret( and in its basic plan of %overn'ent.
The question posed is: do the proposed changes, regardless of whether these are simple or substantial,
amount to a revision as to be excluded from the people's right to directly propose amendments to the
fundamental law?
As indicated earlier, &e 'a( appl( the >uantitativeF>ualitative test in deter'inin% the nature of the proposed
chan%es. 4hese tests are consistent &ith 3ean 6incoHs traditional concept of a'end'ent and revision &hen he
e:plains that, >uantitativel(, revision <'a( result in the re&ritin% either of the &hole constitution, or the %reater
part of it, or perhaps onl( so'e of its provisions.< 9n an( case, he continues, <the factor that characteri=es it as
an act of revision is the ori%inal intention and plan authori=ed to be carried out.< En'ista@abl(, the latter
state'ent refers to the >ualitative effect of the proposed chan%es.
9t 'a( thus be conceded that, A%antitatively, the chan%es espoused b( the proponents in this case &ill affect
onl( t&o ,+ out of the ei%hteen ,"!+ articles of the "#!1 Constitution, na'el(, Article 89 ,Le%islative
3epart'ent+ and Article 899 ,E:ecutive 3epart'ent+, as &ell as provisions that &ill ensure the s'ooth
transition fro' a presidential-bica'eral s(ste' to a parlia'entar(-unica'eral structure of %overn'ent. 4he
>uantitative effect of the proposed chan%es is neither broad nor e:tensive and &ill not affect the substantial
entiret( of the "#!1 Constitution.
0o&ever, it is '( opinion that the proposed chan%es &ill have serious .ualitati"e conse>uences on the
Constitution. 4he initiative petition, if successful, &ill undoubtedl( alter, not onl( our basic %overn'ental plan,
but also redefine our ri%hts as citi=ens in relation to %overn'ent. 4he proposed chan%es &ill set into 'otion a
ripple effect that &ill stri@e at the ver( foundation of our basic constitutional plan. 9t is therefore an
i'per'issible constitutional revision that 'a( not be effected throu%h a peopleHs initiative.
PetitionersH 'ain proposal pertains to the shiftin% of our for' of %overn'ent fro' the presidential to the
parlia'entar( s(ste'. An e:a'ination of their proposal reveals that there &ill be a fusion of the e:ecutive and
le%islative depart'ents into one parlia'ent that &ill be elected on the basis of proportional representation. No
ter' li'its are set for the 'e'bers of parlia'ent e:cept for those elected under the part(-list s(ste' &hose
ter's and nu'ber shall be provided b( la&. 4here &ill be a President &ho shall be the head of state, but the
head of %overn'ent is the Pri'e Minister. 4he latter and his cabinet shall be elected fro' a'on% the 'e'bers
of parlia'ent and shall be responsible to parlia'ent for the pro%ra' of %overn'ent.
4he precedin% proposal indicates that, under the proposed s(ste', the e:ecutive and le%islature shall be one and
the sa'e, such that parlia'ent &ill be the para'ount %overnin% institution. Chat this i'plies is that there &ill
be no separation bet&een the la&-'a@in% and enforce'ent po&ers of the state, that are traditionall( delineated
bet&een the e:ecutive and le%islature in a presidential for' of %overn'ent. Necessaril(, the chec@s and
balances inherent in the funda'ental plan of our E.6.-st(le presidential s(ste' &ill be eli'inated. 4he
&or@in%s of %overn'ent shall instead be controlled b( the internal political d(na'ics prevailin% in the
parlia'ent.
5ur present %overn'ental s(ste' is built on the separation of po&ers a'on% the three branches of %overn'ent.
4he le%islature is %enerall( li'ited to the enact'ent of la&s, the e:ecutive to the enforce'ent of la&s and the
)udiciar( to the application of la&s. 4his separation is intended to prevent a concentration of authorit( in one
person or %roup that 'i%ht lead to an irreversible error or abuse in its e:ercise to the detri'ent of our republican
institutions. 9n the &ords of /ustice Laurel, the doctrine of separation of po&ers is intended to secure action, to
forestall overaction, to prevent despotis' and obtain efficienc(.
"#

9n the proposed parlia'entar( s(ste', there is an obvious lac@ of for'al institutional chec@s on the le%islative
and e:ecutive po&ers of the state, since both the Pri'e Minister and the 'e'bers of his cabinet are dra&n fro'
parlia'ent. 4here are no effective li'its to &hat the Pri'e Minister and parlia'ent can do, e:cept the &ill of
the parlia'entar( 'a)orit(. 4his %oes a%ainst the central principle of our present constitutional sche'e that
distributes the po&ers of %overn'ent and provides for counteraction a'on% the three branches. Althou%h both
the presidential and parlia'entar( s(ste's are theoreticall( consistent &ith constitutional de'ocrac(, the
underl(in% tenets and resultin% %overn'ental fra'e&or@ are nonetheless radicall( different.
Conse>uentl(, the shift fro' presidential to parlia'entar( for' of %overn'ent cannot be re%arded as an(thin%
but a drastic chan%e. 9t &ill re>uire a total overhaul of our %overn'ental structure and involve a re-orientation in
the cardinal doctrines that %overn our constitutional set-up. As e:plained b( Ar. /oa>uin Bernas, 6./., a s&itch
fro' the presidential s(ste' to a parlia'entar( s(ste' &ould be a revision because of its over-all i'pact on the
entire constitutional structure.
;
9t cannot, b( an( standard, be dee'ed as a 'ere constitutional a'end'ent.
An a'end'ent envisa%es an alteration of one or a fe& specific and separable provisions. 4he %uidin%
ori%inal intention of an a'end'ent is to i'prove specific parts or to add ne& provisions dee'ed
necessar( to 'eet ne& conditions or to suppress specific portions that 'a( have beco'e obsolete or that
are )ud%ed to be dan%erous. 9n revision, ho&ever, the %uidin% ori%inal intention and plan conte'plates a
re-e:a'ination of the entire docu'ent, or of provisions of the docu'ent &hich have over-all
i'plications for the entire docu'ent, to deter'ine ho& and to &hat e:tent the( should be altered.
"

4he inclusion of a proposal to convene a constituent asse'bl( li@e&ise sho&s the intention of the proponents to
effect even 'ore far-reachin% chan%es in our funda'ental la&. 9f the ori%inal intent &ere to si'pl( shift the
for' of %overn'ent to the parlia'entar( s(ste', then there &ould have been no need for the callin% out of a
constituent asse'bl( to propose further a'end'ents to the Constitution. 9t should be noted that, once convened,
a constituent asse'bl( can do a&a( and replace an( constitutional provision &hich 'a( not even have a bearin%
on the shift to a parlia'entar( s(ste' of %overn'ent. 4he inclusion of such a proposal reveals the proponentsH
plan to consider all provisions of the constitution, either to deter'ine &hich of its provisions should be altered
or suppressed or &hether the &hole docu'ent should be replaced &ith an entirel( ne& one.
Conse>uentl(, it is not true that onl( Articles 89 and 899 are covered b( the alle%ed peopleHs initiative. 4he
proposal to convene a constituent asse'bl(, which by its terms is mandatory, &ill practicall( )eopardi=e the
future of the entire Constitution and place it on sha@( %rounds. 4he plan of the proponents, as reflected in their
proposed chan%es, %oes be(ond the shiftin% of %overn'ent fro' the presidential to the parlia'entar( s(ste'.
9ndeed, it could even e:tend to the <funda'ental nature of our state as a de'ocratic and republican state.<
4o sa( that the proposed chan%es &ill affect onl( the constitution of %overn'ent is therefore a fallac(. 4o
repeat, the co'bined effect of the proposed chan%es to Articles 89 and 899 and those pertainin% to the
4ransitor( Provisions under Article D8999 indubitabl( establish the intent and plan of the proponents to possibl(
affect even the constitutions of libert( and soverei%nt(. 9ndeed, no valid reason e:ists for authori=in% further
a'end'ents or revisions to the Constitution if the intention of the proposed chan%es is trul( &hat it purports to
be.
4here is no >uestion here that onl( a'end'ents to the Constitution 'a( be underta@en throu%h a peopleHs
initiative and not a revision, as te:tuall( reflected in the Constitution itself. 4his conclusion is inevitable
especiall( fro' a co'parative e:a'ination of 6ection in relation to 6ections " and - of Article D899, &hich
state*
6EC495N ". An( a'end'ent to, or revision of, this Constitution 'a( be proposed b(*
,"+ 4he Con%ress, upon a vote of three-fourths of all its Me'bers2 or
6EC495N . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters, of &hich
Constitution nor oftener than once ever( five (ears thereafter.
4he Con%ress shall provide for the i'ple'entation of the e:ercise of this ri%ht.
: : : :
6EC495N -. An( a'end'ent to, or revision of, this Constitution under 6ection " hereof shall be valid
&hen ratified b( a 'a)orit( of the votes cast in a plebiscite &hich shall be held not earlier than si:t( da(s
nor later than ninet( da(s after the approval of such a'end'ent or revision.
An( a'end'ent under 6ection hereof shall be valid &hen ratified b( a 'a)orit( of the votes cast in a
plebiscite &hich shall be held not earlier than si:t( da(s nor later than ninet( da(s after the certification
b( the Co''ission of Elections of the sufficienc( of the petition. ,Enderscorin% supplied+
9t is clear that the ri%ht of the people to directl( propose chan%es to the Constitution is li'ited to a'end'ents
and does not include a revision thereof. 5ther&ise, it &ould have been unnecessar( to provide for 6ection to
distin%uish its scope fro' the ri%hts vested in Con%ress under 6ection ". 4he latter lucidl( states that Con%ress
'a( propose both a'end'ents and a revision of the Constitution b( either convenin% a constituent asse'bl( or
callin% for a constitutional convention. 6ection , on the other hand, te:tuall( co''its to the people the ri%ht to
propose only amendments b( direct action.
To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the
clear distinction in scope between Sections 1 and 2. 4he intention, as 'a( be seen fro' a cursor( perusal of
the above provisions, is to provide differin% fields of application for the three 'odes of effectin% chan%es to the
Constitution. Ce need not even delve into the intent of the constitutional fra'ers to see that the distinction in
scope is definitel( 'ar@ed. Ce should thus appl( these provisions &ith a discernin% re%ard for this distinction.
A%ain, '#9adden
is instructive*
<. . . 4he differentiation re>uired is not 'erel( bet&een t&o &ords2 'ore accuratel( it is bet&een t&o
procedures and bet&een their respective fields of application. Each procedure, if &e follo& ele'entar(
principles of statutor( construction, 'ust be understood to have a substantial field of application, not to
be : : : a 'ere alternative procedure in the sa'e field. Each of the t&o &ords, then, 'ust be understood
to denote, respectivel(, not onl( a procedure but also a field of application appropriate to its procedure.
4he people of this state have spo@en2 the( 'ade it clear &hen the( adopted article D8999 and 'ade
a'end'ent relativel( si'ple but provided the for'idable bul&ar@ of a constitutional convention as a
protection a%ainst i'provident or hast( ,or an( other+ revision, that the( understood that there &as a real
difference bet&een a'end'ent and revision. Ce find nothin% &hatsoever in the lan%ua%e of the
initiative a'end'ent of "#"" ,art. 98, V "+ to effect a brea@in% do&n of that difference. 5n the contrar(,
the distinction appears to be : : : scrupulousl( preserved b( the e:press declaration in the a'end'ent :
: : that the po&er to propose and vote on <a'end'ents to the Constitution< is reserved directl( to the
people in initiative proceedin%s, &hile leavin% un'entioned the po&er and the procedure relative to
constitutional revision, &hich revisional po&er and procedure, it &ill be re'e'bered, had alread( been
specificall( treated in section of article D8999. 9ntervenorsH contention--that an( chan%e less than a
total one is but a'endator(--&ould reduce to the rubble of absurdit( the bul&ar@ so carefull( erected
and preserved. Each situation involvin% the >uestion of a'end'ent, as contrasted &ith revision, of the
Constitution 'ust, &e thin@, be resolved upon its o&n facts.<
4hus, our people too have spo@en &hen the( over&hel'in%l( ratified the "#!1 Constitution, &ith the provisions
on a'end'ents and revisions under Article D899. 4he voice and &ill of our people cannot be an( clearer &hen
the( li'ited peopleHs initiative to 'ere a'end'ents of the funda'ental la& and e:cluded revisions in its scope.
9n this re%ard, the tas@ of the Court is to %ive effect to the peopleHs voice, as e:pressed une>uivocall( throu%h
the Constitution.
Article D899 on a'end'ents and revisions is called a <constitution of soverei%nt(< because it defines the
constitutional 'eanin% of <soverei%nt( of the people.< 9t is throu%h these provisions that the soverei%n people
have allo&ed the e:pression of their soverei%n &ill and have canali=ed their po&ers &hich &ould other&ise be
plenar(. B( approvin% these provisions, the soverei%n people have decided to li'it the'selves and future
%enerations in the e:ercise of their soverei%n po&er.
.
4he( are thus bound b( the constitution and are
po&erless, &hatever their nu'bers, to chan%e or th&art its 'andates, e:cept throu%h the 'eans prescribed b(
the Constitution itself.
-
9t is thus 'isplaced to ar%ue that the people 'a( propose revisions to the Constitution throu%h peopleHs initiative
because their representatives, &hose po&er is 'erel( dele%ated, 'a( do so. While Section 1 of Article XVII
may be considered as a provision delegating the sovereign powers of amendment and revision to
Congress, Section 2, in contrast, is a self-limitation on that sovereign power. 9n the &ords of Coole(*
: : : Althou%h b( their constitutions the people have dele%ated the e:ercise of soverei%n po&ers to the
several depart'ents, the( have not thereb( divested the'selves of the soverei%nt(. 4he( retain in their
o&n hands, so far as the( have thou%ht it needful to do so, a po&er to control the %overn'ents the(
create, and the three depart'ents are responsible to and sub)ect to be ordered, directed, chan%ed or
abolished b( the'. But this control and direction 'ust be e:ercised in the le%iti'ate 'ode previousl(
a%reed upon. 4he voice of the people, actin% in their soverei%n capacit(, can be of le%al force onl( &hen
e:pressed at the ti'es and under the conditions &hich the( the'selves have prescribed and pointed out
b( the Constitution, or &hich, consistentl( &ith the Constitution, have been prescribed and pointed out
for the' b( statute2 and if b( an( portion of the people, ho&ever lar%e, an atte'pt should be 'ade to
interfere &ith the re%ular &or@in% of the a%encies of %overn'ent at an( other ti'e or in an( other 'ode
than as allo&ed b( e:istin% la&, either constitutional or statutor(, it &ould be revolutionar( in character,
and 'ust be resisted and repressed b( the officers &ho, for the ti'e bein%, represent le%iti'ate
%overn'ent.
7
Conse>uentl(, there is here no case of <the sprin% risin% above its source.< Nor is it one &here the peopleHs
soverei%n po&er has been rele%ated to a lesser plane than that of Con%ress. 9n choosin% to e:ercise self-
li'itation, there is no absence or lac@ of even a fraction of the soverei%n po&er of the people since self-
limitation itself is an expression of that sovereign power. 4he people have chosen to dele%ate and li'it their
soverei%n po&er b( virtue of the Constitution and are bound b( the para'eters that the( the'selves have
ordained. 5ther&ise, if the people choose to def( their self-i'posed constitutional restraints, &e &ill be faced
&ith a revolutionar( situation.
$

9t has repeatedl( been e'phasi=ed that ours is a democratic and republican state.
1
Even as &e affir', ho&ever,
that aspect of direct de'ocrac(, &e should not for%et that, first and fore'ost, &e are a constitutional
de'ocrac(. 4o uphold direct de'ocrac( at the e:pense of the funda'ental la& is to sanction, not a
constitutional, but an e:tra-constitutional recourse. 4his is clearl( be(ond the po&ers of the Court &ho, b(
soverei%n 'andate, is the %uardian and @eeper of the Constitution.
IN VIEW OF THE FOREGOING, 9 vote to DISMISS the petition in G.R. No. "1-"7..
CONSUELO YNARES-SANTIAGO
Associate /ustice
EN BANC
G.R. NO. 174153
RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED
VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND
VICTORINO F. BALAIS, petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BEN1AMIN T. TOLOSA, 1R., SUSAN V. OPLE AND CARLOS P. MEDINA, 1R., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS,LEONARDO SAN 1OSE, 1O1O PINEDA, DR. DARBY SANTIAGO, AND DR.
REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO 1OYO AGU1A, ANA THERESA HONTIVEROS-BARAQUEL,
oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, 1R. AND SENATORS SERGIO R.
OSMENA III, 1AMBY A.S. MADRIGAL, LUISA P. E1ERCIRO-ESTRADA, 1INGGOY ESTRADA,
ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
1OSEPH E1ERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-
intervenors,
1OSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L.
SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, 1R.,
oppositor-intervenor2
G.R. NO. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R. AND RENE A. Q. SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BEN1AMIN S. ABALOS, SR.
AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, 1R. ROMEO
A. BRAWNER, RENE V. SARMIENTO AND 1OHN DOE AND PETER DOE, respondents.
: ---------------------------------------------------------------------------------------- :
CONCURRING OPINION
SANDOVAL-GUTIERREZ, J.:
8o: populi vo: 3ei -- the voice of the people is the voice of God. Caution should be e:ercised in choosin%
oneHs battlecr(, lest it does 'ore har' than %ood to oneHs cause. 9n its ori%inal conte:t, the co'plete version of
this Latin phrase 'eans e:actl( the opposite of &hat it is fre>uentl( ta@en to 'ean. 9t ori%inated fro' a hol(
'an, the 'on@ Alcuin, &ho advised Charle'a%ne, <ne# audiendi .ui solent di#ere vo, pop%li vo, Dei .uum
tumultuositas "ul(i semper insaniae pro6ima sit-F 'eanin%, <And those people should not be listened to who
keep on saying, 'The voice of the people is the voice of God,' since the riotousness of the crowd is always
very close to madness.<
"
Perhaps, it is b( providence that the true 'eanin% of the Latin phrase is revealed upon
petitioners and their allies S that the( 'a( reflect upon the sincerity and authenticity of their <people's
initiative.<
0istor( has been a &itness to countless ini>uities co''itted in the na'e of God. Cars &ere &a%ed, despotis'
tolerated and oppressions )ustified S all these transpired as 'an boasted of GodHs i'pri'atur. 4oda(, petitioners
and their allies hu' the sa'e rall(in% call, convincin% this Court that the peopleHs initiative is the <voice of the
people< and, therefore, the <voice of God.< After a thorou%h consideration of the petitions, 9 have co'e to
reali=e that 'an, &ith his in%enuit( and arro%ance, has perfected the craft of i'itatin% the voice of God. 9t is
a%ainst this @ind of %enius that the Court 'ust %uard itself.
4he facts of the case are undisputed.
9n "##$, the Move'ent for PeopleHs 9nitiative sou%ht to e:ercise the po&er of initiative under 6ection , Article
D899 of the Constitution &hich reads*
Section 2. A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
Constitution nor oftener than once ever( five (ears thereafter,
The Congress shall provide for the implementation of the exercise of this right.
4he e:ercise &as th&arted b( a petition for prohibition filed &ith this Court b( 6enator Miria' 3efensor
6antia%o, et al., entitled <'iriam !efensor %antia(o- Ale6ander 8adilla and 'aria =sabel $n(pin- petitioners-
". ,ommission on +le#tions A,$'+)+,C- Jesus !elfin- Alberto 8edrosa and ,armen 8edrosa- in their
#apa#ities as foundin( members of the 8eople>s =nitiati"e for Reforms- 'odernization and A#tion A8=R'AC-
respondents.<
4he case &as doc@eted as G.R. No. "1.7. 5n March "#, "##1, this Court rendered its 3ecision
in favor of petitioners, holdin% that Republic Act No. $1.7 ,R.A. No. $1.7+, An A#t 8ro"idin( for a %/stem of
=nitiati"e and Referendum and Appropriatin( 9unds herefor, is <incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.< A
'a)orit( of ei%ht ,!+ /ustices full( concurred &ith this rulin%, &hile five ,7+ subscribed to the opposite vie&.
5ne ,"+ opined that there is no need to rule on the ade>uac( of R.A. No. $1.7.
5n 'otion for reconsideration, t&o ,+ of the ei%ht ,!+ /ustices reconsidered their positions. 5ne ,"+ filed an
inhibition and the other one ,"+ )oined the 'inorit( opinion. As a conse>uence, of the thirteen ,".+ /ustices &ho
participated in the deliberation, si: ,$+ voted in favor of the 'a)orit( opinion, &hile the other si: ,$+ voted in
favor of the 'inorit( opinion.
.

A fe& 'onths thereafter, or on 6epte'ber ., "##1, the Court dis'issed a si'ilar case, entitled 8eople>s
=nitiati"e for Reform- 'odernization and A#tion A8=R'AC ". ,ommission on +le#tions
-
on the %round that the
C5MELEC did not co''it %rave abuse of discretion &hen it dis'issed 8=R'A>s 8etition for =nitiati"e to
8ropose Amendments to the ,onstitution <it appearing that that it only complied with the dispositions in the
Decision of the Court in G.R. no. 127325 (Santiago v. C6)757C) promulgated on March 19, 1997, and
its Resolution of 1une 10, 1997." 6even ,1+ /ustices voted that there &as no need to re-e:a'ine its rulin%, as
re%ards the issue of the sufficienc( of R.A. No. $1.7. Another /ustice concurred, but on the different pre'ise
that the case at bar is not the proper vehicle for such re-e:a'ination. Aive ,7+ /ustice opined other&ise.
4his ti'e, another %roup @no&n as %i(aw n( 4a/an, in coordination &ith the Enion of Local Authorities of the
Philippines ,ELAP+, have %athered si%natures in support of the proposed a'end'ents to the Constitution,
&hich entail a chan%e in the for' of %overn'ent fro' bicameral-presidential to unicameral-parliamentary,
thus*
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
6ection ". ,"+ 4he le%islative and e:ecutive po&ers shall be vested in a unica'eral Parlia'ent &hich
shall be co'posed of as 'an( 'e'bers as 'a( be provided b( la&, to be apportioned a'on% the
provinces, representative districts, and cities in accordance &ith the nu'ber of their respective
inhabitants, &ith at least three hundred thousand inhabitants per district, and on the basis of a unifor'
and pro%ressive ratio. Each district shall co'prise, as far as practicable, conti%uous, co'pact and
ad)acent territor(, and each province 'ust have at least one 'e'ber.
,+ Each Me'ber of Parlia'ent shall be a natural-born citi=en of the Philippines, at least t&ent(-five
(ears old on the da( of the election, a resident of his district for at least one (ear prior thereto, and shall
be elected b( the >ualified voters of his district for a ter' of five (ears &ithout li'itation as to the
nu'ber thereof, e:cept those under the part(-list s(ste' &hich shall be provided for b( la& and &hose
nu'ber shall be e>ual to t&ent( per centu' of the total 'e'bership co'in% fro' the parlia'entar(
districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:
6ection ". 4here shall be a President &ho shall be the 0ead of 6tate. 4he e:ecutive po&er shall be
e:ercised b( a Pri'e Minister, &ith the assistance of the Cabinet. 4he Pri'e Minister shall be elected b(
a 'a)orit( of all the Me'bers of Parlia'ent fro' a'on% the'selves. 0e shall be responsible to the
Parlia'ent for the pro%ra' of %overn'ent.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a
unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:
6ection ". ,"+ 4he incu'bent President and 8ice President shall serve until the e:piration of their ter'
at noon on the thirtieth da( of /une ;"; and shall continue to e:ercise their po&ers under the "#!1
Constitution unless i'peached b( a vote of t&o thirds of all the 'e'bers of the interi' parlia'ent.
,+ 9n case of death, per'anent disabilit(, resi%nation or re'oval fro' office of the incu'bent President,
the incu'bent 8ice President shall succeed as President. 9n case of death, per'anent disabilit(,
resi%nation or re'oval fro' office of both the incu'bent President and 8ice President, the interi'
Pri'e Minister shall assu'e all the po&ers and responsibilities of Pri'e Minister under Article 899 as
a'ended.
retained and renu'bered se>uentiall( as 6ection , ad seriatium up to $, unless the( are inconsistent
&ith the Parlia'entar( s(ste' of %overn'ent, in &hich case, the( shall be a'ended to confor' &ith a
unica'eral parlia'entar( for' of %overn'ent2 provided, ho&ever, that an( and all references therein to
<Con%ress,< <6enate,< <0ouse of Representatives< and <0ouses of Con%ress< shall be chan%ed to read
<Parlia'ent2< that an( and all references therein to <Me'ber,s+ of Con%ress,< <6enator,s+< or
<Me'ber,s+ of Parlia'ent< and an( and all references to the <President< andFor <Actin% President< shall
be chan%ed to read <Pri'e Minister.<
6ection .. Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith the
e:ception of 6ections ", , . and - of Article 899 of the "#!1 Constitution &hich are hereb( be a'ended
and 6ections 1, !, #, ";, "" and " &hich are hereb( deleted, all other 6ections of Article 899 shall be
retained and renu'bered se>uentiall( as 6ection , ad seriati' up to "-, unless the( shall be inconsistent
&ith 6ection " hereof, in &hich case the( shall be dee'ed a'ended so as to confor' to a unica'eral
Parlia'entar( 6(ste' of %overn'ent2 provided, ho&ever, that an( and all references therein to
<Parlia'ent2< that an( and all references therein to <Me'ber,s+ of Con%ress,< <6enator,s+< or
<Me'ber,s+ of the 0ouse of Representatives< shall be chan%ed to read as <Me'ber,s+ of Parlia'ent<
and an( and all references to the <President< andFor <Actin% President< shall be chan%ed to read <Pri'e
Minister.<
6ection -. ,"+ 4here shall e:ist, upon the ratification of these a'end'ents, an interi' Parlia'ent &hich
shall continue until the Me'bers of the re%ular Parlia'ent shall have been elected and shall have
>ualified. 9t shall be co'posed of the incu'bent Me'bers of the 6enate and the 0ouse of
Representatives and the incu'bent Me'bers of the Cabinet &ho are heads of e:ecutive depart'ents.
,+ 4he incu'bent 8ice President shall auto'aticall( be a Me'ber of Parlia'ent until noon of the
thirtieth da( of /une ;";. 0e shall also be a 'e'ber of the cabinet and shall head a 'inistr(. 0e shall
initiall( convene the interi' Parlia'ent and shall preside over its sessions for the election of the interi'
Pri'e Minister and until the 6pea@er shall have been elected b( a 'a)orit( vote of all the 'e'bers of
the interi' Parlia'ent fro' a'on% the'selves.
,.+ 6enators &hose ter' of office ends in ;"; shall be Me'bers of Parlia'ent until noon of the
thirtieth da( of /une ;";.
,-+ Cithin fort(-five da(s fro' ratification of these a'end'ents, the interi' Parlia'ent shall convene
to propose a'end'ents to, or revisions of, this Constitution consistent &ith the principles of local
autono'(, decentrali=ation and a stron% bureaucrac(.
6ection 7. ,"+ 4he incu'bent President, &ho is the Chief E:ecutive, shall no'inate, fro' a'on% the
'e'bers of the interi' Parlia'ent, an interi' Pri'e Minister, &ho shall be elected b( a 'a)orit( vote
of the 'e'bers thereof. 4he interi' Pri'e Minister shall oversee the various 'inistries and shall
perfor' such po&ers and responsibilities as 'a( be dele%ated to hi' b( the incu'bent President.<
,+ 4he interi' Parlia'ent shall provide for the election of the 'e'bers of Parlia'ent &hich shall be
s(nchroni=ed and held si'ultaneousl( &ith the election of all local %overn'ent officials. 4he dut(
elected Pri'e Minister shall continue to e:ercise and perfor' the po&ers, duties and responsibilities of
the interi' Pri'e Minister until the e:piration of the ter' of the incu'bent President and 8ice
President.
Sigaw ng Bayan prepared si%nature sheets, and &ritten on its upper ri%ht hand portion is the abstract of the
proposed a'end'ents, >uoted as follo&s*
Abstract* 3o (ou approve of the a'end'ent of Article 89 and 899 of the "#!1 Constitution, chan%in%
the for' of %overn'ent fro' the present bica'eral-presidential to a unica'eral-parlia'entar( s(ste' of
%overn'ent, in order to achieve %reater efficienc(, si'plicit( and econo'( in %overn'ent2 and
providin% an Article D8999 as 4ransitor( Provisions for the orderl( shift fro' one s(ste' to anotherI
5n Au%ust 7, ;;$, Raul L. La'bino and Enrico B. Au'entado, herein petitioners, filed &ith the C5MELEC
a 8etition for =nitiati"e to Amend the ,onstitution.
7
Aive ,7+ da(s thereafter, the( filed an A'ended Petition
alle%in% that the( are filin% the petition in their own behalf and together with some 6.3 million registered
voters who have affixed their signatures on the signature sheets attached thereto. 4he( clai'ed that the
si%natures of re%istered voters appearin% on the si%nature sheets, constitutin% at least t&elve per #ent ,"M+ of
all re%istered voters in the countr(, &herein each le%islative district is represented b( at least three per #ent ,.M+
of all the re%istered voters, &ere verified b( their respective cit( or 'unicipal election officers.
6everal or%ani=ations opposed the petition.
$

9n a Resolution dated Au%ust .", ;;$, the C5MELEC denied due course to the petition, citin% as basis this
CourtHs rulin% in %antia(o, per'anentl( en)oinin% it <from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.<
0ence, the present petition for certiorari and 'anda'us pra(in% that this Court set aside the C5MELEC
Resolution and direct the latter toco'pl( &ith 6ection -, Article D899 of the Constitution, &hich provides*
6ec. - : : :
b( the Co''ission on Elections of the sufficienc( of the petition.
9 vote to dis'iss the petition of La'bino, et al. in G.R. No. "1-"7. and %rant the petition of Mar-len Abi%ail
Bina(, et al. in G.R. No. "1-##. 0ere, petitioners pra( that the C5MELEC Chair'an and Co''issioners be
re>uired to sho& &h( the( should not be punished for conte'pt
1
of court for disre%ardin% the per'anent
in)unction issued b( this Court in %antia(o.
I
/espon+ent C6)757C +i+ not act with g!ave a&%se o$ +isc!etion
Cithout necessaril( brushin% aside the other i'portant issues, 9 believe the resolution of the present petition
hin%es on this sin%ular issue -- did the ,$'+)+, #ommit (ra"e abuse of dis#retion when it denied )ambino- et
al.>s petition for initiati"e to amend the ,onstitution on the basis of this ,ourt>s !e#ision in %antia(o ".
,$'+)+,I
9n other &ords, re%ardless of ho& the other re'ainin% issues are resolved, still, the ulti'ate (ardstic@ is the
attendance of <%rave abuse of discretion< on the part of the C5MELEC.
/urisprudence teaches that an act of a court or tribunal 'a( onl( be considered as co''itted in %rave abuse of
discretion &hen the sa'e &as perfor'ed in a capricious or whimsical e:ercise of )ud%'ent. 4he abuse of
discretion 'ust be so patent and gross as to a'ount to an evasion of a positive duty or to a virtual refusal to
perform a duty en)oined b( la&, or to act at all in contemplation of law, as &here the po&er is e:ercised in
an arbitrary and despotic 'anner b( reason of passion or personal hostility.
!

4he Resolution of respondent C5MELEC den(in% due course to the petition for initiative on the basis of a case
,%antia(o+ decided b( this Court cannot, in an( &a(, be characteri=ed as <capricious or whimsical,< <patent
and gross,< or <arbitrary and despotic.< 5n the contrar(, it &as the 'ost prudent course to ta@e. 9t 'ust be
stressed that in 6antia%o, this Court per'anentl( en)oins respondent C5MELEC <from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted.< 9t bein% a fact that Con%ress has not enacted a sufficient la&, respondent
C5MELEC has no alternative but to adhere to %antia(o. 5ther&ise, it is vulnerable to a citation for conte'pt.
As succinctl( stated b( Chief /ustice Arte'io 8. Pan%aniban ,then Associate /ustice+ in his 6eparate 5pinion in
the subse>uent case of 8=R'A "s. ,$'+)+,*
#

: : : 9 cannot fault the Co'elec for co'pl(in% &ith the rulin% even if it, too, disa%reed &ith said
decisionHs ratio decidendi. Respondent Co'elec &as directl( en)oined b( the hi%hest Court of the land. 9t
had no choice but to obe(. 9ts obedience cannot constitute %rave abuse of discretion. Refusal to act on
the P9RMA petition &as the onl( recourse open to the Co'elec. An( other 'ode of action &ould have
constituted defiance of the Court and &ould have been struc@ do&n as %rave abuse of discretion and
contu'acious disre%ard of this CourtHs supre'ac( as the final arbiter of )usticiable controversies.
9t need not be e'phasi=ed that in our )udicial hierarch(, this Court rei%ns supre'e. All courts, tribunals and
ad'inistrative bodies e:ercisin% >uasi-)udicial functions are obli%ed to confor' to its pronounce'ents. It has
the last word on what the law is; it is the final arbiter of any justifiable controversy. In other words, there
is only one Supreme Court from whose decisions all other courts should take their bearings.
";
As a
&arnin% to lo&er court )ud%es &ho &ould not adhere to its rulin%s, this Court, in 8eople ". %antos,
""
held*
No&, if a )ud%e of a lo&er Court feels, in the fulfill'ent of his 'ission of decidin% cases, that the
application of a doctrine pro'ul%ated b( this 6uperiorit( is a%ainst his &a( of reasonin%, or a%ainst his
conscience, he 'a( state his opinion on the 'atter, but rather than disposin% of the case in accordance
&ith his personal vie&s he 'ust first thin@ that it is his dut( to appl( the la& as interpreted b( the
0i%hest Court of the Land, and that an( deviation fro' a principle laid do&n b( the latter &ould
unavoidabl( cause, as a se>uel, unnecessar( inconveniences, dela(s and e:penses to the liti%ants. And if
despite of &hat is here said, a /ud%e still believes that he cannot follo& 5ur rulin%s, then he has no other
alternative than to place hi'self in the position that he could properl( avoid the dut( of havin% to render
)ud%'ent on the case concerned ,Art. #, C.C.+, and he has onl( one le%al &a( to do that.
Clearl(, respondent C5MELEC did not %ravel( abuse its discretion in dis'issin% the petition of La'bino, et al.
for it 'erel( follo&ed this CourtHs rulin% in %antia(o.
6i%nificantl(, in 8=R'A "s. ,$'+)+,,
"
a unanimous Court i'plicitl( reco%ni=ed that its rulin% in 6antia%o
is the established doctrine and that the C5MELEC did not co''it %rave abuse of discretion in invo@in% it,
thus*
onl( co'plied &ith the dispositions of this Court in G.R. No. "1.7 pro'ul%ated on March "#, "##1,
and its resolution on /une ";, "##1.
9ndeed, 9 cannot characteri=e as a <%rave abuse of discretion< the C5MELECHs obedience and respect to the
pronounce'ent of this Court in %antia(o.
II
The +oct!ine o$ sta!e +ecisis
&a!s the !eBe,amination o$ Santiago
9t cannot be denied that in %antia(o, a 'a)orit( of the 'e'bers of this Court or ei%ht ,!+ /ustices ,as a%ainst five
,7+ /ustices+ concurred in declarin% R.A. No. $1.7 an insufficient la&. Chen the 'otion for reconsideration &as
denied via an e>uall(-divided Court or a $-$ vote, it does not 'ean that the 3ecision &as overturned. 9t onl(
sho&s that the opposite vie& fails to 'uster enou%h votes to 'odif( or reverse the 'a)orit( rulin%. 4herefore,
the ori%inal 3ecision &as upheld.
".
9n 5rti%as and Co'pan( Li'ited 8artnership "s. *elas#o,
"-
this Court ruled
that the denial of a motion or reconsideration signifies that the ground relied upon have been found,
upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of
the judgment or final order.
Cith %antia(o bein% the onl( i'pedi'ent to the instant petition for initiative, petitioners persistentl( stress that
the doctrine of stare de#isis does not bar its re-e:a'ination.
9 a' not convinced. 4he 'a:i' stare de#isis et non .uieta mo"ere translates <stand by the decisions and
disturb not what is settled.<
"7
As used in our )urisprudence, it 'eans that <once this Court has laid down a
principle of law as applicable to a certain state of facts, it would adhere to that principle and apply it to
all future cases in which the facts are substantially the same as in the earlier controversy.<
"$
4here is considerable literature about &hether this doctrine of stare de#isis is a %ood or bad one, but the doctrine
is usuall( )ustified b( ar%u'ents &hich focus on the desirabilit( of stabilit( and certaint( in the la& and also b(
notions of )ustice and fairness. /ustice Ben)a'in Cardo=o in his treatise, he Nature of the Judi#ial 8ro#ess
stated*
9t &ill not do to decide the sa'e >uestion one &a( bet&een one set of liti%ants and the opposite &a(
bet&een another. 'If a group of cases involves the same point, the parties expect the same decision.
It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided
against me yesterday when I was a defendant, I shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it
would be an infringement, material and moral, of my rights." Adherence to precedent 'ust then be
the rule rather than the e:ception if liti%ants are to have faith in the even-handed ad'inistration of
)ustice in the courts.
"1

4hat the doctrine of stare de#isis is related to )ustice and fairness 'a( be appreciated b( considerin% the
observation of A'erican philosopher Cillia' W. Aran@ena as to &hat constitutes in)ustice*
The paradigm case of injustice is that in which there are two similar individuals in similar
circumstances and one of them is treated better or worse than the other. 9n this case, the cr( of
in)ustice ri%htl( %oes up a%ainst the responsible a%ent or %roup2 and unless that a%ent or %roup can
establish that there is so'e relevant dissi'ilarit( after all bet&een the individuals concerned and their
circu'stances, he or the( &ill be %uilt( as char%ed.
"!

Althou%h the doctrine of stare de#isis does not prevent re-e:a'inin% and, if need be, overrulin% prior decisions,
<9t is : : : a funda'ental )urisprudential polic( that prior applicable precedent usuall( 'ust be follo&ed even
thou%h the case, if considered ane&, 'i%ht be decided differentl( b( the current )ustices. This policy x x x 'is
based on the assumption that certainty, predictability and stability in the law are the major objectives of
the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships
with reasonable assurance of the governing rules of law.
"#
Accordin%l(, a part( ur%in% overrulin% a
precedent faces a ri%htl( onerous tas@, the difficult( of &hich is rou%hl( proportional to a nu'ber of factors,
includin% the age of the precedent, the nature and extent of public and private reliance on it, and its
consistenc( or inconsistenc( &ith other related rules of la&. 0ere, petitioners failed to dischar%e their tas@.
%antia(o ". ,$'+)+, &as decided b( this Court on March "#, "##1 or 'ore than nine ,#+ (ears a%o. 3urin%
that span of ti'e, the Ailipino people, specificall( the la& practitioners, la& professors, la& students, the entire
)udiciar( and liti%ants have reco%ni=ed this CourtHs 3ecision as a precedent. 9n fact, the %antia(o doctrine &as
applied b( this Court in the subse>uent case of P9RMA. Even the le%islature has relied on said 3ecision, thus,
several bills have been introduced in both 0ouses of Con%ress to cure the deficienc(. 9 cannot fatho' &h( it
should be overturned or set aside 'erel( on the basis of the petition of La'bino, et al. 9ndeed, this CourtHs
conclusion in %antia(o that R.A. No. $1.7 is inco'plete, inade>uate or &antin% in essential ter's and
conditions insofar as initiative on a'end'ents to the Constitution is concerned re'ains a precedent and 'ust be
upheld.
III
The p!opose+ constit%tional changes constit%te !evisions an+ not me!e amen+ments
Article D899 of the "#!1 Constitution la(s do&n the 'eans for its a'end'ent and revision. 4hus*
6ection ". Any amendment to, or revision of, this Constitution 'a( be proposed b(*
,"+ 4he Con%ress, upon a vote of three-fourths of all its 'e'bers2 or
,+ A Constitutional Convention.
6ection . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative upon a petition of at least t&elve per #entum of the total nu'ber of re%istered votes, of &hich
: : :. ,E'phasis supplied+
At the outset, it 'ust be underscored that initiative and referendum, as 'eans b( &hich the people can
directl( propose chan%es to the Constitution, &ere not provided for in the "#.7 and "#1. Constitutions. 4hus,
under these t&o ,+ Constitutions, there &as no de'and to dra& the distinction bet&een an a'end'ent and a
revision, both bein% %overned b( a unifor' process. 4his is not so under our present Constitution. 4he
distinction bet&een an a'end'ent and a revision beco'es crucial because onl( a'end'ents are allo&ed under
the s(ste' of peopleHs initiative. Revisions are &ithin the e:clusive do'ain of Con%ress, upon a vote of three-
fourths of all its 'e'bers, or of a Constitutional Convention.
4he deliberations of the "#!$ Constitutional Co''ission is e:plicit that 6ection , Article D899 covers onl(
amendments, thus*
4he sponsor, Co''issioner 6uare=, is reco%ni=ed.
MR. 6EAREK* 4han@ (ou, Mada' President.
%iven us last ni%ht, &e sub'itted this afternoon a co'plete Co''ittee Report No. 1 &hich e'bodies the
proposed provision %overnin% initiative. 4his is no& covered b( 6ection of the co'plete co''ittee
report. Cith the per'ission of the Me'bers, 'a( 9 >uote 6ection *
su%%ested on the theor( that this 'atter of initiative &hich ca'e about because of the e:traordinar(
e'bodied in 6ection ". 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.
::: ::: :::
MR. MAAMB5NG* Mada' President, &ill the distin%uished proponent of the a'end'ent (ield to a
fe& >uestionsI
MR. 3A893E* Cith pleasure, Mada' President.
MR. MAAMB5NG* My first question, Commissioner Davide's proposed amendment on line I
refers to "amendments." Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words "amendments" and "revision?<
MR. 3A893E* No, it does not, because <a'end'ents< and <revision< should be covered b( 6ection ".
So insofar as initiative is concerned, it can only relate to "amendments" not "revision"
MR. MAAMB5NG* 4han@ (ou.
;
Considerin% that the initiative on the Constitution onl( per'its a'end'ents, it is i'perative to e:a'ine
&hether petitionersH proposed chan%es parta@e of the nature of a'end'ents, not revisions.
4he petition for initiative filed &ith the C5MELEC b( La'bino, et al. sou%ht to a'end the follo&in%
provisions of the "#!1 Constitution* 6ections ", , ., -, 7, $, and 1 of Article 89 ,4he Le%islative 3epart'ent+2
6ections ", , . and - of Article 899 ,4he E:ecutive 3epart'ent+. 9t further includes Article D8999 ,4ransitor(
Provisions+ for the purpose of insurin% an orderl( transition fro' the bica'eral-presidential to a unica'eral-
parlia'entar( for' of %overn'ent.
6uccinctl(, the proposals envision a chan%e in the for' of %overn'ent, fro' bica'eral-presidential to
unica'eral-parlia'entar(2 conversion of the present Con%ress of the Philippines to an 9nteri' National
Asse'bl(2 chan%e in the ter's of Me'bers of Parlia'ent2 and the election of a Pri'e Minister &ho shall be
vested &ith e:ecutive po&er.
Petitioners contend that the proposed chan%es are in the nature of a'end'ents, hence, &ithin the covera%e of a
<peopleHs initiative.<
9 disa%ree.
4he noted constitutionalist, Aather /oa>uin G. Bernas, 6./., &ho &as also a 'e'ber of the "#!$ Constitutional
Co''ission, characteri=ed an a'end'ent and a revision to the Constitution as follo&s*
An a'end'ent envisa%es an alteration of one or a few specific and separable provisions. 4he %uidin%
are )ud%ed to be dan%erous. In revision however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the document to determine how and to what extent they should be
altered.
"
5bviousl(, both <revision< and a'end'ent< connote chan%e2 an( distinction bet&een the t&o 'ust be based
upon the de%ree of chan%e conte'plated. 9n Mell/ ". )ain(,
the 6upre'e Court of Michi%an 'ade the

follo&in% co'parison of the t&o ter's*
<Revision< and <a'end'ent< have the co''on characteristics of &or@in% chan%es in the charter, and
are so'eti'es used in e:actl( the sa'e sense but there is an essential difference bet&een the'.
"Revision" implies a reexamination of the whole law and a redraft without obligation to maintain
the form, scheme, or structure of the old. As applied to funda'ental la&, such as a constitution or
charter, it su%%ests a convention to e:a'ine the &hole sub)ect and to prepare and sub'it a ne&
instru'ent &hether the desired chan%es fro' the old are fe& or 'an(. Amendment implies
continuance of the general plan and purpose of the law, with corrections to better accomplish its
purpose. Basicall(, revision su%%ests funda'ental chan%e, &hile a'end'ent is a correction of detail.
Althou%h there are so'e authorities &hich indicate that a chan%e in a cit(Hs for' of %overn'ent 'a( be
acco'plished b( a process of <a'end'ent,< the cases &hich so hold see' to involve statutes &hich onl(
distin%uish bet&een a'end'ent and totall( ne& charters.
.
0o&ever, as in Maine la&, &here the statute
authori=in% the chan%es distin%uishes bet&een <charter a'end'ent< and <charter revision,< it has been held that
"(a) change in the form of government of a home rule city may be made only by revision of the city
charter, not by its amendment."
-

9n su''ar(, it &ould see' that an( 'a)or chan%e in %overn'ental for' and sche'e &ould probabl( be
interpreted as a <revision< and should be achieved throu%h the 'ore thorou%h process of deliberation.
Althou%h, at first %lance, petitionersH proposed chan%es appear to cover isolated and specific provisions onl(,
ho&ever, upon careful scrutin(, it beco'es clear that the proposed changes will alter the very structure of
our government and create multifarious ramifications. 9n other &ords, the proposed chan%es &ill have a
<do'ino effect< or, 'ore appropriatel(, <ripple effect< on other provisions of the Constitution.
At this )uncture, it 'ust be e'phasi=ed that the po&er reserved to the people to effect chan%es in the
Constitution includes the po&er to a'end an(section in such a 'anner that the proposed chan%e, if approved,
&ould "be complete within itself, relate to one subject and not substantially affect any other section or
article of the Constitution or require further amendments to the Constitution to accomplish its
purpose."
7
4his is clearl( not the case here.
9irstl/, a shift fro' a presidential to a parlia'entar( for' of %overn'ent affects the &ell-enshrined doctrine of
separation of po&ers of %overn'ent, e'bodied in our Constitution, b( providin% for an E:ecutive, Le%islative
and /udiciar( Branches. 9n a Parlia'entar( for' of %overn'ent, the E:ecutive Branch is to a certain de%ree,
dependent on the direct or indirect support of the Parlia'ent, as e:pressed throu%h a <vote of confidence.< To
my mind, this doctrine of separation of powers is so interwoven in the fabric of our Constitution, that any
change affecting such doctrine must necessarily be a revision.
9n '#9adden "s. Jordan-
$
the California 6upre'e Court ruled as follo&s*
9t is thus clear that that a revision of the Constitution 'a( be acco'plished onl( throu%h ratification b(
the people of a revised constitution proposed b( a convention called for that purpose : : :.
Consequently, if the scope of the proposed initiative measure now before us is so broad that if such
measure became law a substantial revision of our present state Constitution would be effected,
then the measure may not properly be submitted to the electorate until and unless it is first agreed
upon by a constitutional convention. : : :.
%e#ondl/, the shift fro' a bica'eral to a unica'eral for' of %overn'ent is not a 'ere a'end'ent, but is in
actualit( a revision, as set forth in Adams ". Gunter
1
*
4he proposal here to a'end 6ection 9 of Article 999 of the "#$! 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, &hich has been in e:istence in the
Enited 6tates Con%ress and in all of the states of the nation, e:cept one, since the earliest da(s. It would
be difficult to visualize a more revolutionary change. 4he concept of a 0ouse and a 6enate is basic in
the A'erican for' of %overn'ent. It would not only radically change the whole pattern of the
government in this state and tear apart the whole fabric of the Constitution, but would even affect
the physical facilities necessary to carry on government.
hirdl/, the proposed chan%es, on their face, si%nif( revisions rather than a'end'ents, especiall(, &ith the
inclusion of the follo&in% <o'nibus provision<*
C. Aor the purpose of insurin% an orderl( transition fro' the bica'eral-Presidential to a unica'eral-
Parlia'netar( for' of %overn'ent, there shall be a ne& Article D8999, entitled <4ransitor( Provisions<
&hich shall read, as follo&s*
: : : : : : : : :
6ection .. Epon the e:piration of the ter' of the incu'bent President and 8ice-President, &ith the
e:ceptions of 6ection ",,. and - of Article 899 of the "#!1 Constitution &hich are hereb( a'ended : :
: : : : and all other 6ections of Article 899 shall be retained and nu'bered se>uentiall( as 6ection , ad
seriati' up to "-, 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 : : : : :
: .
: : : : : : : : :
6ection -. ,"+ : : :
,.+ Cithin fort(-five da(s fro' ratification of these a'end'ents, the 9nteri' Parlia'ent shall convene
to propose a'end'ents to, or revisions of, this Constitution, consistent &ith the principles of local
4he above provisions &ill necessaril( result in a <ripple effect< on the other provisions of the Constitution to
'a@e the' confor' to the >ualities of unica'eral-parlia'entar( for' of %overn'ent. Cith one s&eepin%
stro@e, these proposed provisions a%tomatically revise so'e provisions of the Constitution. 9n '#9adden, the
sa'e practice &as considered b( the Court to be in the nature of substantial revision, necessitating a
constitutional convention. 9 >uote the pertinent portion of its rulin%, thus*
4here is in the 'easure itself, no atte'pt to enu'erate the various and 'an( articles and sections of our
present Constitution &hich &ould be affected, replaced or repealed. 9t purports onl( to add one ne&
article but its fra'ers found it necessar( to include the o'nibus provision ,subdivision ,1+ of section
D99+ that <9f an( section, subsection, sentence, clause or phrase of the constitution is in conflict &ith an(
of the provisions of this article, such section, subsection, sentence, clause, or phrase is to the e:tent of
such conflict hereb( repealed. : : : Conse>uentl(, if the scope of the proposed intitiative 'easure no&
before us is so broad that if such 'easure beco'e la& a substantial revision of our present state
Constitution &ould be be effected, then the 'easure 'a( not properl( be sub'itted to the electorate
until and unless it is first a%reed upon b( a constitutional convention.
!

Endoubtedl(, the chan%es proposed b( the petitioners are not 'ere a'end'ents &hich &ill onl( affect the
Articles or 6ections sou%ht to be chan%ed. Rather, the( are in the nature of revisions &hich &ill affect
considerable portions of the Constitution resultin% in the alteration of our for' of %overn'ent. 4he proposed
chan%es cannot be ta@en in isolation since these are connected or <interloc@ed< &ith the other provisions of our
Constitution. Accordin%l(, it has been held that* <If the changes attempted are so sweeping that it is
necessary to include the provisions interlocking them, then it is plain that the plan would constitute a
recasting of the whole Constitution and this, we think, it was intended to be accomplished only by a
convention under Section 2 which has not yet been disturbed.<
#

9 therefore conclude that since the proposed chan%es parta@e of the nature of a revision of the Constitution, then
the( cannot be the sub)ect of an initiative. 5n this 'atter, Aather Bernas e:pressed this insi%ht*
But &h( li'it initiative and referendu' to si'ple a'end'entsI 4he ans&er, &hich one can easil( %lean
fro' the rather lon% deliberation on initiative and referendu' in the "#!$ Constitutional Co''ission, is
practicalit(. 9n other &ords, &ho is to for'ulate the revision or ho& is it to be for'ulatedI Revision, as
concretel( bein% proposed no&, is nothin% less than a rebuilding of the Philippine constitutional
structure. Cho &ere involved in for'ulatin% the structureI Chat debates ensuedI Chat records are
there for future use in interpretin% the provisions &hich 'a( be found to be unclearI
9n a deliberative bod( li@e Con%ress or a Constitutional Convention, decisions are reached after 'uch
purif(in% debate. And &hile the deliberations proceed, the public has the opportunit( to %et involved. 9t
is onl( after the &or@ of an authori=ed bod( has been co'pleted that it is presented to the electorate for
final )ud%'ent. Careful debate is important because the electorate tends to accept what is
presented to it even sight unseen.
.;
I#
/.. No. 2<1; is ins%$$icient to implement the People8s initiative
6ection , Article D899 of the "#!1 Constitution reads*
Section 2. A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
Constitution nor oftener than once ever( five (ears thereafter,
The Congress shall provide for the implementation of the exercise of this right.
5n its face, 6ection is not a self-e:ecutor( provision. 4his 'eans that an enablin% la& is i'perative for its
i'ple'entation. 4hus, Con%ress enacted R.A. No. $1.7 in order to breathe life into this constitutional
provision. 0o&ever, as previousl( narrated, this Court struc@ the la& in %antia(o for bein% incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on a'end'ents to the
Constitution is concerned.
4he passa%e of ti'e has done nothin% to chan%e the applicabilit( of R.A. No. $1.7. Con%ress neither a'ended
it nor passed a ne& la& to suppl( its deficiencies.
Not&ithstandin% so, this Court is bein% persuaded to ta@e a .$;-de%ree turn, enu'eratin% three ,.+ )ustifications
&h( R.A. No. $1.7 'ust be considered a sufficient la&, thus*
"+ 4he text of R.A. No. $1.7 is replete with references to the right of people to initiate chan%es to
the Constitution2
+ 4he legislative history of R.A. No. $1.7 reveals the clear intent of the la&'a@ers to use it as
instru'ent to i'ple'ent the peopleHs initiative2 and
.+ 4he sponsorship speeches b( the authors of R.A. No. $1.7 de'onstrate the legislative intent to use
it as instru'ent to i'ple'ent peopleHs initiative.
9 re%ret to sa( that the fore%oin% )ustifications are &antin%.
A thorou%h readin% of R.A. No. $1.7 leads to the conclusion that it covers onl( initiatives on national and local
legislation. 9ts references to initiatives on the Constitution are few, isolated and misplaced. Enli@e in the
initiatives on national and local le%islation, &here R.A. No. $1.7 provides a detailed, lo%ical, and e:haustive
enu'eration on their i'ple'entation,
."
ho&ever, as re%ards initiative on the Constitution, the la& 'erel(*
,a+ 'entions the &ord <Constitution< in 6ection 2
.
,b+ defines <initiative on the Constitution< and includes it in the enu'eration of the three s(ste's of
initiative in 6ection .2
..
,c+ spea@s of <plebiscite< as the process b( &hich the proposition in an initiative on the Constitution 'a(
be approved or re)ected b( the people2
.-
,d+ reiterates the constitutional re>uire'ents as to the nu'ber of voters &ho should si%n the petition2
.7

and
,e+ provides the date for the effectivit( of the approved proposition.
.$
9n other &ords, R.A. No. $1.7 does not specif( the procedure ho& initiative on the Constitution 'a( be
acco'plished. 4his is not the enablin% la& conte'plated b( the Constitution. As pointed out b( oppositor-
intervenor Alternative La& Groups 9nc., since the pro'ul%ation of the 3ecision in 6antia%o, various bills have
been introduced in both 0ouses of Con%ress providin% for a complete and adequate process for peopleHs
initiative, such as*
T Na'es, si%natures and addresses of petitioners &ho shall be re%istered voters2
T A state'ent of the provision of the Constitution or an( part thereof sou%ht to be a'ended and the
proposed a'end'ent2
T 4he 'anner of initiation - in a con%ressional district throu%h a petition b( an( individual, %roup,
political part( or coalition &ith 'e'bers in the con%ressional district2
T 4he lan%ua%e used* the petition should be printed in En%lish and translated in the local lan%ua%e2
T 6i%nature stations to be provided for2
T Provisions pertainin% to the need and 'anner of postin%, that is, after the si%natures shall have been
verified b( the Co''ission, the verified si%natures shall be posted for at least thirt( da(s in the
respective 'unicipal and cit( halls &here the si%natures &ere obtained2
T Provisions pertainin% to protests allo&ed an( protest as to the authenticit( of the si%natures to be filed
&ith the C5MELEC and decided &ithin si:t( ,$;+ da(s fro' the filin% of said protest.
None of the above necessar( details is provided b( R.A. No. $1.7, thus, de'onstratin% its incompleteness and
inadequacy.
#
Petitione!s a!e not P!ope! Pa!ties to
File the Petition $o! Initiative
#I
The Petition $o! Initiative File+ with the C6)757C Does not Comply with Section 2, !ticle "#II o$ the
Constit%tion an+ /.. No. 2<1;
9 shall discuss the above issues to%ether since the( are interrelated and inseparable. 4he deter'ination of
&hether petitioners are proper parties to file the petition for initiative in behalf of the alle%ed $.. 'illion voters
will require an examination of whether they have complied with the provisions of Section 2, Article XVII
4o reiterate, 6ection , Article D899 of the Constitution provides*
6ection . A'end'ents to this Constitution 'a( li@e&ise 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
&hich ever( le%islative district 'ust be represented b( at least three per centu' of the re%istered voters
therein. No a'end'ent under this section shall be authori=ed &ithin five (ears follo&in% the ratification
of this Constitution nor oftener than once ever( five (ears thereafter.
4he Con%ress shall provide for the i'ple'entation of the e:ercise of this ri%ht. ,Enderscorin% supplied+
4he 'andate of the above constitutional provisions is definite and cate%orical. Aor a people's initiative to
prosper, the follo&in% re>uisites 'ust be present*
". 9t is <the people< themselves &ho 'ust <directly propose< <amendments< to the Constitution2
. 4he proposed amendments 'ust be contained in <a petition of at least twelve per centum of the
total number of registered voters2< and
.. 4he re>uired 'ini'u' of "M of the total nu'ber of re%istered voters <must be represented by at
least three per centum of the registered voters< of <every legislative district.<
9n this case, ho&ever, the above re>uisites are not present.
4he petition for initiative &as filed &ith the C5MELEC b( petitioners La'bino and Au'entado, two
registered voters. As sho&n in the F*erifi#ationE,ertifi#ation with Affida"it of NonD9orum %hoppin(F
contained in their petition, the( alle%ed under oath that the( have caused the preparation of the petition in their
personal capacit( as re%istered voters <and as representatives< of the supposed $.. 'illion re%istered voters.
4his %oes to sho& that the >uestioned petition &as not initiated directl( b( the $.. 'illion people &ho alle%edl(
co'prised at least "M of the total nu'ber of re%istered voters, as re>uired b( 6ection . Moreover, nowhere
in the petition itself could be found the signatures of the 6.3 million registered voters. 5nl( the si%natures
of petitioners La'bino and Au'entado &ere affi:ed therein <as representatives< of those $.. 'illion people.
Certainl(, that is not the petition for people's initiative conte'plated b( the Constitution.
Petitioners La'bino and Au'entado have no authority &hatsoever to file the petition <as representatives< of
the alle%ed $.. 'illion re%istered voters. Such act of representation is constitutionally proscribed. 4o repeat,
6ection strictl( re>uires that a'end'ents to the Constitution shall be <directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered voters.<
5bviousl(, the phrase <directly proposed b( the people< excludes an( person actin% as representative or a%ent
of the "M of the total nu'ber of re%istered voters. 4he Constitution has besto&ed upon the people the ri%ht to
directly propose a'end'ents to the Constitution. 6uch ri%ht cannot be usurped b( an(one under the %uise of
bein% the peopleHs representative. 6i'pl( put, 6ection does not recognize acts of representation. Aor it is onl(
<the people< ,co'prisin% the 'ini'u' of "M of the total nu'ber of re%istered voters, of &hich ever(
le%islative district 'ust be represented b( at least three per centu' of the re%istered voters therein+ &ho are the
proper parties to initiate a petition proposin% a'end'ents to the Constitution. 8eril(, the petition filed &ith
the C5MELEC b( herein petitioners La'bino and Au'entado is not a peopleHs initiative. Necessaril(, it 'ust
fail.
Cororarill(, the plea that this Court should <hear< and <heed< <the peopleHs voice< is baseless and 'isleadin%.
There is no people's voice to be heard and heeded as this petition for initiative is not truly theirs, but only
of petitioners Lambino and Aumentado and their allies.
#II
The iss%es at &a! a!e not political A%estions.
La'bino and Au'entado, petitioners in G.R. No. "1-"7., vehe'entl( ar%ue that* ,"+ <OtPhe validit( of the
e:ercise of the ri%ht of the soverei%n people to a'end the Constitution and their &ill, as e:pressed b( the fact
that over si: 'illion re%istered voters indicated their support of the Petition for initiative is a purely political
question2< and ,+ <OtPhe po&er to propose a'end'ents to the Constitution is a ri%ht e:plicitl( besto&ed upon
the soverei%n people. 0ence, the deter'ination b( the people to e:ercise their ri%ht to propose a'end'ents
under the s(ste' of initiative is a soverei%n act and falls s>uarel( &ithin the a'bit of a political >uestion.<
4he <political >uestion doctrine< &as first enunciated b( the E6 6upre'e Court in )uther ". 4orden.
.1
Aaced
&ith the difficult >uestion of &hether the 6upre'e Court &as the appropriate institution to define the
substantive content of republicanis', the E6 6upre'e Court, spea@in% thru Mr. /ustice Ro%er B. 4ane(,
concluded that <the sovereignty in every State resides in the people, as to how and whether they exercised
it, was under the circumstances of the case, a political question to be settled by the political power.< 9n
other &ords, the responsibilit( of settlin% certain constitutional >uestions &as left to the le%islative and
e:ecutive branches of the %overn'ent.
4he )uther case arose fro' the so-called <3orr Rebellion< in the 6tate of Rhode 9sland. 3ue to increased
'i%ration brou%ht about b( the 9ndustrial Revolution, the urban population of Rhode 9sland increased.
0o&ever, under the "$$. Ro(al Charter &hich served as the 6tate Constitution, votin% ri%hts &ere lar%el(
li'ited to residents of the rural districts. 4his severe 'al-apportion'ent of suffra%e ri%hts led to the <3orr
Rebellion.< 3espairin% of obtainin% re'edies for their disenfranchise'ent fro' the state %overn'ent, suffra%e
refor'ers invo@ed their ri%hts under the A'erican 3eclaration of 9ndependence to <alter or abolish< the
%overn'ent and to institute a ne& one. 4he refor'ers proceeded to call for and hold an e:trale%al constitutional
convention, drafted a ne& 6tate Constitution, sub'itted the docu'ent for popular ratification, and held
elections under it. 4he 6tate %overn'ent, ho&ever, refused to cede po&er, leadin% to an ano'alous situation in
that for a fe& 'onths in "!-, there &ere t&o opposin% state %overn'ents contendin% for le%iti'ac( and
possession of state of offices.
4he Rhode 9sland 'ilitia, under the authorit( of 'artial la&, entered and searched the house of Martin Luther, a
3orr supporter. 0e brou%ht suit a%ainst Luther Borden, a 'ilitia'an. Before the E6 6upre'e Court, LutherHs
counsel ar%ued that since the 6tateHs archaic Constitution prevented a fair and peaceful address of %rievances
throu%h de'ocratic processes, the people of Rhode 9sland had instead chosen to e:ercise their inherent ri%ht in
popular soverei%nt( of replacin% &hat the( sa& as an oppressive %overn'ent. The US Supreme Court deemed
the controversy as non-justiciable and inappropriate for judicial resolution.
9n ,ol(ro"e ". Green,
.!
Mr. /ustice Aeli: Aran@furter, coined the phrase <political thic@et< to describe situations
&here Aederal courts should not intervene in political >uestions &hich the( have neither the co'petence nor the
co''ission to decide. 9n ,ol(ro"e, the E6 6upre'e Court, &ith a narro& --. vote branded the apportion'ent
of le%islative districts in 9llinois <as a political question and that the invalidation of the districts might, in
requiring statewide elections, create an evil greater than that sought to be remedied.<
Chile this Court has adopted the use of Aran@furterHs <political thic@et,< nonetheless, it has sou%ht to co'e up
&ith a definition of the ter' <political >uestion.< 4hus, in *era ". A"elino,
.#
this Court ruled that properl(,
political >uestions are <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 the government.< 9n a:ada and 'a#apa(al ". ,uen#o,
-;
the Court held
that the ter' political >uestion connotes, in le%al parlance, &hat it 'eans in ordinar( parlance, na'el(, a
question of policy. It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.
9n A.uino ". +nrile,
-"
this Court adopted the follo&in% %uidelines laid do&n in 4a0er ". ,arr
-
in deter'inin%
&hether a >uestion before it is political, rather than )udicial in nature, to &it*
"+ there is a te:tuall( de'onstrable constitutional co''it'ent of the issue to a coordinate political
depart'ent2 or
+ there is a lac@ of )udiciall( discoverable and 'ana%eable standards for resolvin% it2 or
.+ there is the sheer i'possibilit( of decidin% the 'atter &ithout an initial polic( deter'ination of a @ind
clearl( for non-)udicial discretion2 or
-+ there is the sheer i'possibilit( of the CourtHs underta@in% an independent resolution &ithout
e:pressin% lac@ of respect due the coordinate branches of %overn'ent2 or
7+ there is an unusual need for un>uestionin% adherence to a political decision alread( 'ade2 or
$+ there e:ists the potentialit( of e'barrass'ent arisin% fro' 'ultifarious pronounce'ents b( various
depart'ents on one >uestion.
None of the fore%oin% standards is present in the issues raised before this Court. Accordin%l(, the issues are
justiciable. Chat is at stake here is the legality and not the wisdom of the act complained of.
Moreover, even assu'in% ar(uendo that the issues raised before this Court are political in nature, it is not
precluded fro' resolvin% the' under its e:panded )urisdiction conferred upon it b( 6ection ", Article 8999 of
the Constitution, follo&in% !aza ". %in(son.
-.
As pointed out in 'ar#os ". 'an(lapus,
--
the present
Constitution li'its resort to the political >uestion doctrine and broadens the scope of )udicial po&er &hich the
Court, under previous charters, &ould have nor'all( and ordinaril( left to the political depart'ents to decide.
CONCLUSION
9n fine, considerin% the political scenario in our countr( toda(, it is '( vie& that the so-called peopleHs initiative
to a'end our Constitution fro' bica'eral-presidential to unica'eral-parlia'entar( is actuall( not an initiative
of the people, but an initiative of so'e of our politicians. 9t has not been sho&n b( petitioners, durin% the oral
ar%u'ents in this case, that the $.. 'illion re%istered voters &ho affi:ed their si%natures understood &hat the(
si%ned. 9n fact, petitioners ad'itted that the Constitutional provisions sou%ht to be a'ended and the proposed
a'end'ents &ere not e:plained to all those re%istered voters. 9ndeed, there &ill be no 'eans of @no&in%, to the
point of )udicial certaint(, &hether the( reall( understood &hat petitioners and their %roup as@ed the' to si%n.
Let us not repeat the 'ista@e co''itted b( this Court in Ja"ellana ". he +6e#uti"e %e#retar/.
-7
4he Court then
ruled that <4his bein% the vote of the 'a)orit(, there is no further )udicial obstacle to the ne& Constitution bein%
considered in force and effect,< althou%h it had notice that the Constitution proposed b( the "#1" Constitutional
Convention &as not validl( ratified b( the people in accordance &ith the "#.7 Constitution. 4he Court
concluded, a'on% others, that the "i"a "o#e votin% in the Citi=ensH Asse'blies <&as and is null and void ab
initio.< 4hat &as durin% 'artial la& &hen perhaps 'a)orit( of the )ustices &ere scared of the dictator. Luc@il( at
present, &e are not under a 'artial la& re%i'e. 4here is, therefore, no reason &h( this Court should allo& itself
to be used as a le%iti'i=in% authorit( b( the so-called peopleHs initiative for those &ho &ant to perpetuate
the'selves in po&er.
At this point, 9 can sa( &ithout fear that there is nothin% &ron% &ith our present %overn'ent structure.
Conse>uent"(, &e 'ust not chan%e it. A'erica has a presidential t(pe of %overn'ent. Get, it thrives ideall( and
has beco'e a super po&er. It is then safe to conclude that what we should change are some of the people
running the government, NOT the SYSTEM.
Accordin% to petitioners, the proposed a'end'ent &ould effect a 'ore efficient, 'ore econo'ical and 'ore
responsive %overn'ent.
9s there hope that a ne& breed of politicians, 'ore >ualified and capable, 'a( be elected as 'e'bers and
leaders of the unica'eral-parlia'entI 5r &ill the present 'e'bers of the Lo&er 0ouse continue to hold their
respective positions &ith li'itless ter'sI
Cill the ne& %overn'ent be 'ore responsive to the needs of the poor and the 'ar%inali=edI Cill it be able to
provide ho'es for the ho'eless, food for the hun%r(, )obs for the )obless and protection for the &ea@I
4his is a definin% 'o'ent in our histor(. 4he issue posed before us is crucial &ith transcendental si%nificance.
And histor( &ill )ud%e us on ho& &e resolve this issue S shall &e allo& the revision of our Constitution, of
&hich &e are dut( bound to %uard and revere, on the basis of a doubtful peopleHs initiativeI
A'endin% the Constitution involvin% a chan%e of %overn'ent s(ste' or structure is a herculean tas@ affectin%
the entire Ailipino people and the future %enerations. Let us, therefore, entrust this dut( to 'ore @no&led%eable
people elected as 'e'bers of a Constitutional Convention.
Ges, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God
is not audible.
WHEREFORE, 9 vote to DISMISS the petition in G.R. No. "1-"7. and to GRANT the petition in G.R. No.
"1-##.
ANGELINA SANDOVAL-GUTIERREZ
Associate /ustice
EN BANC
G.R. No. 174153
petitioners,
vs.
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BEN1AMIN S. ABALOS, SR., and
BRAWNER, RENE V. SARMIENTO, and 1OHN DOE and PETER DOE, respondents.
: ---------------------------------------------------------------------------------------- :
SEPARATE CONCURRING OPINION
CALLE1O, SR., J.:
9 a' convinced be(ond cavil that the respondent Co''ission on Elections ,C5MELEC+ did not co''it an
abuse of its discretion in dis'issin% the a'ended petition before it. 4he proposals of petitioners incorporated in
said a'ended petition are for the revision of the "#!1 Constitution. Aurther, the a'ended petition before the
respondent C5MELEC is insufficient in substance.
The Antecedents
5n Au%ust 7, ;;$, petitioners Raul L. La'bino and Erico B. Au'entado filed &ith the C5MELEC a petition
entitled <9N 40E MA44ER 5A PR5P569NG AMEN3MEN46 45 40E "#!1 C5N6494E495N 40R5EG0
A PE5PLEH6 9N949A498E* A 609A4 AR5M A B9CAMERAL PRE693EN49AL 45 A EN9CAMERAL
PARL9AMEN4ARG G58ERNMEN4 BG AMEN39NG AR49CLE6 89 AN3 8992 AN3 PR58939NG
4RAN6945RG PR589695N6 A5R 40E 5R3ERLG 609A4 AR5M 40E PRE693EN49AL 45 40E
PARL9AMEN4ARG 6G64EM.< 4he case &as doc@eted as EM ,L3+-;$-;". 5n Au%ust .;, ;;$, petitioners
filed an a'ended petition. Aor brevit(, it is referred to as the petition for initiative.
Petitioners alle%ed therein, inter alia, that the( filed their petition in their o&n behalf and to%ether &ith those
&ho have affi:ed their si%natures to the si%nature sheets appended thereto &ho are Ailipino citi=ens, residents
and re%istered voters of the Philippines, and the( constitute at least t&elve percent ,"M+ of all the re%istered
voters in the countr(, &herein each le%islative district is represented b( at least three percent ,.M+ of all the
re%istered voters therein.
Petitioners further alle%ed therein that the filin% of the petition for initiative is based on their constitutional ri%ht
to propose a'end'ents to the "#!1 Constitution b( &a( of peopleHs initiative, as reco%ni=ed in 6ection ,
Article D899 thereof, &hich provides*
6EC. . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
4he Con%ress shall provide for the i'ple'entation of the e:ercise of this ri%ht.<
Accordin% to petitioners, &hile the above provision states that <,4+he Con%ress shall provide for the
i'ple'entation of the e:ercise of this ri%ht,< the provisions of 6ection 7,b+ and ,c+, alon% &ith 6ection 1 of
Republic Act ,RA+ $1.7,
"
are sufficient enablin% details for the peopleHs e:ercise of the po&er. 4he said
sections of RA $1.7 state*
6ec. 7. Re>uire'ents. S ,a+ 4o e:ercise the po&er : : :
,b+ A petition for an initiative on the "#!1 Constitution 'ust have at least t&elve per centu' ,"M+ of
the total nu'ber of re%istered voters as si%natories, of &hich ever( le%islative district 'ust be
represented b( at least three per centu' ,.M+ of the re%istered voters therein. 9nitiative on the
Constitution 'a( be e:ercised onl( after five ,7+ (ears fro' the ratification of the "#!1 Constitution and
onl( once ever( five ,7+ (ears thereafter.
,c+ 4he petition shall state the follo&in%*
c.". contents or te:t of the proposed la& sou%ht to be enacted, approved or re)ected, a'ended or
repealed, as the case 'a( be2
c.. the proposition2
c... the reason or reasons therefor2
c.-. that it is not one of the e:ceptions provided herein2
c.7. si%natures of the petitioners or re%istered voters2 and
c.$. an abstract or su''ar( in not 'ore than one hundred ,";;+ &ords &hich shall be le%ibl(
&ritten or printed at the top of ever( pa%e of the petition.
: : : :
6ec. 1. 8erification of 6i%natures. S 4he Election Re%istrar shall verif( the si%natures on the basis of the
re%istr( list of voters, votersH affidavits and voters identification cards used in the i''ediatel( precedin%
election.
4he( also alle%ed that the C5MELEC has the authorit(, 'andate and obli%ation to %ive due course to the
petition for initiative, in co'pliance &ith the constitutional directive for the C5MELEC to <enforce and
ad'inister all la&s and re%ulations relative to the conduct of an election, plebiscite, initiative, referendu' and
recall.<
Petitioners incorporated in their petition for initiative the chan%es the( proposed to be incorporated in the "#!1
Constitution and pra(ed that the C5MELEC issue an order*
". Aindin% the Petition to be sufficient pursuant to 6ection -, Article D899 of the "#!1 Constitution2
. 3irectin% the publication of the Petition in Ailipino and En%lish at least t&ice in ne&spapers of
%eneral and local circulation2 and
.. Callin% a plebiscite to be held not earlier than si:t( nor later than ninet( da(s after the Certification b(
this 0onorable Co''ission of the sufficienc( of this Petition, to allo& the Ailipino people to e:press
their soverei%n &ill on the proposition.
Petitioners pra( for such other reliefs dee'ed )ust and e>uitable in the pre'ises.
4he Rulin% of the respondent C5MELEC
5n Au%ust .", ;;$, the C5MELEC pro'ul%ated the assailed Resolution den(in% due course and dis'issin%
the petition for initiative. 4he C5MELEC ruled that*
Ce a%ree &ith the petitioners that this Co''ission has the sole'n Constitutional dut( to enforce and
ad'inister all la&s and re%ulations relative to the conduct of, as in this case, initiative.
4his 'andate, ho&ever, should be read in relation to the other provisions of the Constitution particularl(
on initiative.
6ection , Article D899 of the "#!1 Constitution provides*
<6ec. . A'end'ents to this Constitution 'a(, li@e&ise, be directl( proposed b( the people
throu%h initiative, upon a petition of at least t&elve per centu' of the total nu'ber of re%istered
voters, of &hich ever( le%islative district 'ust be represented b( at least three per centu' of the
re%istered voters therein. : : :.
4he Con%ress shall provide for the i'ple'entation of the e:ercise of this ri%ht.<
4he afore>uoted provision of the Constitution bein% a non-self-e:ecutor( provision needed an enablin%
la& for its i'ple'entation. 4hus, in order to breathe life into the constitutional ri%ht of the people under
a s(ste' of initiative to directl( propose, enact, approve or re)ect, in &hole or in part, the Constitution,
la&s, ordinances, or resolution, Con%ress enacted RA $1.7.
0o&ever, the 6upre'e Court, in the land'ar@ case of %antia(o ". ,ommission on +le#tions struc@ do&n
the said la& for bein% inco'plete, inade>uate, or &antin% in essential ter's and conditions insofar as
initiative on a'end'ents to the Constitution is concerned
4he 6upre'e Court, li@e&ise, declared that this Co''ission should be per'anentl( en)oined fro'
entertainin% or ta@in% co%ni=ance of an( petition for initiative on a'end'ents to the Constitution until a
sufficient la& shall have been validl( enacted to provide for the i'ple'entation of the s(ste'.
4hus, even if the si%natures in the instant Petition appear to 'eet the re>uired 'ini'u' per centu' of
the total nu'ber of re%istered voters, of &hich ever( le%islative district is represented b( at least three
per centu' of the re%istered voters therein, still the Petition cannot be %iven due course since the
6upre'e Court cate%oricall( declared RA $1.7 as inade>uate to cover the s(ste' of initiative on
a'end'ents to the Constitution.
4his Co''ission is not un'indful of the transcendental i'portance of the ri%ht of the people under a
s(ste' of initiative. 0o&ever, neither can &e turn a blind e(e to the pronounce'ent of the 0i%h Court
that in the absence of a valid enablin% la&, this ri%ht of the people re'ains nothin% but an <e'pt( ri%ht,<
and that this Co''ission is per'anentl( en)oined fro' entertainin% or ta@in% co%ni=ance of an( petition
for initiative on a'end'ents to the Constitution. ,Citations o'itted.+
A%%rieved, petitioners elevated the case to this Court on a petition for #ertiorari and mandamus under Rule $7
of the Rules of Court.
4he PetitionersH Case
9n support of their petition, petitioners alle%ed, inter alia, that*
9.
40E 05N5RABLE PEBL9C RE6P5N3EN4 C5MELEC C5MM944E3 GRA8E ABE6E 5A
396CRE495N 9N REAE69NG 45 4AWE C5GN9KANCE 5A, AN3 45 G98E 3EE C5ER6E 45
40E PE49495N A5R 9N949A498E, BECAE6E 40E C94E3 6AN49AG5 REL9NG 5A "# MARC0
"##1 CANN54 BE C5N693ERE3 40E MA/5R94G 5P9N95N 5A 40E 6EPREME C5ER4 EN
BANC, C5N693ER9NG 40A4 EP5N 946 REC5N693ERA495N AN3 A9NAL 8549NG 5N ";
/ENE "##1, N5 MA/5R94G 854E CA6 6ECERE3 45 3ECLARE REPEBL9C AC4 N5. $1.7 A6
9NA3ELEA4E, 9NC5MPLE4E AN3 9N6EAA9C9EN4 9N 64AN3AR3.
99.
40E "#!1 C5N6494E495N, REPEBL9C AC4 N5. $1.7, REPEBL9C AC4 N5. !"!# AN3
ED9649NG APPR5PR9A495N 5A 40E C5MELEC PR5893E A5R 6EAA9C9EN4 3E4A9L6 AN3
AE405R94G A5R 40E EDERC96E 5A PE5PLEH6 9N949A498E, 40E6, ED9649NG LAC6 4AWEN
45GE40ER ARE A3ELEA4E AN3 C5MPLE4E.
999.
40E 05N5RABLE PEBL9C RE6P5N3EN4 C5MELEC C5MM944E3 GRA8E ABE6E 5A
396CRE495N 9N REAE69NG 45 4AWE C5GN9KANCE 5A, AN3 9N REAE69NG 45 G98E 3EE
C5ER6E 45 40E PE49495N A5R 9N949A498E, 40EREBG 895LA49NG AN EDPRE66
C5N6494E495NAL MAN3A4E AN3 396REGAR39NG AN3 C5N4RA8EN9NG 40E C9LL 5A
40E PE5PLE.
A.
40E %AN=AG$ REL9NG 5A "# MARC0 "##1 96 N54 APPL9CABLE 45 40E 9N64AN4
PE49495N A5R 9N949A498E A9LE3 BG 40E PE49495NER6.
".
40E ARAMER6 5A 40E C5N6494E495N 9N4EN3E3 45 G98E 40E PE5PLE
40E P5CER 45 PR5P56E AMEN3MEN46 AN3 40E PE5PLE 40EM6EL8E6
ARE N5C G989NG 89BRAN4 L9AE 45 4096 C5N6494E495NAL PR589695N
.
PR95R 45 40E LEE6495NE3 %AN=AG$ REL9NG 5A "# MARC0 "##1, 40E
R9G04 5A 40E PE5PLE 45 EDERC96E 40E 658ERE9GN P5CER 5A
9N949A498E AN3 RECALL 0A6 BEEN 9N8AR9ABLG EP0EL3
..
40E EDERC96E 5A 40E 9N949A498E 45 PR5P56E AMEN3MEN46 96 A
P5L949CAL LEE6495N C09C0 60ALL BE 3E4ERM9NE3 65LELG BG 40E
658ERE9GN PE5PLE.
-.
BG 69GN9NG 40E 69GNA4ERE 60EE46 A44AC0E3 45 40E PE49495N A5R
9N949A498E 3ELG 8ER9A9E3 BG 40E ELEC495N 5AA9CER6, 40E PE5PLE
0A8E C056EN 45 PERA5RM 4096 6ACRE3 EDERC96E 5A 40E9R 658ERE9GN
P5CER.
B.
40E %AN=AG$ REL9NG 5A "# MARC0 "##1 96 N54 APPL9CABLE 45 40E 9N64AN4
PE49495N A5R 9N949A498E A9LE3 BG 40E PE49495NER6
C.
40E PERMANEN4 9N/ENC495N 966EE3 9N %AN=AG$ *. ,$'+)+, 5NLG APPL9E6
45 40E 3ELA9N PE49495N.
".
94 96 40E 396P569498E P5R495N 5A 40E 3EC9695N AN3 N54 540ER
64A4EMEN46 9N 40E B53G 5A 40E 3EC9695N 40A4 G58ERN6 40E R9G046
9N C5N4R58ER6G.
98.
40E 05N5RABLE PEBL9C RE6P5N3EN4 AA9LE3 5R NEGLEC4E3 45 AC4 5R PERA5RM A
3E4G MAN3A4E3 BG LAC.
A.
40E M9N964ER9AL 3E4G 5A 40E C5MELEC 96 45 6E4 40E 9N949A498E A5R
PLEB96C94E.
.
Petitioners Failed to Allege and Demonstrate All the Essential
Facts To Establish the Right to a Writ of Ce!tio!a!i
6ection ", Rule $7 of the Rules of Court reads*
6ec. ". 8etition for #ertiorari. S Chen an( tribunal, board or officer e:ercisin% )udicial or >uasi-)udicial
functions has acted &ithout or in e:cess of its or his )urisdiction, or &ith %rave abuse of discretion
a'ountin% to lac@ or e:cess of )urisdiction, and there is no appeal, or an( plain, speed(, and ade>uate
re'ed( in the ordinar( course of la&, a person a%%rieved thereb( 'a( file a verified petition in the
proper court, alle%in% the facts &ith certaint( and pra(in% that )ud%'ent be rendered annullin% or
'odif(in% the proceedin%s of such tribunal, board or officer, and %rantin% such incidental reliefs as la&
and )ustice 'a( re>uire.
4he petition shall be acco'panied b( a certified true cop( of the )ud%'ent, order or resolution sub)ect
thereof, copies of all pleadin%s and docu'ents relevant and pertinent thereto, and a s&orn certification
of non-foru' shoppin% as provided in the third para%raph of 6ection ., Rule -$.
A &rit for #ertiorari 'a( issue onl( &hen the follo&in% re>uire'ents are set out in the petition and established*
,"+ the &rit is directed a%ainst a tribunal, a board or an( officer e:ercisin% )udicial or >uasi-)udicial
functions2
,+ such tribunal, board or officer has acted &ithout or in e:cess of )urisdiction, or &ith %rave abuse of
discretion a'ountin% to lac@ or e:cess of )urisdiction2 and
,.+ there is no appeal or an( plain, speed( and ade>uate re'ed( in the ordinar( course of la&. : : :
-
4he Court has invariabl( defined <%rave abuse of discretion,< thus*
B( %rave abuse of discretion is 'eant such capricious and &hi'sical e:ercise of )ud%'ent as is
e>uivalent to lac@ of )urisdiction, and it 'ust be sho&n that the discretion &as e:ercised arbitraril( or
despoticall(. Aor certiorari to lie, there 'ust be a capricious, arbitrar( and &hi'sical e:ercise of po&er,
the ver( antithesis of the )udicial prero%ative in accordance &ith centuries of both civil la& and co''on
la& traditions.
7
4here is thus %rave abuse of discretion on the part of the C5MELEC &hen it acts in a capricious, &hi'sical,
arbitrar( or despotic 'anner in the e:ercise of its )ud%'ent a'ountin% to lac@ of )urisdiction. Mere abuse of
discretion is not enou%h.
$
4he onl( >uestion involved is )urisdiction, either the lac@ or e:cess thereof, and abuse
of discretion &arrants the issuance of the e:traordinar( re'ed( of #ertiorari onl( &hen the sa'e is %rave, as
&hen the po&er is e:ercised in an arbitrar( or despotic 'anner b( reason of passion, pre)udice or personal
hostilit(. A &rit of #ertiorari is a re'ed( desi%ned for the correction of errors of )urisdiction and not errors of
)ud%'ent.
1
An error of )ud%'ent is one in &hich the court 'a( co''it in the e:ercise of its )urisdiction, &hich
error is reversible onl( b( an appeal.
!
9n the present case, it appears fro' the assailed Resolution of the C5MELEC that it denied the petition for
initiative solel( in obedience to the 'andate of this Court in %antia(o ". ,ommission on +le#tions.
#
9n said case,
the Court +n 4an# per'anentl( en)oined the C5MELEC fro' entertainin% or ta@in% co%ni=ance of an( petition
for initiative on a'end'ents to the Constitution until a sufficient la& shall have been validl( enacted to provide
for the i'ple'entation of the s(ste'. Chen the C5MELEC denied the petition for initiative, there &as as (et
no valid la& enacted b( Con%ress to provide for the i'ple'entation of the s(ste'.
9t is a travest( for the Court to declare the act of the C5MELEC in den(in% due course to the petition for
initiative as <capricious, despotic, oppressive or &hi'sical e:ercise of )ud%'ent as is e>uivalent to lac@ of
)urisdiction.< 9n fact, in so doin%, the C5MELEC 'erel( follo&ed or applied, as it ou%ht to do, the CourtHs
rulin% in 6antia%o to the effect that 6ection , Article D899 of the Constitution on the s(ste' of initiative is a
non self-e:ecutor( provision and re>uires an enablin% la& for its i'ple'entation. 9n relation thereto, RA $1.7
&as found b( the Court to be <inco'plete, inade>uate, or &antin% in essential ter's and conditions< to
i'ple'ent the constitutional provision on initiative. Conse>uentl(, the C5MELEC &as <per'anentl( en)oined
from entertainin( or ta0in( #o(nizan#e of an/ petition for initiati"e on amendments to the ,onstitution until a
suffi#ient law shall ha"e been "alidl/ ena#ted to pro"ide for the implementation of the s/stem.< 4he decision of
the Court En Banc interpretin% RA $1.7 for's part of the le%al s(ste' of the Philippines.
";
And no doctrine or
principle laid do&n b( the Court En Banc 'a( be 'odified or reversed e:cept b( the Court +n 4an#,
""
certainl(
not b( the C5MELEC. Entil the Court En Banc 'odifies or reverses its decision, the C5MELEC is bound to
follo& the sa'e.
"
As succinctl( held in Aul@erson v. 4ho'pson*
".
Chatever &as before the Court, and is disposed of, is considered as finall( settled. 4he inferior court is
bound b( the )ud%'ent or decree as the la& of the case, and 'ust carr( it into e:ecution accordin% to the
'andate. 4he inferior court cannot var( it, or )udiciall( e:a'ine it for an( other purpose than e:ecution.
9t can %ive no other or further relief as to an( 'atter decided b( the 6upre'e Court even &here there is
error apparent2 or in an( 'anner inter'eddle &ith it further than to e:ecute the 'andate and settle such
'atters as have been re'anded, not ad)udicated b( the 6upre'e CourtU.
4he principles above stated are, &e thin@, conclusivel( established b( the authorit( of ad)ud%ed cases.
And an( further departure fro' the' &ould inevitabl( 'ar the har'on( of the &hole )udiciar( s(ste',
brin% its parts into conflict, and produce therein disor%ani=ation, disorder, and incalculable 'ischief and
confusion. Besides, an( rule allo&in% the inferior courts to disre%ard the ad)udications of the 6upre'e
Court, or to refuse or o'it to carr( the' into e:ecution &ould be repu%nant to the principles established
b( the constitution, and therefore void.
"-
At this point, it is &ell to recall the factual conte:t of %antia(o as &ell as the pronounce'ent 'ade b( the Court
therein. Li@e petitioners in the instant case, in %antia(o, Att(. /esus 3elfin, the PeopleHs 9nitiative for Refor's,
Moderni=ation and Action ,P9RMA+, et al., invo@ed 6ection , Article D899 of the Constitution as the( filed
&ith the C5MELEC a <Petition to A'end the Constitution, to Lift 4er' Li'its of Elective 5fficials, B(
PeopleHs 9nitiative< ,the 3elfin petition+. 4he( as@ed the C5MELEC to issue an order fi:in% the ti'e and date
for si%nature %atherin% all over the countr(2 causin% the necessar( publications of said order and their petition in
ne&spapers of %eneral and local circulation and instructin% 'unicipal election re%istrars in all re%ions all over
the countr( and to assist petitioners in establishin% si%nin% stations. Actin% thereon, the C5MELEC issued the
order pra(ed for.
6enator Miria' 6antia%o, et al. forth&ith filed &ith this Court a petition for prohibition to en)oin the
C5MELEC fro' i'ple'entin% its order. 4he Court, spea@in% throu%h /ustice 0ilario G. 3avide, /r. ,later
Chief /ustice+, %ranted the petition as it declared*
". RA $1.7 <inco'plete, inade>uate, or &antin% in essential ter's and conditions insofar as initiative on
a'end'ents to the Constitution is concerned<2
. C5MELEC Resolution No. .;;
"7
invalid insofar as it prescribed rules and re%ulations on the conduct of
initiative on a'end'ents to the Constitution because the C5MELEC is &ithout authorit( to pro'ul%ate the
rules and re%ulations to i'ple'ent the e:ercise of the ri%ht of the people to directl( propose a'end'ents to the
Constitution throu%h the s(ste' of initiative2 and
.. 4he 3elfin petition insufficient as it did not contain the re>uired nu'ber of si%natures of re%istered voters.
4he Court concluded in %antia(o that <the C5MELEC should be per'anentl( en)oined fro' entertainin% or
ta@in% co%ni=ance of an/ petition for initiative on a'end'ents to the Constitution until a sufficient la& shall
have been validl( enacted to provide for the i'ple'entation of the s(ste'.< 4he dispositive portion of the
decision reads*
C0EREA5RE, )ud%'ent is hereb( rendered*
a+ GRAN49NG the instant petition2
b+ 3ECLAR9NG RA $1.7 inade>uate to cover the s(ste' of initiative on a'end'ents to the
Constitution, and to have failed to provide sufficient standard for subordinate le%islation2
c+ 3ECLAR9NG void those parts of Resolution No. .;; of the Co''ission on Elections prescribin%
rules and re%ulations on the conduct of initiative or a'end'ents to the Constitution2 and
d+ 5R3ER9NG the Co''ission on Elections to forth&ith 396M966 the 3elfin petition ,EN3-#$-;.1+.
4he 4e'porar( Restrainin% 5rder issued on 3ece'ber "!, "##$ is 'ade per'anent as a%ainst the
Co''ission on Elections, but is L9A4E3 as a%ainst private respondents.
"$
4he Court reiterated its rulin% in %antia(o in another petition &hich &as filed &ith the Court b( P9RMA and the
spouses Alberto and Car'en Pedrosa ,&ho &ere parties in %antia(o+ doc@eted as 8=R'A ". ,ommission on
+le#tions.
"1
4he said petitioners, undaunted b( %antia(o and clai'in% to have %athered 7,1#.,". si%natures,
filed a petition &ith the C5MELEC pra(in%, inter alia, that C5MELEC officers be ordered to verif( all the
si%natures collected in behalf of the petition and, after due hearin%, that it ,C5MELEC+ declare the petition
sufficient for the purpose of schedulin% a plebiscite to a'end the Constitution. Li@e the 3elfin petition in
%antia(o, the P9RMA petition proposed to sub'it to the people in a plebiscite the a'end'ent to the
Constitution on the liftin% of the ter' li'its of elected officials.
4he opinion of the 'inorit( that there &as no doctrine enunciated b( the Court in P9RMA has no basis. 4he
C5MELEC, in its Resolution dated /ul( !, "##1, dis'issed the P9RMA petition citin% the per'anent
restrainin% order issued a%ainst it b( the Court in 6antia%o. P9RMA and the spouses Pedrosa forth&ith elevated
the 'atter to the Court alle%in% %rave abuse of discretion on the part of the C5MELEC in refusin% to e:ercise
)urisdiction over, and thereb( dis'issin%, their petition for initiative to a'end the Constitution.
4he Court dis'issed outri%ht, b/ a unanimous "ote, the petition filed b( P9RMA and the spouses Albert
Pedrosa. 4he Court declared that the C5MELEC 'erel( co'plied &ith the dispositions in the decision of the
Court in 6antia%o and, hence, cannot be held to have co''itted a %rave abuse of its discretion in dis'issin% the
petition before it*
onl( co'plied &ith the dispositions in the 3ecision of this Court in G.R. No. "1.7, pro'ul%ated on
4he Court ne:t considered the >uestion of &hether there &as need to resolve the second issue posed b(
the petitioners, na'el(, that the Court re-e:a'ine its rulin% as re%ards R.A. $1.7. 5n this issue, the
Chief /ustice and si: ,$+ other 'e'bers of the Court, na'el(, Re%alado, 3avide, Ro'ero, Bellosillo,
Wapunan and 4orres, //., voted that there &as no need to ta@e it up. 8itu%, /., a%reed that there &as no
need for re-e:a'ination of said second issue since the case a bar is not the proper vehicle for that
purpose. Aive ,7+ other 'e'bers of the Court, na'el(, Melo, Puno, Arancisco, 0er'osisi'a and
Pan%aniban, //., opined that there &as need for such a re-e:a'ination. : : :
C0EREA5RE, the petition is 396M966E3.
"!
,Enderscorin% supplied.+
9n the present case, the 5ffice of the 6olicitor General ,56G+ ta@es the side of petitioners and ar%ues that the
C5MELEC should not have applied the rulin% in %antia(o to the petition for initiative because the per'anent
in)unction therein referred onl( to the 3elfin petition. 4he 56G buttresses this ar%u'ent b( pointin% out that the
4e'porar( Restrainin% 5rder dated 3ece'ber "!, "##$ that &as 'ade per'anent in the dispositive portion
referred onl( to the 3elfin petition.
4he 56GHs atte'pt to isolate the dispositive portion fro' the bod( of the CourtHs decision in %antia(o is futile.
9t bears stressin% that the dispositive portion 'ust not be read separatel( but in connection &ith the other
portions of the decision of &hich it for's a part. 4o %et to the true intent and 'eanin% of a decision, no specific
portion thereof should be resorted to but the sa'e 'ust be considered in its entiret(. 0ence, a resolution or
rulin% 'a( and does appear in other parts of the decision and not 'erel( in the fallo thereof.
"#
4he pronounce'ent in the bod( of the decision in %antia(o per'anentl( en)oinin% the C5MELEC <fro'
sufficient la& shall have been validl( enacted to provide for the i'ple'entation of the s(ste'< is thus as 'uch
a part of the CourtHs decision as its dispositive portion. The ruling of this Court is of the nature of an in !em
judgment barring any and all Filipinos from filing a petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted. Clearl(, the C5MELEC, in den(in% due
course to the present petition for initiative on a'end'ents to the Constitution confor'abl( &ith the CourtHs
rulin% in 6antia%o did not co''it %rave abuse of discretion. 5n the contrar(, its actuation is in @eepin% &ith the
salutar( principle of hierarch( of courts. Aor the Court to find the C5MELEC to have abused its discretion
&hen it dis'issed the a'ended petition based on the rulin% of this Court in 6antia%o &ould be sheer )udicial
apostas(.
As elo>uentl( put b( /ustice /.B.L. Re(es, <there is onl( one 6upre'e Court fro' &hose decisions all other
courts should ta@e their bearin%s.<
;
4his truis' applies &ith e>ual force to the C5MELEC as a >uasi-)udicial
bod( for, after all, )udicial decisions appl(in% or interpretin% la&s or the Constitution <assu'e the sa'e
authorit( as the statute itself and, until authoritativel( abandoned, necessaril( beco'e, to the e:tent that the( are
applicable, the criteria &hich 'ust control the actuations not onl( of those called upon to abide thereb( but also
of those dut( bound to enforce obedience thereto.<
"
Petitioners Cannot Ascribe
Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
9t is ele'entar( that the opinion of the 'a)orit( of the 'e'bers of the Court, not the opinion of the 'inorit(,
prevails. As a corollar(, the decision of the 'a)orit( cannot be 'odified or reversed b( the 'inorit( of the
'e'bers of the Court.
0o&ever, to esche& the bindin% effect of %antia(o, petitioners ar%ue, albeit unconvincin%l(, that the CourtHs
declaration therein on the inade>uac(, inco'pleteness and insufficienc( of RA $1.7 to i'ple'ent the s(ste' of
initiative to propose constitutional a'end'ents did not constitute the 'a)orit( opinion. 4his contention is
utterl( baseless.
%antia(o &as concurred in, &ithout an( reservation, b( ei%ht /ustices,
or the 'a)orit( of the 'e'bers of the

Court, &ho actuall( too@ part in the deliberations thereon. 5n the other hand, five /ustices,
.
&hile votin% for
the dis'issal of the 3elfin petition on the %round of insufficienc(, dissented fro' the 'a)orit( opinion as the(
'aintained the vie& that RA $1.7 &as sufficient to i'ple'ent the s(ste' of initiative.
Given that a clear 'a)orit( of the 'e'bers of the Court, ei%ht /ustices, concurred in the decision in %antia(o,
the pronounce'ent therein that RA $1.7 is <inco'plete, inade>uate, or &antin% in essential ter's and
conditions insofar as initiative on a'end'ents to the Constitution is concerned< constitutes a definitive rulin%
on the 'atter.
9n the Resolution dated /une ";, "##1, the 'otions for reconsideration of the %antia(o decision &ere denied
&ith finalit( as onl( si: /ustices, or less than the 'a)orit(, voted to %rant the sa'e. 4he Resolution e:pressl(
stated that the 'otion for reconsideration failed <to persuade the re>uisite 'a)orit( of the Court to 'odif( or
reverse the 3ecision of "# March "#11.<
-
9n fine, the pronounce'ent in %antia(o as e'bodied in the 3ecision
of March "#, "##1 re'ains the definitive rulin% on the 'atter.
9t bears stressin% that in 8=R'A, petitioners pra(ed for the Court to resolve the issue posed b( the' and to re-
e:a'ine its rulin% as re%ards RA $1.7. B( a vote of seven 'e'bers of the Court, includin% /ustice /usto P.
4orres, /r. and /ustice /ose C. 8itu%, the Court voted that there &as no need to resolve the issue. Aive 'e'bers
of the Court opined that there &as a need for the re-e:a'ination of said rulin%. 4hus, the pronounce'ent of the
Court in %antia(o re'ains the la& of the case and bindin% on petitioners.
9f, as no& clai'ed b( the 'inort(, there &as no doctrine enunciated b( the Court in %antia(o, the Court should
have resolved to set aside its ori%inal resolution dis'issin% the petition and to %rant the 'otion for
reconsideration and the petition. But the Court did not. 4he Court positivel( and une>uivocall( declared that the
C5MELEC 'erel( follo&ed the rulin% of the Court in %antia(o in dis'issin% the petition before it. No less
than 6enior /ustice Re(nato 6. Puno concurred &ith the resolution of the Court. 9t behooved /ustice Puno to
dissent fro' the rulin% of the Court on the 'otion for reconsideration of petitioners precisel( on the %round that
there &as no doctrine enunciated b( the Court in %antia(o. 0e did not. Neither did Chief /ustice Arte'io 8.
Pan%aniban, &ho &as a 'e'ber of the Court.
4hat RA $1.7 has failed to validl( i'ple'ent the peopleHs ri%ht to directl( propose constitutional a'end'ents
throu%h the s(ste' of initiative had alread( been conclusivel( settled in %antia(o as &ell as in 8=R'A. 0eedin%
these decisions, several la&'a@ers, includin% no less than 6olicitor General Antonio Eduardo Nachura &hen he
&as then a 'e'ber of the 0ouse of Representatives,
7
have filed separate bills to i'ple'ent the s(ste' of
initiative under 6ection , Article D899 of the Constitution.
9n the present 4hirteenth ,".
th
+ Con%ress, at least seven ,1+ bills are pendin%. 9n the 6enate, the three ,.+ pendin%
bills are* 6enate Bill No. ""# entitled An Act Providin% for PeopleHs 9nitiative to A'end the Constitution
introduced b( 6enator Luisa <Loi< P. E)ercito Estrada2 6enate Bill No. "!# entitled An Act Providin% for
PeopleHs 9nitiative to A'end the Constitution introduced b( 6enator Miria' 3efensor 6antia%o2 and 6enate Bill
No. -1 entitled An Act Providin% for a 6(ste' of PeopleHs 9nitiative to Propose A'end'ents to the
Constitution introduced b( 6enator Richard Gordon.
9n the 0ouse of Representatives, there are at least four ,-+ pendin% bills* 0ouse Bill No. ;7!" filed b(
Representative Car'en Cari, 0ouse Bill No. ;7;"1 filed b( Representative 9'ee Marcos, 0ouse Bill No. ;7;7
filed b( Representative Roberto Ca)es, and 0ouse Bill No. ;7;$ filed b( Representative Ed%ardo Chatto.
4hese 0ouse bills are si'ilarl( entitled An Act Providin% for PeopleHs 9nitiative to A'end the Constitution.
he respe#ti"e e6planator/ notes of the said %enate and House bills uniforml/ re#o(nize that there is- to date-
no law to (o"ern the pro#ess b/ whi#h #onstitutional amendments are introdu#ed b/ the people dire#tl/ throu(h
the s/stem of initiati"e. 4en ,";+ (ears after 6antia%o and absent the occurrence of an( co'pellin% supervenin%
event, i.e., passa%e of a la& to i'ple'ent the s(ste' of initiative under 6ection , Article D899 of the
Constitution, that &ould &arrant the re-e:a'ination of the rulin% therein, it behooves the Court to appl( to the
present case the salutar( and &ell-reco%ni=ed doctrine of stare de#isis. As earlier sho&n, Con%ress and other
%overn'ent a%encies have, in fact, abided b( %antia(o. he ,ourt #an do no less with respe#t to its own rulin(.
Contrar( to the stance ta@en b( petitioners, the validit( or constitutionalit( of a la& cannot be 'ade to depend
on the individual opinions of the 'e'bers &ho co'pose it S the 6upre'e Court, as an institution, has alread(
deter'ined RA $1.7 to be <inco'plete, inade>uate, or &antin% in essential ter's and conditions insofar as
initiative on a'end'ents to the Constitution is concerned< and therefore the sa'e re'ains to be so re%ardless of
an( chan%e in the CourtHs co'position.
$
9ndeed, it is vital that there be stabilit( in the courts in adherin% to
decisions deliberatel( 'ade after a'ple consideration. 8arties should not be en#oura(ed to see0 reDe6amination
of determined prin#iples and spe#ulate on flu#tuation of the law with e"er/ #han(e in the e6pounders of it.
1
Proposals to Revise the Constitution,
As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments
Even %rantin% ar(uendo the Court, in the present case, abandons its pronounce'ent in %antia(o and declares
RA $1.7, ta@en to%ether &ith other e:tant la&s, sufficient to i'ple'ent the s(ste' of initiative, still, the
a'ended petition for initiative cannot prosper. 3espite the deno'ination of their petition, the proposals of
petitioners to chan%e the for' of %overn'ent fro' the present bica'eral-presidential to a unica'eral-
parlia'entar( s(ste' of %overn'ent are actuall( for the re"ision of the Constitution.
Petitioners propose to <a'end< Articles 89 and 899 of the Constitution in this 'anner*
<6ection ". ,"+ 4he le%islative and e:ecutive po&ers shall be vested in a unica'eral Parlia'ent &hich
<,+ Each Me'ber of Parlia'ent shall be a natural-born citi=en of the Philippines, at least t&ent(-five
districts.<
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:
<6ection ". 4here shall be a President &ho shall be the 0ead of 6tate. 4he e:ecutive po&er shall be
e:ercised b( a Pri'e Minister, &ith the assistance of the Cabinet. 4he Pri'e Minister shall be elected b(
a 'a)orit( of all the Me'bers of Parlia'ent fro' a'on% the'selves. 0e shall be responsible to the
Parlia'ent for the pro%ra' of %overn'ent.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions,"
which shall read as follows:
6ection ". ,"+ 4he incu'bent President and 8ice President shall serve until the e:piration of their ter'
at noon on the thirtieth da( of /une ;"; and shall continue to e:ercise their po&ers under the "#!1
Constitution unless i'peached b( a vote of t&o thirds of all the 'e'bers of the interi' parlia'ent.,
a'ended.
6ection . <Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith the
retained and renu'bered se>uentiall( as 6ection , ad seriati' up to $, unless the( are inconsistent
<Con%ress,< <6enate,< <0ouse of Representatives< and <0ouse of Con%ress,< <6enatorOsP or <Me'berOsP
of the 0ouse of Representatives< and <0ouse of Con%ress< shall be chan%ed to read <Parlia'ent<2 that
an( and all references therein to <Me'berOsP of the 0ouse of Representatives< shall be chan%ed to read
as <Me'berOsP of Parlia'ent< and an( and all references to the <President< and or <Actin% President<
shall be chan%ed to read <Pri'e Minister.<
6ection .. <Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith the
e:ception of 6ections ", , . and - of Article 899 of the "#!1 Constitution &hich are hereb( a'ended
Parlia'entar( 6(ste' of %overn'ent2 provided, ho&ever, that an( and all references therein to
<Parlia'ent<2 that an( and all references therein to <Me'berOsP of Con%ress,< <6enatorOsP< or
<Me'berOsP of the 0ouse of Parlia'ent< and an( and all references to the <President< and of <Actin%
President< shall be chan%ed to read <Pri'e Minister.<
initiall( convene the interi' Parlia'ent and shall preside over its session for the election of the interi'
,-+ Cithin fort(-five da(s fro' ratification of these a'end'ents, the interi' Parlia'ent shall convene
<6ection 7. ,"+ 4he incu'bent President, &ho is the Chief E:ecutive, shall no'inate, fro' a'on% the
perfor' such po&ers and responsibilities as 'a( be dele%ated to hi' b( the incu'bent President.<
,+ 4he interi' Parlia'ent shall provide for the election of the 'e'bers of Parlia'ent, &hich shall be
s(nchroni=ed and held si'ultaneousl( &ith the election of all local %overn'ent officials. O4hereafter,
the 8ice-President, as Me'ber of Parlia'ent, shall i''ediatel( convene the Parlia'ent and shall
initiall( preside over its session for the purpose of electin% the Pri'e Minister, &ho shall be elected b( a
'a)orit( vote of all its 'e'bers, fro' a'on% the'selves.P 4he dul(-elected Pri'e Minister shall
continue to e:ercise and perfor' the po&ers, duties and responsibilities of the interi' Pri'e Minister
until the e:piration of the ter' of the incu'bent President and 8ice President.
!
Petitioners clai' that the re>uired nu'ber of si%natures of re%istered voters have been co'plied &ith, i.e., the
si%natories to the petition constitute t&elve percent ,"M+ of all the re%istered voters in the countr(, &herein
each le%islative district is represented b( at least three percent ,.M+ of all the re%istered voters therein.
Certifications alle%edl( e:ecuted b( the respective C5MELEC Election Re%istrars of each 'unicipalit( and
cit( verif(in% these si%natures &ere attached to the petition for initiative. 4he verification &as alle%edl( done on
the basis of the list of re%istered voters contained in the official C5MELEC list used in the i''ediatel(
precedin% election.
4he proposition, as for'ulated b( petitioners, to be sub'itted to the Ailipino people in a plebiscite to be called
for the said purpose reads*
35 G5E APPR58E 40E AMEN3MEN4 5A AR49CLE6 89 AN3 899 5A 40E "#!1
C5N6494E495N, C0ANG9NG 40E A5RM 5A G58ERNMEN4 AR5M 40E PRE6EN4
B9CAMERAL-PRE693EN49AL 45 A EN9CAMERAL-PARL9AMEN4ARG 6G64EM, AN3
PR58939NG AR49CLE D8999 A6 4RAN6945RG PR589695N6 A5R 40E 5R3ERLG 609A4
AR5M 5NE 6G64EM 45 40E 540ERI
#
Accordin% to petitioners, the proposed a'end'ent of Articles 89 and 899 &ould effect a 'ore efficient, 'ore
econo'ical and 'ore responsive %overn'ent. 4he parlia'entar( s(ste' &ould alle%edl( ensure har'on(
bet&een the le%islative and e:ecutive branches of %overn'ent, pro'ote %reater consensus, and provide faster
and 'ore decisive %overn'ental action.
6ections " and of Article D899 pertinentl( read*
Article XVII
,"+ 4he Con%ress, upon a vote of three-fourths of all its Me'bers2 or
6EC495N . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
9t can be readil( %leaned that the above provisions set forth different 'odes and procedures for proposals for the
a'end'ent and revision of the Constitution*
". Ender 6ection ", Article D899, an( a'end'ent to, or revision of, the Constitution 'a( be proposed
b( S
a. Con%ress, upon a vote of three-fourths of all its 'e'bers2 or
b. A constitutional convention.
. Ender 6ection , Article D899, a'end'ents to the Constitution 'a( be li@e&ise directl( proposed b(
the people throu%h initiative.
4he fra'ers of the Constitution deliberatel( adopted the ter's <a'end'ent< and <revision< and provided for
their respective 'odes and procedures for effectin% chan%es of the Constitution full( co%ni=ant of the
distinction bet&een the t&o concepts. Co''issioner /ose E. 6uare=, the Chair'an of the Co''ittee on
A'end'ents and 4ransitor( Provisions, e:plained*
MR. 6EAREK. 5ne 'ore point, and &e &ill be throu%h.
Ce 'entioned the possible use of onl( one ter' and that is, <a'end'ent.< 0o&ever, the Co''ittee
finall( a%reed to use the ter's S <a'end'ent< or <revision< &hen our attention &as called b( the
honorable 8ice-President to the substantial difference in the connotation and si%nificance bet&een the
said ter's. As a result of our research, &e ca'e up &ith the observations 'ade in the fa'ous S or
notorious S /avellana doctrine, particularl( the decision rendered b( 0onorable /ustice Ma@asiar,
&herein he 'ade the follo&in% distinction bet&een <a'end'ent< and <revision< of an e:istin%
Constitution* <Revision< 'a( involve a re&ritin% of the &hole Constitution. 5n the other hand, the act
of a'endin% a constitution envisa%es a chan%e of specific provisions onl(. 4he intention of an act to
a'end is not the chan%e of the entire Constitution, but onl( the i'prove'ent of specific parts or the
addition of provisions dee'ed essential as a conse>uence of ne& conditions or the eli'ination of parts
alread( considered obsolete or unresponsive to the needs of the ti'es.
4he "#1. Constitution is not a 'ere a'end'ent to the "#.7 Constitution. 9t is a co'pletel( ne&
funda'ental Charter e'bod(in% ne& political, social and econo'ic concepts.
6o, the Co''ittee finall( ca'e up &ith the proposal that these t&o ter's should be e'plo(ed in the
for'ulation of the Article %overnin% a'end'ents or revisions to the ne& Constitution.
.;

Aurther, the fra'ers of the Constitution deliberatel( o'itted the ter' <revision< in 6ection , Article D899 of
the Constitution because it &as their intention to reserve the po&er to propose a revision of the Constitution to
Con%ress or the constitutional convention. 6tated in another 'anner, it &as their 'anifest intent that revision
thereof shall not be underta@en throu%h the s(ste' of initiative. 9nstead, the revision of the Constitution shall be
done either b( Con%ress or b( a constitutional convention.
9t is si%nificant to note that, ori%inall(, the provision on the s(ste' of initiative &as included in 6ection " of the
draft Article on A'end'ent or Revision proposed b( the Co''ittee on A'end'ents and 4ransitor(
Provisions. 4he ori%inal draft provided*
6EC. ". An( a'end'ent to, or revision of, this Constitution 'a( be proposed*
,a+ b( the National Asse'bl( upon a vote of three-fourths of all its 'e'bers2 or
,b+ b( a constitutional convention2 or
,c+ directl( b( the people the'selves thru initiative as provided for in Article NN 6ection NN of the
Constitution.
."
0o&ever, after deliberations and interpellations, the 'e'bers of the Co''ission a%reed to re'ove the
provision on the s(ste' of initiative fro' 6ection " and, instead, put it under a separate provision, 6ection . 9t
&as e:plained that the re'oval of the provision on initiative fro' the other <traditional 'odes< of chan%in% the
Constitution &as precisel( to li'it the for'er ,s(ste' of initiative+ to a'end'ents to the Constitution. 9t &as
e'phasi=ed that the s(ste' of initiative should not e:tend to revision.
MR. 6EAREK. 4han@ (ou, Mada' President.
%iven to us last ni%ht, &e sub'itted this afternoon a co'plete Co''ittee Report No. 1 &hich e'bodies
the proposed provision %overnin% the 'atter of initiative. 4his is no& covered b( 6ection of the
co'plete co''ittee report. Cith the per'ission of the Me'bers, 'a( 9 >uote 6ection *
su%%ested on the theor( that this 'atter of initiative, &hich ca'e about because of the e:traordinar(
e'bodied in 6ection ". 4he co''ittee 'e'bers felt that this s(ste' of initiative should be li'ited to
a'end'ents to the Constitution and should not e:tend to the revision of the entire Constitution, so &e
re'oved it fro' the operation of 6ection " of the proposed Article on A'end'ent or Revision. : : :
.
4he intention to e:clude <revision< of the Constitution as a 'ode that 'a( be underta@en throu%h the s(ste' of
initiative &as reiterated and 'ade clear b( Co''issioner 6uare= in response to a su%%estion of Co''issioner
Aelicitas A>uino*
MR. 6EAREK. 6ection 'ust be interpreted to%ether &ith the provisions of 6ection -, e:cept that in
6ection -, as it is presentl( drafted, there is no ta@e-off date for the $;-da( and #;-da( periods.
M6. ALE9N5. Ges. 9n other &ords, 6ection is another alternative 'ode of proposin% a'end'ents to
the Constitution &hich &ould further re>uire the process of sub'ittin% it in a plebiscite, in &hich case it
is not self-e:ecutin%.
MR. 6EAREK. No, not unless &e settle and deter'ine the ta@e-off period.
M6. ALE9N5. 9n &hich case, 9 a' seriousl( bothered b( providin% this process of initiative as a
separate section in the Article on A'end'ent. Could the sponsor be a'enable to acceptin% an
a'end'ent in ter's of reali%nin% 6ection as another subpara%raph ,c+ of 6ection ", instead of settin%
it up as another separate section as if it &ere a self-e:ecutin% provisionI
MR 6EAREK. Ce &ould be a'enable e:cept that, as &e clarified a &hile a%o, this process of initiative
is li'ited to the 'atter of a'end'ent and should not e:pand into a revision &hich conte'plates a total
overhaul of the Constitution. 4hat &as the sense conve(ed b( the Co''ittee.
M6. ALE9N5. 9n other &ords, the Co''ittee &as atte'ptin% to distin%uish the covera%e of 'odes ,a+
and ,b+ in 6ection " to include the process of revision2 &hereas, the process of initiation to a'end, &hich
is %iven to the public, &ould onl( appl( to a'end'entsI
MR. 6EAREK. 4hat is ri%ht. 4hose &ere the ter's envisioned b( the Co''ittee.
..
4hen Co''issioner 0ilario P. 3avide, /r. ,later Chief /ustice+ also 'ade the clarification &ith respect to the
observation of Co''issioner Re%alado Maa'bon%*
MR. MAAMB5NG. M( first >uestion* Co''issioner 3avideHs proposed a'end'ent on line " refers to
<a'end'ents.< 3oes it not cover the &ord <revision< as defined b( Co''issioner Padilla &hen he
'ade the distinction bet&een the &ords <a'end'ents< and <revision<I
MR. 3A893E. No, it does not, because <a'end'ents< and <revision< should be covered b( 6ection ".
6o insofar as initiative is concerned, it can onl( relate to <a'end'ents< not <revision.<
.-
After several a'end'ents, the Co''ission voted in favor of the follo&in% &ordin% of 6ection *
AMEN3MEN46 45 4096 C5N6494E495N MAG L9WEC96E BE 39REC4LG PR5P56E3 BG
40E PE5PLE 40R5EG0 9N949A498E EP5N A PE49495N 5A A4 LEA64 4CEL8E PERCEN4
5A 40E 454AL NEMBER 5A REG964ERE3 854ER6 5A C09C0 E8ERG LEG96LA498E
3964R9C4 ME64 BE REPRE6EN4E3 BG A4 LEA64 40REE PERCEN4 5A 40E REG964ERE3
854ER6 40ERE5A. N5 AMEN3MEN4 EN3ER 4096 6EC495N 60ALL BE AE405R9KE3
C9409N A98E GEAR6 A5LL5C9NG 40E RA49A9CA495N 5A 4096 C5N6494E495N N5R
5A4ENER 40AN 5NCE E8ERG A98E GEAR6 40EREAA4ER.
40E NA495NAL A66EMBLG 60ALL BG LAC PR5893E A5R 40E 9MPLEMEN4A495N 5A
40E EDERC96E 5A 4096 R9G04.
6ections " and , Article D899 as eventuall( &orded read*
Article XVII
,.+ 4he Con%ress, upon a vote of three-fourths of all its Me'bers2 or
,-+ A constitutional convention.
initiative, upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters, of &hich
4he final te:t of Article D899 on A'end'ents or Revisions clearl( 'a@es a substantial differentiation not onl(
bet&een the t&o ter's but also bet&een t&o procedures and their respective fields of application. 9neluctabl(,
the s(ste' of initiative under 6ection , Article D899 as a 'ode of effectin% chan%es in the Constitution is
strictl( li'ited to a'end'ents S not to a revision S thereof.
As opined earlier, the fra'ers of the Constitution, in providin% for <a'end'ent< and <revision< as different
'odes of chan%in% the funda'ental la&, &ere co%ni=ant of the distinction bet&een the t&o ter's. 4he(
particularl( relied on the distinction 'ade b( /ustice Aeli: Antonio in his concurrin% opinion in Ja"ellana ".
+6e#uti"e %e#retar/,
.7
the controversial decision &hich %ave i'pri'atur to the "#1. Constitution of for'er
President Aerdinand E. Marcos, as follo&s*
4here is clearl( a distinction bet&een revision and a'end'ent of an e:istin% constitution. Revision 'a(
involve a re&ritin% of the &hole constitution. 4he act of a'endin% a constitution, on the other hand,
envisa%es a chan%e of onl( specific provisions. 4he intention of an act to a'end is not the chan%e of the
entire constitution, but onl( the i'prove'ent of specific parts of the e:istin% constitution of the addition
of provisions dee'ed essential as a conse>uence of ne& conditions or the eli'ination of parts alread(
considered obsolete or unresponsive to the needs of the ti'es. 4he "#1. Constitution is not a 'ere
a'end'ent to the "#.7 Constitution. 9t is a co'pletel( ne& funda'ental charter e'bod(in% ne&
political, social and econo'ic concepts.
.$
5ther elucidation on the distinction bet&een <a'end'ent< and <revision< is enli%htenin%. Aor e:a'ple, 3ean
8icente G. 6inco, an e'inent authorit( on political la&, distin%uished the t&o ter's in this 'anner*
6trictl( spea@in%, the act of revisin% a constitution involves alterations of different portions of the entire
perhaps onl( so'e of its i'portant provisions. But &hatever results the revisions 'a( produce, the
factor that characteri=es it as an act of revision is the ori%inal intention and plan authori=ed to be carried
out. 4hat intention and plan 'ust conte'plate a consideration of all the provisions of the constitution to
constitution or of considerin% that possibilit(. 4he intention rather is to i'prove the specific parts of the
suppress portions of it that see'ed obsolete, or dan%erous, or 'isleadin% in their effect.
.1

9n the Enited 6tates, the 6upre'e Court of Geor%ia in 7heeler ". 4oard of rustees
.!
had the occasion to 'a@e
the distinction bet&een the t&o ter's &ith respect to Ga.L. "#-7, an instru'ent &hich <a'ended< the "!11
Constitution of Geor%ia. 9t e:plained the ter' <a'end'ent*<
<A'end'ent< of a statute i'plies its survival and not destruction. 9t repeals or chan%es so'e provision,
or adds so'ethin% thereto. A la& is a'ended &hen it is in &hole or in part per'itted to re'ain, and
so'ethin% is added to or ta@en fro' it, or it is in so'e &a( chan%ed or altered to 'a@e it 'ore co'plete
or perfect, or to fit it the better to acco'plish the ob)ect or purpose for &hich it &as 'ade, or so'e other
ob)ect or purpose.
.#
5n the other hand, the ter' <revision< &as e:plained b( the said E6 appellate court*
: : : Chen a house is co'pletel( de'olished and another is erected on the sa'e location, do (ou have a
chan%ed, repaired and altered house, or do (ou have a ne& houseI 6o'e of the 'aterials contained in
the old house 'a( be used a%ain, so'e of the roo's 'a( be constructed the sa'e, but this does not alter
the fact that (ou have alto%ether another or a ne& house. Ce conclude that the instru'ent as contained
in Ga.L. "#-7, pp. ! to !#, inclusive, is not an a'end'ent to the constitution of "!112 but on the
contrar( it is a co'pletel( revised or ne& constitution.
-;
Aairl( recentl(, Ar. /oa>uin Bernas, 6/, a 'e'ber of the Constitutional Co''ission, e:pounded on the
distinction bet&een the t&o ter's thus*
An a'end'ent envisa%es an alteration of one or a fe& specific and separable provisions. 4he %uidin%
are )ud%ed to be dan%erous. 9n revision, ho&ever, the %uidin% ori%inal intention and plan conte'plate a
re-e:a'ination of the entire docu'ent S or of provisions of the docu'ent ,&hich have overall
i'plications for the entire docu'ent or for the funda'ental philosophical underpinnin%s of the
docu'ent+ S to deter'ine ho& and to &hat e:tent it should be altered. 4hus, for instance, a s&itch fro'
the presidential s(ste' to a parlia'entar( s(ste' &ould be a revision because of its overall i'pact on
the entire constitutional structure. 6o &ould a s&itch fro' a bica'eral s(ste' to a unica'eral s(ste'
because of its effect on other i'portant provisions of the Constitution.
9t is thus clear that &hat distin%uishes revision fro' a'end'ent is not the >uantu' of chan%e in the
docu'ent. Rather, it is the funda'ental >ualitative alteration that effects revision. 0ence, 9 'ust re)ect
the puerile ar%u'ent that the use of the plural for' of <a'end'ents< 'eans that a revision can be
achieved b( the introduction of a 'ultiplicit( of a'end'entsX
-"
Given that revision necessaril( entails a 'ore co'ple:, substantial and far-reachin% effects on the Constitution,
the fra'ers thereof &isel( &ithheld the said 'ode fro' the s(ste' of initiative. 9t should be recalled that it too@
the fra'ers of the present Constitution four 'onths fro' /une , "#!$ until 5ctober "7, "#!$ to co'e up &ith
the draft Constitution &hich, as described b( the venerable /ustice Cecilia MuBo= Pal'a, the President of the
Constitutional Co''ission of "#!$, <%raduall( and painsta@in%l( too@ shape throu%h the crucible of sustained
so'eti'es passionate and often e:hilaratin% debates that intersected all di'ensions of the national life.<
-
Evidentl(, the fra'ers of the Constitution believed that a revision thereof should, in li@e 'anner, be a product
of the sa'e e:tensive and intensive stud( and debates. Conse>uentl(, &hile providin% for a s(ste' of initiative
&here the people &ould directl( propose a'end'ents to the Constitution, the( entrusted the for'idable tas@ of
its revision to a deliberative bod(, the Con%ress or Constituent Asse'bl(.
4he Constitution is the funda'ental la& of the state, containin% the principles upon &hich the %overn'ent is
founded, and re%ulatin% the division of soverei%n po&ers, directin% to &hat persons each of those po&ers is to
be confided and the 'anner in &hich it is to be e:ercised.
-.
4he Philippines has follo&ed the A'erican
constitutional le%al s(ste' in the sense that the ter' #onstitution is %iven a 'ore restricted 'eanin%, i.e., as a
&ritten or%anic instru'ent, under &hich %overn'ental po&ers are both conferred and circu'scribed.
--
4he Constitution received its force fro' the e:press &ill of the people. An overwhelming 16,622,111, out of
21,785,216 votes cast during the plebiscite, or 76.30 ratified the present Constitution on February 2,
1987.
-7
9n e:pressin% that &ill, the Ailipino people have incorporated therein the 'ethod and 'anner b( &hich
the sa'e can be a'ended and revised, and &hen the electorate have incorporated into the funda'ental la& the
particular 'anner in &hich the sa'e 'a( be altered or chan%ed, then an( course &hich disre%ards that e:press
&ill is a direct violation of the funda'ental la&.
-$
Aurther, these provisions havin% been incorporated in the Constitution, &here the validit( of a constitutional
a'end'ent or revision depends upon &hether such provisions have been co'plied &ith, such >uestion presents
for consideration and deter'ination a )udicial >uestion, and the courts are the onl( tribunals vested &ith po&er
under the Constitution to deter'ine such >uestion.
-1
Earlier, it &as 'entioned that Article D899, b( the use of the ter's <a'end'ent< and <revision,< clearl( 'a@es
a differentiation not onl( bet&een the t&o ter's but also bet&een t&o procedures and their respective fields of
application. 5n this point, the case of '#9adden ". Jordan
-!
is instructive. 9n that case, a <purported initiative
a'end'ent< ,referred to as the proposed 'easure+ to the 6tate Constitution of California, then bein% proposed
to be sub'itted to the electors for ratification, &as sou%ht to be en)oined. 4he proposed 'easure, deno'inated
as <California Bill of Ri%hts,< co'prised a sin%le ne& article &ith so'e ;! subsections &hich &ould repeal or
substantiall( alter at least "7 of the 7 articles of the California 6tate Constitution and add at least four ne&
topics. A'on% the li@el( effects of the proposed 'easure &ere to curtail le%islative and )udicial functions,
le%ali=e %a'in%, co'pletel( revise the ta:ation s(ste' and reduce the po&ers of cities, counties and courts. 4he
proposed 'easure also included diverse 'atters as 'inisters, 'ines, civic centers, li>uor control and
naturopaths.
4he 6upre'e Court of California en)oined the sub'ission of the proposed 'easure to the electors for
ratification because it &as not an <a'end'ent< but a <revision< &hich could onl( be proposed b( a convention.
9t held that fro' an e:a'ination of the proposed 'easure itself, considered in relation to the ter's of the
California 6tate Constitution, it &as clear that the proposed initiative enact'ent a'ounted substantiall( to an
atte'pted revision, rather than a'end'ent, thereof2 and that inas'uch as the California 6tate Constitution
specifies ,Article D8999 V thereof+ that it 'a( be revised b( 'eans of constitutional convention but does not
provide for revision b( initiative 'easure, the sub'ission of the proposed 'easure to the electorate for
ratification 'ust be en)oined.
As piercin%l( enunciated b( the California 6tate 6upre'e Court in '#9adden- the differentiation re.uired
Abetween amendment and re"isionC is not merel/ between two words; more a##uratel/ it is between two
pro#edures and between their respe#ti"e fields of appli#ation. +a#h pro#edure- if we follow elementar/
prin#iples of statutor/ #onstru#tion- must be understood to ha"e a substantial field of appli#ation- not to be a
mere alternati"e pro#edure in the same field. +a#h of the two words- then- must be understood to denote-
respe#ti"el/- not onl/ a pro#edure but also a field of appli#ation appropriate to its pro#edure.
-#
Provisions re%ulatin% the ti'e and 'ode of effectin% or%anic chan%es are in the nature of safet(-valves S the(
'ust not be so ad)usted as to dischar%e their peculiar function &ith too %reat facilit(, lest the( beco'e the
ordinar( escape-pipes of part( passion2 nor, on the other hand, 'ust the( dischar%e it &ith such difficult( that
the force needed to induce action is sufficient also to e:plode the 'achine. 0ence, the proble' of the
Constitution 'a@er is, in this particular, one of the 'ost difficult in our &hole s(ste', to reconcile the re>uisites
for pro%ress &ith the re>uisites for safet(.
7;
Li@e in '#9adden, the present petition for initiative on a'end'ents to the Constitution is, despite its
deno'ination, one for its revision. 9t purports to see@ the a'end'ent onl( of Articles 89 and 899 of the
Constitution as &ell as to provide transitor( provisions. 0o&ever, as &ill be sho&n shortl(, the a'end'ent of
these t&o provisions &ill necessaril( affect other nu'erous provisions of the Constitution particularl( those
pertainin% to the specific po&ers of Con%ress and the President. 4hese po&ers &ould have to be transferred to
the Parlia'ent and the Pri'e Minister andFor President, as the case 'a( be. More than one hundred ,";;+
sections &ill be affected or altered thereb(*
". 6ection "# of Article 999 ,Bill of Ri%hts+ on the po&er of Con%ress to i'pose the death penalt( for
co'pellin% reasons involvin% heinous cri'es2
. 6ection of Article 8 ,6uffra%e+ on the po&er of Con%ress to provide for securin% the secrec( and
sanctit( of the ballot as &ell as a s(ste' for absentee votin%2
.. All . 6ections of Article 89 on the Le%islative 3epart'ent2
-. All . 6ections of Article 899 on the E:ecutive 3epart'ent2
7. 4he follo&in% 6ections of Article 8999 ,/udicial 3epart'ent+*
- 6ection on po&er of Con%ress to define, prescribe and apportion the )urisdiction of various
courts2
- 6ection 1 on the po&er of Con%ress to prescribe the >ualifications of )ud%es of lo&er courts2
- 6ection ! on the co'position of /udicial Bar Council ,/BC+ &hich includes representatives of
Con%ress as e: officio 'e'bers and on the po&er of the President to appoint the re%ular
'e'bers of the /BC2
- 6ection # on the po&er of the President to appoint the 'e'bers of the 6upre'e Court and
)ud%es of lo&er courts2
- 6ection "$ on dut( of 6upre'e Court to 'a@e annual report to the President and Con%ress.
$. 4he follo&in% 6ections of Article 9D ,Constitutional Co''issions+2
- ,B+ 6ection . on dut( of Civil 6ervice Co''ission to 'a@e annual report to the President and
Con%ress2
- ,B+ 6ection 7 on po&er of Con%ress to provide b( la& for the standardi=ation of co'pensation
of %overn'ent officials2
- ,B+ 6ection ! &hich provides in part that <no public officer shall accept, &ithout the consent of
Con%ress, an( present, e'olu'ent, etc. : : :<
- ,C+ 6ection " on the po&er of the President to appoint the Chair'an and Co''issioners of the
Co''ission on Elections &ith the consent of the Co''ission on Appoint'ents2
- ,C+ 6ection ,1+ on the po&er of the C5MELEC to reco''end to Con%ress 'easures to
'ini'i=e election spendin% : : :2
- ,C+ 6ection ,!+ on the dut( of the C5MELEC to reco''end to the President the re'oval of
an( officer or e'plo(ee it has deputi=ed, or the i'position of an( other disciplinar( action : : :2
- ,C+ 6ection ,#+ on the dut( of the C5MELEC to sub'it to the President and Con%ress a
report on the conduct of election, plebiscite, etc.2
- ,C+ 6ection 7 on the po&er of the President, &ith the favorable reco''endation of the
C5MELEC, to %rant pardon, a'nest(, parole, or suspension of sentence for violation of election
la&s, rules and re%ulations2
- ,C+ 6ection 1 &hich reco%ni=es as valid votes cast in favor of or%ani=ation re%istered under
part(-list s(ste'2
- ,C+ 6ection ! on political parties, or%ani=ations or coalitions under the part(-list s(ste'2
- ,3+ 6ection " ,+ on the po&er of the President to appoint the Chair'an and Co''issioners of
the Co''ission on Audit ,C5A+ &ith the consent of the Co''ission of Appoint'ents2
- 6ection - on dut( of the C5A to 'a@e annual report to the President and Con%ress.
1. 4he follo&in% 6ections of Article D ,Local Govern'ent+*
- 6ection . on the po&er of Con%ress to enact a local %overn'ent code2
- 6ection - on the po&er of the President to e:ercise %eneral supervision over local %overn'ent
units ,LGEs+2
- 6ection 7 on the po&er of LGEs to create their o&n sources of inco'e : : :, sub)ect to such
%uidelines as Con%ress 'a( provide2
- 6ection "" on the po&er of Con%ress to create special 'etropolitan political subdivisions2
- 6ection "- on the po&er of the President to provide for re%ional develop'ent councils : : :2
- 6ection "$ on the po&er of the President to e:ercise %eneral supervision over autono'ous
re%ions2
- 6ection "! on the po&er of Con%ress to enact or%anic act for each autono'ous re%ion as &ell as
the po&er of the President to appoint the representatives to the re%ional consultative co''ission2
- 6ection "# on the dut( of the first Con%ress elected under the Constitution to pass the or%anic
act for autono'ous re%ions in Musli' Mindanao and the Cordilleras.
!. 4he follo&in% 6ections of Article D9 ,Accountabilit( of Public 5fficers+*
- 6ection on the i'peachable officers ,President, 8ice-President, etc.+2
- 6ection . on i'peach'ent proceedin%s ,e:clusive po&er of the 0ouse to initiate co'plaint and
sole po&er of the 6enate to tr( and decide i'peach'ent cases+2
- 6ection # on the po&er of the President to appoint the 5'buds'an and his deputies2
- 6ection "$ &hich provides in part that <: : : no loans or %uarant( shall be %ranted to the
President, 8ice-President, etc.
- 6ection "1 on 'andator( disclosure of assets and liabilities b( public officials includin% the
President, 8ice-President, etc.
#. 4he follo&in% 6ections of Article D99 ,National Econo'( and Patri'on(+*
- 6ection on the po&er of Con%ress to allo&, b( la&, s'all-scale utili=ation of natural resources
and po&er of the President to enter into a%ree'ents &ith forei%n-o&ned corporations and dut( to
notif( Con%ress of ever( contract2
- 6ection . on the po&er of Con%ress to deter'ine si=e of lands of public do'ain2
- 6ection - on the po&er of Con%ress to deter'ine specific li'its of forest lands2
- 6ection 7 on the po&er of Con%ress to provide for applicabilit( of custo'ar( la&s2
- 6ection # on the po&er of Con%ress to establish an independent econo'ic and plannin% a%enc(
to be headed b( the President2
- 6ection "; on the po&er of Con%ress to reserve to Ailipino citi=ens or do'estic corporations,at
least $;M Ailipino-o&ned+ certain areas of invest'ent2
- 6ection "" on the sole po&er of Con%ress to %rant franchise for public utilities2
- 6ection "7 on the po&er of Con%ress to create an a%enc( to pro'ote viabilit( of cooperatives2
- 6ection "$ &hich provides that Con%ress shall not, e:cept b( %eneral la&, for' private
corporations2
- 6ection "1 on the salaries of the President, 8ice-President, etc. and the po&er of Con%ress to
ad)ust the sa'e2
- 6ection ; on the po&er of Con%ress to establish central 'onetar( authorit(.
";. 4he follo&in% 6ections of Article D999 ,6ocial /ustice and 0u'an Ri%hts+*
- 6ection " on the 'andate of Con%ress to %ive hi%hest priorit( to enact'ent of 'easures that
protect and enhance the ri%ht of people : : :
- 6ection - on the po&er of Con%ress to prescribe retention li'its in a%rarian refor'2
- 6ection "! ,$+ on the dut( of the Co''ission on 0u'an Ri%hts to reco''end to Con%ress
effective 'easures to pro'ote hu'an ri%hts2
- 6ection "# on the po&er of Con%ress to provide for other cases to fall &ithin the )urisdiction of
the Co''ission on 0u'an Ri%hts.
"". 4he follo&in% 6ections of Article D98 ,Education, 6cience and 4echnolo%(, etc.+*
- 6ection - on the po&er of Con%ress to increase Ailipino e>uit( participation in educational
institutions2
- 6ection $ &hich provides that sub)ect to la& and as Con%ress 'a( provide, the Govern'ent
shall sustain the use of Ailipino as 'ediu' of official co''unication2
- 6ection # on the po&er of Con%ress to establish a national lan%ua%e co''ission2
- 6ection "" on the po&er of Con%ress to provide for incentives to pro'ote scientific research.
". 4he follo&in% 6ections of Article D89 ,General Provisions+*
- 6ection on the po&er of Con%ress to adopt ne& na'e for the countr(, ne& national anthe',
etc.2
- 6ection 7 ,1+ on the tour of dut( of the Chief of 6taff &hich 'a( be e:tended b( the President
in ti'es of &ar or national e'er%enc( declared b( Con%ress2
- 6ection "" on the po&er of Con%ress to re%ulate or prohibit 'onopolies in 'ass 'edia2
- 6ection " on the po&er of Con%ress to create consultative bod( to advise the President on
indi%enous cultural co''unities.
".. 4he follo&in% 6ections of Article D899 ,A'end'ents or Revisions+*
- 6ection " on the a'end'ent or revision of Constitution b( Con%ress2
- 6ection on the dut( of Con%ress to provide for the i'ple'entation of the s(ste' of initiative2
- 6ection . on the po&er of Con%ress to call constitutional convention to a'end or revise the
Constitution.
"-. All 1 6ections of Article D8999 ,4ransitor( Provisions+.
4he fore%oin% enu'eration ne%ates the clai' that <the bi% bul@ of the "#!1 Constitution &ill not be affected.<
7"

PetitionersH proposition, &hile purportedl( see@in% to a'end onl( Articles 89 and 899 of the Constitution and
providin% transitor( provisions, &ill, in fact, affect, alter, replace or repeal other nu'erous articles and sections
thereof. More than the .uantitati"e effects, ho&ever, the revisor( character of petitionersH proposition is
apparent fro' the >ualitative effects it &ill have on the funda'ental la&.
9 a' not i'pervious to the co''entar( of 3ean 8icente G. 6inco that the revision of a constitution, in its strict
sense, refers to a consideration of the entire constitution and the procedure for effectin% such chan%e2 &hile
amendment refers onl( to particular provisions to be added to or to be altered in a constitution.
7
Aor clarit( and accurac(, ho&ever, it is necessar( to reiterate belo& 3ean 6incoHs 'ore co'prehensive
differentiation of the ter's*
perhaps onl( so'e of its i'portant provisions. But &hatever results the revisions 'a( produce, the
factor that characteri=es it as an act of revision is the ori%inal intention and plan authori=ed to be carried
out. 4hat intention and plan 'ust conte'plate a consideration of all the provisions of the constitution to
constitution or of considerin% that possibilit(. 4he intention rather is to i'prove the specific parts of the
suppress portions of it that see'ed obsolete, or dan%erous, or 'isleadin% in their effect.
7.
A chan%e in the for' of %overn'ent fro' bica'eral-presidential to unica'eral-parlia'entar(, follo&in% the
above distinction, entails a revision of the Constitution as it &ill involve <alteration of different portions of the
entire docu'ent< and <'a( result in the re&ritin% of the &hole constitution, or the %reater portion of it, or
perhaps onl( so'e of its i'portant provisions.<
More i'portantl(, such shift in the for' of %overn'ent &ill, &ithout doubt, funda'entall( chan%e the basic
plan and substance of the present Constitution. 4he tripartite s(ste' ordained b( our funda'ental la& divides
%overn'ental po&ers into three distinct but co-e>ual branches* the le%islative, e:ecutive and )udicial.
Le%islative po&er, vested in Con%ress &hich is a bica'eral bod( consistin% of the 0ouse of Representatives
and the 6enate, is the po&er to 'a@e la&s and to alter the' at discretion. E:ecutive po&er, vested in the
President &ho is directl( elected b( the people, is the po&er to see that the la&s are dul( e:ecuted and enforced.
/udicial po&er, vested in the 6upre'e Court and the lo&er courts, is the po&er to construe and appl( the la&
&hen controversies arise concernin% &hat has been done or o'itted under it. 4his separation of po&ers
furnishes a s(ste' of chec@s and balances &hich %uards a%ainst the establish'ent of an arbitrar( or t(rannical
%overn'ent.
Ender a unica'eral-parlia'entar( s(ste', ho&ever, the tripartite separation of po&er is dissolved as there is a
fusion bet&een the e:ecutive and le%islative po&ers. Essentiall(, the President beco'es a 'ere <s('bolic head
of 6tate< &hile the Pri'e Minister beco'es the head of %overn'ent &ho is elected, not b( direct vote of the
people, but b( the 'e'bers of the Parlia'ent. 4he Parlia'ent is a unica'eral bod( &hose 'e'bers are elected
b( le%islative districts. 4he Pri'e Minister, as head of %overn'ent, does not have a fi:ed ter' of office and
'a( onl( be re'oved b( a vote of confidence of the Parlia'ent. Ender this for' of %overn'ent, the s(ste' of
chec@s and balances is e'asculated.
Considerin% the enco'passin% scope and depth of the chan%es that &ould be effected, not to 'ention that the
ConstitutionHs basic plan and substance of a tripartite s(ste' of %overn'ent and the principle of separation of
po&ers underl(in% the sa'e &ould be altered, if not entirel( destro(ed, there can be no other conclusion than
that the proposition of petitioners La'bino, et al. &ould constitute a revision of the Constitution rather than an
a'end'ent or <such an addition or chan%e &ithin the lines of the ori%inal instru'ent as &ill effect an
i'prove'ent or better carr( out the purpose for &hich it &as fra'ed.<
7-
As has been sho&n, the effect of the
adoption of the petitionersH proposition, rather than to <&ithin the lines of the ori%inal instru'ent< constitute <an
i'prove'ent or better carr( out the purpose for &hich it &as fra'ed,< is to <substantiall( alter the purpose and
to attain ob)ectives clearl( be(ond the lines of the Constitution as no& cast.<
77
4o paraphrase '#9adden, petitionersH contention that an( chan%e less than a total one is a'endator( &ould
reduce to the rubble of absurdit( the bul&ar@ so carefull( erected and preserved. A case 'i%ht, conceivabl(, be
presented &here the >uestion &ould be occasion to underta@e to define &ith nicet( the line of de'arcation2 but
&e have no case or occasion here.
As succinctl( b( Ar. /oa>uin Bernas, <a s&itch fro' the presidential s(ste' to a parlia'entar( s(ste' &ould be
a revision because of its overall i'pact on the entire constitutional structure. 6o &ould a s&itch fro' a
bica'eral s(ste' to a unica'eral s(ste' because of its effect on other i'portant provisions of the Constitution.
9t is thus clear that &hat distin%uishes revision fro' a'end'ent is not the >uantu' of chan%e in the docu'ent.
Rather, it is the funda'ental >ualitative alteration that effects revision.<
7$
4he petition for initiative on a'end'ents to the Constitution filed b( petitioners La'bino, et al., bein% in truth
and in fact a proposal for the revision thereof, is barred fro' the s(ste' of initiative upon an( le%all(
per'issible construction of 6ection , Article D899 of the Constitution.
The Petition for Initiative on
Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance
A%ain, even %rantin% ar(uendo RA $1.7 is declared sufficient to i'ple'ent the s(ste' of initiative and that
C5MELEC Resolution No. .;;, as it prescribed rules and re%ulations on the conduct of initiative on
a'end'ents to the Constitution, is valid, still, the petition for initiative on a'end'ents to the Constitution 'ust
be dis'issed for bein% insufficient in for' and substance.
6ection 7 of RA $1.7 re>uires that a petition for initiative on the Constitution 'ust state the follo&in%*
". Contents or te:t of the proposed la& sou%ht to be enacted, approved or re)ected, a'ended or repealed,
as the case 'a( be2
. 4he proposition2
.. 4he reason or reasons therefor2
-. 4hat it is not one of the e:ceptions provided herein2
7. 6i%natures of the petitioners or re%istered voters2 and
$. An abstract or su''ar( proposition in not 'ore than one hundred ,";;+ &ords &hich shall be le%ibl(
&ritten or printed at the top of ever( pa%e of the petition.
6ection 1 thereof re>uires that the si%natures be verified in this &ise*
6EC. 1. *erifi#ation of %i(natures. S 4he Election Re%istrar shall verif( the si%natures on the basis of
the re%istr( list of voters, votersH affidavits and votersH identification cards used in the i''ediatel(
precedin% election.
4he la& 'andates upon the election re%istrar to personall/ verif( the si%natures. 4his is a sole'n and i'portant
dut( i'posed on the election re%istrar &hich he cannot dele%ate to an( other person, even to baran(a/ officials.
0ence, a verification of si%natures 'ade b( persons other than the election re%istrars has no le%al effect.
9n patent violation of the la&, several certifications sub'itted b( petitioners sho&ed that the verification of
si%natures &as 'ade, not b( the election re%istrars, but b( baran(a/ officials. Aor e:a'ple, the certification of
the election officer in Lu'batan, Lanao del 6ur reads in full*
L5CAL ELEC495N 5AA9CERH6 CER49A9CA495N
71

4096 96 45 CER49AG that based on the verifications 'ade b( the Baran%a( 5fficials in this
Cit(FMunicipalit(, as attested to b( t&o ,+ &itnesses fro' the sa'e 4aran(a/s , &hich is part of the
nd

Le%islative 3istrict of the Province of Lanao del 6ur, the na'es appearin% on the attached si%nature
sheets relative to the proposed initiative on A'end'ents to the "#!1 Constitution, are those of bonafide
resident of the said 4aran(a/s and correspond to the na'es found in the official list of re%istered voters
of the Co''ission on Elections andFor votersH affidavit andFor votersH identification cards.
9t is further certified that the total nu'ber of si%natures of the re%istered voters for the Cit(FMunicipalit(
of LEMBA4AN, LANA5 3EL 6ER as appearin% in the affi:ed si%natures sheets is 5NE 405E6AN3
5NE 0EN3RE3 E9G04G ,","!;+.
April , ;;$
9BRA09M M. MACA3A45
Election 5fficer
4he ineffective verification in al'ost all the le%islative districts in the Autono'ous Re%ion of Musli'
Mindanao ,ARMM+ alone is sho&n b( the certifications, si'ilarl( &orded as above->uoted, of the election
re%istrars of Buldon, Ma%uindanao2
7!
Cotabato Cit( ,6pecial Province+2
7#
3atu 5din 6insuat, Ma%uindanao2
$;

Matano%, Ma%uindanao2
$"
Paran%, Ma%uindanao2
$
Wabantalan, Ma%uindanao2
$.
Epi, Ma%uinadano2
$-
Barira,
Ma%uindanao2
$7
6ultan, Mastura2
$$
A'patuan, Ma%uindanao2
$1
Buluan, Ma%uindanao2
$!
3atu Pa%las,
Ma%uindanao2
$#
3atu Pian%, Ma%uindanao2
1;
6hariff A%ua@, Ma%uindanao2
1"
Pa%alun%an, Ma%uindanao2
1

4ala(an, Ma%uindanao2
1.
Gen. 6.W. Pendatun, Ma%uindanao2
1-
Ma'asapano, Ma%uindanao2
17
4alita(,
Ma%uindanao2
1$
Guindulun%an, Ma%uindanao2
11
3atu 6audi A'patuan, Ma%uindanao2
1!
3atu Ensa(,
Ma%uindanao2
1#
Pa%a%a&an, Ma%uindanao2
!;
Ra)ah Bua(an, Ma%uindanao2
!"
9ndanan, 6ulu2
!
/olo, 6ulu2
!.

Mai'bun%, 6ulu2
!-
0ad)i Pan%li'a, 6ulu2
!7
Pan%utaran, 6ulu2
!$
Paran%, 6ulu2
!1
Walin%alan Caluan%, 6ulu2
!!

Luu@, 6ulu2
!#
Pana'ao, 6ulu2
#;
Pata, 6ulu2
#"
6iasi, 6ulu2
#
4apul, 6ulu2
#.
Pan%li'a Estino, 6ulu2
#-
Lu%us, 6ulu2
#7

and Panda'i, 6ulu.
#$
6ection 1 of RA $1.7 is clear that the verification of si%natures shall be done b( the election re%istrar, and b( no
one else, includin% the baran(a/ officials. 4he fore%oin% certifications sub'itted b( petitioners, instead of
aidin% their cause, )ustif( the outri%ht dis'issal of their petition for initiative. Because of the ille%al
verifications 'ade b( baran(a/ officials in the above-'entioned le%islative districts, it necessaril( follo&s that
the petition for initiative has failed to co'pl( &ith the re>uisite nu'ber of si%natures, i.e., at least t&elve
percent ,"M+ of the total nu'ber of re%istered voters, of &hich ever( le%islative district 'ust be represented b(
at least three percent ,.M+ of the re%istered voters therein.
Petitioners cannot disclai' the veracit( of these da'a%in% certifications because the( the'selves sub'itted the
sa'e to the C5MELEC and to the Court in the present case to support their contention that the re>uire'ents of
RA $1.7 had been co'plied &ith and that their petition for initiative is on its face sufficient in for' and
substance. 4he( are in the nature of )udicial ad'issions &hich are conclusive and bindin% on petitioners.
#1
4his
bein% the case, the Court 'ust forth&ith order the dis'issal of the petition for initiative for bein%, on its face,
insufficient in for' and substance. 4he Court should 'a@e the ad)udication entailed b( the facts here and no&,
&ithout further proceedin%s, as it has done in other cases.
#!
9t is ar%ued b( petitioners that, assu'in% ar(uendo that the C5MELEC is correct in rel(in% on %antia(o that
RA $1.7 is inade>uate to cover initiative to the Constitution, this cannot be used to le%iti'i=e its refusal to heed
the peopleHs &ill. 4he fact that there is no enablin% la& should not pre)udice the ri%ht of the soverei%n people to
propose a'end'ents to the Constitution, &hich ri%ht has alread( been e:ercised b( $,.1,#7 voters. 4he
collective and resoundin% act of the particles of soverei%nt( 'ust not be set aside. 0ence, the C5MELEC
should be ordered to co'pl( &ith 6ection -, Article D899 of the "#!1 Constitution via a &rit of mandamus. 4he
sub'ission of petitioners, ho&ever, is unpersuasive.
'andamus is a proper recourse for citi=ens &ho act to enforce a public ri%ht and to co'pel the persons of a
public dut( 'ost especiall( &hen 'andated b( the Constitution.
##
0o&ever, under 6ection ., Rule $7 of the
"##1 Rules of Court, for a petition for mandamus to prosper, it 'ust be sho&n that the sub)ect of the petition is
a 'inisterial act or dut( and not purel( discretionar( on the part of the board, officer or person, and that
petitioner has a &ell-defined, clear and certain ri%ht to &arrant the %rant thereof. A purel( 'inisterial act or dut(
is one &hich an officer or tribunal perfor's in a %iven state of facts, in a prescribed 'anner, in obedience to the
'andate of a le%al authorit(, &ithout re%ard to or the e:ercise of his o&n )ud%'ent upon the propriet( or
i'propriet( of the act done. 9f the la& i'poses a dut( upon a public official and %ives hi' the ri%ht to decide
ho& or &hen the dut( should be perfor'ed, such dut( is discretionar( and not 'inisterial. 4he dut( is
'inisterial onl( &hen the dischar%e of the sa'e re>uires neither the e:ercise of an official discretion nor
)ud%'ent.
";;

4o stress, in a petition for mandamus, petitioner 'ust sho& a &ell defined, clear and certain ri%ht to &arrant the
%rant thereof.
";"
9n this case, petitioners failed to establish their ri%ht to a &rit of mandamus as sho&n b( the
fore%oin% dis>uisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
4he dissentin% opinion posits that the issue of &hether or not the petition for initiative has co'plied &ith the
re>uisite nu'ber of si%natures of at least t&elve percent ,"M+ of the total nu'ber of re%istered voters, of
&hich ever( le%islative district 'ust be represented b( at least three percent ,.M+ of the re%istered voters
therein, involves contentious facts. 4he dissentin% opinion cites the petitionersH clai' that the( have co'plied
&ith the sa'e &hile the oppositors-intervenors have vi%orousl( refuted this clai' b( alle%in%, inter alia, that the
si%natures &ere not properl( verified or &ere not verified at all. 5ther oppositors-intervenors have alle%ed that
the si%natories did not full( understand &hat the( have si%ned as the( &ere 'isled into si%nin% the si%nature
sheets.
Accordin% to the dissentin% opinion, the sufficienc( of the petition for initiative and its co'pliance &ith the
re>uire'ents of RA $1.7 on initiative and its i'ple'entin% rules is a >uestion that should be resolved b( the
C5MELEC at the first instance. 9t thus re'ands the case to the C5MELEC for further proceedin%s.
4o '( 'ind, the re'and of the case to the C5MELEC is not &arranted. 4here is nothin% in RA $1.7, as &ell
as in C5MELEC Resolution No. .;;, %rantin% that it is valid to i'ple'ent the for'er statute, that authori=es
the C5MELEC to conduct an( @ind of hearin%, &hether full-blo&n or trial-t(pe hearin%, su''ar( hearin% or
ad'inistrative hearin%, on a petition for initiative.
6ection -" of C5MELEC Resolution No. .;; provides that <OaPn initiative shall be conducted under the
control and supervision of the Co''ission in accordance &ith Article 999 hereof.< Pertinentl(, 6ections .;, ."
and . of Article 999 of the said i'ple'entin% rules provide as follo&s*
6ec. .;. *erifi#ation of si(natures. S 4he Election Re%istrar shall verif( the si%natures on the basis of
the re%istr( list of voters, votersH affidavits and votersH identification cards used in the i''ediatel(
precedin% election.
6ec. .". !etermination b/ the ,ommission. S 4he Co''ission shall act on the findin%s of the
sufficienc( or insufficienc( of the petition for initiative or referendu'.
9f it should appear that the re>uired nu'ber of si%natures has not been obtained, the petition shall be
dee'ed defeated and the Co''ission shall issue a declaration to that effect.
9f it should appear that the re>uired nu'ber of si%natures has been obtained, the Co''ission shall set
the initiative or referendu' in accordance &ith the succeedin% sections.
6ec. .. Appeal. S 4he decision of the Co''ission on the findin%s of the sufficienc( and insufficienc(
of the petition for initiative or referendu' 'a( be appealed to the 6upre'e Court &ithin thirt( ,.;+ da(s
fro' notice hereof.
Clearl(, follo&in% the fore%oin% procedural rules, the C5MELEC is not authori=ed to conduct an( @ind of
hearin% to receive an( evidence for or a%ainst the sufficienc( of the petition for initiative. Rather, the fore%oin%
rules re>uire of the C5MELEC to deter'ine the sufficienc( or insufficienc( of the petition for initiative on its
face. And it has alread( been sho&n, b( the anne:es sub'itted b( the petitioners the'selves, their petition is,
on its face, insufficient in for' and substance. 4he re'and of the case to the C5MELEC for reception of
evidence of the parties on the contentious factual issues is, in effect, an a'end'ent of the above>uoted rules of
the C5MELEC b( this Court &hich the Court is not e'po&ered to do.
The Present Petition Presents a
1usticiable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political >uestions refer to those >uestions &hich, under the Constitution, are to be decided b( the people in
their soverei%n capacit(, or in re%ard to &hich full discretionar( authorit( has been dele%ated to the le%islative
or e:ecutive branch of %overn'ent.
";
A political >uestion has t&o aspects* ,"+ those 'atters that are to be
e:ercised b( the people in their pri'ar( political capacit(2 and ,+ 'atters &hich have been specificall(
desi%nated to so'e other depart'ent or particular office of the %overn'ent, &ith discretionar( po&er to act.
";.
9n his concurrin% and dissentin% opinion in Arro/o ". !e *ene#ia,
";-
6enior Associate /ustice Re(nato 6. Puno
e:plained the doctrine of political >uestion vis-Y-vis the e:press 'andate of the present Constitution for the
courts to deter'ine &hether or not there has been a %rave abuse of discretion on the part of an( branch or
instru'entalit( of the Govern'ent*
9n the Philippine settin%, there is 'ore co'pellin% reason for courts to cate%oricall( re)ect the political
>uestion defense &hen its interposition &ill cover up abuse of po&er. Aor 6ection ", Article 8999 of our
Constitution &as intentionall/ cobbled to e'po&er courts <... to deter'ine &hether or not there has been
a %rave abuse of discretion a'ountin% to lac@ or e:cess of )urisdiction on the part of an( branch or
instru'entalit( of the %overn'ent.< 4his po&er is ne& and &as not %ranted to our courts in the "#.7 and
"#1 Constitutions. 9t &as also not :ero:ed fro' the E6 Constitution or an( forei%n state constitution.
4he C5NC5M OConstitutional Co''issionP %ranted this enor'ous po&er to our courts in vie& of our
e:perience under 'artial la& &here abusive e:ercises of state po&er &ere shielded fro' )udicial
scrutin( b( the 'isuse of the political >uestion doctrine. Led b( the e'inent for'er Chief /ustice
Roberto Concepcion, the C5NC5M e:panded and sharpened the chec@in% po&ers of the )udiciar( vis-
Y-vis the E:ecutive and the Le%islative depart'ents of %overn'ent. 9n cases involvin% the procla'ation
of 'artial la& and suspension of the privile%e of habeas corpus, it is no& be(ond dubiet( that the
%overn'ent can no lon%er invo@e the political >uestion defense.
: : : :
4o a %reat de%ree, it di'inished its Opolitical >uestion doctrineP use as a shield to protect other abuses of
%overn'ent b( allo&in% courts to penetrate the shield &ith ne& po&er to revie& acts of an( branch or
instru'entalit( of the %overn'ent <. . . to deter'ine &hether or not there has been %rave abuse of
discretion a'ountin% to lac@ or e:cess of )urisdiction.<
Even if the present petition involves the act, not of a %overn'ental bod(, but of purportedl( 'ore than si:
'illion re%istered voters &ho have si%nified their assent to the proposal to a'end the Constitution, the sa'e still
constitutes a )usticiable controvers(, hence, a non-political >uestion. 4here is no doubt that the Constitution,
under Article D899, has e:plicitl( provided for the 'anner or 'ethod to effect a'end'ents thereto, or revision
thereof. 4he >uestion, therefore, of &hether there has been co'pliance &ith the ter's of the Constitution is for
the Court to pass upon.
";7
9n the Enited 6tates, in =n re '#,onau(h/,
";$
the 6tate 6upre'e Court of Minnesota e:ercised )urisdiction over
the petition >uestionin% the result of the %eneral election holdin% that <an e:a'ination of the decisions sho&s
that the courts have al'ost unifor'l( e:ercised the authorit( to deter'ine the validit( of the proposal,
sub'ission, or ratification of constitutional a'end'ents.< 4he cases cited &ere !a/ton ". %t. 8aul,
";1
Ri#e ".
8almer,
";!
4ott ". 7urtz,
";#
%tate ". 8owell,
"";
a'on% other cases.
4here is no den(in% that <the Philippines is a de'ocratic and republican 6tate. 6overei%nt( resides in the people
and all %overn'ent authorit( e'anates fro' the'.<
"""
0o&ever, 9 find to be tenuous the asseveration that <the
ar%u'ent that the people throu%h initiative cannot propose substantial a'end'ents to chan%e the Constitution
turns soverei%nt( in its head. At the ver( least, the sub'ission constricts the de'ocratic space for the e:ercise
of the direct soverei%nt( of the people.<
""
9n effect, it is theori=ed that despite the una'bi%uous te:t of 6ection
, Article D899 of the Constitution &ithholdin% the po&er to revise it fro' the s(ste' of initiative, the people,
in their soverei%n capacit(, can convenientl( disre%ard the said provision.
9 stron%l( ta@e e:ception to the vie& that the people, in their soverei%n capacit(, can disre%ard the Constitution
alto%ether. 6uch a vie& directl( contravenes the funda'ental constitutional theor( that &hile indeed <the
ulti'ate soverei%nt( is in the people, fro' &ho' sprin%s all le%iti'ate authorit(<2 nonetheless, <b( the
Constitution &hich the( establish, the( not onl( tie up the hands of their official a%encies, but their o&n hands
as &ell2 and neither the officers of the state, nor the &hole people as an a%%re%ate bod(, are at libert( to ta@e
action in opposition to this funda'ental la&.<
"".
4he Constitution, it should be re'e'bered, <is the protector of
the people, placed on %uard b( the' to save the ri%hts of the people a%ainst in)ur( b( the people.<
""-
4his is the
essence of constitutionalis'*
4hrou%h constitutionalis' &e placed li'its on both our political institutions and ourselves, hopin% that
de'ocracies, historicall( al&a(s turbulent, chaotic and even despotic, 'i%ht no& beco'e restrained,
principled, thou%htful and )ust. 6o &e bound ourselves over to a la& that &e 'ade and pro'ised to @eep.
And thou%h a %overn'ent of la&s did not displace %overnance b( 'en, it did 'ean that no& 'en,
de'ocratic 'en, &ould tr( to live b( their &ord.
""7
6ection , Article D899 of the Constitution on the s(ste' of initiative is li'ited onl( to proposals to a'end to
the Constitution, and does not e:tend to its revision. 4he Ailipino people have bound the'selves to observe the
'anner and 'ethod to effect the chan%es of the Constitution. 4he( opted to li'it the e:ercise of the ri%ht to
directl( propose a'end'ents to the Constitution throu%h initiative, but did not e:tend the sa'e to the revision
thereof. 4he petition for initiative, as it proposes to effect the revision thereof, contravenes the Constitution. 4he
funda'ental la& of the state prescribes the li'itations under &hich the electors of the state 'a( chan%e the
sa'e, and, unless such course is pursued, the 'ere fact that a 'a)orit( of the electors are in favor of a chan%e
and have so e:pressed the'selves, does not &or@ a chan%e. 6uch a course &ould be revolutionar(, and the
Constitution of the state &ould beco'e a 'ere 'atter of for'.
""$
4he ver( ter' Constitution i'plies an instru'ent of a per'anent and abidin% nature, and the provisions
contained therein for its revision indicated the &ill of the people that the underl(in% principles upon &hich it
rests, as &ell as the substantial entiret( of the instru'ent, shall be of a li@e per'anent and abidin% nature.
""1
4he Ailipino people have incorporated the safet( valves of a'end'ent and revision in Article D899 of the
Constitution. 4he Court is 'andated to ensure that these safet( valves e'bodied in the Constitution to %uard
a%ainst i'provident and hast( chan%es thereof are not easil( trifled &ith. 4o be sure, b( havin% over&hel'in%l(
ratified the Constitution, the Ailipino people believed that it is <a %ood Constitution< and in the &ords of the
learned /ud%e Coole(*
: : : should be be(ond the reach of te'porar( e:cite'ent and popular caprice or passion. 9t is needed
for stabilit( and steadiness2 it 'ust (ield to the thou%ht of the people2 not to the &hi' of the people, or
the thou%ht evolved in e:cite'ent or hot blood, but the sober second thou%ht, &hich alone, if the
%overn'ent is to be safe, can be allo&ed efficienc(. Chan%es in %overn'ent are to be feared unless the
benefit is certain. As Montai%n sa(s* <All %reat 'utations sha@e and disorder a state. Good does not
necessaril( succeed evil2 another evil 'a( succeed and &orse.
""!
9ndisputabl(, the issues posed in the present case are of transcendental i'portance. Accordin%l(, 9 have
approached and %rappled &ith the' &ith full appreciation of the responsibilities involved in the present case,
and have %iven to its consideration the earnest attention &hich its i'portance de'ands. 9 have sou%ht to
'aintain the supre'ac( of the Constitution at &hatever ha=ard. 9 share the concern of Chief /ustice 3a( in
Moehler ". Hill*
""#
<it is for the protection of 'inorities that constitutions are fra'ed. 6o'eti'es constitutions
'ust be interposed for the protection of 'a)orities even a%ainst the'selves. Constitutions are adopted in ti'es
of public repose, &hen sober reason holds her citadel, and are desi%ned to chec@ the sur%in% passions in ti'es of
popular e:cite'ent. But if courts could be coerced b( popular 'a)orities into a disre%ard of their provisions,
constitutions &ould beco'e 'ere Hropes of sand,H and there &ould be an end of social securit( and of
constitutional freedo'. 4he cause of te'perance can sustain no in)ur( fro' the loss of this a'end'ent &hich
&ould be at all co'parable to the in)ur( to republican institutions &hich a violation of the constitution &ould
inflict. 4hat lar%e and respectable class of 'oral refor'ers &hich so )ustl( de'ands the observance and
enforce'ent of la&, cannot afford to ta@e its first refor'ator( step b( a violation of the constitution. 0o& can it
consistentl( de'and of others obedience to a constitution &hich it violates itselfI 4he people can in a short ti'e
re-enact the a'end'ent. 9n the 'anner of a %reat 'oral refor', the loss of a fe& (ears is nothin%. 4he
constitution is the palladiu' of republican freedo'. 4he (oun% 'en co'in% for&ard upon the sta%e of political
action 'ust be educated to venerate it2 those alread( upon the sta%e 'ust be tau%ht to obe( it. Chatever interest
'a( be advanced or 'a( suffer, &hoever or &hatever 'a( be Hvoted up or voted do&n,H no sacrile%ious hand
'ust be laid upon the constitution.<
";
WHEREFORE, 9 vote to DISMISS the petition in G.R. No. "1-"7. and to GRANT the petition in G.R. No.
"1-##.
ROMEO 1. CALLE1O, SR.
Associate /ustice
EN BANC
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.).
: ---------------------------------------------------------------------------------------- :
SEPARATE OPINION
AZCUNA, J.:
<Ch(, friends, (ou %o to do (ou @no& not &hat.<
-- 6ha@espeare, /ulius Caesar, Act 999, 6c. .
Article D899 of the Constitution states*
AMENDMENTS OR REVISIONS
6ection ". An( a'end'ent to, or revision of, this Constitution 'a( be proposed b(*
,"+ 4he Con%ress, upon a vote of three-fourths of all its 'e'bers2 or
6ec. . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
ever( le%islative district 'ust be represented b( at least three per centu' of the re%istered votes therein.
6ec. .. 4he Con%ress 'a(, b( a vote of t&o-thirds of all its Me'bers, call a constitutional convention, or
b( a 'a)orit( vote of all its Me'bers, sub'it to the electorate the >uestion of callin% such a convention.
6ec. -. An( a'end'ent to, or revision of, this Constitution under 6ection " hereof shall be valid &hen
ratified b( a 'a)orit( of the votes cast in a plebiscite &hich shall be held not earlier than si:t( da(s nor
later than ninet( da(s after the approval of such a'end'ent or revision.
4his Article states the procedure for chan%in% the Constitution.
Constitutions have three parts S the Constitution of Libert(, &hich states the funda'ental ri%hts of the people2
the Constitution of Govern'ent, &hich establishes the structure of %overn'ent, its branches and their operation2
and the Constitution of 6overei%nt(, &hich provides ho& the Constitution 'a( be chan%ed.
Article D899 is the Constitution of 6overei%nt(.
As a result, the po&ers therein provided are called constituent po&ers. 6o &hen Con%ress acts under this
provision, it acts not as a le%islature e:ercisin% le%islative po&ers. 9t acts as a constituent bod( e:ercisin%
constituent po&ers.
4he rules, therefore, %overnin% the e:ercise of le%islative po&ers do not appl(, or do not appl( strictl(, to the
actions ta@en under Article D899.
Accordin%l(, since Article D899 states that Con%ress shall provide for the i'ple'entation of the e:ercise of the
peopleHs ri%ht directl( to propose a'end'ents to the Constitution throu%h initiative, the act of Con%ress
pursuant thereto is not strictl( a le%islative action but parta@es of a constituent act.
As a result, Republic Act No. $1.7, the act that provides for the e:ercise of the people of the ri%ht to propose a
la& or a'end'ents to the Constitution is, &ith respect to the ri%ht to propose a'end'ents to the Constitution, a
constituent 'easure, not a 'ere le%islative one.
4he conse>uence of this special character of the enact'ent, insofar as it relates to proposin% a'end'ents to the
Constitution, is that the re>uire'ents for statutor( enact'ents, such as sufficienc( of standards and the li@e, do
not and should not strictl( appl(. As lon% as there is a sufficient and clear intent to provide for the
i'ple'entation of the e:ercise of the ri%ht, it should be sustained, as it is si'pl( a co'pliance of the 'andate
placed on Con%ress b( the Constitution.
6een in this li%ht, the provisions of Republic Act No. $1.7 relatin% to the procedure for proposin% a'end'ents
to the Constitution, can and should be upheld, despite shortco'in%s perhaps in le%islative headin%s and
standards.
Aor this reason, 9 concur in the vie& that %antia(o ". ,omele#
"
should be re-e:a'ined and, after doin% so, that
the pronounce'ent therein re%ardin% the insufficienc( or inade>uac( of the 'easure to sustain a peopleHs
initiative to a'end the Constitution should be reconsidered in favor of allo&in% the e:ercise of this soverei%n
ri%ht.
And appl(in% the doctrine stated in %enarillos ". Hermosisima,
penned b( /ustice /.B.L. Re(es, in relation to

Article ! of the Civil Code, that a decision of this Court interpretin% a la& for's part of the la& interpreted as of
the ti'e of its enact'ent, Republic Act No. $1.7 should be dee'ed sufficient and ade>uate fro' the start.
4his ne:t point to address, there bein% a sufficient la&, is &hether the petition for initiative herein involved
co'plies &ith the re>uire'ents of that la& as &ell as those stated in Article D899 of the Constitution.
4rue it is that ours is a de'ocratic state, as e:plicitated in the 3eclaration of Principles, to e'phasi=e precisel(
that there are instances reco%ni=ed and provided for in the Constitution &here our people directl( e:ercise their
soverei%n po&ers, ne& features set forth in this People Po&er Charter, na'el(, the po&ers of recall, initiative
and referendu'.
Nevertheless, this de'ocratic nature of our polit( is that of a de'ocrac( under the rule of la&. 4his e>uall(
i'portant point is e'phasi=ed in the ver( Prea'ble to the Constitution, &hich states*
<. . . the blessin%s of . . . de'ocrac( under the rule of la& . . . .<
6uch is the case &ith respect to the po&er to initiate chan%es in the Constitution. 4he po&er is sub)ect to
li'itations under the Constitution itself, thus* 4he po&er could not be e:ercised for the first five (ears after the
Constitution too@ effect and thereafter can onl( be e:ercised once ever( five (ears2 the po&er onl( e:tends to
proposin% a'end'ents but not revisions2 and the po&er needs an act of Con%ress providin% for its
i'ple'entation, &hich act is directed and 'andated.
4he >uestion, therefore, arises &hether the proposed chan%es in the Constitution set forth in the petition for
initiative herein involved are 'ere a'end'ents or rather are revisions.
Revisions are chan%es that affect the entire Constitution and not 'ere parts of it.
4he reason &h( revisions are not allo&ed throu%h direct proposals b( the people throu%h initiative is a practical
one, na'el(, there is no one to draft such e:tensive chan%es, since $.. 'illion people cannot conceivabl( co'e
up &ith a sin%le e:tensive docu'ent throu%h a direct proposal fro' each of the'. 6o'eone &ould have to draft
it and that is not authori=ed as it &ould not be a direct proposal fro' the people. 6uch indirect proposals can
onl( ta@e the for' of proposals fro' Con%ress as a Constituent Asse'bl( under Article D899, or a
Constitutional Convention created under the sa'e provision. Aurther'ore, there is a need for such deliberative
bodies for revisions because their proceedin%s and debates are dul( and officiall( recorded, so that future cases
of interpretations can be properl( aided b( resort to the record of their proceedin%s.
Even a cursor( readin% of the proposed chan%es contained in the petition for initiative herein involved &ill
sho& on its face that the proposed chan%es constitute a revision of the Constitution. 4he proposal is to chan%e
the s(ste' of %overn'ent fro' that &hich is bica'eral-presidential to one that is unica'eral-parlia'entar(.
Chile purportedl( onl( Articles 89, 899, and D8999 are involved, the fact is, as the petition and te:t of the
proposed chan%es the'selves state, ever( provision of the Constitution &ill have to be e:a'ined to see if the(
confor' to the nature of a unica'eral-parlia'entar( for' of %overn'ent and chan%ed accordin%l( if the( do
not so confor' to it. Aor e:a'ple, Article 8999 on /udicial 3epart'ent cannot stand as is, in a parlia'entar(
s(ste', for under such a s(ste', the Parlia'ent is supre'e, and thus the CourtHs po&er to declare its act a %rave
abuse of discretion and thus void &ould be an ano'al(.
No&, &ho is to do such e:a'ination and &ho is to do such chan%es and ho& should the chan%es be &ordedI
4he proposed initiative does not sa( &ho nor ho&.
Not onl(, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers fro' bein%
inco'plete and insufficient on its ver( face.
9t, therefore, in that for', cannot pass 'uster the ver( li'its contained in providin% for the po&er under the
Constitution.
Neither does it co'pl( &ith Republic Act No. $1.7, &hich states in 6ection "; that not 'ore than one sub)ect
shall be proposed as an a'end'ent or a'end'ents to the Constitution. 4he petition herein &ould propose at the
ver( least t&o sub)ects S a unica'eral le%islature and a parlia'entar( for' of %overn'ent. A%ain, for this clear
and patent violation of the ver( act that provides for the e:ercise of the po&er, the proposed initiative cannot lie.
4his does not 'ean, ho&ever, that all is lost for petitioners.
Aor the proposed chan%es can be separated and are, in '( vie&, separable in nature S a unica'eral le%islature is
one2 a parlia'entar( for' of %overn'ent is another. 4he first is a 'ere a'end'ent and contains onl( one
sub)ect 'atter. 4he second is clearl( a revision that affects ever( article and ever( provision in the Constitution
to an e:tent not even the proponents could at present full( articulate. Petitioners La'bino, et al. thus %o about
proposin% chan%es the nature and e:tent of &hich the( do not as (et @no& e:actl( &hat.
4he proposal, therefore, contained in the petition for initiative, re%ardin% a chan%e in the le%islature fro' a
bica'eral or t&o-cha'ber bod( to that of a unica'eral or one-cha'ber bod(, is sustainable. 4he te:t of the
chan%es needed to carr( it out are perfunctor( and 'inisterial in nature. 5nce it is li'ited to this proposal, the
chan%es are si'pl( one of deletion and insertions, the &ordin%s of &hich are practicall( auto'atic and non-
discretionar(.
As an e:a'ple, 9 attach to this opinion an Appendi: <A< sho&in% ho& the Constitution &ould read if &e &ere
to chan%e Con%ress fro' one consistin% of the 6enate and the 0ouse of Representatives to one consistin% onl(
of the 0ouse of Representatives. 9t onl( affects Article 89 on the Le%islative 3epart'ent, so'e provisions on
Article 899 on the E:ecutive 3epart'ent, as &ell as Article D9 on the Accountabilit( of Public 5fficers, and
Article D8999 on 4ransitor( Provisions. 4hese are 'ere a'end'ents, substantial ones indeed but still onl(
a'end'ents, and the( address onl( one sub)ect 'atter.
6uch proposal, 'oreover, co'plies &ith the intention and rationale behind the present initiative, &hich is to
provide for si'plicit( and econo'( in %overn'ent and reduce the stale'ates that often prevent needed
le%islation.
Aor the nonce, therefore, 9 vote to DISMISS the petition, &ithout pre)udice to the filin% of an appropriate
initiative to propose a'end'ents to the Constitution to chan%e Con%ress into a unica'eral bod(. 4his is not sa(
that 9 favor such a chan%e. Rather, such a proposal &ould co'e &ithin the purvie& of an initiative allo&ed
under Article D899 of the Constitution and its i'ple'entin% Republic Act, and should, therefore, be sub'itted
to our people in a plebiscite for the' to decide in their soverei%n capacit(. After all is said and done, this is
&hat de'ocrac( under the rule of la& is about.
ADOLFO S. AZCUNA
Associate /ustice
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R., and RENE A. Q. SAGUISAG
vs.
COMMISSION ON ELECTIONS, represented by Chairman BEN1AMIN S. ABALOS, SR., and
Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, 1R., ROMEO A.
BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and 1ohn Doe and Peter Doe
: ---------------------------------------------------------------------------------------- :
<=t is a ,onstitution we are e6poundin(U<
"
S Chief /ustice /ohn Marshall
DISSENTING OPINION
PUNO, J.*
4he petition at bar is not a fi%ht over 'olehills. At the cru: of the controvers( is the critical understandin% of
the first and foremost of our constitutional principles ? <the Philippines is a de'ocratic and republican 6tate.
6overei%nt( resides in the people and all %overn'ent authorit( e'anates fro' the'.<
Constitutionalis'
dictates that this creed 'ust be respected &ith deeds2 our belief in its validit( 'ust be bac@ed b( behavior.
4his is a Petition for Certiorari and Manda'us to set aside the resolution of respondent Co''ission on
Elections ,C5MELEC+ dated Au%ust .", ;;$, den(in% due course to the Petition for 9nitiative filed b(
petitioners Raul L. La'bino and Erico B. Au'entado in their o&n behalf and to%ether &ith so'e 6.3 million
registered voters &ho have affi:ed their si%natures thereon, and pra(in% for the issuance of a &rit of
'anda'us to co'pel respondent C5MELEC to set the date of the plebiscite for the ratification of the proposed
a'end'ents to the Constitution in accordance &ith 6ection , Article D899 of the "#!1 Constitution.
First, a flashback of the proceedings of yesteryears. 9n 1996, the Move'ent for PeopleHs 9nitiative sou%ht to
e:ercise the soverei%n peopleHs po&er to directl( propose a'end'ents to the Constitution throu%h initiative
under 6ection , Article D899 of the "#!1 Constitution. 9ts foundin% 'e'ber, Att(. /esus 6. 3elfin, filed &ith
the C5MELEC on 3ece'ber $, "##$, a <Petition to A'end the Constitution, to Lift 4er' Li'its of Elective
5fficials, b( PeopleHs 9nitiative< ,3elfin Petition+. 9t proposed to a'end 6ections - and 1 of Article 89, 6ection
- of Article 899, and 6ection ! of Article D of the "#!1 Constitution b( deletin% the provisions on the ter'
li'its for all elective officials.
4he Delfin Petition stated that the Petition for 9nitiative &ould first be sub'itted to the people and &ould be
for'all( filed &ith the C5MELEC after it is si%ned b( at least t&elve per cent ,"M+ of the total nu'ber of
re%istered voters in the countr(. It thus sought the assistance of the COMELEC in gathering the required
signatures by fixing the dates and time therefor and setting up signature stations on the assigned dates
and time. 4he petition pra(ed that the C5MELEC issue an 5rder ,"+ fi:in% the dates and ti'e for si%nature
%atherin% all over the countr(2 ,+ causin% the publication of said 5rder and the petition for initiative in
ne&spapers of %eneral and local circulation2 and, ,.+ instructin% the 'unicipal election re%istrars in all the
re%ions of the Philippines to assist petitioner and the volunteers in establishin% si%nin% stations on the dates and
ti'e desi%nated for the purpose.
4he C5MELEC conducted a hearin% on the 3elfin Petition.
5n December 18, 1996, 6enator Miriam Defensor Santiago, Ale:ander Padilla and Maria 9sabel 5n%pin filed
a special civil action for prohibition before this Court, see@in% to restrain the C5MELEC fro' further
considerin% the 3elfin Petition. 4he( i'pleaded as respondents the C5MELEC, 3elfin, and Alberto and
Car'en Pedrosa ,Pedrosas+ in their capacities as foundin% 'e'bers of the PeopleHs 9nitiative for Refor's,
Moderni=ation and Action ,P9RMA+ &hich &as li@e&ise en%a%ed in si%nature %atherin% to support an initiative
to a'end the Constitution. 4he( ar%ued that the constitutional provision on peopleHs initiative 'a( onl( be
i'ple'ented b( a la& passed b( Con%ress2 that no such la& has (et been enacted b( Con%ress2 that Republic
Act No. $1.7 relied upon b( 3elfin does not cover the initiative to a'end the Constitution2 and that C5MELEC
Resolution No. .;;, the i'ple'entin% rules adopted b( the C5MELEC on the conduct of initiative, &as ultra
vires insofar as the initiative to a'end the Constitution &as concerned. 4he case &as doc@eted as G.R. No.
"1.7, entitled 6antia%o v. Co''ission on Elections.
.

Pendin% resolution of the case, the Court issued a te'porar( restrainin% order en)oinin% the C5MELEC fro'
proceedin% &ith the 3elfin Petition and the Pedrosas fro' conductin% a si%nature drive for peopleHs initiative to
a'end the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for prohibition. 4he Court ruled that
the constitutional provision %rantin% the people the po&er to directl( a'end the Constitution throu%h initiative
is not self-e:ecutor(. An enablin% la& is necessar( to i'ple'ent the e:ercise of the peopleHs ri%ht. E:a'inin%
the provisions of R.A. $1.7, a majority of eight (8) members of the Court held that said law was
"incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned,"
-
and thus voided portions of C5MELEC Resolution No.
.;; prescribin% rules and re%ulations on the conduct of initiative on a'end'ents to the Constitution. 9t &as
also held that even if R.A. $1.7 sufficientl( covered the initiative to a'end the Constitution and C5MELEC
Resolution No. .;; &as valid, the Delfin Petition should still be dis'issed as it was not the proper initiatory
pleading contemplated by law. Ender 6ection , Article 899 of the "#!1 Constitution and 6ection 7,b+ of R.A.
$1.7, a petition for initiative on the Constitution 'ust be si%ned b( at least t&elve per cent ,"M+ of the total
nu'ber of re%istered voters, of &hich ever( le%islative district is represented b( at least three per cent ,.M+ of
the re%istered voters therein. The Delfin Petition did not contain signatures of the required number of
voters. 4he decision stated*
C5NCLE695N
4his petition 'ust then be %ranted, and the C5MELEC should be per'anentl( en)oined fro'
Ce feel, ho&ever, that the s(ste' of initiative to propose a'end'ents to the Constitution should no
lon%er be @ept in the cold2 it should be %iven flesh and blood, ener%( and stren%th. Con%ress should not
tarr( an( lon%er in co'pl(in% &ith the constitutional 'andate to provide for the i'ple'entation of the
ri%ht of the people under that s(ste'.
C0EREA5RE, )ud%'ent is hereb( rendered
b+ 3ECLAR9NG R.A. No. $1.7 inade>uate to cover the s(ste' of initiative on a'end'ents to
the Constitution, and to have failed to provide sufficient standard for subordinate le%islation2
c+ 3ECLAR9NG void those parts of Resolution No. .;; of the Co''ission on Elections
prescribin% rules and re%ulations on the conduct of initiative or a'end'ents to the Constitution2
and
d+ 5R3ER9NG the Co''ission on Elections to forth&ith 396M966 the 3ELA9N petition
,EN3-#$-;.1+.
4he 4e'porar( Restrainin% 5rder issued on "! 3ece'ber "##$ is 'ade per'anent a%ainst the
7

Eight (8) members of the Court, na'el(, then Associate /ustice 0ilario G. 3avide, /r. ,ponente+, Chief /ustice
Andres R. Narvasa, and Associate /ustices Aloren= 3. Re%alado, Alerida Ruth P. Ro'ero, /osue N. Bellosillo,
6antia%o M. Wapunan, Re%ino C. 0er'osisi'a, /r. and /usto P. 4orres, full( concurred in the 'a)orit( opinion.
Chile all the 'e'bers of the Court &ho participated in the deliberation
$
a%reed that the 3elfin Petition should
be dis'issed for lac@ of the re>uired si%natures, five (5) members, na'el(, Associate /ustices /ose A.R. Melo,
Re(nato 6. Puno, 8icente 8. Mendo=a, Ricardo /. Arancisco and Arte'io 8. Pan%aniban, held that R.A. $1.7
&as sufficient and ade>uate to i'ple'ent the peopleHs ri%ht to a'end the Constitution throu%h initiative, and
that C5MELEC Resolution No. .;; validl( provided the details for the actual e:ercise of such ri%ht. 1ustice
1ose C. Vitug, on the other hand, opined that the Court should confine itself to resolvin% the issue of &hether
the 3elfin Petition sufficientl( co'plied &ith the re>uire'ents of the la& on initiative, and there was no need
to rule on the adequacy of R.A. 6735.
4he C5MELEC, 3elfin and the Pedrosas filed separate 'otions for reconsideration of the CourtHs decision.
After deliberating on the motions for reconsideration, six (6)
1
of the ei%ht ,!+ 'a)orit( 'e'bers 'aintained
their position that R.A. $1.7 &as inade>uate to i'ple'ent the provision on the initiative on a'end'ents to the
Constitution. /ustice 4orres filed an inhibition, &hile /ustice 0er'osisi'a sub'itted a 6eparate 5pinion
adoptin% the position of the 'inorit( that R.A. $1.7 sufficientl( covers the initiative to a'end the Constitution.
0ence, of the thirteen ,".+ 'e'bers of the Court &ho participated in the deliberation, si: ,$+ 'e'bers, na'el(,
Chief /ustice Narvasa and Associate /ustices Re%alado, 3avide, Ro'ero, Bellosillo and Wapunan voted to den(
the 'otions for lac@ of 'erit2 and si: ,$+ 'e'bers, na'el(, Associate /ustices Melo, Puno, Mendo=a,
Arancisco, 0er'osisi'a and Pan%aniban voted to %rant the sa'e. /ustice 8itu% 'aintained his opinion that the
'atter &as not ripe for )udicial ad)udication. 4he 'otions for reconsideration &ere therefore denied for lac@ of
sufficient votes to 'odif( or reverse the decision of March "#, "##1.
!
5n 1une 23, 1997, PIRMA filed &ith the C5MELEC a Petition for 9nitiative to Propose A'end'ents to the
Constitution ,P9RMA Petition+. 4he P9RMA Petition &as supported b( around five ,7+ 'illion si%natures in
co'pliance &ith R.A. $1.7 and C5MELEC Resolution No. .;;, and pra(ed that the C5MELEC, a'on%
others* ,"+ cause the publication of the petition in Ailipino and En%lish at least t&ice in ne&spapers of %eneral
and local circulation2 ,+ order all election officers to verif( the si%natures collected in support of the petition
and sub'it these to the Co''ission2 and ,.+ set the holdin% of a plebiscite &here the follo&in% proposition
&ould be sub'itted to the people for ratification*
3o (ou approve a'end'ents to the "#!1 Constitution %ivin% the President the chance to be reelected for
another ter', si'ilarl( &ith the 8ice-President, so that both the hi%hest officials of the land can serve
for t&o consecutive ter's of si: (ears each, and also to lift the ter' li'its for all other elective
%overn'ent officials, thus %ivin% Ailipino voters the freedo' of choice, a'endin% for that purpose,
6ection - of Article 899, 6ections - and 1 of Article 89 and 6ection ! of Article D, respectivel(I
4he COMELEC dismissed the P9RMA Petition in vie& of the per'anent restrainin% order issued b( the Court
in 6antia%o v. C5MELEC.
PIRMA filed with this Court a Petition for Manda'us and Certiorari see@in% to set aside the C5MELEC
Resolution dis'issin% its petition for initiative. P9RMA ar%ued that the CourtHs decision on the 3elfin Petition
did not bar the C5MELEC fro' actin% on the P9RMA Petition as said rulin% &as not definitive based on the
deadloc@ed votin% on the 'otions for reconsideration, and because there &as no identit( of parties and sub)ect
'atter bet&een the t&o petitions. P9RMA also ur%ed the Court to ree:a'ine its rulin% in 6antia%o v.
C5MELEC.
The Court dismissed the petition for 'anda'us and certiorari in its resolution dated 6epte'ber ., "##1. 9t
e:plained*
onl( co'plied &ith the dispositions in the 3ecision of this Court in G.R. No. "1.7 pro'ul%ated on
4he Court ne:t considered the >uestion of &hether there &as need to resolve the second issue posed b(
the petitioners, na'el(, that the Court re-e:a'ine its rulin% as re%ards R.A. $1.7. 5n this issue, the
Chief /ustice and si: ,$+ other 'e'bers of the Court, na'el(, Re%alado, 3avide, Ro'ero, Bellosillo,
Wapunan and 4orres, JJ., voted that there &as no need to ta@e it up. 8itu%, J., a%reed that there &as no
need for re-e:a'ination of said second issue since the case at bar is not the proper vehicle for that
purpose. Aive ,7+ other 'e'bers of the Court, na'el(, Melo, Puno, Arancisco, 0er'osisi'a, and
Pan%aniban, JJ., opined that there &as a need for such a re-e:a'ination : : : :
#

9n their 6eparate 5pinions, /ustice ,later Chief /ustice+ 3avide and /ustice Bellosillo stated that the P9RMA
petition &as dis'issed on the %round of res 2udi#ata.
No&, al'ost a decade later, another %roup, Sigaw ng Bayan, see@s to utili=e ane& the s(ste' of initiative to
a'end the Constitution, this ti'e to chan%e the for' of %overn'ent fro' bica'eral-presidential to unica'eral-
parlia'entar( s(ste'.
Let us look at the facts of the petition at bar with clear eyes.
5n February 15, 2006, Sigaw ng Bayan, in coordination &ith Enion of Local Authorities of the Philippines
(ULAP), e'bar@ed on a nation&ide drive to %ather si%natures to support the 'ove to adopt the parlia'entar(
for' of %overn'ent in the countr( throu%h charter chan%e. 4he( proposed to a'end the Constitution as
follo&s*
6ection ". ,"+ 4he le%islative and e:ecutive po&ers shall be vested in a unica'eral Parlia'ent
&hich shall be co'posed of as 'an( 'e'bers as 'a( be provided b( la&, to be apportioned
a'on% the provinces, representative districts, and cities in accordance &ith the nu'ber of their
respective inhabitants, &ith at least three hundred thousand inhabitants per district, and on the
basis of a unifor' and pro%ressive ratio. Each district shall co'prise, as far as practicable,
conti%uous, co'pact and ad)acent territor(, and each province 'ust have at least one 'e'ber.
,+ Each Me'ber of Parlia'ent shall be a natural-born citi=en of the Philippines, at least t&ent(-
five (ears old on the da( of the election, a resident of his district for at least one (ear prior
thereto, and shall be elected b( the >ualified voters of his district for a ter' of five (ears &ithout
li'itation as to the nu'ber thereof, e:cept those under the part(-list s(ste' &hich shall be
provided for b( la& and &hose nu'ber shall be e>ual to t&ent( per centu' of the total
'e'bership co'in% fro' the parlia'entar( districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as
follows:
6ection ". 4here shall be a President &ho shall be the 0ead of 6tate. 4he e:ecutive po&er shall
be e:ercised b( a Pri'e Minister, &ith the assistance of the Cabinet. 4he Pri'e Minister shall be
elected b( a 'a)orit( of all the Me'bers of Parlia'ent fro' a'on% the'selves. 0e shall be
responsible to the Parlia'ent for the pro%ra' of %overn'ent.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a
unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read, as follows:
6ection ". ,"+ 4he incu'bent President and 8ice President shall serve until the e:piration of their
ter' at noon on the thirtieth da( of /une ;"; and shall continue to e:ercise their po&ers under
the "#!1 Constitution unless i'peached b( a vote of t&o thirds of all the 'e'bers of the interi'
parlia'ent.
,+ 9n case of death, per'anent disabilit(, resi%nation or re'oval fro' office of the incu'bent
President, the incu'bent 8ice President shall succeed as President. 9n case of death, per'anent
disabilit(, resi%nation or re'oval fro' office of both the incu'bent President and 8ice
President, the interi' Pri'e Minister shall assu'e all the po&ers and responsibilities of Pri'e
Minister under Article 899 as a'ended.
6ection . Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith
the e:ception of 6ections ", , ., -, 7, $ and 1 of Article 89 of the "#!1 Constitution &hich shall
hereb( be a'ended and 6ections "! and - &hich shall be deleted, all other 6ections of Article
89 are hereb( retained and renu'bered se>uentiall( as 6ection , ad seriatim up to $, unless
the( are inconsistent &ith the Parlia'entar( s(ste' of %overn'ent, in &hich case, the( shall be
a'ended to confor' &ith a unica'eral parlia'entar( for' of %overn'ent2 provided, ho&ever,
that an( and all references therein to <Con%ress,< <6enate,< <0ouse of Representatives< and
<0ouses of Con%ress< shall be chan%ed to read <Parlia'ent2< that an( and all references therein
to <Me'ber,s+ of Con%ress,< <6enator,s+< or <Me'ber,s+ of the 0ouse of Representatives< shall
be chan%ed to read as <Me'ber,s+ of Parlia'ent< and an( and all references to the <President<
andFor <Actin% President< shall be chan%ed to read <Pri'e Minister.<
6ection .. Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith
the e:ception of 6ections ", , . and - of Article 899 of the "#!1 Constitution &hich are hereb(
a'ended and 6ections 1, !, #, ";, "" and " &hich are hereb( deleted, all other 6ections of
Article 899 shall be retained and renu'bered se>uentiall( as 6ection , ad seriatim up to "-,
unless the( shall be inconsistent &ith 6ection " hereof, in &hich case the( shall be dee'ed
a'ended so as to confor' to a unica'eral Parlia'entar( 6(ste' of %overn'ent2 provided,
ho&ever, that an( all references therein to <Con%ress,< <6enate,< <0ouse of Representatives< and
<0ouses of Con%ress< shall be chan%ed to read <Parlia'ent2< that an( and all references therein
to <Me'ber,s+ of Con%ress,< <6enator,s+< or <Me'ber,s+ of the 0ouse of Representatives< shall
be chan%ed to read as <Me'ber,s+ of Parlia'ent< and an( and all references to the <President<
and or <Actin% President< shall be chan%ed to read <Pri'e Minister.<
6ection -. ,"+ 4here shall e:ist, upon the ratification of these a'end'ents, an interi' Parlia'ent
&hich shall continue until the Me'bers of the re%ular Parlia'ent shall have been elected and
shall have >ualified. 9t shall be co'posed of the incu'bent Me'bers of the 6enate and the
0ouse of Representatives and the incu'bent Me'bers of the Cabinet &ho are heads of e:ecutive
depart'ents.
,+ 4he incu'bent 8ice President shall auto'aticall( be a Me'ber of Parlia'ent until noon of
the thirtieth da( of /une ;";. 0e shall also be a 'e'ber of the cabinet and shall head a
'inistr(. 0e shall initiall( convene the interi' Parlia'ent and shall preside over its sessions for
the election of the interi' Pri'e Minister and until the 6pea@er shall have been elected b( a
'a)orit( vote of all the 'e'bers of the interi' Parlia'ent fro' a'on% the'selves.
,-+ Cithin fort(-five da(s fro' ratification of these a'end'ents, the interi' Parlia'ent shall
convene to propose a'end'ents to, or revisions of, this Constitution consistent &ith the
principles of local autono'(, decentrali=ation and a stron% bureaucrac(.
6ection 7. ,"+ 4he incu'bent President, &ho is the Chief E:ecutive, shall no'inate, fro' a'on%
the 'e'bers of the interi' Parlia'ent, an interi' Pri'e Minister, &ho shall be elected b( a
'a)orit( vote of the 'e'bers thereof. 4he interi' Pri'e Minister shall oversee the various
'inistries and shall perfor' such po&ers and responsibilities as 'a( be dele%ated to hi' b( the
incu'bent President.<
,+ 4he interi' Parlia'ent shall provide for the election of the 'e'bers of Parlia'ent, &hich
shall be s(nchroni=ed and held si'ultaneousl( &ith the election of all local %overn'ent officials.
4he dul( elected Pri'e Minister shall continue to e:ercise and perfor' the po&ers, duties and
responsibilities of the interi' Pri'e Minister until the e:piration of the ter' of the incu'bent
President and 8ice President.
";
Sigaw ng Bayan prepared si%nature sheets, on the upper portions of &hich &ere &ritten the abstract of the
proposed a'end'ents, to wit*
&st!act: 3o (ou approve of the a'end'ent of Articles 89 and 899 of the "#!1 Constitution, chan%in%
the for' of %overn'ent fro' the present bica'eral-presidential to a unica'eral-parlia'entar( s(ste' of
%overn'ent, in order to achieve %reater efficienc(, si'plicit( and econo'( in %overn'ent2 and
providin% an Article D8999 as 4ransitor( Provisions for the orderl( shift fro' one s(ste' to anotherI
4he si%nature sheets &ere distributed nation&ide to affiliated non-%overn'ent or%ani=ations and volunteers of
6i%a& n% Ba(an, as &ell as to the local officials. Copies of the draft petition for initiative containin% the
proposition &ere also circulated to the local officials and 'ulti-sectoral %roups.
6i%a& n% Ba(an alle%ed that it also held barangay assemblies &hich cul'inated on March -, 7 and $,
;;$, to infor' the people and e:plain to the' the proposed a'end'ents to the Constitution. 4hereafter, the(
circulated the si%nature sheets for si%nin%.
4he si%nature sheets &ere then submitted to the local election officers for verification based on the votersH
re%istration record. Epon co'pletion of the verification process, the respective local election officers issued
certifications to attest that the si%nature sheets have been verified. 4he verified si%nature sheets &ere
subse>uentl( trans'itted to the office of 6i%a& n% Ba(an for the countin% of the si%natures.
5n August 25, 2006, herein petitioners Raul L. La'bino and Erico B. Au'entado filed &ith the C5MELEC a
Petition for 9nitiative to A'end the Constitution entitled <9n the Matter of Proposin% A'end'ents to the "#!1
Constitution throu%h a PeopleHs 9nitiative* A 6hift fro' a Bica'eral Presidential to a Enica'eral Parlia'entar(
Govern'ent b( A'endin% Articles 89 and 8992 and Providin% 4ransitor( Provisions for the 5rderl( 6hift fro'
the Presidential to the Parlia'entar( 6(ste'.< 4he( filed an A'ended Petition on Au%ust .;, ;;$ to reflect the
te:t of the proposed a'end'ent that &as actuall( presented to the people. 4he( alle%ed that the( &ere filin% the
petition in their o&n behalf and to%ether &ith so'e $.. 'illion re%istered voters &ho have affi:ed their
si%natures on the si%nature sheets attached thereto. Petitioners appended to the petition si%nature sheets bearin%
the si%natures of re%istered voters &hich the( clai'ed to have been verified b( the respective cit( or 'unicipal
election officers, and alle%edl( constitutin% at least t&elve per cent ,"M+ of all re%istered voters in the countr(,
&herein each le%islative district is represented b( at least three per cent ,.M+ of all the re%istered voters therein.
As basis for the filin% of their petition for initiative, petitioners averred that 6ection 7 ,b+ and ,c+,
to%ether &ith 6ection 1 of R.A. $1.7, provide sufficient enablin% details for the peopleHs e:ercise of the
po&er. 0ence, petitioners pra(ed that the C5MELEC issue an 5rder*
". Aindin% the petition to be sufficient pursuant to 6ection -, Article D899 of the "#!1 Constitution2
. 3irectin% the publication of the petition in Ailipino and En%lish at least t&ice in ne&spapers of %eneral
and local circulation2 and
the C5MELEC of the sufficienc( of the petition, to allo& the Ailipino people to e:press their soverei%n
&ill on the proposition.
Several groups filed with the COMELEC their respective oppositions to the petition for initiative, a'on%
the' 5NE859CE, 9nc., Christian 6. Monsod, Rene B. A=urin, Manuel L. Lue=on 999, Ben)a'in 4. 4olosa, /r.,
6usan 8. 5ple, and Carlos P. Medina, /r.2 Alternative La& Groups, 9nc., 6enate Minorit( Leader A>uilino L.
Pi'entel, /r., 6enators 6er%io 5s'eBa 999, /a'b( A.6. Madri%al, Alfredo 6. Li', Panfilo M. Lacson, Luisa P.
E)ercito-Estrada, and /in%%o( Estrada2 Representatives Loretta Ann P. Rosales, Mario /o(o A%u)a, and Ana
4heresia 0ontiveros-Bara>uel2 Ba(an, Wilusan% Ma(o Eno, Ecu'enical Bishops Aoru', Mi%rante, Gabriela,
Gabriela Co'enHs Part(, Ana@ba(an, Lea%ue of Ailipino 6tudents, Leonardo 6an /ose, /o)o Pineda, 3rs. 3arb(
6antia%o and Re%inald Pa'u%as2 Att(s. Pete Luirino-Luadra, /ose Ansel'o 9. Cadi=, B(ron 3. Bocar, Ma.
4an(a Warina A. Lat, Antonio L. 6alvador, and Randall C. 4aba(o(on%.
5n Au%ust .", ;;$, the C5MELEC denied due course to the Petition for 9nitiative. 9t cited this CourtHs rulin%
in 6antia%o v. C5MELEC
""
per'anentl( en)oinin% the Co''ission fro' entertainin% or ta@in% co%ni=ance of
an( petition for initiative on a'end'ents to the Constitution until a sufficient la& shall have been validl(
enacted to provide for the i'ple'entation of the s(ste'.
Aorth&ith, petitioners filed &ith this Court the instant Petition for Certiorari and Manda'us pra(in% that the
Court set aside the Au%ust .", ;;$ resolution of the C5MELEC, direct respondent C5MELEC to co'pl( &ith
6ection -, Article D899 of the Constitution, and set the date of the plebiscite. 4he( state the follo&in% %rounds
in support of the petition*
9.
4he 0onorable public respondent C5MELEC co''itted %rave abuse of discretion in refusin% to ta@e
co%ni=ance of, and to %ive due course to the petition for initiative, because the cited %antia(o rulin% of
"# March "##1 cannot be considered the 'a)orit( opinion of the 6upre'e Court en ban#, considerin%
that upon its reconsideration and final votin% on "; /une "##1, no 'a)orit( vote &as secured to declare
Republic Act No. $1.7 as inade>uate, inco'plete and insufficient in standard.
99.
4he "#!1 Constitution, Republic Act No. $1.7, Republic Act No. !"!# and e:istin% appropriation of the
C5MELEC provide for sufficient details and authorit( for the e:ercise of peopleHs initiative, thus,
e:istin% la&s ta@en to%ether are ade>uate and co'plete.
999.
4he 0onorable public respondent C5MELEC co''itted %rave abuse of discretion in refusin% to ta@e
co%ni=ance of, and in refusin% to %ive due course to the petition for initiative, thereb( violatin% an
e:press constitutional 'andate and disre%ardin% and contravenin% the &ill of the people.
A.
Assu'in% in ar%uendo that there is no enablin% la&, respondent C5MELEC cannot i%nore the
&ill of the soverei%n people and 'ust accordin%l( act on the petition for initiative.
".
4he fra'ers of the Constitution intended to %ive the people the po&er to propose
a'end'ents and the people the'selves are no& %ivin% vibrant life to this constitutional
provision.
.
Prior to the >uestioned %antia(o rulin% of "# March "##1, the ri%ht of the people to
e:ercise the soverei%n po&er of initiative and recall has been invariabl( upheld.
..
4he e:ercise of the initiative to propose a'end'ents is a political >uestion &hich shall be
deter'ined solel( b( the soverei%n people.
-.
B( si%nin% the si%nature sheets attached to the petition for initiative dul( verified b( the
election officers, the people have chosen to perfor' this sacred e:ercise of their
soverei%n po&er.
B.
4he %antia(o rulin% of "# March "##1 is not applicable to the instant petition for initiative filed
b( the petitioners.
C.
4he per'anent in)unction issued in %antia(o "s. ,$'+)+, onl( applies to the 3elfin petition.
".
9t is the dispositive portion of the decision and not other state'ents in the bod( of the
decision that %overns the ri%hts in controvers(.
98.
4he 0onorable public respondent failed or ne%lected to act or perfor' a dut( 'andated
b( la&.
A.
4he 'inisterial dut( of the C5MELEC is to set the initiative for plebiscite.
"
4he oppositors-intervenors, 5NE859CE, 9nc., Christian 6. Monsod, Rene B. A=urin, Manuel L. Lue=on 999,
Ben)a'in 4. 4olosa, /r., 6usan 8. 5ple, and Carlos P. Medina, /r.2 Alternative La& Groups, 9nc.2 Ba(an,
Wilusan% Ma(o Eno, Ecu'enical Bishops Aoru', Mi%rante Gabriela, Gabriela Co'enHs Part(, Ana@ba(an,
Lea%ue of Ailipino 6tudents, Leonardo 6an /ose, /o)o Pineda, 3r. 3arb( 6antia%o, and 3r. Re%inald Pa'u%as2
6enate Minorit( Leader A>uilino L. Pi'entel, /r., and 6enators 6er%io 5s'eBa 999, /a'b( A.6. Madri%al,
Alfredo 6. Li', Panfilo M. Lacson, Luisa P. E)ercito-Estrada, and /in%%o( Estrada2 Representatives Loretta
Ann P. Rosales, Mario /o(o A%u)a, and Ana 4heresia 0ontiveros-Bara>uel2 and Att(s. Pete Luirino-Luadra,
/ose Ansel'o 9. Cadi=, B(ron 3. Bocar, Ma. 4an(a Warina A. Lat, Antonio L. 6alvador, and Randall C.
4aba(o(on% 'oved to intervene in this case and filed their respective 5ppositionsFCo''ents-in-9ntervention.
4he Philippine Constitution Association, Conrado A. Estrella, 4o'as C. 4oledo, Mariano M. 4a)on, Aroilan M.
Bacun%an, /oa>uin 4. 8enus, /r., Aortunato P. A%uas, and A'ado Gat 9ncion%2 the 9nte%rated Bar of the
Philippines Cebu Cit( and Cebu Province Chapters2 for'er President /oseph E)ercito Estrada and P&ersa n%
Masan% Pilipino2 and the 6enate of the Philippines, represented b( 6enate President Manuel 8illar, /r., also
filed their respective 'otions for intervention and Co''ents-in-9ntervention.
4he 4rade Enion Con%ress of the Philippines, 6ulon%ba(an Move'ent Aoundation, 9nc., Ronald L. Ada'at,
Rolando Manuel Rivera, Ruelo Ba(a, Philippine 4ransport and General Cor@ers 5r%ani=ation, and 8ictorino A.
Balais li@e&ise 'oved to intervene and sub'itted to the Court a Petition-in-9ntervention. All interventions and
oppositions &ere %ranted b( the Court.
4he oppositors-intervenors essentiall( sub'it that the C5MELEC did not co''it %rave abuse of discretion in
den(in% due course to the petition for initiative as it 'erel( follo&ed this CourtHs rulin% in Santiago v.
COMELEC as affir'ed in the case of PIRMA v. COMELEC, based on the principle of stare de#isis2 that
there is no sufficient la& providin% for the authorit( and the details for the e:ercise of peopleHs initiative to
a'end the Constitution2 that the proposed chan%es to the Constitution are actuall( revisions, not 'ere
a'end'ents2 that the petition for initiative does not 'eet the re>uired nu'ber of si%natories under 6ection ,
Article D899 of the "#!1 Constitution2 that it &as not sho&n that the people have been infor'ed of the proposed
a'end'ents as there &as disparit( bet&een the proposal presented to the' and the proposed a'end'ents
attached to the petition for initiative, if indeed there &as2 that the verification process &as done e6 parte, thus
renderin% dubious the si%natures attached to the petition for initiative2 and that petitioners La'bino and
Au'entado have no le%al capacit( to represent the si%natories in the petition for initiative.
4he Office of the Solicitor General (OSG), in co'pliance &ith the CourtHs resolution of 6epte'ber 7, ;;$,
filed its Co''ent to the petition. Affir'in% the position of the petitioners, the 56G pra(ed that the Court %rant
the petition at bar and render )ud%'ent* ,"+ declarin% R.A. $1.7 as ade>uate to cover or as reasonabl( sufficient
to i'ple'ent the s(ste' of initiative on a'end'ents to the Constitution and as havin% provided sufficient
standards for subordinate le%islation2 ,+ declarin% as valid the provisions of C5MELEC Resolution No. .;;
on the conduct of initiative or a'end'ents to the Constitution2 ,.+ settin% aside the assailed resolution of the
C5MELEC for havin% been rendered &ith %rave abuse of discretion a'ountin% to lac@ or e:cess of )urisdiction2
and, ,-+ directin% the C5MELEC to %rant the petition for initiative and set the correspondin% plebiscite
pursuant to R.A. $1.7, C5MELEC Resolution No. .;;, and other pertinent election la&s and re%ulations.
4he COMELEC filed its own Comment statin% that its resolution den(in% the petition for initiative is not
tainted &ith %rave abuse of discretion as it 'erel( adhered to the rulin% of this Court in 6antia%o v. C5MELEC
&hich declared that R.A. $1.7 does not ade>uatel( i'ple'ent the constitutional provision on initiative to
a'end the Constitution. 9t invo@ed the per'anent in)unction issued b( the Court a%ainst the C5MELEC fro'
ta@in% co%ni=ance of petitions for initiative on a'end'ents to the Constitution until a valid enablin% la& shall
have been passed b( Con%ress. 9t asserted that the per'anent in)unction covers not onl( the 3elfin Petition, but
also all other petitions involvin% constitutional initiatives.
5n 6epte'ber $, ;;$, the Court heard the case. 4he parties &ere re>uired to ar%ue on the follo&in% issues*
".
". Chether petitioners La'bino and Au'entado are proper parties to file the present Petition in behalf
of the 'ore than si: 'illion voters &ho alle%edl( si%ned the proposal to a'end the Constitution.
. Chether the Petitions for 9nitiative filed before the Co''ission on Elections co'plied &ith 6ection
, Article D899 of the Constitution.
.. Chether the CourtHs decision in 6antia%o v. C5MELEC ,G.R. No. "1.7, March "#, "##1+ bars the
present petition.
-. Chether the Court should re-e:a'ine the rulin% in 6antia%o v. C5MELEC that there is no sufficient
la& i'ple'entin% or authori=in% the e:ercise of peopleHs initiative to a'end the Constitution.
7. Assu'in% R.A. $1.7 is sufficient, &hether the Petitions for 9nitiative filed &ith the C5MELEC have
co'plied &ith its provisions.
7." Chether the said petitions are sufficient in for' and substance.
7. Chether the proposed chan%es e'brace 'ore than one sub)ect 'atter.
$. Chether the proposed chan%es constitute an a'end'ent or revision of the Constitution.
$." Chether the proposed chan%es are the proper sub)ect of an initiative.
1. Chether the e:ercise of an initiative to propose a'end'ents to the Constitution is a political >uestion
to be deter'ined solel( b( the soverei%n people.
!. Chether the Co''ission on Elections co''itted %rave abuse of discretion in dis'issin% the
Petitions for 9nitiative filed before it.
Cith hu'ilit(, 9 offer the follo&in% vie&s to these issues as profiled*
9
Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the
more than six million voters who allegedly signed the proposal to amend the Constitution.
5ppositors-intervenors contend that petitioners La'bino and Au'entado are not the proper parties to file the
instant petition as the( &ere not authori=ed b( the si%natories in the petition for initiative.
4he ar%u'ent deserves scant attention. 4he Constitution re>uires that the petition for initiative should be filed
b( at least t&elve per cent ,"M+ of all re%istered voters, of &hich ever( le%islative district 'ust be represented
b( at least three per cent ,.M+ of all the re%istered voters therein. 4he petition for initiative filed b( La'bino
and Au'entado before the C5MELEC &as acco'panied b( volu'inous si%nature sheets &hich p!ima $acie
sho& the intent of the si%natories to support the filin% of said petition. 6tated above their si%natures in the
si%nature sheets is the follo&in%*
: : : M( si%nature herein &hich shall for' part of the petition for initiative to a'end the Constitution
si%nifies '( support for the filin% thereof.
"-
4here is thus no need for the 'ore than si: ,$+ 'illion si%natories to e:ecute separate docu'ents to authori=e
petitioners to file the petition for initiative in their behalf.
Neither is it necessar( for said si%natories to authori=e La'bino and Au'entado to file the petition for certiorari
and 'anda'us before this Court. Rule $7 of the "##1 Rules of Civil Procedure provides &ho 'a( file a petition
for certiorari and 'anda'us. 6ections " and . of Rule $7 read*
SECTION 1. Petition $o! ce!tio!a!i.?Chen an( tribunal, board or officer e:ercisin% )udicial or >uasi-
)udicial functions has acted &ithout or in e:cess of his )urisdiction, or &ith %rave abuse of discretion
a'ountin% to lac@ or e:cess of )urisdiction, and there is no appeal, nor an( plain, speed(, and ade>uate
re'ed( in the ordinar( course of la&, a person aggrieved thereb( 'a( file a verified petition in the
proper court : : : :.
SEC. 3. Petition $o! man+am%s.?Chen an( tribunal, corporation, board, officer or person unla&full(
ne%lects the perfor'ance of an act &hich the la& specificall( en)oins as a dut( resultin% fro' an office,
trust, or station : : : and there is no other plain, speed( and ade>uate re'ed( in the ordinar( course of
la&, the person aggrieved thereb( 'a( file a verified petition in the proper court : : : :.
4hus, an( person aggrieved b( the act or inaction of the respondent tribunal, board or officer 'a( file a
petition for certiorari or 'anda'us before the appropriate court. Certainl(, La'bino and Au'entado, as a'on%
the proponents of the petition for initiative dis'issed b( the C5MELEC, have the standin% to file the petition at
bar.
II
The doctrine of sta!e +ecisis does not bar the reexamination of Santiago.
4he latin phrase sta!e +ecisis et non A%ieta move!e 'eans <stand b( the thin% and do not disturb the cal'.< 4he
doctrine started &ith the En%lish Courts.
"7
Blackstone observed that at the be%innin% of the 18
th
century, <it is
an established rule to abide b( for'er precedents &here the sa'e points co'e a%ain in liti%ation.<
"$
As the rule
evolved, early limits to its application were recognized* ,"+ it &ould not be follo&ed if it &ere <plainl(
unreasonable2< ,+ &here courts of e>ual authorit( developed conflictin% decisions2 and, ,.+ the bindin% force of
the decision &as the <actual principle or principles necessar( for the decision2 not the &ords or reasonin% used
to reach the decision.<
"1

4he doctrine 'i%rated to the Enited 6tates. 9t &as reco%ni=ed b( the framers of the E.6. Constitution.
"!

Accordin% to Hamilton, <strict rules and precedents< are necessar( to prevent <arbitrar( discretion in the
courts.<
"#
Madison a%reed but stressed that <: : : once the precedent ventures into the realm of altering or
repealing the law, it should be rejected.<
;
Prof. Consovo( &ell noted that 0a'ilton and Madison "disagree
about the countervailin% polic( considerations that &ould allo& a )ud%e to abandon a precedent.<
"
0e added
that their ideas <reveal a deep internal conflict bet&een the concreteness re>uired b( the rule of la& and the
fle:ibilit( de'anded in error correction. It is this internal conflict that the Supreme Court has attempted to
deal with for over two centuries.<

9ndeed, t&o centuries of A'erican case la& &ill confir' Prof. Consovo(Hs observation althou%h stare de#isis
developed its o&n life in the Enited 6tates. Two strains of stare de#isis have been isolated b( le%al scholars.
.

4he first, @no&n as vertical sta!e +ecisis deals &ith the duty of lower courts to appl( the decisions of the
higher courts to cases involvin% the sa'e facts. 4he second, @no&n as horizontal sta!e +ecisis re>uires that
high courts must follow its own precedents. Prof. Consovo( correctl( observes that vertical stare de#isis has
been vie&ed as an obligation, &hile horizontal stare de#isis, has been vie&ed as a policy, i'posin% choice but
not a co''and.
-
9ndeed, stare de#isis is not one of the precepts set in stone in our Constitution.
9t is also instructive to distin%uish the two kinds of horizontal sta!e +ecisis ? constitutional sta!e +ecisis and
statutory stare de#isis.
7
Constitutional sta!e +ecisis involves )udicial interpretations of the Constitution &hile
statutory sta!e +ecisis involves interpretations of statutes. 4he distinction is important for courts en)o( more
flexibility in refusin% to appl( stare de#isis in constitutional liti%ations. 1ustice BrandeisH vie& on the bindin%
effect of the doctrine in constitutional liti%ations still holds s&a( toda(. 9n soothin% prose, Brandeis stated*
<Sta!e +ecisis is not . . . a universal and inexorable command. 4he rule of stare de#isis is not inflexible.
Chether it shall be follo&ed or departed fro', is a >uestion entirely within the discretion of the court, &hich
is a%ain called upon to consider a >uestion once decided.<
$
9n the sa'e vein, the venerable 1ustice
Frankfurter opined* <the ulti'ate touchstone of constitutionalit( is the Constitution itself and not what we
have said about it.<
1
In contrast, the application of stare de#isis on )udicial interpretation of statutes is 'ore
infle:ible. As 1ustice Stevens e:plains* <after a statute has been construed, either b( this Court or b( a
consistent course of decision b( other federal )ud%es and a%encies, it ac>uires a 'eanin% that should be as clear
as if the )udicial %loss had been drafted b( the Con%ress itself.<
!
4his stance reflects both respect for Con%ressH
role and the need to preserve the courtsH li'ited resources.
9n %eneral, courts follow the stare de#isis rule for an ense'ble of reasons,
#
"iz* ,"+ it le%iti'i=es )udicial
institutions2 ,+ it pro'otes )udicial econo'(2 and, ,.+ it allo&s for predictabilit(. Contrari&ise, courts refuse
to be bound by the sta!e +ecisis rule where
.;
,"+ its application perpetuates ille%iti'ate and unconstitutional
holdin%s2 ,+ it cannot acco''odate chan%in% social and political understandin%s2 ,.+ it leaves the po&er to
overturn bad constitutional la& solel( in the hands of Con%ress2 and, ,-+ activist )ud%es can dictate the polic(
for future courts &hile )ud%es that respect stare de#isis are stuc@ a%reein% &ith the'.
In its 200-year history, the E.6. 6upre'e Court has refused to follo& the stare de#isis rule and reversed its
decisions in 192 cases.
."
4he 'ost fa'ous of these reversals is Brown v. Board of Education
.
&hich )un@ed
Plessy v. FergusonHs
..
<separate but e>ual doctrine.< Plessy upheld as constitutional a state la& re>uire'ent that
races be se%re%ated on public transportation. 9n Brown, the E.6. 6upre'e Court, unani'ousl( held that
<separate . . . is inherently unequal.< 4hus, b( freein% itself fro' the shac@les of stare de#isis, the E.6.
6upre'e Court freed the colored A'ericans fro' the chains of ine>ualit(. 9n the Philippine settin%, this Court
has li@e&ise refused to be strait)ac@eted b( the stare de#isis rule in order to pro'ote public &elfare. 9n La
Bu%al-BHlaan 4ribal Association, 9nc. v. Ra'os,
.-
&e reversed our ori%inal rulin% that certain provisions of the
Minin% La& are unconstitutional. 6i'ilarl(, in Secretary of 1ustice v. Lantion,
.7
&e overturned our first rulin%
and held, on 'otion for reconsideration, that a private respondent is bereft of the ri%ht to notice and hearin%
durin% the evaluation sta%e of the e:tradition process.
An examination of decisions on sta!e +ecisis in major countries will show that courts are agreed on the
factors that should be considered before overturning prior rulings. These are workability, reliance,
intervening developments in the law and changes in fact. In addition, courts put in the balance the
following determinants: closeness of the voting, age of the prior decision and its merits.
.$

4he leading case in decidin% &hether a court should follo& the stare de#isis rule in constitutional liti%ations is
Planned Parenthood v. Casey.
.1
9t established a 4-pronged test. 4he court should ,"+ deter'ine &hether the
rule has proved to be intolerable si'pl( in def(in% practical &or@abilit(2 ,+ consider &hether the rule is
sub)ect to a @ind of reliance that &ould lend a special hardship to the conse>uences of overrulin% and add
ine>uit( to the cost of repudiation2 ,.+ deter'ine &hether related principles of law have so far developed as
to have the old rule no 'ore than a re'nant of an abandoned doctrine2 and, ,-+ find out &hether facts have so
changed or co'e to be seen differentl(, as to have robbed the old rule of si%nificant application or )ustification.
Following these guidelines, I submit that the sta!e +ecisis rule should not bar the reexamination of
Santiago. On the factor of intolerability, the si: ,$+ )ustices in Santiago held R.A. $1.7 to be insufficient as it
provided no standard to %uide C5MELEC in issuin% its i'ple'entin% rules. 4he Santiago rulin% that R.A.
$1.7 is insufficient but &ithout stri@in% it do&n as unconstitutional is an intolerable aberration, the onl( one
of its @ind in our planet. 9t i'properl( assails the abilit( of le%islators to &rite la&s. 9t usurps the e:clusive ri%ht
of le%islators to deter'ine ho& far la&s i'ple'entin% constitutional 'andates should be crafted. 9t is
ele'entar( that courts cannot dictate on Con%ress the st(le of &ritin% %ood la&s, an('ore than Con%ress can
tell courts ho& to &rite literate decisions. 4he doctrine of separation of po&ers forbids this Court to invade the
e:clusive la&'a@in% do'ain of Con%ress for courts can construe laws but cannot construct them. 4he end
result of the rulin% of the si: ,$+ )ustices that R.A. $1.7 is insufficient is intolerable for it rendered lifeless the
soverei%n ri%ht of the people to a'end the Constitution "ia an initiative.
On the factor of reliance, the rulin% of the si: ,$+ )ustices in Santiago did not induce an( e:pectation fro' the
people. 5n the contrar(, the rulin% s'othered the hope of the people that the( could a'end the Constitution b(
direct action. Moreover, reliance is a non-factor in the case at bar for it is 'ore appropriate to consider in
decisions involvin% contracts &here private ri%hts are ad)udicated. 4he case at bar involves no private ri%hts but
the soverei%nt( of the people.
On the factor of changes in law and in facts, certain realities on %round cannot be blin@ed a&a(. 4he ur%ent
need to ad)ust certain provisions of the "#!1 Constitution to enable the countr( to co'pete in the ne&
'illenniu' is %iven. 4he onl( point of contention is the 'ode to effect the chan%e - - - &hether throu%h
constituent asse'bl(, constitutional convention or peopleHs initiative. Petitioners clai' that the( have %athered
over si: ,$+ 'illion re%istered voters &ho &ant to a'end the Constitution throu%h peopleHs initiative and that
their si%natures have been verified b( re%istrars of the C5MELEC. The six (6) justices who ruled that R.A.
6735 is insufficient to implement the direct right of the people to amend the Constitution through an
initiative cannot waylay the will of 6.3 million people who are the bearers of our sovereignty and from
whom all government authority emanates. Ne& develop'ents in our internal and e:ternal social, econo'ic,
and political settin%s de'and the ree:a'ination of the Santiago case. The sta!e +ecisis rule is no reason for
this Court to allow the people to step into the future with a blindfold.
III
A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative.
Let us ree:a'ine the validit( of the vie& of the si: ,$+ )ustices that R.A. $1.7 is insufficient to i'ple'ent
6ection , Article D899 of the "#!1 Constitution allo&in% a'end'ents to the Constitution to be directl(
proposed b( the people throu%h initiative.
Chen la&s are challen%ed as unconstitutional, courts are counseled to %ive life to the intent of le%islators. 9n
enactin% R.A. $1.7, it is da(li%ht lu'inous that Con%ress intended the said la& to i'ple'ent the ri%ht of the
people, thru initiative, to propose a'end'ents to the Constitution b( direct action. 4his all-i'portant intent is
palpable fro' the follo&in%*
Airst. 4he text of R.A. $1.7 is replete &ith references to the ri%ht of the people to initiate chan%es to the
Constitution*
4he policy statement declares*
6ec. . 6tate'ent of Polic(. -- 4he po&er of the people under a s(ste' of initiative and referendu' to
directl( propose, enact, approve or re)ect, in &hole or in part, the Constitution, la&s, ordinances, or
resolutions passed b( an( le%islative bod( upon co'pliance &ith the re>uire'ents of this Act is hereb(
affir'ed, reco%ni=ed and %uaranteed. ,e'phasis supplied+
9t defines <initiative< as <the power of the people to propose amendments to the Constitution or to propose
and enact le%islations through an election called for the purpose,< and <plebiscite< as <the electoral process
b( &hich an initiative on the Constitution is approved or re)ected b( the people.<
9t provides the re>uire'ents for a petition for initiative to a'end the Constitution, vi=*
,"+ 4hat <,a+ petition for an initiative on the "#!1 Constitution 'ust have at least t&elve per #entum
,"M+ of the total nu'ber of re%istered voters as si%natories, of &hich ever( le%islative district 'ust be
represented b( at least three per #entum ,.M+ of the re%istered voters therein2<
.!
and
,+ 4hat <,i+nitiative on the Constitution 'a( be e:ercised onl( after five ,7+ (ears fro' the ratification
of the "#!1 Constitution and onl( once ever( five ,7+ (ears thereafter.<
.#
9t fi:es the effectivit( date of the a'end'ent under 6ection #,b+ &hich provides that <,t+he proposition in an
initiative on the Constitution approved b( a 'a)orit( of the votes cast in the plebiscite shall beco'e effective as
to the da( of the plebiscite.<
6econd. 4he le%islative histor( of R.A. $1.7 also reveals the clear intent of the la&'a@ers to use it as the
instru'ent to i'ple'ent peopleHs initiative. No less than for'er Chief 1ustice Hilario G. Davide, 1r., the
ponente in Santiago, concedes*
-;
Ce a%ree that R.A. No. $1.7 &as, as its histor( reveals, intended to cover initiative to propose
a'end'ents to the Constitution. 4he Act is a consolidation of 0ouse Bill No. "7;7 and 6enate Bill No.
"1 : : : : 4he Bica'eral Conference Co''ittee consolidated 6enate Bill No. "1 and 0ouse Bill No.
"7;7 into a draft bill, &hich &as subse>uentl( approved on ! /une "#!# b( the 6enate and b( the
0ouse of Representatives. 4his approved bill is no& R.A. No. $1.7.
4hird. 4he sponsorship speeches b( the authors of R.A. $1.7 si'ilarl( de'onstrate be(ond doubt this intent. 9n
his sponsorship re'ar@s, the late Senator Raul Roco ,then a Me'ber of the 0ouse of Representatives+
e'phasi=ed the intent to 'a@e initiative as a 'ode &hereb( the people can propose a'end'ents to the
Constitution. Ce >uote his relevant re'ar@s*
-"
6P5N65R609P REMAWR6 5A REP. R5C5
MR. R5C5. Mr. 6pea@er, &ith the per'ission of the co''ittee, &e &ish to spea@ in support of 0ouse
Bill No. -#1, entitled* 9N949A498E AN3 REAEREN3EM AC4 5A "#!1, &hich later on 'a( be called
9nitiative and Referendu' Act of "#!#.
As a bac@%round, &e &ant to point out the constitutional basis of this particular bill. 4he %rant of
plenar( le%islative po&er upon the Philippine Con%ress b( the "#.7, "#1. and "#!1 Constitutions, Mr.
6pea@er, &as based on the principle that an( po&er dee'ed to be le%islative b( usa%e and tradition is
necessaril( possessed b( the Philippine Con%ress unless the 5r%anic Act has lod%ed it else&here. 4his
&as a citation fro' Vera vs. Avelino ,"#-$+.
4he presidential s(ste' introduced b( the "#.7 Constitution sa& the application of the principle of
separation of po&ers. Chile under the parlia'entar( s(ste' of the "#1. Constitution the principle
re'ained applicable, A'end'ent $ or the "#!" a'end'ents to the "#1. Constitution ensured
presidential do'inance over the Batasan% Pa'bansa.
5ur constitutional histor( sa& the shiftin% and sharin% of le%islative po&er bet&een the le%islature and
the e:ecutive.
4ranscendin% such chan%es in the e:ercise of le%islative po&er is the declaration in the Philippine
Constitution that he Philippines is a Republican 6tate &here soverei%nt( resides in the people and all
%overn'ent authorit( e'anates fro' the'.
9n a Republic, Mr. 6pea@er, the po&er to %overn is vested in its citi=ens participatin% throu%h the ri%ht of
suffra%e and indicatin% thereb( their choice of la&'a@ers.
Ender the "#!1 Constitution, la&'a@in% po&er is still preserved in Con%ress. 0o&ever, to
institutionali=e direct action of the people as e:e'plified in the "#!$ Revolution, there is a practical
reco%nition of &hat &e refer to as peopleHs soverei%n po&er. 4his is the reco%nition of a s(ste' of
initiative and referendu'.
6ection ", Article 89 of the "#!1 Constitution provides, and 9 >uote*
4he le%islative po&er shall be vested in the Con%ress of the Philippines &hich shall consist of a
6enate and 0ouse of Representatives, e:cept to the e:tent reserved to the people b( the provision
on initiative and referendu'.
9n other &ords, Mr. 6pea@er, under the "#!1 Constitution, Con%ress does not have plenar( po&ers.
4here is a reserved le%islative po&er %iven to the people e:pressl(.
6ection ., the i'ple'entin% provision of the sa'e article of the Constitution provides, and 9 >uote*
4he Con%ress shall, as earl( as possible, provide for a s(ste' of initiative and referendu', and
the e:ceptions therefro', &hereb( the people can directl( propose and enact la&s or approve or
re)ect an( act or la& or part thereof passed b( the Con%ress or local le%islative bod( after the
re%istration of a petition therefor si%ned b( at least ten per #entum of the total nu'ber of
re%istered voters, or &hich ever( le%islative district 'ust be represented b( at least three per
#entum of the re%istered voters thereof.
9n other &ords, Mr. 6pea@er, in 6ection " of Article 89 &hich describes le%islative po&er, there are
reserved po&ers %iven to the people. 9n 6ection ., &e are specificall( told to pass at the soonest
possible ti'e a bill on referendu' and initiative. Ce are specificall( 'andated to share the le%islative
po&ers of Con%ress &ith the people.
5f course, another applicable provision in the Constitution is 6ection , Article D899, Mr. 6pea@er.
Ender the provision on a'endin% the Constitution, the section reads, and 9 >uote*
A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters, of
&hich ever( le%islative district 'ust be represented b( at least three per #entum of the re%istered
voters therein. No a'end'ent under this section shall be authori=ed &ithin five (ears follo&in%
the ratification of this Constitution nor oftener than once ever( five (ears thereafter.
Ce in Con%ress therefore, Mr. 6pea@er, are char%ed &ith the dut( to i'ple'ent the e:ercise b( the
people of the ri%ht of initiative and referendu'.
0ouse Bill No. "7;7, as reported out b( the Co''ittee on 6uffra%e and Electoral Refor's last
3ece'ber "-, "#!!, Mr. 6pea@er, is the response to such a constitutional dut(.
Mr. 6pea@er, if onl( to alla( apprehensions, allo& 'e to sho& &here initiative and referendu' under
Philippine la& has occurred.
Mr. 6pea@er, the s(ste' of initiative and referendu' is not ne&. 9n a ver( li'ited e:tent, the s(ste' is
provided for in our Local Govern'ent Code toda(. 5n initiative, for instance, 6ection ## of the said
code vests in the baran%a( asse'bl( the po&er to initiate le%islative processes, to hold plebiscites and to
hear reports of the san%%unian% baran%a(. 4here are variations of initiative and referendu'. 4he
baran%a( asse'bl( is co'posed of all persons &ho have been actual residents of the baran%a( for at
least si: 'onths, &ho are at least "7 (ears of a%e and citi=ens of the Philippines. 4he holdin% of
baran%a( plebiscites and referendu' is also provided in 6ections ";; and ";" of the sa'e Code.
Mr. 6pea@er, for brevit( 9 &ill not read the pertinent >uotations but &ill )ust sub'it the sa'e to the
6ecretar( to be incorporated as part of '( speech.
4o continue, Mr. 6pea@er these sa'e principles are e:tensivel( applied b( the Local Govern'ent Code
as it is no& 'andated b( the "#!1 Constitution.
9n other )urisdictions, Mr. 6pea@er, &e have a'ple e:a'ples of initiative and referendu' si'ilar to &hat
is no& contained in 0ouse Bill No. "7;7. As in the "#!1 Constitutions and 0ouse Bill No. "7;7, the
various constitutions of the states in the Enited 6tates reco%ni=e the ri%ht of re%istered voters to initiate
the enact'ent of an( statute or to re)ect an( e:istin% la& or parts thereof in a referendu'. 4hese states
are Alas@a, Alaba'a, Montana, Massachusetts, 3a@ota, 5@laho'a, 5re%on, and practicall( all other
states.
9n certain A'erican states, the @ind of la&s to &hich initiative and referendu' applies is also &ithout a(
li'itation, e:cept for e'er%enc( 'easures, &hich is li@e&ise incorporated in 6ection 1,b+ of 0ouse Bill
No. "7;7.
4he procedure provided b( the 0ouse bill S fro' the filin% of the petition, the re>uire'ent of a certain
percenta%e of supporters to present a proposition to sub'ission to electors S is substantiall( si'ilar to
those of 'an( A'erican la&s. Mr. 6pea@er, those a'on% us &ho 'a( have been in the Enited 6tates,
particularl( in California, durin% election ti'e or last Nove'ber durin% the election &ould have noticed
different propositions posted in the cit( &alls. 4he( &ere propositions sub'itted b( the people for
incorporation durin% the votin%. 4hese &ere in the nature of initiative, Mr. 6pea@er.
Althou%h an infant then in Philippine political structure, initiative and referendu' is a tried and tested
s(ste' in other )urisdictions, and 0ouse Bill No. "7;7 throu%h the various consolidated bills is
patterned after A'erican e:perience in a %reat respect.
Chat does the bill essentiall( sa(, Mr. 6pea@erI Allo& 'e to tr( to brin% our collea%ues slo&l( throu%h
the bill. 4he bill has basicall( onl( " sections. 4he constitutional Co''issioners, Mr. 6pea@er, sa& this
s(ste' of initiative and referendu' as an instru'ent &hich can be used should the le%islature sho&
itself indifferent to the needs of the people. 4hat is &h(, Mr. 6pea@er, it 'a( be ti'el(, since &e see' to
be a'pl( critici=ed, as re%ards our responsiveness, to pass this bill on referendu' and initiative no&.
Chile indifference &ould not be an appropriate ter' to use at this ti'e, and surel( it is not the case
althou%h &e are so critici=ed, one 'ust note that it is a felt necessit( of our ti'es that la&s need to be
proposed and adopted at the soonest possible ti'e to spur econo'ic develop'ent, safe%uard individual
ri%hts and liberties, and share %overn'ental po&er &ith the people.
Cith the le%islative po&ers of the President %one, &e alone, to%ether &ith the 6enators &hen the( are
'inded to a%ree &ith us, are left &ith the burden of enactin% the needed le%islation.
Let 'e no& brin% our collea%ues, Mr. 6pea@er, to the process advocated b( the bill.
Airst, initiative and referendu', Mr. 6pea@er, is defined. 9nitiative essentiall( is &hat the ter' connotes.
9t 'eans that the people, on their o&n political )ud%'ent, sub'it fore the consideration and votin% of the
%eneral electorate a bill or a piece of le%islation.
Ender 0ouse Bill No. "7;7, there are three @inds of initiative. 5ne is an initiative to a'end the
Constitution. 4his can occur once ever( five (ears. Another is an initiative to a'end statutes that &e
'a( have approved. 0ad this bill been an e:istin% la&, Mr. 6pea@er, it is 'ost li@el( that an
over&hel'in% 'a)orit( of the baran%a(s in the Philippines &ould have approved b( initiative the 'atter
of direct votin%.
4he third 'ode of initiative, Mr. 6pea@er, refers to a petition proposin% to enact re%ional, provincial,
cit(, 'unicipal or baran%a( la&s or ordinances. 9t co'es fro' the people and it 'ust be sub'itted
directl( to the electorate. 4he bill %ives a definite procedure and allo&s the C5MELEC to define rules
and re%ulations to %ive teeth to the po&er of initiative.
5n the other hand, referendu', Mr. 6pea@er, is the po&er of the people to approve or re)ect so'ethin%
that Con%ress has alread( approved.
Aor instance, Mr. 6pea@er, &hen &e divide the 'unicipalities or the baran%a(s into t&o or three, &e
'ust first %et the consent of the people affected throu%h plebiscite or referendu'.
Referendu' is a 'ode of plebiscite, Mr. 6pea@er. 0o&ever, referendu' can also be petitioned b( the
people if, for instance, the( do not life the bill on direct elections and it is approved subse>uentl( b( the
6enate. 9f this bill had alread( beco'e a la&, then the people could petition that a referendu' be
conducted so that the acts of Con%ress can be appropriatel( approved or rebuffed.
4he initial sta%e, Mr. 6pea@er, is &hat &e call the petition. As envisioned in the bill, the initiative co'es
fro' the people, fro' re%istered voters of the countr(, b( presentin% a proposition so that the people can
then sub'it a petition, &hich is a piece of paper that contains the proposition. 4he proposition in the
e:a'ple 9 have been citin% is &hether there should be direct elections durin% the baran%a( elections. 6o
the petition 'ust be filed in the appropriate a%enc( and the proposition 'ust be clear stated. 9t can be
tedious but that is ho& an effort to have direct de'ocrac( operates.
6ection - of the bill %ives re>uire'ents, Mr. 6pea@er. 9t &ill not be all that eas( to have referendu' or
initiative petitioned b( the people. Ender 6ection - of the co''ittee report, &e are %iven certain
li'itations. Aor instance, to e:ercise the po&er of initiative or referendu', at least "; percent of the total
nu'ber of re%istered voters, of &hich ever( le%islative district is represented b( at least . percent of the
re%istered voters thereof, shall si%n a petition. 4hese nu'bers, Mr. 6pea@er, are not ta@en fro' the air.
4he( are 'andated b( the Constitution. 4here 'ust be a re>uire'ent of "; percent for ordinar( la&s and
. percent representin% all districts. 4he sa'e re>uire'ent is mutatis mutandis or appropriatel( 'odified
and applied to the different sections. 6o if it is, for instance, a petition on initiative or referendu' for a
baran%a(, there is a "; percent or a certain nu'ber re>uired of the voters of the baran%a(. 9f it is for a
district, there is also a certain nu'ber re>uired of all to&ns of the district that 'ust see@ the petition. 9f it
is for a province then a%ain a certain percenta%e of the provincial electors is re>uired. All these are based
&ith reference to the constitutional 'andate.
4he conduct of the initiative and referendu' shall be supervised and shall be upon the call of the
Co''ission on Elections. 0o&ever, &ithin a period of .; da(s fro' receipt of the petition, the
C5MELEC shall deter'ine the sufficienc( of the petition, publish the sa'e and set the date of the
referendu' &hich shall not be earlier than -7 da(s but not later than #; da(s fro' the deter'ination b(
the co''ission of the sufficienc( of the petition. Ch( is this so, Mr. 6pea@erI 4he petition 'ust first be
deter'ined b( the co''ission as to its sufficienc( because our Constitution re>uires that no bill can be
approved unless it contains one sub)ect 'atter. 9t is conceivable that in the fervor of an initiative or
referendu', Mr. 6pea@er, there 'a( be 'ore than t&o topics sou%ht to be approved and that cannot be
allo&ed. 9n fact, that is one of the prohibitions under this referendu' and initiative bill. Chen a 'atter
under initiative or referendu' is approved b( the re>uired nu'ber of votes, Mr. 6pea@er, it shall beco'e
effective "7 da(s follo&in% the co'pletion of its publication in the $ffi#ial Gazette. Effectivel( then,
Mr. 6pea@er, all the bill see@s to do is to enlar%e and reco%ni=e the le%islative po&ers of the Ailipino
people.
Mr. 6pea@er, 9 thin@ this Con%ress, particularl( this 0ouse, cannot i%nore or cannot be insensitive to the
call for initiative and referendu'. Ce should have done it in "#!1 but that is past. Ma(be &e should
have done it in "#!! but that too had alread( passed, but it is onl( Aebruar( "#!#, Mr. 6pea@er, and &e
have enou%h ti'e this (ear at least to respond to the need of our people to participate directl( in the
&or@ of le%islation.
Aor these reasons, Mr. 6pea@er, &e ur%e and i'plore our collea%ues to approve 0ouse Bill No. "7;7 as
incorporated in Co''ittee Report No. -. of the Co''ittee on 6uffra%e and Electoral Refor's.
9n closin%, Mr. 6pea@er, 9 also re>uest that the prepared te:t of '( speech, to%ether &ith the footnotes
since the( contain 'an( references to statutor( histor( and forei%n )urisdiction, be reproduced as part of
the Record for future purposes.
Equally unequivocal on the intent of R.A. $1.7 is the sponsorship speech of for'er Representative Salvador
Escudero III, "iz*
-
6P5N65R609P REMARW6 5A REP. E6CE3ER5
MR. E6CE3ER5. 4han@ (ou, Mr. 6pea@er.
Mr. 6pea@er and '( dear collea%ues* Events in recent (ears hi%hli%hted the need to heed the cla'or of
the people for a trul( popular de'ocrac(. 5ne recalls the i'patience of those &ho activel( participated
in the parlia'ent of the streets, so'e of &ho' are no& distin%uished Me'bers of this Cha'ber. A
substantial se%'ent of the population feel increasin%l( that under the s(ste', the people have the for'
but not the realit( or substance of de'ocrac( because of the increasin%l( elitist approach of their chosen
Representatives to 'an( >uestions vitall( affectin% their lives. 4here have been co'plaints, not
alto%ether unfounded, that 'an( candidates easil( for%e their ca'pai%n pro'ises to the people once
elected to office. 4he "#!$ Constitutional Co''ission dee'ed it &ise and proper to provide for a
'eans &hereb( the people can e:ercise the reserve po&er to le%islate or propose a'end'ents to the
Constitution directl( in case their chose Representatives fail to live up to their e:pectations. 4hat reserve
po&er @no&n as initiative is e:plicitl( reco%ni=ed in three articles and four sections of the "#!1
Constitution, na'el(* Article 89 6ection "2 the sa'e article, 6ection ."2 Article D, 6ection .2 and
Article D899, 6ection . Ma( 9 re>uest that he e:plicit provisions of these three articles and four sections
be 'ade part of '( sponsorship speech, Mr. 6pea@er.
4hese constitutional provisions are, ho&ever, not self-e:ecutor(. 4here is a need for an i'ple'entin%
la& that &ill %ive 'eanin% and substance to the process of initiative and referendu' &hich are
considered valuable ad)uncts to representative de'ocrac(. 9t is needless to state that this bill &hen
enacted into la& &ill probabl( open the door to stron% co'petition of the people, li@e pressure %roups,
vested interests, far'ersH %roup, labor %roups, urban d&ellers, the urban poor and the li@e, &ith Con%ress
in the field of le%islation.
6uch probabilit(, ho&ever, pales in si%nificance &hen &e consider that throu%h this bill &e can hasten
the politi=ation of the Ailipino &hich in turn &ill aid %overn'ent in for'in% an enli%htened public
opinion, and hopefull( produce better and 'ore responsive and acceptable le%islations.
Aurther'ore, Mr. 6pea@er, this &ould %ive the parlia'entarians of the streets and cause-oriented %roups
an opportunit( to articulate their ideas in a trul( de'ocratic foru', thus, the co'petition &hich the( &ill
offer to Con%ress &ill hopefull( be a health( one. An(&a(, in an at'osphere of co'petition there are
co''on interests dear to all Ailipinos, and the pursuit of each sideHs co'petitive %oals can still ta@e
place in an at'osphere of reason and 'oderation.
Mr. 6pea@er and '( dear collea%ues, &hen the distin%uished Gentle'an fro' Ca'arines 6ur and this
Representation filed our respective versions of the bill in "#!1, &e &ere hopin% that the bill &ould be
approved earl( enou%h so that our people could i''ediatel( use the a%rarian refor' bill as an initial
sub)ect 'atter or as a ta@e-off point.
0o&ever, in vie& of the ver( heav( a%enda of the Co''ittee on Local Govern'ent, it too@ so'eti'e
before the co''ittee could act on these. But as the( sa( in 4a%alo%, huli man daw at ma(alin( a/
naihahabol din. 4he passa%e of this bill therefore, '( dear collea%ues, could be one of our finest hours
&hen &e can set aside our personal and political consideration for the %reater %ood of our people. 9
therefore respectfull( ur%e and plead that this bill be i''ediatel( approved.
4han@ (ou, Mr. 6pea@er.
We cannot dodge the duty to give effect to this intent for the <OcPourts have the dut( to interpret the la& as
le%islated and &hen possible, to honor the clear 'eanin% of statutes as revealed b( its lan%ua%e, purpose and
histor(.<
-.

4he tragedy is that while conceding this intent, the si: ,$+ )ustices, nevertheless, ruled that <: : : R.A. No.
$1.7 is inco'plete, inade>uate, or &antin% in essential ter's and conditions insofar as initiative on
a'end'ents to the Constitution is concerned< for the follo&in% reasons* ,"+ 6ection of the Act does not
suggest an initiative on a'end'ents to the Constitution2 ,+ the Act does not provide for the contents of the
petition for initiative on the Constitution2 and ,.+ &hile the Act provides subtitles for National 9nitiative and
Referendu' ,6ubtitle 99+ and for Local 9nitiative and Referendu' ,6ubtitle 999+, no subtitle is provided for
4o sa( the least, these alle%ed omissions are too &ea@ a reason to throttle the ri%ht of the soverei%n people to
a'end the Constitution throu%h initiative. R.A. $1.7 clearl( e:pressed the legislative policy for the people to
propose a'end'ents to the Constitution b( direct action. 4he fact that the le%islature 'a( have omitted certain
details in i'ple'entin% the peopleHs initiative in R.A. $1.7, does not )ustif( the conclusion that, e!go, the la& is
insufficient. Chat &ere omitted were mere details and not fundamental policies &hich Con%ress alone can
and has deter'ined. Implementing details of a law can be dele%ated to the C5MELEC and can be the sub)ect
of its rule-'a@in% po&er. Ender 6ection ,"+, Article 9D-C of the Constitution, the C5MELEC has the po&er to
enforce and ad'inister all la&s and re%ulations relative to the conduct of initiatives. 9ts rule-'a@in% po&er has
lon% been reco%ni=ed b( this Court. 9n rulin% R.A. $1.7 insufficient but &ithout stri@in% it do&n as
unconstitutional, the si: ,$+ )ustices failed to %ive due reco%nition to the indefeasible ri%ht of the soverei%n
people to a'end the Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere amendments and can be
undertaken through people's initiative.
5ppositors-intervenors contend that 6ections " and , Article D899 of the "#!1 Constitution, onl( allo& the use
of peopleHs initiative to a'end and not to revise the Constitution. 4he( theori=e that the chan%es proposed b(
petitioners are substantial and thus constitute a revision &hich cannot be done throu%h peopleHs initiative.
9n support of the thesis that the Constitution bars the people fro' proposin% substantial amendments
a'ountin% to revision, the oppositors-intervenors cite the follo&in% deliberations durin% the Constitutional
Co''ission, "iz*
--
MR. 6EAREK* : : : : 4his proposal &as su%%ested on the theor( that this 'atter of initiative, &hich
ca'e about because of the e:traordinar( develop'ents this (ear, has to be separated fro' the traditional
'odes of a'endin% the Constitution as e'bodied in 6ection ". 4he Co''ittee 'e'bers felt that this
s(ste' of initiative should not e:tend to the revision of the entire Constitution, so &e re'oved it fro'
the operation of 6ection " of the proposed Article on A'end'ent or Revision.
: : : : : : : : : : : :
M6. ALE9N5. 9n &hich case, 9 a' seriousl( bothered b( providin% this process of initiative as a
separate section in the Article on A'end'ent. Could the sponsor be a'enable to acceptin% an
a'end'ent in ter's of reali%nin% 6ection as another subpara%raph ,c+ of 6ection ", instead of settin%
it up as another separate section as if it &ere a self-e:ecutin% provisionI
MR. 6EAREK. Ce &ould be a'enable e:cept that, as &e clarified a &hile a%o, this process of initiative
is li'ited to the 'atter of a'end'ent and should not e:pand into a revision &hich conte'plates a total
overhaul of the Constitution. 4hat &as the sense that &as conve(ed b( the Co''ittee.
M6. ALE9N5. 9n other &ords, the Co''ittee &as atte'ptin% to distin%uish the covera%e of 'odes ,a+
and ,b+ in 6ection " to include the process of revision2 &hereas the process of initiation to a'end, &hich
is %iven to the public, &ould onl( appl( to a'end'entsI
MR. 6EAREK. 4hat is ri%ht. 4hose &ere the ter's envisioned in the Co''ittee.
Co''issioner ,later Chief /ustice+ 0ilario G. 3avide, /r., espoused the sa'e vie&*
-7
MR. 3A893E. : : : : Ce are li'itin% the ri%ht of the people, b( initiative, to sub'it a proposal for
a'end'ent onl(, not for revision, onl( once ever( five (ears : : : :
MR. MAAMB5NG. M( first >uestion* Co''issioner 3avideHs proposed a'end'ent on line " refers to
<a'end'ent.< 3oes it cover the &ord <revision< as defined b( Co''issioner Padilla &hen he 'ade the
distinction bet&een the &ords <a'end'ents< and <revisionI<
MR. 3A893E. No, it does not, because <a'end'ents< and <revision< should be covered b( 6ection ".
6o insofar as initiative is concerned, it can onl( relate to <a'end'ents< not <revision.<
Co''issioner ,no& a distin%uished Associate /ustice of this Court+ Adolfo 6. A=cuna also clarified this point
-$

-
MR. 5PLE. 4o 'ore closel( reflect the intent of 6ection , 'a( 9 su%%est that &e add to <A'end'ents<
<5R RE89695N6 5A< to read* <A'end'ents 5R RE89695N 5A this Constitution.<
MR. AKCENA. 9 thin@ it &as not allo&ed to revise the Constitution b( initiative.
MR. 5PLE. 0o& is that a%ainI
MR. AKCENA. 9t &as not our intention to allo& a revision of the Constitution b( initiative but 'erel(
b( a'end'ents.
MR. BENGK5N. 5nl( b( a'end'ents.
MR. AKCENA. 9 re'e'ber that &as ta@en on the floor.
MR. R53R9G5. Ges, )ust a'end'ents.
4he oppositors-intervenors then point out that b( their proposals, petitioners &ill <chan%e the ver( s(ste' of
%overn'ent fro' presidential to parlia'entar(, and the for' of the le%islature fro' bica'eral to unica'eral,<
a'on% others. 4he( alle%edl( see@ other 'a)or revisions li@e the inclusion of a 'ini'u' nu'ber of inhabitants
per district, a chan%e in the period for a ter' of a Me'ber of Parlia'ent, the re'oval of the li'its on the
nu'ber of ter's, the election of a Pri'e Minister &ho shall e:ercise the e:ecutive po&er, and so on and so
forth.
-1
9n su', oppositors-intervenors sub'it that <the proposed chan%es to the Constitution effect 'a)or
chan%es in the political structure and s(ste', the funda'ental po&ers and duties of the branches of the
%overn'ent, the political ri%hts of the people, and the 'odes b( &hich political ri%hts 'a( be e:ercised.<
-!

4he( conclude that the( are substantial a'end'ents &hich cannot be done throu%h peopleHs initiative. 9n other
&ords, they posit the thesis that only simple but not substantial amendments can be done through
people's initiative.
With due respect, I disagree. 4o start &ith, the &ords <simple< and <substantial< are not sub)ect to an(
accurate >uantitative or >ualitative test. 5bviousl(, rel(in% on the quantitative test, oppositors-intervenors
assert that the a'end'ents &ill result in so'e one hundred ,";;+ chan%es in the Constitution. Using the same
test, ho&ever, it is also arguable that petitioners see@ to chan%e basicall( onl( t&o ,+ out of the ei%hteen ,"!+
articles of the "#!1 Constitution, i.e. Article 89 ,Le%islative 3epart'ent+ and Article 899 ,E:ecutive
3epart'ent+, to%ether &ith the co'ple'entar( provisions for a s'ooth transition fro' a presidential bica'eral
s(ste' to a parlia'entar( unica'eral structure. The big bulk of the 1987 Constitution will not be affected
includin% Articles 9 ,National 4erritor(+, 99 ,3eclaration of Principles and 6tate Policies+, 999 ,Bill of Ri%hts+, 98
,Citi=enship+, 8 ,6uffra%e+, 8999 ,/udicial 3epart'ent+, 9D ,Constitutional Co''issions+, D ,Local
Govern'ent+, D9 ,Accountabilit( of Public 5fficers+, D99 ,National Econo'( and Patri'on(+, D999 ,6ocial
/ustice and 0u'an Ri%hts+, D98 ,Education, 6cience and 4echnolo%(, Arts, Culture, and 6ports+, D8 ,4he
Aa'il(+, D89 ,General Provisions+, and even D899 ,A'end'ents or Revisions+. 9n fine, we stand on unsafe
ground if we use simple arithmetic to determine whether the proposed changes are "simple" or
"substantial."
Nor can this Court be surefooted if it applies the qualitative test to deter'ine &hether the said chan%es are
"simple" or "substantial" as to a'ount to a revision of the Constitution. 4he &ell-re%arded political scientist,
Garner, sa(s that a %ood constitution should contain at least three ,.+ sets of provisions* the constitution of
liberty &hich sets forth the funda'ental ri%hts of the people and i'poses certain li'itations on the po&ers of
the %overn'ent as a 'eans of securin% the en)o('ent of these ri%hts2 the constitution of government &hich
deals &ith the fra'e&or@ of %overn'ent and its po&ers, la(in% do&n certain rules for its ad'inistration and
definin% the electorate2 and, the constitution of sovereignty &hich prescribes the 'ode or procedure for
a'endin% or revisin% the constitution.
-#
It is plain that the proposed changes will basically affect only the
constitution of government. 4he constitutions of libert( and soverei%nt( re'ain unaffected. Indeed, the
proposed changes will not change the fundamental nature of our state as "x x x a democratic and
republican state."
7;
9t is self-evident that a unica'eral-parlia'entar( for' of %overn'ent &ill not 'a@e our
6tate an( less de'ocratic or an( less republican in character. 0ence, neither &ill the use of the qualitative test
resolve the issue of whether the proposed changes are "simple" or "substantial."
Aor this reason and 'ore, our Constitutions did not adopt any quantitative or qualitative test to determine
whether an "amendment" is "simple" or "substantial." Nor did they provide that "substantial"
amendments are beyond the power of the people to propose to change the Constitution. 9nstead, our
Constitutions carried the traditional distinction bet&een <a'end'ent< and <revision,< i.e., <a'end'ent<
'eans chan%e, including complex changes &hile <revision< 'eans complete change, includin% the adoption
of an entirel( ne& covenant. 4he legal dictionaries e:press this traditional difference bet&een <a'end'ent<
and <revision.< Black's Law Dictionary defines <amendment< as <OaP for'al revision or addition proposed or
'ade to a statute, constitution, pleadin%, order, or other instru'ent2 specificall(, a chan%e 'ade b( addition,
deletion, or correction.<
7"
Blac@Hs also refers to <a'end'ent< as <the process of 'a@in% such a revision.<
7

Revision, on the other hand, is defined as <OaP ree:a'ination or careful revie& for correction or
i'prove'ent.<
7.
9n parlia'entar( la&, it is described as <OaP %eneral and thorou%h re&ritin% of a %overnin%
docu'ent, in &hich the entire document is open to a'end'ent.<
7-
6i'ilarl(, Ballentine's La& 3ictionar(
defines "amendment< S as <OaP correction or revision of a &ritin% to correct errors or better to state its intended
purpose<
77
and <a'end'ent of constitution< as <OaP process of proposin%, passin%, and ratif(in% a'end'ents to
the : : : constitution.<
7$
9n contrast, "revision,< &hen applied to a statute ,or constitution+, <conte'plates the
re-e:a'ination of the sa'e sub)ect 'atter contained in the statute ,or constitution+, and the substitution of a
ne&, and &hat is believed to be, a still 'ore perfect rule.<
71
5ne of the 'ost authoritative constitutionalists of his ti'e to &ho' &e o&e a lot of intellectual debt, Dean
Vicente G. Sinco, of the Eniversit( of the Philippines Colle%e of La&, ,later President of the E.P. and dele%ate
to the Constitutional Convention of "#1"+ si'ilarl( spelled out the difference bet&een <a'end'ent< and
<revision.< 0e opined* <the revision of a constitution, in its strict sense, refers to a consideration of the entire
constitution and the procedure for effectin% such chan%e2 &hile amendment refers onl( to particular provisions
to be added to or to be altered in a constitution.<
7!
Our people were guided by this traditional distinction when they effected changes in our 1935 and 1973
Constitutions. 9n "#-;, the chan%es to the "#.7 Constitution which included the conversion from a
unicameral system to a bicameral structure, the shortenin% of the tenure of the President and 8ice-President
fro' a si:-(ear ter' &ithout reelection to a four-(ear ter' &ith one reelection, and the establish'ent of the
C5MELEC, to%ether &ith the co'ple'entar( constitutional provisions to effect the chan%es, were considered
amendments only, not a revision.
4he replacement of the 1935 Constitution by the 1973 Constitution &as, ho&ever, considered a revision
since the "#1. Constitution &as <a completely new funda'ental charter e'bod(in% ne& political, social and
econo'ic concepts.<
7#
A'on% those adopted under the "#1. Constitution &ere* the parlia'entar( s(ste' in
place of the presidential s(ste', &ith the leadership in le%islation and ad'inistration vested &ith the Pri'e
Minister and his Cabinet2 the reversion to a sin%le-cha'bered la&'a@in% bod( instead of the t&o-cha'bered,
&hich &ould be 'ore suitable to a parlia'entar( s(ste' of %overn'ent2 the enfranchise'ent of the (outh
be%innin% ei%hteen ,"!+ (ears of a%e instead of t&ent(-one ,"+, and the abolition of literac(, propert(, and
other substantial re>uire'ents to &iden the basis for the electorate and e:pand de'ocrac(2 the stren%thenin% of
the )udiciar(, the civil service s(ste', and the Co''ission on Elections2 the co'plete nationali=ation of the
o&nership and 'ana%e'ent of 'ass 'edia2 the %ivin% of control to Philippine citi=ens of all
teleco''unications2 the prohibition a%ainst alien individuals to o&n educational institutions, and the
stren%thenin% of the %overn'ent as a &hole to i'prove the conditions of the 'asses.
$;

The 1973 Constitution in turn under&ent a series of significant changes in "#1$, "#!;, "#!", and "#!-. 4he
two significant innovations introduced in 1976 &ere ,"+ the creation of an interim Batasan% Pa'bansa, in
place of the interim National Asse'bl(, and ,+ A'end'ent No. $ &hich conferred on the President the po&er
to issue decrees, orders, or letters of instruction, &henever the Batasan% Pa'bansa fails to act ade>uatel( on an(
'atter for an( reason that in his )ud%'ent re>uires i''ediate action, or there is %rave e'er%enc( or threat or
i''inence thereof, &ith such decrees, or letters of instruction to for' part of the la& of the land. 9n 1980, the
retire'ent a%e of sevent( ,1;+ for )ustices and )ud%es &as restored. 9n 1981, the presidential s(ste' &ith
parlia'entar( features &as installed. 4he transfer of private land for use as residence to natural-born citi=ens
&ho had lost their citi=enship &as also allo&ed. 4hen, in 1984, the 'e'bership of the Batasan% Pa'bansa &as
reapportioned b( provinces, cities, or districts in Metro Manila instead of b( re%ions2 the 5ffice of the 8ice-
President &as created &hile the e:ecutive co''ittee &as abolished2 and, urban land refor' and social housin%
pro%ra's &ere stren%thened.
$"
These substantial changes were simply considered as mere amendments.
9n 1986, Mrs. Cora=on C. A>uino assu'ed the presidenc(, and repudiated the "#1. Constitution. 6he %overned
under Procla'ation No. ., @no&n as the Areedo' Constitution.
9n February 1987, the new constitution &as ratified b( the people in a plebiscite and superseded the
Provisional or Areedo' Constitution. Retired /ustice 9sa%ani Cru= underscored the outstandin% features of the
"#!1 Constitution &hich consists of ei%hteen articles and is e:cessivel( lon% co'pared to the Constitutions of
"#.7 and "#1., on &hich it &as lar%el( based. Man( of the ori%inal provisions of the "#.7 Constitution,
particularl( those pertainin% to the le%islative and e:ecutive depart'ents, have been restored because of the
revival of the bica'eral Con%ress of the Philippines and the strictl( presidential s(ste'. 4he independence of
the )udiciar( has been stren%thened, &ith ne& provisions for appoint'ent thereto and an increase in its
authorit(, &hich no& covers even political >uestions for'erl( be(ond its )urisdiction. Chile 'an( provisions of
the "#1. Constitution &ere retained, li@e those on the Constitutional Co''issions and local %overn'ents, still
the ne& "#!1 Constitution &as dee'ed as a revision of the "#1. Constitution.
It is now contended that this traditional distinction bet&een a'end'ent and revision &as abro%ated b( the
"#!1 Constitution. 9t is ur%ed that 6ection " of Article D899 %ives the po&er to a'end or revise to Con%ress
actin% as a constituent asse'bl(, and to a Constitutional Convention dul( called b( Con%ress for the purpose.
6ection of the sa'e Article, it is said, li'ited the peopleHs ri%ht to chan%e the Constitution "ia initiative
throu%h simple amendments. 9n other &ords, the people cannot propose substantial amendments a'ountin%
to revision.
Cith due respect, 9 do not a%ree. As aforestated, the oppositors-intervenors &ho peddle the above proposition
rel( on the opinions of so'e Co''issioners e:pressed in the course of the debate on ho& to fra'e the
a'end'entFrevision provisions of the "#!1 Constitution. 9t is familiar learning, ho&ever, that opinions in a
constitutional convention, especially if inconclusive of an issue, are of very limited value as e:plainin%
doubtful phrases, and are an unsafe %uide ,to the intent of the people+ since the constitution derives its force as a
funda'ental la&, not fro' the action of the convention but fro' the po&ers ,of the people+ &ho have ratified
and adopted it.
$
<Debates in the constitutional convention Hare of value as sho&in% the vie&s of the individual
'e'bers, and as indicatin% the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fello& citi=ens &hose votes at the polls %ave that
instru'ent the force of funda'ental la&.H<
$.
Indeed, a careful perusal of the debates of the Constitutional
Commissioners can likewise lead to the conclusion that there was no abandonment of the traditional
distinction between "amendment" and "revision." Aor durin% the debates, so'e of the co''issioners
referred to the concurrin% opinion of for'er /ustice Aeli: L. Antonio in 1avellana v. The Executive
Secretary,
$-
that stressed the traditional distinction between amendment and revision, thus*
$7
MR. 6EAREK* Ce 'entioned the possible use of onl( one ter' and that is, <a'end'ent.< 0o&ever,
the Co''ittee finall( a%reed to use the ter's S <a'end'ent< or <revision< &hen our attention &as
called b( the honorable 8ice-President to the substantial difference in the connotation and si%nificance
bet&een the said ter's. As a result of our research, &e ca'e up &ith the observations 'ade in the
fa'ous S or notorious S /avellana doctrine, particularl( the decision rendered b( 0onorable /ustice
Ma@asiar,
$$
&herein he 'ade the follo&in% distinction bet&een <a'end'ent< and <revision< of an
e:istin% Constitution* <Revision< 'a( involve a re&ritin% of the &hole Constitution. 5n the other hand,
the act of a'endin% a constitution envisa%es a chan%e of specific provisions onl(. 4he intention of an act
to a'end is not the chan%e of the entire Constitution, but onl( the i'prove'ent of specific parts or the
addition of provisions dee'ed essential as a conse>uence of ne& conditions or the eli'ination of parts
alread( considered obsolete or unresponsive to the needs of the ti'es.
4he "#1. Constitution is not a 'ere a'end'ent to the "#.7 Constitution. 9t is a co'pletel( ne&
funda'ental Charter e'bod(in% ne& political, social and econo'ic concepts.
6o, the Co''ittee finall( ca'e up &ith the proposal that these t&o ter's should be e'plo(ed in the
for'ulation of the Article %overnin% a'end'ents or revisions to the ne& Constitution.
4o further e:plain <revision,< for'er /ustice Antonio, in his concurrin% opinion, used an analo%( S <Chen a
house is co'pletel( de'olished and another is erected on the sa'e location, do (ou have a chan%ed, repaired
and altered house, or do (ou have a ne& houseI 6o'e of the 'aterial contained in the old house 'a( be used
a%ain, so'e of the roo's 'a( be constructed the sa'e, but this does not alter the fact that (ou have alto%ether
another or a ne& house.<
$1
0ence, it is ar%uable that &hen the fra'ers of the "#!1 Constitution used the &ord <revision,< the( had in 'ind
the <rewriting of the whole Constitution,< or the <total overhaul of the Constitution.< Anything less is an
<a'end'ent< or )ust <a chan%e of specific provisions onl(,< the intention bein% <not the chan%e of the entire
Constitution, but onl( the i'prove'ent of specific parts or the addition of provisions dee'ed essential as a
conse>uence of ne& conditions or the eli'ination of parts alread( considered obsolete or unresponsive to the
needs of the ti'es.< Ender this vie&, <substantial< a'end'ents are still <a'end'ents< and thus can be
proposed b( the people "ia an initiative.
As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on the difference
bet&een <si'ple< and <substantial< a'end'ents or &hether <substantial< a'end'ents a'ountin% to revision
are covered b( peopleHs initiative, it behooves us to follo& the cardinal rule in interpreting Constitutions, i.e.,
construe the' to %ive effect to the intention of the people who adopted it. 4he illustrious Coole( e:plains its
rationale &ell, "iz*
$!

: : : the constitution does not derive its force fro' the convention &hich fra'ed, but fro' the people
&ho ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that the( have
loo@ed for an( dar@ or abstruse 'eanin% in the &ords e'plo(ed, but rather that the( have accepted the'
in the sense 'ost obvious to the co''on understandin%, and ratified the instru'ent in the belief that
that &as the sense desi%ned to be conve(ed. 4hese proceedin%s therefore are less conclusive of the
proper construction of the instru'ent than are le%islative proceedin%s of the proper construction of a
statute2 since in the latter case it is the intent of the le%islature &e see@, &hile in the for'er &e are
endeavorin% to arrive at the intent of the people throu%h the discussion and deliberations of their
representatives. 4he histor( of the callin% of the convention, the causes &hich led to it, and the
discussions and issues before the people at the ti'e of the election of the dele%ates, &ill so'eti'es be
>uite as instructive and satisfactor( as an(thin% to be %athered for' the proceedin%s of the convention.
Corollaril(, a constitution is not to be interpreted on narro& or technical principles, but liberally and on broad
general lines, to accomplish the object of its establishment and carry out the great principles of
government - not to defeat them.
$#
5ne of these %reat principles is the soverei%nt( of the people.
Let us no& deter'ine the intent of the people &hen the( adopted initiative as a 'ode to a'end the "#!1
Constitution. Ce start &ith the 3eclaration of Principles and 6tate Policies &hich 6inco describes as <the basic
political creed of the nation<
1;
as it <la(s do&n the policies that %overn'ent is bound to observe.<
1"
6ection ",
Article 99 of the "#.7 Constitution and 6ection ", Article 99 of the "#1. Constitution, similarly provide that
<the Philippines is a republican state. 6overei%nt( resides in the people and all %overn'ent authorit( e'anates
fro' the'.< In a republican state, the power of the sovereign people is exercised and delegated to their
representatives. 4hus in Metropolitan 4ransportation 6ervice v. Paredes, this Court held that <a republican
state, li@e the Philippines : : : ,is+ derived fro' the &ill of the people the'selves in freel( creatin% a
%overn'ent Hof the people, b( the people, and for the peopleH S a representative %overn'ent throu%h &hich the(
have a%reed to e:ercise the po&ers and dischar%e the duties of their soverei%nt( for the co''on %ood and
%eneral &elfare.<
1
9n both the "#.7 and "#1. Constitutions, the sovereign people delegated to Congress or to a convention, the
po&er to a'end or revise our funda'ental la&. History informs us how this delegated power to amend or
revise the Constitution was abused particularly during the Marcos regime. 4he Constitution &as chan%ed
several ti'es to satisf( the po&er re>uire'ents of the re%i'e. 9ndeed, Amendment No. 6 &as passed %ivin%
unprecedented le%islative po&ers to then President Aerdinand E. Marcos. A conspirac( of circu'stances fro'
above and belo&, ho&ever, brou%ht do&n the Marcos re%i'e throu%h an extra constitutional revolution,
albeit a peaceful one b( the people. A main reason for the people's revolution was the failure of the
representatives of the people to effectuate timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional convention. Chen the representatives of the people
defaulted in usin% this last peaceful process of constitutional chan%e, the sovereign people themselves took
matters in their own hands. 4he( revolted and replaced the "#1. Constitution &ith the "#!1 Constitution.
It is significant to note that the people modified the ideology of the 1987 Constitution as it stressed the
power of the people to act directly in their capacity as sovereign people. Correspondingly, the power of
the legislators to act as representatives of the people in the matter of amending or revising the
Constitution was diminished for the spring cannot rise above its source. 4o reflect this si%nificant shift,
6ection ", Article 99 of the "#!1 Constitution &as reworded. 9t now reads* <the Philippines is a democratic and
republican state. 6overei%nt( resides in the people and all %overn'ent authorit( e'anates fro' the'.< 4he
co''issioners of the "#!$ Constitutional Co''ission e:plained the addition of the word "democratic," in
our first 3eclaration of Principles, "iz*
MR. N5LLE35. 9 a' puttin% the &ord <de'ocratic< because of the provisions that &e are no& adoptin% &hich
are coverin% consultations &ith the people. Aor e:a'ple, &e have provisions on recall, initiative, the ri%ht of the
people even to participate in la&'a@in% and other instances that reco%ni=e the validit( of interference b( the
people throu%h peopleHs or%ani=ations : : : :
1.
MR. 5PLE. : : : : 4he Co''ittee added the &ord <de'ocratic< to <republican,< and, therefore, the
first sentence states* <4he Philippines is a republican and de'ocratic state : : : :
Ma( 9 @no& fro' the co''ittee the reason for addin% the &ord <de'ocratic< to <republican<I 4he
constitutional fra'ers of the "#.7 and "#1. Constitutions &ere content &ith <republican.< Cas this done
'erel( for the sa@e of e'phasisI
MR. N5LLE35. : : : : <democratic" was added because of the need to emphasize people power
and the many provisions in the Constitution that we have approved related to recall, people's
organizations, initiative and the like, which recognize the participation of the people in policy-
making in certain circumstances x x x x
MR. 5PLE. 9 than@ the Co''issioner. 4hat is a ver( clear ans&er and 9 thin@ it does 'eet a need : : :
:
MR. N5LLE35. Accordin% to Co''issioner Rosario Braid, <de'ocrac(< here is understood as
participator( de'ocrac(.
1-
,emphasis supplied+
4he follo&in% e:chan%e bet&een Co''issioners Rene 8. 6ar'iento and Adolfo S. A=cuna is of the sa'e
i'port*
17
MR. 6ARM9EN45. Chen &e spea@ of republican de'ocratic state, are &e referrin% to representative
de'ocrac(I
MR. AKCENA. 4hat is ri%ht.
MR. 6ARM9EN45. 6o, &h( do &e not retain the old for'ulation under the "#1. and "#.7
Constitutions &hich used the &ords <republican state< because <republican state< &ould refer to a
de'ocratic state &here people choose their representativesI
MR. AKCENA. Ce &anted to e'phasi=e the participation of the people in %overn'ent.
MR. 6ARM9EN45. But even in the concept <republican state,< &e are stressin% the participation of the
people : : : : 6o the &ord <republican< &ill suffice to cover popular representation.
MR. AKCENA. Ges, the Co''issioner is ri%ht. 0o&ever, the co''ittee felt that in vie& of the
introduction of the aspects of direct democracy such as initiative, referendu' or recall, it &as necessar(
to e'phasi=e the de'ocratic portion of republicanis', of representative de'ocrac( as &ell. So, we
want to add the word "democratic" to emphasize that in this new Constitution there are instances
where the people would act directly, and not through their representatives. ,emphasis supplied+
Consistent &ith the stress on direct democracy, the systems of initiative, referendu', and recall &ere
enthroned as polestars in the "#!1 Constitution. 4hus, Commissioner Blas F. Ople &ho introduced the
provision on peopleHs initiative said*
1$

MR. 5PLE. : : : : 9 thin@ this is )ust the correct ti'e in histor( &hen &e should introduce an
innovative 'ode of proposin% a'end'ents to the Constitution, vesting in the people and their
or%ani=ations the ri%ht to for'ulate and propose their own amendments and revisions of the
Constitution in a 'anner that &ill be bindin% upon the %overn'ent. 9t is not that 9 believe this @ind of
direct action b( the people for a'endin% a constitution &ill be needed fre>uentl( in the future, but it is
good to know that the ultimate reserves of sovereign power still rest upon the people and that in
the exercise of that power, they can propose amendments or revision to the Constitution.
,emphasis supplied+
Commissioner 1ose E. Suarez also e:plained the peopleHs initiative as a safet( valve, as a peaceful &a( for the
people to chan%e their Constitution, b( citin% our e:periences under the Marcos %overn'ent, "iz*
11

MR. 6EAREK. Ce a%ree to the difficult( in i'ple'entin% this particular provision, but &e are
providin% a channel for the e:pression of the soverei%n &ill of the people throu%h this initiative s(ste'.
MR. BENGK5N. 9s 6ection ", para%raphs ,a+ and ,b+, not sufficient channel for e:pression of the &ill of
the people, particularl( in the a'end'ent or revision of the ConstitutionI
MR. 6EAREK. Ender nor'al circu'stances, (es. But we know what happened during the 20 years
under the Marcos administration. So, if the National Assembly, in a manner of speaking, is
operatin% under the thu'b of the Pri'e Minister or the President as the case 'a( be, and the re>uired
nu'ber of votes could not be obtained, &e &ould have to provide for a safety valve in order that the
people could ventilate in a ver( peaceful &a( their desire for a'end'ent to the Constitution.
It is very possible that although the people may be pressuring the National Assembly to constitute
itself as a constituent assembly or to call a constitutional convention, the members thereof would
not heed the people's desire and clamor. 6o this is a third avenue that &e are providin% for the
i'ple'entation of &hat is no& popularl( @no&n as peopleHs po&er. ,emphasis supplied+
Commissioner Regalado E. Maambong opined that the people's initiative could avert a revolution, "iz*
1!

MR. MAAMB5NG. : : : : the a'endin% process of the Constitution could actually avert a
revolution b( providin% a safet( valve in brin%in% about chan%es in the Constitution throu%h pacific
'eans. 4his, in effect, operationali=es &hat political la& authors call the <prescription of soverei%nt(.<
,emphasis supplied+
4he end result is 6ection , Article D899 of the "#!1 Constitution &hich e:pressed the ri%ht of the soverei%n
people to propose a'end'ents to the Constitution b( direct action or throu%h initiative. 4o that e:tent, the
delegated power of Congress to amend or revise the Constitution has to be adjusted downward. 4hus,
6ection ", Article 89 of the "#!1 Constitution has to be reminted and now provides* <4he le%islative po&er
shall be vested in the Con%ress of the Philippines &hich shall consist of a 6enate and a 0ouse of
Representatives, except to the extent reserved to the people by the provision on initiative and referendum.<
Prescindin% fro' these baseline pre'ises, the argument that the people through initiative cannot propose
substantial amendments to change the Constitution turns sovereignty on its head. At the ver( least, the
submission constricts the democratic space for the e:ercise of the direct soverei%nt( of the people. 9t also
deni%rates the soverei%n people &ho the( clai' can onl( be trusted &ith the po&er to propose "simple" but
not "substantial" a'end'ents to the Constitution. Accordin% to 6inco, the concept of soverei%nt( should be
strictl( understood in its le%al 'eanin% as it &as ori%inall( developed in la&.
1#
Le%al soverei%nt(, he e:plained,
is <the possession of unlimited power to make laws. 9ts possessor is the le%al soverei%n. 9t i'plies the absence
of an( other part( endo&ed &ith le%all( superior po&ers and privile%es. It is not subject to law 'for it is the
author and source of law.' Le%al soverei%nt( is thus the e>uivalent of legal omnipotence.<
!;

4o be sure, soverei%nt( or popular soverei%nt(, e'phasi=es the supre'ac( of the peopleHs &ill over the state
&hich the( the'selves have created. 4he state is created b( and sub)ect to the &ill of the people, &ho are the
source of all political po&er. Ri%htl(, &e have ruled that <the soverei%nt( of our people is not a @abalistic
principle &hose di'ensions are buried in '(sticis'. 9ts 'etes and bounds are fa'iliar to the fra'ers of our
Constitutions. 4he( @ne& that in its broadest sense, soverei%nt( is 'eant to be supre'e, the )us su''i i'peru,
the absolute ri%ht to %overn.<
!"
1ames Wilson, re%arded b( 'an( as the 'ost brilliant, scholarl(, and visionar( la&(er in the Enited 6tates in
the "1!;s, laid do&n the first principles of popular soverei%nt( durin% the Penns(lvania ratif(in% convention of
the "1!1 Constitution of the Enited 6tates*
!
4here necessaril( e:ists, in ever( %overn'ent, a po&er fro' &hich there is no appeal, and &hich, for
that reason, 'a( be ter'ed supre'e, absolute, and uncontrollable.
: : : : Perhaps so'e politician, &ho has not considered &ith sufficient accurac( our political s(ste's,
&ould ans&er that, in our %overn'ents, the supre'e po&er &as vested in the constitutions : : : : 4his
opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our
governments, the supreme, absolute, and uncontrollable power remains in the people. As our
constitutions are superior to our le%islatures, so the people are superior to our constitutions. 9ndeed the
superiorit(, in this last instance, is 'uch %reater2 for the people possess over our constitution, control in
act, as &ell as ri%ht. ,emphasis supplied+
I wish to reiterate that in a democratic and republican state, only the people is sovereign - - - not the
elected President, not the elected Con%ress, not this unelected Court. 9ndeed, the soverei%nt( of the people
&hich is indivisible cannot be reposed in an( or%an of %overn'ent. Only its exercise may be delegated to any
of them. In our case, the people delegated to Congress the exercise of the sovereign power to amend or
revise the Constitution. 9f Con%ress, as dele%ate, can e:ercise this po&er to a'end or revise the Constitution,
can it be ar%ued that the soverei%n people &ho dele%ated the po&er has no po&er to substantiall( a'end the
Constitution b( direct actionI 9f the soverei%n people do not have this po&er to 'a@e substantial a'end'ents to
the Constitution, &hat did it dele%ate to Con%ressI 0o& can the people lac@ this fraction of a power to
substantiall( a'end the Constitution &hen b( their soverei%nt(, all power e'anates fro' the'I 9t &ill ta@e
so'e mumbo 2umbo to ar%ue that the &hole is lesser than its part. Let 6inco clinch the point*
!.
But althou%h possession 'a( not be dele%ated, the e:ercise of soverei%nt( often is. 9t is dele%ated to the
or%ans and a%ents of the state &hich constitute its %overn'ent, for it is onl( throu%h this instru'entalit(
that the state ordinaril( functions. However ample and complete this delegation may be, it is
nevertheless subject to withdrawal at any time by the state. 5n this point Cillou%hb( sa(s*
4hus, 6tates 'a( concede to colonies al'ost co'plete autono'( of %overn'ent and reserve to
the'selves a ri%ht to control of so sli%ht and so ne%ative a character as to 'a@e its e:ercise a rare
and i'probable occurrence2 (et so lon% as such ri%ht of control is reco%ni=ed to e:ist, and the
autono'( of the colonies is conceded to be founded upon a %rant and continuin% consent of the
'other countries the soverei%nt( of those 'other countries over the' is co'plete and the( are to
be considered as possessin% onl( ad'inistrative autono'( and not political independence.
At the very least, the power to propose substantial amendments to the Constitution is shared with the
people. We should accord the most benign treatment to the sovereign power of the people to propose
substantial amendments to the Constitution especially when the proposed amendments will adversely
affect the interest of some members of Congress. A contrary approach will suborn the public weal to
private interest and worse, will enable Congress (the delegate) to frustrate the power of the people to
determine their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses ac@no&led%in% the ri%ht of the people to e:ercise
initiative and referendu' are liberally and generously construed in favor of the people.
!-
9nitiative and
referendu' po&ers 'ust be broadl( construed to 'aintain maximum power in the people.
!7
Ce follo&ed this
orientation in 6ubic Ba( Metropolitan Authorit( v. Co''ission on Elections.
!$
4here is not an iota of reason to
depart fro' it.
V
The issues at bar are not political questions.
Petitioners sub'it that <OtPhe validit( of the e:ercise of the ri%ht of the soverei%n people to a'end the
Constitution and their &ill, as e:pressed b( the fact that over si: 'illion re%istered voters indicated their support
of the Petition for 9nitiative, is a purely political question &hich is be(ond even the ver( lon% ar' of this
0onorable CourtHs po&er of )udicial revie&. Chether or not the "#!1 Constitution should be a'ended is a
'atter &hich the people and the people alone 'ust resolve in their soverei%n capacit(.<
!1
4he( ar%ue that <OtPhe
po&er to propose a'end'ents to the Constitution is a ri%ht e:plicitl( besto&ed upon the soverei%n people.
0ence, the deter'ination b( the people to e:ercise their ri%ht to propose a'end'ents under the s(ste' of
initiative is a soverei%n act and falls s>uarel( &ithin the a'bit of a Hpolitical >uestion.H<
!!

4he petitioners cannot be sustained. 4his issue has lon% been interred b( Sanidad v. Commission on Elections,
"iz*
!#

Political >uestions are neatl( associated &ith the &isdo', not the le%alit( of a particular act. Chere the
vorte: of the controvers( refers to the le%alit( or validit( of the contested act, that 'atter is definitel(
)usticiable or non-political. Chat is in the heels of the Court is not the &isdo' of the act of the
incu'bent President in proposin% a'end'ents to the Constitution, but his constitutional authorit( to
perfor' such act or to assu'e the po&er of a constituent asse'bl(. Chether the a'endin% process
confers on the President that po&er to propose a'end'ents is therefore a do&nri%ht )usticiable >uestion.
6hould the contrar( be found, the actuation of the President &ould 'erel( be a brutu' ful'en. 9f the
Constitution provides ho& it 'a( be a'ended, the )udiciar( as the interpreter of that Constitution, can
declare &hether the procedure follo&ed or the authorit( assu'ed &as valid or not.
Ce cannot accept the vie& of the 6olicitor General, in pursuin% his theor( of non-)usticiabilit(, that the
>uestion of the PresidentHs authorit( to propose a'end'ents and the re%ularit( of the procedure adopted
for sub'ission of the proposals to the people ulti'atel( lie in the )ud%'ent of the latter. A clear
3escartes fallac( of "i#ious #/#le. 9s it not that the people the'selves, b( their soverei%n act, provided
for the authorit( and procedure for the a'endin% process &hen the( ratified the present Constitution in
"#1.I Chether, therefore, that constitutional provision has been follo&ed or not is indisputabl( a proper
sub)ect of in>uir(, not b( the people the'selves S of course S &ho e:ercise no po&er of )udicial revie&,
but b( the 6upre'e Court in &ho' the people the'selves vested that po&er, a po&er &hich includes the
co'petence to deter'ine &hether the constitutional nor's for a'end'ents have been observed or not.
And, this in>uir( 'ust be done a priori not a posteriori, i.e., before the sub'ission to and ratification b(
the people.
9n the instant case, the Constitution sets in blac@ and &hite the re>uire'ents for the e:ercise of the peopleHs
initiative to a'end the Constitution. 4he a'end'ents 'ust be proposed b( the people <upon a petition of at
least t&elve per centu' of the total nu'ber of re%istered voters, of &hich ever( le%islative district 'ust be
represented b( at least three per centu' of the re%istered voters therein. No a'end'ent under this section shall
be authori=ed &ithin five (ears follo&in% the ratification of this Constitution nor oftener than once ever( five
(ears thereafter.<
#;
Co'pliance &ith these re>uire'ents is clearl( a )usticiable and not a political >uestion. Be
that as it 'a(, ho& the issue &ill be resolved b( the people is addressed to the' and to the' alone.
VI
Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article XVII of
the Constitution and R.A. 6735 involves contentious issues of fact which should first be resolved by the
COMELEC.
5ppositors-intervenors i'pu%n the Petition for 9nitiative as it alle%edl( lac@s the re>uired nu'ber of si%natures
under 6ection , Article D899 of the Constitution. 6aid provision re>uires that the petition for initiative be
supported b( at least t&elve per cent ,"M+ of the total nu'ber of re%istered voters, of &hich ever( le%islative
district 'ust be represented b( at least three per cent ,.M+ of the re%istered voters therein. 5ppositors-
intervenors contend that no proper verification of signatures &as done in several le%islative districts. 4he(
assert that 'ere verification of the na'es listed on the si%nature sheets &ithout verif(in% the si%natures reduces
the si%natures sub'itted for their respective le%islative districts to 'ere scribbles on a piece of paper.
5ppositor-intervenor 5NE859CE, 9nc., sub'itted to this Court a certification dated Au%ust ., ;;$ issued b(
Att(. Marlon 6. Cas>ue)o, Election 5fficer 98, 4hird 3istrict and 59C, Airst and 6econd 3istrict, 3avao Cit(,
statin% that his office has not verified the si%natures sub'itted b( the proponents of the peopleHs initiative. 4he
certification reads*
4his is to CER49AG that this office ,Airst, 6econd and 4hird 3istrict, 3avao Cit(+ 0A6 NOT
VERIFIED the si%natures of re%istered voters as per docu'ents sub'itted in this office b( the
proponents of the PeopleHs 9nitiative. Conse>uentl(, NO ELECTION DOCUMENTS AND/OR
ORDER ISSUED BY HIGHER SUPERIORS used as basis for such verification of si%natures.
#"

6enate Minorit( Leader A>uilino Pi'entel, /r., a'on% others, further clarified that althou%h Att(. Cas>ue)o and
Re(nne /o( B. Bullecer, Actin% Election 5fficer 98, Airst 3istrict, 3avao Cit(, later issued certifications statin%
that the 5ffice of the Cit( Election 5fficer has e:a'ined the list of individuals appearin% in the si%nature
sheets,
#
the certifications reveal that the office had verified onl( the na'es of the si%natories, but not their
si%natures. 5ppositors-intervenors sub'it that not onl( the na'es of the si%natories should be verified, but also
their si%natures to ensure the identities of the persons affi:in% their si%natures on the si%nature sheets.
5ppositor-intervenor Lu&alhati Antonino also alle%ed that petitioners failed to obtain the si%natures of at least
three per cent ,.M+ of the total nu'ber of re%istered voters in the Airst Le%islative 3istrict of 6outh Cotabato.
Aor the Airst 3istrict of 6outh Cotabato, petitioners sub'itted .,"! si%natures for General 6antos Cit(, ,"!$
si%natures for 4upi, .,.;! si%natures for 4a'pa@an and ";,.;" si%natures for Polo'olo@, or "!,#11 si%natures
out of .7#,-!! re%istered voters of said district. Antonino, ho&ever, sub'itted to this Court a cop( of the
certification b( Glor( 3. Rubio, Election 5fficer 999, Polo'olo@, dated Ma( !, ;;$, sho&in% that the
si%natures fro' Polo'olo@ &ere not verified because the Boo@ of 8oters for the &hole 'unicipalit( &as in the
custod( of the Cler@ of Court of the Re%ional 4rial Court, Branch .!, Polo'olo@, 6outh Cotabato.
#.
E:cludin%
the si%natures fro' Polo'olo@ fro' the total nu'ber of si%natures fro' the Airst 3istrict of 6outh Cotabato
&ould (ield onl( a total of !,$1$ si%natures &hich falls short of the three per cent ,.M+ re>uire'ent for the
district.
Aor'er President /oseph E)ercito Estrada and P&ersa n% Masan% Pilipino li@e&ise sub'itted to this Court a
certification issued b( Att(. 6talin A. Ba%uio, Cit( Election 5fficer 98, Ca%a(an de 5ro Cit(, statin% that the
list of na'es appearin% on the si%nature sheets corresponds to the na'es of re%istered voters in the cit(, thereb(
i'pl(in% that the( have not actuall( verified the si%natures.
#-
4he ar%u'ent a%ainst the sufficienc( of the si%natures is further bolstered b( Alternative La& Groups, 9nc.,
&hich sub'itted copies of si'ilarl( &orded certifications fro' the election officers fro' Ka'boan%a del 6ur
#7

and fro' Co'postela 8alle(.
#$
Alternative La& Groups, 9nc., further assails the re%ularit( of the verification
process as it alle%ed that verification in so'e areas &ere conducted b( Baran%a( officials and not b(
C5MELEC election officers. 9t filed &ith this Court copies of certifications fro' 6ulu and 6ultan Wudarat
sho&in% that the verification &as conducted b( local officials instead of C5MELEC personnel.
#1
Petitioners, on the other hand, maintain that the verification conducted b( the election officers sufficientl(
co'plied &ith the re>uire'ents of the Constitution and the la& on initiative.
Contravenin% the alle%ations of oppositors-intervenors on the lac@ of verification in 3avao Cit( and in
Polo'olo@, 6outh Cotabato, petitioner Au'entado clai'ed that the sa'e election officers cited b( the
oppositors-intervenors also issued certifications sho&in% that the( have verified the si%natures sub'itted b( the
proponents of the peopleHs initiative. 0e presented copies of the certifications issued b( Att(. Marlon 6.
Cas>ue)o for the 6econd and 4hird Le%islative 3istricts of 3avao Cit( statin% that he verified the si%natures of
the proponents of the peopleHs initiative. 0is certification for the 6econd 3istrict states*
4his is to CER49AG that this 5ffice has e:a'ined the list of individuals as appearin% in the 6i%nature
6heets of the Re%istered 8oters of 3istrict 99, 3avao Cit(, sub'itted on April 1, ;;$ b( MR.
N5NA45 B5L56, Punon% Baran%a(, Centro, 3avao Cit( for verification &hich consists of 409R4G
405E6AN3 69D 0EN3RE3 69D4G-4C5 ,.;,$$+ si%natures.
Anent thereto, it appears that of the 409R4G 405E6AN3 69D 0EN3RE3 69D4G-4C5 ,.;,$$+
individuals, onl( 4CEN4G-4C5 405E6AN3 69D 0EN3RE3 69D4G-E9G04 ,,$$!+ individuals
&ere found to be REG964ERE3 854ER6, in the Co'puteri=ed List of 8oters of 6EC5N3
C5NGRE6695NAL 3964R9C4, 3A8A5 C94G.
#!

9t &as also sho&n that Att(. Cas>ue)o had issued a clarificator( certification re%ardin% the verification process
conducted in 3avao Cit(. 9t reads*
Re%ardin% the verification of the si%natures of re%istered voters, this 5ffice has previousl( issued t&o
,+ separate certifications for the
nd
and .
rd
3istricts of 3avao Cit( on April ;, ;;$ and April $,
;;$, respectivel(, specificall( relatin% to the voters &ho supported the peopleHs initiative. 9t &as stated
therein that the na'es sub'itted, co'prisin% ,$$! individual voters in the
nd
3istrict and "!,-$#
individual voters in the .
rd
3istrict, &ere found OtoP be re%istered voters of the respective districts
'entioned as verified b( this 5ffice based on the Co'puteri=ed List of 8oters.
9t 'ust be clarified that the Au%ust ., ;;$ Certification &as issued in error and b( 'ista@e for the
reason that the si%nature verification has not been full( co'pleted as of that date.
9 hereb( CER49AG that this 5ffice has e:a'ined the si%natures of the voters as appearin% in the
si%nature sheets and has co'pared these &ith the si%natures appearin% in the boo@ of voters and
co'puteri=ed list of voters : : :
##
Petitioner Au'entado also sub'itted a cop( of the certification dated Ma( !, ;;$ issued b( Polo'olo@
Election 5fficer Glor( 3. Rubio to support their clai' that said officer had conducted a verification of
si%natures in said area. 4he certification states*
4his is to certif( further, that the total $!,.7# re%istered voters of this 'unicipalit(, as of the Ma( ";,
;;- elections, ";,!;- na'es &ith si%natures &ere sub'itted for verification and out of &hich ";,.;"
&ere found to be le%iti'ate voters as per official list of re%istered voters, &hich is e>uivalent to "7.;1M
of the total nu'ber of re%istered voters of this Municipalit(.
";;

9n addition to the lac@ of proper verification of the si%natures in nu'erous le%islative districts, alle%ations of
fraud and irre%ularities in the collection of si%natures in Ma@ati Cit( &ere cited b( 6enator Pi'entel, a'on%
others, to wit*
,"+ No notice &as %iven to the public, for the benefit of those &ho 'a( be concerned, b( the Ma@ati
C5MELEC 5ffice that si%nature sheets have alread( been sub'itted to it for <verification.< 4he ca'p
of Ma(or Bina( &as able to &itness the <verification process< onl( because of their pro-active stance2
,+ 9n 3istrict ", the proponents of charter chan%e sub'itted -.,-;7 si%natures for verification. .$,"#
alle%ed votersH si%natures ,!.M of the nu'ber of si%natures sub'itted+ &ere re)ected outri%ht. 1,"!$
si%natures alle%edl( <passed< C5MELECHs initial scrutin(. 0o&ever, upon e:a'ination of the si%nature
sheets b( Att(. Mar-len Abi%ail Bina(, the said 1,"!$ si%natures could not be accounted for. Att(. Bina(
'anuall( counted ,1#. si%natures 'ar@ed &ith the &ord <5W< and .,--. si%natures 'ar@ed &ith a
chec@, %ivin% onl( $,.$ <apparentl( verified si%natures.< Before the C5MELEC officer issued the
Certification, Att(. Bina( alread( sub'itted to the said office not less than 77 letters of <si%nature
&ithdra&al,< but no action &as ever ta@en thereon2
,.+ 9n 3istrict , #,-"" si%natures &ere sub'itted for verification. .,7" alle%ed votersH si%natures
,!;M of those sub'itted+ &ere re)ected outri%ht. 5f the 7,!#; si%natures &hich alle%edl( passed the
C5MELECHs initial scrutin(, so'e 'ore &ill surel( fail upon closer e:a'ination2
,-+ 9n the absence of clear, transparent, and unifor' rules the C5MELEC personnel did not @no& ho&
to treat the ob)ections and other observations co'in% fro' the ca'p of Ma(or Bina(. 4he oppositors too
did not @no& &here to %o for their re'ed( &hen the C5MELEC personnel 'erel( <listened< to their
ob)ections and other observations. As 'entioned earlier, the C5MELEC personnel did not even @no&
&hat to do &ith the 'an( <letters of si%nature &ithdra&al< sub'itted to it2
,7+ 6i%natures of people lon% dead, in prison, abroad, and other for%eries appear on the 6i%a& n% Ba(an
6i%nature 6heets. 4here is even a "7-(ear old alle%ed si%nator(2
,$+ 4here are 6i%nature 6heets obviousl( si%ned b( one person2
,1+ A Calara M. Roberto and a Roberto M. Calara both alle%edl( si%ned the 6i%nature 6heets.
";"
Also, there are alle%ations that 'an( of the si%natories did not understand &hat the( have si%ned as the( &ere
'erel( 'isled into si%nin% the si%nature sheets. 5pposed to these alle%ations are rulin%s that a person &ho
affi:es his si%nature on a docu'ent raises the presu'ption that the person so si%nin% has @no&led%e of &hat the
docu'ent contains. Courts have reco%ni=ed that there is %reat value in the stabilit( of records, so to spea@, that
no one should co''it herself or hi'self to so'ethin% in &ritin% unless she or he is full( a&are and co%ni=ant
of the effect it 'a( have upon her on hi'.
";
9n the sa'e vein, &e have held that a person is presu'ed to have
@no&led%e of the contents of a docu'ent he has si%ned.
";.
But as this Court is not a trier of facts, it cannot
resolve the issue.
9n su', the issue of &hether the petitioners have co'plied &ith the constitutional re>uire'ent that the petition
for initiative be si%ned b( at least t&elve per cent ,"M+ of the total nu'ber of re%istered voters, of &hich ever(
le%islative district 'ust be represented b( at least three per cent ,.M+ of the re%istered voters therein, involves
contentious facts. Its resolution will require presentation of evidence and their calibration by the
COMELEC according to its rules. 3urin% the oral ar%u'ent on this case, the COMELEC, throu%h 3irector
Alioden 3alai% of its La& 3epart'ent, admitted that it has not e:a'ined the docu'ents sub'itted b( the
petitioners in support of the petition for initiative, as &ell as the docu'ents filed b( the oppositors to buttress
their clai' that the re>uired nu'ber of si%natures has not been 'et. 4he e:chan%es durin% the oral ar%u'ent
li@e&ise clearl( sho& the need for further clarification and presentation of evidence to prove certain 'aterial
facts.
";-
4he only basis used by the COMELEC to dis'iss the petition for initiative &as this CourtHs rulin% in
Santiago v. COMELEC that R.A. $1.7 &as insufficient. It has yet to rule on the sufficiency of the form and
substance of the petition. 9 respectfull( sub'it that this issue should be properly litigated before the
COMELEC &here both parties &ill be %iven full opportunit( to prove their alle%ations.
For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the
requirements of R.A. 6735 on initiative and its i'ple'entin% rules is a >uestion that should be resolved b( the
C5MELEC at the first instance, as it is the bod( that is 'andated b( the Constitution to ad'inister all la&s and
re%ulations relative to the conduct of an election, plebiscite, initiative, referendu' and recall.
";7

VII
COMELEC gravely abused its discretion when it denied due course to the Lambino and
Aumentado petition.
9n den(in% due course to the La'bino and Au'entado petition, C5MELEC relied on this CourtHs rulin% in
Santiago per'anentl( en)oinin% it fro' entertainin% or ta@in% co%ni=ance of an( petition for initiative on
a'end'ents to the Constitution until a sufficient la& shall have been validl( enacted to provide for the
i'ple'entation of the s(ste'.
A%ain, 9 respectfull( sub'it that C5MELECHs reliance on Santiago constitutes %rave abuse of discretion
a'ountin% to lac@ of )urisdiction. 4he Santiago case did not establish the firm doctrine that R.A. $1.7 is not
a sufficient la& to i'ple'ent the constitutional provision allo&in% peopleHs initiative to a'end the Constitution.
4o recapitulate, the records sho& that in the original decision, eight (8) justices
";$
voted that R.A. $1.7 &as
not a sufficient la&2 five ,7+ )ustices
";1
voted that said la& &as sufficient2 and one ,"+ )ustice
";!
abstained fro'
votin% on the issue holdin% that unless and until a proper initiator( pleadin% is filed, the said issue is not ripe for
ad)udication.
";#

Cithin the re%le'entar( period, the respondents filed their 'otion for reconsideration. 5n /une ";, "##1, the
Court denied the 'otion. 5nl( thirteen ,".+ )ustices resolved the 'otion for /ustice 4orres inhibited hi'self.
"";

Of the original majority of eight (8) justices, only six (6) reiterated their ruling that R.A. 6735 was an
insufficient law. /ustice 0er'osisi'a, ori%inall( part of the 'a)orit( of ei%ht ,!+ )ustices, chan%ed his vote and
)oined the 'inorit( of five ,7+ )ustices. 0e opined &ithout an( e>uivocation that R.A. $1.7 &as a sufficient la&,
thus*
9t is one thin% to utter a happ( phrase fro' a protected cluster2 another to thin@ under fire S to thin@ for
action upon &hich %reat interests depend.< 6o said /ustice 5liver Cendell 0ol'es, and so 9 a' %uided
as 9 reconsider '( concurrence to the holdin% of the 'a)orit( that <R.A. No. $1.7 is inade>uate to cover
the s(ste' of initiative on a'end'ents to the Constitution and to have failed to provide sufficient
standard for subordinate le%islation< and no& to interpose '( dissent thereto.
: : :
C0EREA5RE, 9 vote to dis'iss the 3elfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise
by the people of their right to amend the Constitution through initiative proceedings and to uphold
the validit( of C5MELEC Resolution No. .;; insofar as it does not sanction the filin% of the initiator(
petition for initiative proceedin%s to a'end the Constitution &ithout the re>uired na'es andFor
si%natures of at least "M of all the re%istered voters, of &hich ever( le%islative district 'ust be
represented b( at least .M of the re%istered voters therein. ,emphasis supplied+
/ustice 8itu% re'ained steadfast in refusin% to rule on the sufficienc( of R.A. $1.7. 9n fine, the final vote on
&hether R.A. $1.7 is a sufficient la& &as 6-6 &ith one ,"+ )ustice inhibitin% hi'self and another )ustice
refusin% to rule on the %round that the issue &as not ripe for ad)udication.
9t ou%ht to be be(ond debate that the si: ,$+ )ustices &ho voted that R.A. $1.7 is an insufficient la& failed to
establish a doctrine that could serve as a precedent. Ender an( alche'( of la&, a deadloc@ed vote of si: ,$+ is
not a 'a)orit( and a non-'a)orit( cannot &rite a rule &ith precedential value. 4he opinion of the late /ustice
Ricardo /. Arancisco is instructive, "iz*
As it stands, of the thirteen )ustices &ho too@ part in the deliberations on the issue of &hether the 'otion
for reconsideration of the March "#, "##1 decision should be %ranted or not, onl( the follo&in% )ustices
sided &ith Mr. /ustice 3avide, na'el(* Chief /ustice Narvasa, and /ustices Re%alado, Ro'ero,
Bellosillo and Wapunan. /ustices Melo, Puno, Mendo=a, 0er'osisi'a, Pan%aniban and the undersi%ned
voted to %rant the 'otion2 &hile /ustice 8itu% <'aintained his opinion that the 'atter &as not ripe for
)udicial ad)udication.< 9n other &ords, onl( five, out of the other t&elve )ustices, )oined Mr. /ustice
3avideHs /une ";, "##1 ponencia findin% R.A. No. $1.7 unconstitutional for its failure to pass the so
called <co'pleteness and sufficienc( standards< tests. 4he <concurrence of a 'a)orit( of the 'e'bers
&ho actuall( too@ part in the deliberations< &hich Article 899, 6ection -,+ of the Constitution re>uires
to declare a la& unconstitutional &as, be(ond dispute, not co'plied &ith. And even assu'in%, for the
sa@e of ar%u'ent, that the constitutional re>uire'ent on the concurrence of the <'a)orit(< &as initiall(
reached in the March "#, "##1 ponencia, the sa'e is inconclusive as it &as still open for revie& b( &a(
of a 'otion for reconsideration. 9t &as onl( on /une ";, "##1 that the constitutionalit( of R.A. No. $1.7
&as settled &ith finalit(, sans the constitutionall( re>uired <'a)orit(.< 4he CourtHs declaration, therefore,
is 'anifestl( %rafted &ith infir'it( and &antin% in force necessitatin%, in '( vie&, the ree:a'ination of
the CourtHs decision in G.R. No. "1.7. 9t behooves the Court <not to tarr( an( lon%er< nor &aste this
opportunit( accorded b( this ne& petition ,G.R. No. "#17-+ to relieve the CourtHs pronounce'ent fro'
constitutional infir'it(.
4he )urisprudence that an e>uall( divided Court can never set a precedent is &ell-settled. 4hus, in the Enited
6tates, an affir'ance in the Federal Supreme Court upon e>ual division of opinion is not an authorit( for the
deter'ination of other cases, either in that Court or in the inferior federal courts. 9n Neil v. Biggers,
"""
&hich
&as a habeas #orpus state proceedin% b( a state prisoner, the U.S. Supreme Court held that its equally divided
affirmance of petitionerHs state court conviction &as not an <actual ad)udication< barrin% subse>uent
consideration b( the district court on habeas #orpus. 9n discussin% the non-binding effect of an equal division
ruling, the Court revie&ed the histor( of cases e:plicatin% the disposition <affir'ed b( an e>uall( divided
Court*<
9n this li%ht, &e revie& our cases e:plicatin% the disposition <affir'ed b( an e>uall( divided Court.< 5n
&hat &as apparentl( the first occasion of an e>ual division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268
(1825), the Court si'pl( affir'ed on the point of division &ithout 'uch discussion. Id., at 126-127.
Aaced &ith a si'ilar division durin% the next 4er', the Court a%ain affir'ed, Chief /ustice Marshall
e:plainin% that <the principles of la& &hich have been ar%ued, cannot be settled2 but the )ud%'ent is
affir'ed, the court bein% divided in opinion upon it.< Etting v. Bank of United States, 11 Wheat. 59,
78, 6 L. Ed. 419 (1826). As &as later elaborated in such cases, it is the appellant or petitioner &ho as@s
the Court to overturn a lo&er courtHs decree. <9f the )ud%es are divided, the reversal cannot be had, for no
order can be 'ade. 4he )ud%'ent of the court belo&, therefore, stands in full force. 9t is indeed, the
settled practice in such case to enter a )ud%'ent of affir'ance2 but this is onl( the 'ost convenient 'ode
of e:pressin% the fact that the cause is finall( disposed of in confor'it( &ith the action of the court
belo&, and that that court can proceed to enforce its )ud%'ent. 4he le%al effect &ould be the sa'e if the
appeal, or &rit of error, &ere dis'issed.< Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869).
Nor is an affir'ance b( an e>uall( divided Court entitled to precedential &ei%ht. Ohio ex rel. Eaton v.
Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"
4his doctrine established in Neil has not been overturned and has been cited with approval in a nu'ber of
subse>uent cases,
""
and has been applied in various state jurisdictions.
9n the case of In the Matter of the Adoption of Erin G., a Minor Child,
"".
&herein a putative father sou%ht to
set aside a decree %rantin% petition for adoption of an 9ndian child on %rounds of nonco'pliance &ith the
re>uire'ents of 9ndian Child Celfare Act ,9CCA+, the 6upre'e Court of Alas@a held that its decision in In re
Adoption of T.N.F. (T.N.F.),
""-
which lacked majority opinion supporting holding that an action such as the
putative fatherHs &ould be %overned b( the stateHs one-(ear statute of li'itations, &as not entitled to stare decisis
effect. 9n T.N.F., a majority of the justices sitting did not agree on a common rationale, as t&o of four
participatin% )ustices a%reed that the stateHs one-(ear statute of li'itations applied, one )ustice concurred in the
result onl(, and one )ustice dissented. 4here &as no <narro&er< reasonin% a%reed upon b( all three affir'in%
)ustices. 4he concurrin% )ustice e:pressed no opinion on the statute of li'itations issue, and in a%reein% &ith the
result, he reasoned that 9CCA did not %ive the plaintiff standin% to sue.
""7
4he t&o-)ustice pluralit(, thou%h
a%reein% that the stateHs one-(ear statute of li'itations applied, specificall( disa%reed &ith the concurrin% )ustice
on the standin% issue.
""$
Because a 'a)orit( of the participatin% )ustices in T.N.F. did not a%ree on an( one
%round for affir'ance, it &as not accorded stare decisis effect b( the state 6upre'e Court.
4he 6upre'e Court of Michi%an li@e&ise ruled that the doctrine of stare decisis does not apply to plurality
decisions in &hich no 'a)orit( of the )ustices participatin% a%ree to the reasonin% and as such are not
authoritative interpretations bindin% on the 6upre'e Court.
""1
9n State ex rel. Landis v. Williams,
""!
the 6upre'e Court of Alorida, in an equally divided opinion on the
'atter,
""#
held that chapter "7#.!, Acts of "#.. 'ust be allo&ed to stand, dis'issin% a .uo warranto suit
&ithout pre)udice. 4he Court held*
9n a cause of ori%inal )urisdiction in this court a statute cannot be declared unconstitutional nor its
enforce'ent nor operation )udiciall( interfered &ith, e:cept b( the concurrence of a 'a)orit( of the
'e'bers of the 6upre'e Court sittin% in the cause &herein the constitutionalit( of the statute is brou%ht
in >uestion or )udicial relief sou%ht a%ainst its enforce'ent. 6ection - of Article 7, state Constitution.
4herefore in this case the concurrence of a 'a)orit( of the 'e'bers of this court in holdin%
unconstitutional said chapter "7#.!, supra, not havin% been had, it follo&s that the statute in controvers(
'ust be allo&ed to stand and accordin%l( be per'itted to be enforced as a presu'ptivel( valid act of the
Le%islature, and that this proceedin% in .uo warranto 'ust be dis'issed &ithout pre)udice. Spencer v.
Hunt (Fla.) 147 So. 282. 4his decision is not to be re%arded as a )udicial precedent on the >uestion of
constitutional la& involved concernin% the constitutionalit( vel non of chapter "7#.!. State ex rel.
Hampton v. McClung, 47 Fla. 224, 37 So. 51.
Nuo warranto proceedin% dis'issed &ithout pre)udice b( e>ual division of the court on >uestion of
constitutionalit( of statute involved.
9n U.S. v. Pink,
";
the Court held that the affir'ance b( the E.6. 6upre'e Court b( an equally divided vote of
a decision of the Ne& Gor@ Court of Appeals that propert( of a Ne& Gor@ branch of a Russian insurance
co'pan( &as outside the scope of the Russian 6oviet %overn'entHs decrees ter'inatin% e:istence of insurance
co'panies in Russia and sei=in% their assets, &hile conclusive and bindin% upon the parties as respects the
controvers( in that action, did not constitute an authoritative "precedent."
9n Berlin v. E.C. Publications, Inc.,
""
the E.6. Court of Appeals 6econd Circuit, in holdin% that printed l(rics
&hich had the sa'e 'eter as plaintiffsH l(rics, but &hich &ere in for' a parod( of the latter, did not constitute
infrin%e'ent of plaintiffsH cop(ri%hts, ruled that the prior case of Benny v. Loew's, Inc.,
"
&hich &as affirmed
by an equally divided court, was not binding upon it, vi=*
Ender the precedents of this court, and, as see's )ustified b( reason as &ell as b( authorit(, an
affir'ance b( an e>uall( divided court is as bet&een the parties, a conclusive deter'ination and
ad)udication of the 'atter ad)ud%ed2 but the principles of la& involved not havin% been a%reed upon b( a
'a)orit( of the court sittin% prevents the case fro' beco'in% an authorit( for the deter'ination of other
cases, either in this or in inferior courts.
".
9n Perlman v. First National Bank of Chicago,
"-
the 6upre'e Court of 9llinois dis'issed the appeal as it &as
unable to reach a decision because t&o )ud%es recused the'selves and the re'ainin% 'e'bers of the Court
&ere so divided, it &as i'possible to secure the concurrence of four )ud%es as is constitutionall( re>uired. 4he
Court follo&ed the procedure e'plo(ed b( the E.6. 6upre'e Court &hen the /ustices of that Court are e>uall(
divided, i.e. affir' the )ud%'ent of the court that &as before it for revie&. 4he affir'ance is a conclusive
deter'ination and ad)udication as bet&een the parties to the i''ediate case, it is not authorit( for the
deter'ination of other cases, either in the 6upre'e Court or in an( other court. 9t is not <entitled to precedential
&ei%ht.< 4he le%al effect of such an affir'ance is the sa'e as if the appeal &as dis'issed.
"7

4he sa'e rule is settled in the English Courts. Ender En%lish precedents,
"$
an affir'ance b( an e>uall(
divided Court is, as bet&een the parties, a conclusive deter'ination and ad)udication of the 'atter ad)ud%ed2 but
the principles of la& involved not havin% been a%reed upon b( a 'a)orit( of the court sittin% prevents the case
fro' beco'in% an authorit( for the deter'ination of other cases, either in that or in inferior courts.
After a tour of these cases, &e can safel( conclude that the prevailin% doctrine is that, the affir'ance b( an
e>uall( divided court 'erel( disposes of the present controvers( as bet&een the parties and settles no issue of
la&2 the affir'ance leaves unsettled the principle of la& presented b( the case and is not entitled to precedential
&ei%ht or value. 9n other &ords, the decision onl( has res )udicata and not stare decisis effect. 9t is not
conclusive and bindin% upon other parties as respects the controversies in other actions.
Let us no& e:a'ine the patent differences bet&een the petition at bar and the Delfin Petition in the 6antia%o
case &hich &ill prevent the 6antia%o rulin% fro' bindin% the present petitioners. 4o start &ith, the parties are
different. More i'portantl(, the Delfin Petition did not contain the si%natures of the re>uired nu'ber of
re%istered voters under the Constitution* the re>uire'ent that t&elve per cent ,"M+ of all the re%istered voters
in the countr( &herein each le%islative district is represented b( at least three per cent ,.M+ of all the re%istered
voters therein &as not co'plied &ith. Aor this reason, &e ruled unani'ousl( that it &as not the initiator(
petition &hich the C5MELEC could properl( ta@e co%ni=ance of. In contrast, the present petition appears to be
acco'panied b( the si%natures of the re>uired nu'ber of re%istered voters. 4hus, &hile the Delfin Petition
pra(ed that an 5rder be issued fi:in% the ti'e and dates for si%nature %atherin% all over the countr(, the
La'bino and Au'entado petition, pra(ed for the callin% of a plebiscite to allo& the Ailipino people to e:press
their soverei%n &ill on the proposition. C5MELEC cannot close its e(es to these 'aterial differences.
Plainl(, the C5MELEC co''itted %rave abuse of discretion a'ountin% to lac@ of )urisdiction in den(in% due
course to the La'bino and Au'entado petition on the basis of its 'ista@en notion that Santiago established the
doctrine that R.A. $1.7 &as an insufficient la&. As aforestressed, that rulin% of si: ,$+ )ustices &ho do not
represent the 'a)orit( lac@s precedential status and is non-bindin% on the present petitioners.
4he CourtHs dis'issal of the P9RMA petition is of no 'o'ent. 6uffice it to sa( that &e dis'issed the P9RMA
petition on the principle of res judicata. 4his &as stressed b( for'er Chief /ustice 0ilario G. 3avide /r., "iz*
4he follo&in% are '( reasons as to &h( this petition 'ust be su''aril( dis'issed*
Fi!st, it is barred by res judicata. No one a&are of the pleadin%s filed here and in 6antia%o v.
C5MELEC ,G.R. No. "1.7, "# March "##1+ 'a( plead i%norance of the fact that the for'er is
substantiall( identical to the latter, e:cept for the reversal of the roles pla(ed b( the principal parties and
inclusion of additional, (et not indispensable, parties in the present petition. But plainl(, the sa'e issues
and reliefs are raised and pra(ed for in both cases.
4he principal petitioner here is the PE5PLEH6 9N949A498E A5R REA5RM, M53ERN9KA495N,
AN3 AC495N ,P9RMA+ and spouses ALBER45 PE3R56A and CARMEN PE3R56A. P9RMA is
self-described as <a non-stoc@, non-profit or%ani=ation dul( or%ani=ed and e:istin% under Philippine
la&s &ith office address at 6uite -;., Aed'an 6uites, "## 6alcedo 6treet, Le%aspi 8illa%e, Ma@ati Cit(,<
&ith <ALBER45 PE3R56A and CARMEN PE3R56A< as a'on% its <officers.< 9n 6antia%o, the
PE3R56A6 &ere 'ade respondents as foundin% 'e'bers of P9RMA &hich, as alle%ed in the bod( of
the petition therein, <proposes to underta@e the si%nature drive for a peopleHs initiative to a'end the
Constitution.< 9n 6antia%o then, the PE3R56A6 &ere sued in their capacit( as foundin% 'e'bers of
P9RMA.
4he decision in 6antia%o specificall( declared that P9RMA &as dul( represented at the hearin% of the
3elfin petition in the C5MELEC. 9n short, P9RMA &as intervenor-petitioner therein. 3elfin alle%ed in
his petition that he &as a foundin% 'e'ber of the Move'ent for PeopleHs 9nitiative, and under footnote
no. $ of the decision, it &as noted that said 'ove'ent &as <OlPater identified as the PeopleHs 9nitiative for
Refor's, Moderni=ation and Action, or P9RMA for brevit(.< 9n their Co''ent to the petition in
6antia%o, the PE3R56A6 did not den( that the( &ere foundin% 'e'bers of P9RMA, and b( their
ar%u'ents, de'onstrated be(ond a shado& of a doubt that the( had )oined 3elfin or his cause.
No a'ount of se'antics 'a( then shield herein petitioners P9RMA and the PE3R56A6, as &ell as the
others )oinin% the', fro' the operation of the principle of res )udicata, &hich needs no further
elaboration. ,emphasis supplied+
1ustice 1osue N. Bellosillo adds:
4he essential re>uisites of res )udicata are* ,"+ the for'er )ud%'ent 'ust be final2 ,+ it 'ust have been
rendered b( a court havin% )urisdiction over the sub)ect 'atter and the parties2 ,.+ it 'ust be a )ud%'ent
on the 'erits2 and ,-+ there 'ust be bet&een the first and second actions identit( of parties, identit( of
sub)ect 'atter, and identit( of causes of action.
"1
Appl(in% these principles in the instant case, &e hold that all the ele'ents of res )udicata are present.
Aor sure, our 3ecision in 6antia%o v. C5MELEC, &hich &as pro'ul%ated on "# March "##1, and the
'otions for reconsideration thereof denied &ith finalit( on "; /une "##1, is undoubtedl( final. 4he said
3ecision &as rendered b( this Court &hich had )urisdiction over the petition for prohibition under Rule
$7. 5ur )ud%'ent therein &as on the 'erits, i.e., rendered onl( after considerin% the evidence presented
b( the parties as &ell as their ar%u'ents in support of their respective clai's and defenses. And, as
bet&een 6antia%o v. C5MELEC case and C5MELEC 6pecial Matter No. #1-;;" sub)ect of the present
petition, there is identit( of parties, sub)ect 'atter and causes of action.
Petitioners contend that the parties in 6antia%o v. C5MELEC are not identical to the parties in the
instant case as so'e of the petitioners in the latter case &ere not parties to the for'er case. 0o&ever, a
perusal of the records reveals that the parties in 6antia%o v. C5MELEC included the C5MELEC, Att(.
/esus 6. 3elfin, spouses Alberto and Car'en Pedrosa, in their capacities as foundin% 'e'bers of
P9RMA, as &ell as Att(. Pete Luirino-Luadra, another foundin% 'e'ber of P9RMA, representin%
P9RMA, as respondents. 9n the instant case, Att(. 3elfin &as never re'oved, and the spouses Alberto
and Car'en Pedrosa &ere )oined b( several others &ho &ere 'ade parties to the petition. 9n other
&ords, &hat petitioners did &as to 'a@e it appear that the P9RMA Petition &as filed b( an entirel(
separate and distinct %roup b( re'ovin% so'e of the parties involved in 6antia%o v. C5MELEC and
addin% ne& parties. But as &e said in Geralde v. 6abido
"!
-
A part( 'a( not evade the application of the rule of res )udicata b( si'pl( includin% additional
parties in the subse>uent case or b( not includin% as parties in the later case persons &ho &ere
parties in the previous suit. 4he )oinin% of ne& parties does not re'ove the case fro' the
operation of the rule on res )udicata if the part( a%ainst &ho' the )ud%'ent is offered in
evidence &as a part( in the first action2 other&ise, the parties 'i%ht rene& the liti%ation b(
si'pl( )oinin% ne& parties.
4he fact that so'e persons or entities )oined as parties in the P9RMA petition but &ere not parties in
6antia%o v. C5MELEC does not affect the operation of the prior )ud%'ent a%ainst those parties to the
P9RMA Petition &ho &ere li@e&ise parties in 6antia%o v. C5MELEC, as the( are bound b( such prior
)ud%'ent.
Needless to state, the dis'issal of the P9RMA petition &hich &as based on !es ?%+icata binds onl( P9RMA but
not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" sole'nl( intoned the %reat Chief 1ustice 1ohn Marshall of the
Enited 6tates in the "!"# case of M'cCulloch v. Maryland.
"#
5ur Constitution is not a 'ere collection of
slo%ans. Ever( s(llable of our Constitution is suffused &ith si%nificance and re>uires our full fealt(. 9ndeed, the
rule of la& &ill &ither if &e allo& the co''ands of our Constitution to underrule us.
4he first principle enthroned b( blood in our Constitution is the sovereignty of the people. Ce ou%ht to be
concerned &ith this first principle, i.e.- the inherent ri%ht of the soverei%n people to decide &hether to a'end the
Constitution. 6tripped of its abstractions, democracy is all about &ho has the soverei%n ri%ht to 'a@e decisions
for the people and our Constitution clearl( and cate%oricall( sa(s it is no other than the people the'selves fro'
&ho' all %overn'ent authorit( e'anates. This right of the people to make decisions is the essence of
sovereignty, and it cannot receive any minimalist interpretation from this Court. 9f there is an( principle in
the Constitution that cannot be diluted and is non-ne%otiable, it is this soverei%n ri%ht of the people to decide.
This Court should always be in lockstep with the people in the exercise of their sovereignty. Let the' &ho
&ill di'inish or destro( the soverei%n ri%ht of the people to decide be &arned. Let not their soverei%nt( be
di'inished b( those &ho belittle their brains to co'prehend chan%es in the Constitution as if the people
the'selves are not the source and author of our Constitution. Let not their soverei%nt( be destro(ed b( the
'asters of 'anipulation &ho 'isrepresent the'selves as the spo@es'en of the people.
Be it re'e'bered that a petition for peopleHs initiative that co'plies &ith the re>uire'ent that it <'ust be
si%ned b( at least "M of the total nu'ber of re%istered voters of &hich ever( le%islative district is represented
b( at least .M of the re%istered voters therein< is but the first step in a long journey to&ards the a'end'ent
of the Constitution. Lest it be 'issed, the case at bar involves but a proposal to a'end the Constitution. 4he
proposal will still be debated by the people and at this ti'e, there is (et no fail-safe 'ethod of tellin% &hat
&ill be the result of the debate. 4here &ill still be a last step to the process of a'end'ent &hich is the
ratification of the proposal b( a majority of the people in a plebiscite called for the purpose. Only when the
proposal is approved by a majority of the people in the plebiscite will it become an amendment to the
Constitution. All the way, we cannot tie the tongues of the people. It is the people who decide for the
people are not an obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only sing
paens to the people's sovereignty. Yes, it is neither too soon nor too late to let the people speak.
IN VIEW WHEREOF, 9 vote to REVERSE and SET ASIDE the resolution of the Co''ission on Elections
dated Au%ust .", ;;$, den(in% due course to the Petition for 9nitiative filed b( Raul L. La'bino and Erico B.
Au'entado in their o&n behalf and to%ether &ith so'e $.. 'illion re%istered voters &ho affi:ed their
si%natures thereon and to REMAND the petition at bar to the Co''ission on Elections for further proceedin%s.
REYNATO S. PUNO
Associate /ustice
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS,
Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent2 TRADE UNION CONGRESS OF THE
PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-9ntervenors2 ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BEN1AMIN
T. TOLOSA, 1R., SUSAN V. OPLE and CARLOS P. MEDINA, 1R., 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, LEONADO SAN 1OSE, 1O1O PINEDA, DR.
DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO
1OYO AGU1A, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO
P. PIMENTEL, 1R., and SENATORS SERGIO R. OSMEA III, 1AMBY A.S. MADRIGAL, LUISA P.
E1ERCITO-ESTRADA, 1INGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON,
1OSEPH E1ERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, 1OSE ANSELMO I. CADIZ,
BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and RANDALL C.
TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
1R., 5ppositors-9ntervenors2
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BEN1AMIN S. ABALOS, SR., and
: ---------------------------------------------------------------------------------------- :
SEPARATE OPINION
QUISUMBING, J.:
". Cith due respect to the 'ain opinion &ritten b( J. Antonio 4. Carpio, and the dissent of J. Re(nato 6. Puno, 9
vie& the 'atter before us in this petition as one 'ainl( involvin% a co'ple: political >uestion.
"
Chile
ad'ittedl( the present Constitution la(s do&n certain nu'erical re>uire'ents for the conduct of a PeopleHs
9nitiative, such as the percenta%es of si%natures S bein% "M of the total nu'ber of re%istered voters, provided
each le%islative district is represented b( at least .M S the( are not the 'ain points of controvers(. 6tated in
si'ple ter's, &hat this Court 'ust decide is &hether the Co''ission on Elections %ravel( abused its discretion
&hen it denied the petition to sub'it the proposed chan%es to the Constitution directl( to the vote of the
soverei%n people in a plebiscite. 4echnical >uestions, e.(. &hether petitioners should have filed a Motion for
Reconsideration before co'in% to us, are of no 'o'ent in the face of the transcendental issue at hand. Chat
deserve our full attention are the issues concernin% the applicable rules as &ell as statutor( and constitutional
li'itations on the conduct of the PeopleHs 9nitiative.
. 9t 'ust be stressed that no less than the present Constitution itself e'po&ers the people to <directl(< propose
a'end'ents throu%h their o&n <initiative.< 4he sub)ect of the instant petition is b( &a( of e:ercisin% that
initiative in order to chan%e our for' of %overn'ent fro' presidential to parlia'entar(. Much has been &ritten
about the fulso'e po&ers of the people in a de'ocrac(. But the 'ost basic concerns the idea that soverei%nt(
resides in the people and that all %overn'ent authorit( e'anates fro' the'. Clearl(, b( the po&er of popular
initiative, the people have the soverei%n ri%ht to chan%e the present Constitution. Chether the initial 'oves are
done b( a Constitutional Convention, a Constitutional Asse'bl(, or a PeopleHs 9nitiative, in the end ever(
a'end'ent -- ho&ever insubstantial or radical -- 'ust be sub'itted to a plebiscite. 4hus, it is the ulti'ate &ill
of the people e:pressed in the ballot, that 'atters.
.. 9 cannot fault the C5MELEC, fran@l(, for turnin% do&n the petition of Messrs. La'bino, et al. Aor the
C5MELEC &as )ust rel(in% on precedents, &ith the co''on understandin% that, pursuant to the cases of
%antia(o ". ,$'+)+,
.
and 8=R'A ". ,$'+)+,,
-
the C5MELEC had been per'anentl( en)oined fro'
entertainin% an( petition for a peopleHs initiative to a'end the Constitution b( no less than this Court. 9n
den(in% due course belo& to Messrs. La'bino and Au'entadoHs petition, 9 could not hold the C5MELEC
liable for %rave abuse of discretion &hen the( 'erel( relied on this CourtHs une>uivocal rulin%s. 5f course, the
%antia(o and the 8=R'A decisions could be revie&ed and reversed b( this Court, as J. Re(nato 6. Puno sub'its
no&. But until the Court does so, the C5MELEC &as dut( bound to respect and obe( this CourtHs 'andate, for
the rule of la& to prevail.
-. Lastl(, 9 see no ob)ection to the re'and to the C5MELEC of the petition of Messrs. La'bino and
Au'entado and $..1 'illion voters, for further e:a'ination of the factual re>uisites before a plebiscite is
conducted. 5n pa%e - of the assailed Resolution of the respondent dated Au%ust .", ;;$, the C5MELEC
tentativel( e:pressed its vie& that <even if the si%natures in the instant Petition appear to 'eet the re>uired
'ini'u' per #entum of the total nu'ber of re%istered voters<, the C5MELEC could not %ive the Petition due
course because of our vie& that R.A. No. $1.7 &as inade>uate. 4hat, ho&ever, is no& refuted b( Mr. /ustice
PunoHs scholarl( ponencia. No& that &e have revisited the %antia(o ". ,$'+)+, decision, there is onl( one
clear tas@ for C5MELEC. 9n '( vie&, the onl( doable option left for the C5MELEC, once factual issues are
heard and resolved, is to %ive due course to the petition for the initiative to a'end our Constitution so that the
soverei%n people can vote on &hether a parlia'entar( s(ste' of %overn'ent should replace the present
presidential s(ste'.
7. 9 a' therefore in favor of lettin% the soverei%n people spea@ on their choice of the for' of %overn'ent as a
political >uestion soonest. ,4his 9 sa( &ithout fear of 'edia opinion that our )udicial independence has been
tainted or i'periled, for it is not.+ 4hus 9 vote for the re'and of the petition. 4hereafter, as pra(ed for,
C5MELEC should forth&ith certif( the Petition as sufficient in for' and substance and call for the holdin% of a
plebiscite &ithin the period 'andated b( the basic la&, not earlier than si:t( nor later than ninet( da(s fro' said
certification. 5nl( a credible plebiscite itself, conducted peacefull( and honestl(, can brin% closure to the instant
political controvers(.
LEONARDO A. QUISUMBING
Associate /ustice
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS,
petitioners,
vs.
G. R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BEN1AMIN S. ABALOS, SR., and
BRAWNER, RENE V. SARMIENTO, and 1ohn Doe and Peter Doe- respondents.
: ---------------------------------------------------------------------------------------- :
DISSENTING OPINION
CORONA, J.:
4he life of the la& is not lo%ic but e:perience.
"
5ur collective e:perience as a nation breathes life to our s(ste'
of la&s, especiall( to the Constitution. 4hese cases pro'ise to si%nificantl( contribute to our collective
e:perience as a nation. Aealt( to the pri'ar( constitutional principle that the Philippines is not 'erel( a
republican 6tate but a de'ocratic one as &ell behooves this Court to affir' the ri%ht of the people to participate
directl( in the process of introducin% chan%es to their funda'ental la&. 4hese petitions present such an
opportunit(. 4hus, this is an opportune ti'e for this Court to uphold the soverei%n ri%hts of the people.
9 a%ree &ith the opinion of Mr. /ustice Re(nato Puno &ho has sufficientl( e:plained the rationale for upholdin%
the peopleHs initiative. 0o&ever, 9 &ish to share '( o&n thou%hts on certain 'atters 9 dee' 'aterial and
si%nificant.
Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition
4he C5MELEC denied the petition for initiative filed b( petitioners purportedl( on the basis of this CourtHs
rulin% in %antia(o ". ,$'+)+,
that* ,"+ RA $17. &as inade>uate to cover the s(ste' of initiative re%ardin%
a'end'ents to the Constitution and ,+ the C5MELEC &as per'anentl( en)oined fro' entertainin% or ta@in%
co%ni=ance of an( petition for initiative re%ardin% a'end'ents to the Constitution until a sufficient la& &as
validl( enacted to provide for the i'ple'entation of the initiative provision.
0o&ever, %antia(o should not appl( to this case but onl( to the petition of 3elfin in "##1. 9t &ould be
unreasonable to 'a@e it appl( to all petitions &hich &ere (et unforeseen in "##1. 4he fact is that %antia(o &as
focused on the 3elfin petition alone.
4hose &ho oppose the e:ercise of the peopleHs ri%ht to initiate chan%es to the Constitution via initiative clai'
that %antia(o barred an( and all future petitions for initiative b( virtue of the doctrines of stare de#isis and res
2udi#ata. 4he ar%u'ent is fla&ed.
4he ponen#ia of Mr. /ustice Puno has a'pl( discussed the ar%u'ents relatin% to stare de#isis. 0ence, 9 &ill
address the ar%u'ent fro' the vie&point of res 2udi#ata.
Res 2udi#ata is the rule that a final )ud%'ent rendered b( a court of co'petent )urisdiction on the 'erits is
conclusive as to the ri%hts of the parties and their privies and, as to the', constitutes an absolute bar to a
subse>uent action involvin% the sa'e clai', de'and or cause of action.
.
9t has the follo&in% re>uisites* ,"+ the
for'er )ud%'ent or order 'ust be final2 ,+ it 'ust have been rendered b( a court havin% )urisdiction of the
sub)ect 'atter and of the parties2 ,.+ it 'ust be a )ud%'ent or order on the 'erits and ,-+ there 'ust be identit(
of parties, of sub)ect 'atter, and of cause of action bet&een the first and second actions.
-

4here is no identit( of parties in %antia(o and the instant case. Chile the C5MELEC &as also the respondent in
%antia(o, the petitioners in that case and those in this case are different. More si%nificantl(, there is no identit(
of causes of action in the t&o cases. %antia(o involved a'end'ents to 6ections - and 1 of Article 89, 6ection -
of Article 899 and 6ection ! of Article D of the Constitution &hile the present petition see@s to a'end 6ections
"to 1 of Article 89 and 6ections " to - of the "#!1 Constitution. Clearl(, therefore, the C5MELEC co''itted
%rave abuse of discretion &hen it ruled that the present petition for initiative &as barred b( %antia(o and, on
that %round, dis'issed the petition.
4he present petition and that in %antia(o are 'ateriall( different fro' each other. 4he( are not based on the
sa'e facts. 4here is thus no co%ent reason to frustrate and defeat the present direct action of the people to
e:ercise their soverei%nt( b( proposin% chan%es to their funda'ental la&.
People's Initiative Should Not
Be Subjected to Conditions
PeopleHs initiative is an option reserved b( the people for the'selves e:clusivel(. Neither Con%ress nor the
C5MELEC has the po&er to curtail or defeat this e:clusive po&er of the people to chan%e the Constitution.
Neither should the e:ercise of this po&er be 'ade sub)ect to an( conditions, as so'e &ould have us accept.
5ppositors to the peopleHs initiative point out that this Court ruled in %antia(o that RA $1.7 &as inade>uate to
cover the s(ste' of initiative on a'end'ents to the Constitution and, thus, no la& e:isted to enable the people
to directl( propose chan%es to the Constitution. 4his reasonin% is seriousl( ob)ectionable.
4he pronounce'ent on the insufficienc( of RA $1.7 &as, to '( 'ind, out of place. 9t &as unprecedented and
dan%erousl( trans%ressed the do'ain reserved to the le%islature.
Chile the le%islature is authori=ed to establish procedures for deter'inin% the validit( and sufficienc( of a
petition to a'end the constitution,
7
that procedure cannot unnecessaril( restrict the initiative privile%e.
$
9n the
sa'e vein, this Court cannot unnecessaril( and unreasonabl( restrain the peopleHs ri%ht to directl( propose
chan%es to the Constitution b( declarin% a la& inade>uate si'pl( for lac@ of a sub-headin% and other
%ra''atical but insi%nificant o'issions. 5ther&ise, the constitutional intent to e'po&er the people &ill be
severel( e'asculated, if not rendered illusor(.
People's Right and Power to Propose Changes to the Constitution Directly Should not be Unreasonably
Curtailed
9f Con%ress and a constitutional convention, both of &hich are 'ere representative bodies, can propose
chan%es to the Constitution, there is no reason &h( the supre'e bod( politic itself S the people S 'a( not do so
directly.
Resort to initiative to a'end the constitution or enact a statute is an e:ercise of <direct de'ocrac(< as opposed
to <representative de'ocrac(.< 4he s(ste' of initiative allo&s citi=ens to directl( propose constitutional
a'end'ents for the %eneral electorate to adopt or re)ect at the polls, particularl( in a plebiscite. Chile
representative %overn'ent &as envisioned to <refine and enlar%e the public vie&s, b( passin% the' throu%h the
'ediu' of a chosen bod( of citi=ens, &hose &isdo' 'a( best discern the true interest of their countr(, and
&hose patriotis' and love of )ustice &ill be least li@el( to sacrifice it to te'porar( or partial considerations,<
1

the e:ercise of <direct de'ocrac(< throu%h initiative reserves direct la&'a@in% po&er to the people b(
providin% the' a 'ethod to 'a@e ne& la&s via the constitution, or alternativel( b( enactin% statutes.
!
Efforts of
the represented to control their representatives throu%h initiative have been described as curin% the proble's of
de'ocrac( &ith 'ore de'ocrac(.
#

4he Constitution celebrates the soverei%n ri%ht of the people and declares that <soverei%nt( resides in the people
and all %overn'ent authorit( e'anates fro' the'.<
";
Enless the present petition is %ranted, this constitutional
principle &ill be nothin% but e'pt( rhetoric, devoid of substance for those &ho' it see@s to e'po&er.
4he ri%ht of the people to pass le%islation and to introduce chan%es to the Constitution is a funda'ental ri%ht
and 'ust be )ealousl( %uarded.
""
4he people should be allo&ed to directl( see@ redress of the proble's of
societ( and representative de'ocrac( &ith the constitutional tools the( have reserved for their use alone.
Accordin%l(, 9 vote to GRANT the petition in G.R. No. "1-7"..
RENATO C. CORONA
Associate /ustice
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS,
Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent2
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BEN1AMIN T. TOLOSA, 1R., SUSAN V. OPLE and
CARLOS P. MEDINA, 1R., 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, LEONADO SAN 1OSE, 1O1O PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO 1OYO AGU1A, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TA1ON, FROILAN M. BACUNGAN, 1OAQUIN T. VENUS, 1R., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, 1R., and
SENATORS SERGIO R. OSMEA III, 1AMBY A.S. MADRIGAL, LUISA P. E1ERCITO-ESTRADA,
1INGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, 1OSEPH E1ERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, 1OSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA.
TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE
OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, 1R., 5ppositors-9ntervenors2
G.R. No. 174299 entitled
vs.
: ---------------------------------------------------------------------------------------- :
SEPARATE OPINION
TINGA, J:
9 )oin in full the opinion of 6enior Associate /ustice Puno. 9ts enviable san%-froid, ini'itable lucidit(, and
lu'inous scholarship are all so characteristic of the author that it is hardl( a &aste of pen and in@ to &rite
separatel( if onl( to e:press '( deep ad'iration for his dis>uisition. 9t is co'pellin% because it derives fro'
the funda'ental de'ocratic ordinance that soverei%nt( resides in the people, and it see@s to effectuate that
principle throu%h the actual e'po&er'ent of the soverei%n people. /ustice PunoHs opinion &ill in the short ter'
en%ender reactions on its i'pact on present atte'pts to a'end the Constitution, but once the political passion of
the ti'es have been shorn, it &ill endure as an une>uivocal 'essa%e to the taon(ba/an that the( are to be
trusted to chart the course of their future.
Nothin% that 9 inscribe &ill i'prove on /ustice PunoHs opinion. 9 onl( &rite separatel( to hi%hli%ht a fe& other
points &hich also infor' '( vote to %rant the petitions.
=.
9 a%ree &ith /ustice Puno that %antia(o ". ,$'+)+,
"
and 8=R'A ". ,$'+)+,
had not ac>uired value as

precedent and should be reversed in an( case. 9 add that the Court has lon% been 'indful of the rule that it
necessitates a 'a)orit(, and not 'erel( a pluralit(, in order that a decision can stand as precedent. 4hat principle
has infor'ed the 'e'bers of this Court as the( deliberated and voted upon contentious petitions, even if this
consideration is not ulti'atel( reflected on the final draft released for pro'ul%ation.
4he curious t&ist to %antia(o and 8=R'A is that for all the deni%ration heaped upon Rep. Act No. $1.7 in those
cases, the Court did not invalidate an( provision of the statute. All the Court said then &as that the la& &as
<inade>uate<. 6ince this <inade>uate< la& &as not annulled b( the Court, or repealed b( Con%ress, it re'ained
part of the statute boo@s.
.

9 'aintain that even if Rep. Act No. $1.7 is trul( <inade>uate<, the Court in %antia(o should not have si'pl( let
the insufficienc( stand %iven that it &as not 'inded to invalidate the la& itself. Article # of the Civil Code
provides that <OnPo )ud%e or court shall decline to render )ud%'ent b( reason of the silence, obscurit( or
insufficienc( of the la&s.<
-
As e:plained b( the Court recentl( in Re/es ". )im,
7
<OArticle #P calls for the
application of e>uit(, &hichO, in the revered /ustice Cardo=oHs &ords,P Hfills the open spaces in the la&.H<
$

Certainl(, an( court that refuses to rule on an action pre'ised on Rep. Act No. $1.7 on the %round that the la&
is <inade>uate< &ould have been found in %rave abuse of discretion. 4he previous failure b( the Court to <fill
the open spaces< in %antia(o further hi%hli%hts that decisionHs status as an unfortunate aberration.
9 a' 'indful of the need to respect stare de#isis, to the point of havin% recentl( decried a 'a)orit( rulin% that
&as clearl( 'inded to reverse several precedents but refused to e:plicitl( sa( so.
1
Get the principle is not
i''utable.
!
4he passionate &ords of Chief /ustice Pan%aniban in $sme:a ". ,$'+)+,
#
bear >uotin%*
Before 9 close, a &ord about stare decisis. 9n the present case, the Court is 'aintainin% the ad ban to be
consistent &ith its previous holdin% in NPC vs. Co'elec. 4hus, respondent ur%es reverence for the
stabilit( of )udicial doctrines. 9 sub'it, ho&ever, that 'ore i'portant than consistenc( and stabilit( are
the verit(, inte%rit( and correctness of )urisprudence. As 3ean Roscoe Pound e:plains, <La& 'ust be
stable but it cannot stand still.< 8eril(, it 'ust correct itself and 'ove in cadence &ith the 'arch of the
electronic a%e. Error and illo%ic should not be perpetuated. After all, the 6upre'e Court, in 'an( cases,
has deviated fro' stare decisis and reversed previous doctrines and decisions.
";
9t should do no less in
the present case.
""
%antia(o established a tenet that the 6upre'e Court 'a( affir' a la& as constitutional, (et declare its
provisions as inade>uate to acco'plish the le%islative purpose, then barred the enforce'ent of the la&. 4hat
rulin% is erroneous, illo%ical, and should not be perpetuated.
==.
Aollo&in% /ustice PunoHs clear de'onstration &h( %antia(o should not be respected as precedent, 9 a%ree that
the C5MELECHs failure to ta@e co%ni=ance of the petitions as 'andated b( Rep. Act No. $1.7 constitutes %rave
abuse of discretion correctible throu%h the petitions before this Court.
4he Court has consistentl( held in cases such as Abes ". ,$'+)+,
"
, %an#hez ". ,$'+)+,
".
, and %ambarani
". ,$'+)+,
"-
that <the functions of the C5MELEC under the Constitution are essentiall( e:ecutive and
ad'inistrative in nature<.
"7
More pertinentl(, in 4ua# ". ,$'+)+,
"$
, the Court held that the )urisdiction of the
C5MELEC relative to the enforce'ent and ad'inistration of a la& relative to a plebiscite fell under the
)urisdiction of the poll bod( under its constitutional 'andate <to enforce and ad'inister all la&s and re%ulations
relative to the conduct of a ::: plebiscite<.
"1

Rep. Act No. $1.7 is a la& relative to the conduct of a plebiscite. 4he pri'ar( tas@ of the C5MELEC under
Rep. Act No. $1.7 is to enforce and ad'inister the said la&, functions that are essentiall( e:ecutive and
ad'inistrative in nature. Even the subse>uent dut( of the C5MELEC of deter'inin% the sufficienc( of the
petitions after the( have been filed is ad'inistrative in character. B( an( 'easure, the C5MELECHs failure to
perfor' its e:ecutive and ad'inistrative functions under Rep. Act No. $1.7 constitutes %rave abuse of
discretion.
===.
9t has been ar%ued that the sub)ect petitions for initiative are barred under Republic Act No. $1.7 as the(
alle%edl( e'brace 'ore than one sub)ect. 6ection "; of Rep. Act No. $1.7 classifies as a <prohibited 'easure,<
a petition sub'itted to the electorate that e'braces 'ore than one sub)ect.
"!
5n this point, reliance is apparentl(
placed on the arra( of provisions &hich are to be affected b( the a'end'ents proposed in the initiative petition.
6ection "; of Rep. Act No. $1.7 is a reflection of the lon%-enshrined constitutional principle that the la&s
passed b( Con%ress <shall e'brace onl( one sub)ect &hich shall be e:pressed in the title thereof<.
"#
4he one-
sub)ect re>uire'ent under the Constitution is satisfied if all the parts of the statute are related, and are %er'ane
to the sub)ect 'atter e:pressed in the title, or as lon% as the( are not inconsistent &ith or forei%n to the %eneral
sub)ect and title.
;
An act havin% a sin%le %eneral sub)ect, indicated in the title, 'a( contain an( nu'ber of
provisions, no 'atter ho& diverse the( 'a( be, so lon% as the( are not inconsistent &ith or forei%n to the
%eneral sub)ect, and 'a( be considered in furtherance of such sub)ect b( providin% for the 'ethod and 'eans of
carr(in% out the %eneral ob)ect.
"
4he precedents %overnin% the one-sub)ect, one-title rule under the Constitution should appl( as &ell in the
interpretation of 6ection "; of Rep. Act No. $1.7. Aor as lon% as it can be established that an initiative petition
e'braces a sin%le %eneral sub)ect, the petition 'a( be allo&ed no 'atter the nu'ber of constitutional
provisions proposed for a'end'ent if the a'end'ents are %er'ane to the sub)ect of the petition.
Both the 6i%a& n% Ba(an and the La'bino initiative petitions e:pressl( propose the chan%in% of the for' of
%overn'ent fro' bica'eral-presidential to unica'eral-parlia'entar(. 6uch a proposal 'a( stri@e as
co'prehensive, necessitatin% as it &ill the reor%ani=ation of the e:ecutive and le%islative branches of
%overn'ent, nevertheless it ineluctabl( enco'passes onl( a sin%le %eneral sub)ect still.
4he "#!1 Constitution ,or an( constitution for that 'atter+ is susceptible to division into several %eneral
spheres. 4o cite the broadest of these spheres b( &a( of e:a'ple, Article 999 enu'erates the %uaranteed ri%hts of
the people under the Bill of Ri%hts2 Articles 89, 899 and 8999 provide for the or%ani=ational structure of
%overn'ent2 &hile Articles 99, D99, D999 J D98, D8 and D89 enunciate polic( principles of the 6tate. Chat
&ould clearl( be prohibited under 6ection "; of Rep. Act No. $1.7 is an initiative petition that see@s to a'end
provisions &hich do not belon% to the sa'e sphere. Aor e:a'ple, had a sin%le initiative petition sou%ht not onl(
to chan%e the for' of %overn'ent fro' presidential to parlia'entar( but also to a'end the Bill of Ri%hts, said
petition &ould ar%uabl( have been barred under 6ection ";, as that petition ostensibl( e'braces 'ore than one
sub)ect, &ith each sub)ect bearin% no functional relation to the other. But that is not the case &ith the present
initiative petitions.
Neither can it be ar%ued that the initiative petitions e'brace 'ore than one sub)ect since the proposed
a'end'ents see@ to affect t&o separate branches of %overn'ent. 4he ver( purpose of the initiative petitions is
to fuse the po&ers of the e:ecutive and le%islative branches of %overn'ent2 hence, the a'end'ents intended to
effect such %eneral intent necessaril( affects the t&o branches. 9f it re>uired that to propose a shift in
%overn'ent fro' presidential to parlia'entar(, the a'end'ents to Article 899 ,E:ecutive Branch+ have to be
se%re%ated to a different petition fro' that &hich &ould propose a'end'ents to Article 89 ,Le%islative
Branch+, then the result &ould be t&o initiative petitions Z both sub)ect to separate authentications,
consideration and even plebiscites, all to effect one %eneral proposition. 4his scenario, &hich entertains the
possibilit( that one petition &ould ulti'atel( fail &hile the other succeeds, could thus allo& for the ris@ that the
e:ecutive branch could be abolished &ithout transferrin% e:ecutive po&er to the le%islative branch. An absurd
result, indeed.
9 a' not even entirel( co'fortable &ith the theoretical underpinnin%s of 6ection ";. 4he Constitution
indubitabl( %rants the people the ri%ht to see@ a'end'ent of the charter throu%h initiative, and 'andates
Con%ress to <provide for the i'ple'entation of the e:ercise of this ri%ht.< 9n doin% so, Con%ress 'a( not
restrict the ri%ht to initiative on %rounds that are not provided for in the Constitution. 9f for e:a'ple the
i'ple'entin% la& also provides that certain provisions of the Constitution 'a( not be a'ended throu%h
initiative, that prohibition should not be sustained. Con%ress is tas@ed &ith the i'ple'entation, and not the
restriction of the ri%ht to initiative.
4he one-sub)ect re>uire'ent under 6ection "; is not provided for as a bar to a'end'ent under the Constitution.
Ar%u'ents can be supplied for the 'erit of such a re>uire'ent, since it &ould afford a 'easure of orderliness
&hen the vital >uestion of a'endin% the Constitution arises. 4he one-sub)ect re>uire'ent does allo& the voters
focus &hen deliberatin% &hether or not to vote for the a'end'ents. 4hese factors of desirabilit( nonetheless
fail to detract fro' the fact that the one-sub)ect re>uire'ent i'poses an additional restriction on the ri%ht to
initiative not conte'plated b( the Constitution. 6hort of invalidatin% the re>uire'ent, a better course of action
&ould be to insist upon its liberal interpretation. After all, the Court has consistentl( adhered to a liberal
interpretation of the one-sub)ect, one-title rule.
4here is no cause to adopt a stricter interpretative rule &ith

re%ard to the one-sub)ect rule under 6ection "; of Rep. Act No. $1.7.
=*.
3urin% the hearin% on the petitions, the ar%u'ent &as raised that provisions of the Constitution a'ended
throu%h initiative &ould not have the benefit of a reference source fro' the record of a deliberative bod( such
as Con%ress or a constitutional convention. 9t &as sub'itted that this consideration influenced the
Constitutional Co''ission as it drafted 6ection , Article D899, &hich e:pressl( provided that onl(
a'end'ents, and not revisions, 'a( be the sub)ect of initiative petitions.
4his ar%u'ent clearl( proceeds fro' a pre'ise that accords supre'e value to the record of deliberations of a
constitutional convention or co''ission in the interpretation of the charter. Get if the absence of a record of
deliberations stands as so serious a fla& as to invalidate or constrict processes &hich chan%e a constitution or its
provisions, then the entire initiative process authori=ed b( the Constitution should be scarlet-'ar@ed as &ell.
Even if this position can be %iven an( &ei%ht in the consideration of these petitions, 9 &ould li@e to point out
that resort to the records of deliberations is onl( one of 'an( aids to constitutional construction. Aor one, it
should be abhorred if the provision under stud( is itself clear, plain, and free fro' a'bi%uit(. As the Court held
in ,i"il )iberties Gnion ". +6e#uti"e %e#retar/:
.

Chile it is per'issible in this )urisdiction to consult the debates and proceedin%s of the constitutional
convention in order to arrive at the reason and purpose of the resultin% Constitution, resort thereto 'a(
be had onl( &hen other %uides fail as said proceedin%s are po&erless to var( the ter's of the
Constitution &hen the 'eanin% is clear. 3ebates in the constitutional convention <are of value as
sho&in% the vie&s of the individual 'e'bers, and as indicatin% the reasons for their votes, but the( %ive
us no li%ht as to the vie&s of the lar%e 'a)orit( &ho did not tal@ . . . Ce thin@ it safer to construe the
constitution fro' &hat appears upon its face.<
-

Even if there is need to refer to e:trinsic sources in aid of constitutional interpretation, the constitutional record
does not provide the e:clusive or definitive ans&er on ho& to interpret the provision. 4he intent of a
constitutional convention is not controllin% b( itself, and &hile the historical discussion on the floor of the
constitutional convention is valuable, it is not necessaril( decisive. 4he Court has even held in *era ". A"elino
7

that <the proceedin%s of the OconstitutionalP convention are less conclusive of the proper construction of the
funda'ental la& than are le%islative proceedin%s of the proper construction of a statute, since in the latter case it
is the intent of the le%islature that courts see@, &hile in the for'er courts are endeavorin% to arrive at the intent
of the people throu%h the discussions and deliberations of their representatives.<
$
4he proper interpretation of a
constitution depends 'ore on ho& it &as understood b( the people adoptin% it than the fra'ersH understandin%
thereof.
1

9f there is fear in the absence of a constitutional record as %uide for interpretation of an( a'end'ents adopted
via initiative, such absence &ould not preclude the courts fro' interpretin% such a'end'ents in a 'anner
consistent &ith ho& courts %enerall( construe the Constitution. Aor e:a'ple, reliance &ill be placed on the
other provisions of the Constitution to arrive at a har'oni=ed and holistic constitutional fra'e&or@. 4he
constitutional record is hardl( the Rosetta 6tone that unloc@s the 'eanin% of the Constitution.
*.
9 full( a%ree &ith /ustice Puno that all issues relatin% to the sufficienc( of the initiative petitions should be
re'anded to the C5MELEC. Rep. Act No. $1.7 clearl( reposes on the C5MELEC the tas@ of deter'inin% the
sufficienc( of the petitions, includin% the ascertain'ent of &hether t&elve percent ,"M+ of all re%istered
voters, includin% three percent ,.M+ of re%istered voters in ever( le%islative district have indeed si%ned the
initiative petitions.
!
9t should be re'e'bered that the C5MELEC had dis'issed the initiative petitions
outri%ht, and had (et to underta@e the deter'ination of sufficienc( as re>uired b( la&.
9t has been su%%ested to the end of leadin% the Court to stifle the initiative petitions that the Court 'a( at this
)uncture pronounce the initiative petitions as insufficient. 4he derivation of the factual predicates leadin% to the
su%%estion is uncertain, considerin% that the trier of facts, the C5MELEC in this instance, has (et to underta@e
the necessar( deter'ination. 6till, the pre'ise has been floated that petitioners have 'ade sufficient ad'issions
before this Court that purportedl( established the petitions are insufficient.
4hat pre'ise is hi%hl( dubitable. Get the 'ore funda'ental >uestion that &e should as@, 9 sub'it, is &hether it
serves &ell on the Court to usurp trier of facts even before the latter e:ercises its functionsI 9f the Court, at this
sta%e, &ere to declare the petitions as insufficient, it &ould be a@in to the Court pronouncin% an accused as
%uilt( even before the lo&er court trial had be%an.
'atu(as ". ,$'+)+,
#
invei%hs a%ainst the propriet( of the Court uncharacteristicall( assu'in% the role of
trier of facts, and resolvin% factual >uestions not previousl( ad)udicated b( the lo&er courts or tribunals*
OPPetitioner in this case cannot <enervate< the C5MELECHs findin%s b( introducin% ne& evidence before
this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment
and discretion for that of the COMELEC.
4he rule in appellate procedure is that a factual >uestion 'a( not be raised for the first ti'e on appeal,
and docu'ents for'in% no part of the proofs before the appellate court &ill not be considered in
disposin% of the issues of an action. 4his is true &hether the decision elevated for revie& ori%inated fro'
a re%ular court or an ad'inistrative a%enc( or >uasi-)udicial bod(, and &hether it &as rendered in a civil
case, a special proceedin%, or a cri'inal case. Piece'eal presentation of evidence is si'pl( not in accord
&ith orderl( )ustice.
.;
An( present deter'ination b( the Court on the sufficienc( of the petitions constitutes in effect a trial de no"o,
the /ustices of the 6upre'e Court virtuall( descendin% to the level of trial court )ud%es. 4his is an unbeco'in%
recourse, and it si'pl( is not done.
*=.
4he &orst position this Court could find itself in is to ac>uiesce to a plea that it 'a@e the choice &hether to
a'end the Constitution or not. 4his is a 'atter &hich should not be left to fifteen 'a%istrates &ho have not
been elected b( the people to 'a@e the choice for the'.
A vote to %rant the petitions is not a vote to a'end the "#!1 Constitution. 9t is 'erel( a vote to allo& the people
to directl( e:ercise that option. 9n fact, the position of /ustice Puno &hich 9 share &ould not even %uarantee that
the La'bino and 6i%a& n% Ba(an initiative petitions &ould be sub'itted to the people in a referendu'. 4he
C5MELEC &ill still have to deter'ine the sufficienc( of the petition. A'on% the >uestions &hich still have to
be deter'ined b( the poll bod( in considerin% the sufficienc( of the petitions is &hether t&elve percent ,"M+
of all re%istered voters nation&ide, includin% three percent ,.M+ of re%istered voters in ever( le%islative district,
have indeed si%ned the initiative petitions.
."
And even should the C5MELEC find the initiative petitions sufficient, the 'atter of &hether the Constitution
should be a'ended &ould still depend on the choice of the electorate. 4he oppositors are clearl( >ueas( about
so'e of the a'end'ents proposed, or the i'puted 'otives behind the a'end'ents. A referendu', should the
C5MELEC find the petitions as sufficient, &ould allo& the' to conve( their uneasiness to the public at lar%e,
as &ell as for the proponents of the a'end'ent to defend their proposal. 4he ca'pai%n period alone &ould
allo& the public to be involved in the si%nificant deliberation on the course our nation should ta@e, &ith the
ensuin% net benefit of a 'ore infor'ed, 'ore politicall( a&are populace. And of course, the choice on &hether
the Constitution should be a'ended &ould lie directl( &ith the people. 4he initiative process involves
participator( de'ocrac( at its 'ost ele'ental2 &herein the consequential debate &ould not be confined to the
au%ust halls of Con%ress or the hallo&ed cha'bers of this Court, as it &ould spill over to the public s>uares and
to&n halls, the acade'ic (ards and the 9nternet blo%osphere, the dinin% areas in the ho'es of the affluent and
the i'poverished ali@e.
4he prospect of infor'ed and &idespread discussion on constitutional chan%e en%a%ed in b( a people &ho are
actuall( e'po&ered in havin% a sa( &hether these chan%es should be enacted, %ives fruition to the ori%inal
vision of pure de'ocrac(, as for'ulated in Athens t&o and a half 'illennia a%o. 4he %reat hero of Athenian
de'ocrac(, Pericles, &as recorded as sa(in% in his fa'ed Auneral 5ration, <7e differ from other states in
re(ardin( the man who 0eeps aloof from publi# life not as >pri"ate> but as useless; we +eci+e o! +e&ate,
ca!e$%lly an+ in pe!son all matte!s o$ policy, an+ we hol+, not that wo!+s an+ +ee+s go ill togethe!, &%t that
acts a!e $o!e+oome+ to $ail%!e when %n+e!ta.en %n+isc%sse+.<
.

Enfortunatel(, %iven the hi%hl( politici=ed char%e of the ti'es, it has been peddled that an act or vote that
assists the initiative process is one for the &illful e:tinction of de'ocrac( or de'ocratic institutions. 6uch a
consideration should of course properl( pla( its course in the public debates and deliberations attendant to the
initiative process. Get as a result of the haru'-scaru', the te'ptation lies heav( for a 'e'ber of this Court
perturbed &ith the prospect of constitutional chan%e to relieve those an:ieties b( si'pl( votin% to en)oin an(
le%al procedure that initiates the a'end'ent or revision of the funda'ental la&, even at the e:pense of the
peopleHs &ill or &hat the Constitution allo&s. A vote so oriented ta@es the conservative path of least resistance,
even as it 'a( %ain the ad'iration of those &ho do not &ant to see the Constitution a'ended.
6till, the biases &e should enforce as 'a%istrates are those of the Constitution and the ele'ents of de'ocrac(
on &hich our rule of la& is founded. 3irect de'ocrac(, as e'bodied in the initiative process, is but a
cul'ination of the evolution over the centuries of de'ocratic ri%hts of choice and self-%overnance. 4he
ree'er%ence of the Athenian de'ocratic ideal after centuries of t(rannical rules arrived ver( slo&l(, the
benefits parceled out at first onl( to favored classes. 4he Ma%na Carta %ranted li'ited ri%hts to self-
deter'ination and self-%overnance onl( to a fe& En%lish nobles2 the A'erican Constitution &as ori%inall(
intended to %ive a 'eanin%ful voice onl( to free 'en, 'ostl( Caucasian, &ho 'et the propert(-holdin%
re>uire'ents set b( the states for votin%. Get even the ver( idea of popular votin%, li'ited as it 'a( have
alread( been &ithin the first fe& (ears of the A'erican Enion, 'et resistance fro' no less a revered fi%ure as
Ale:ander 0a'ilton, to &ho' the pro%ressive historian 0o&ard Kinn attributes these disconcertin% &ords*
4he voice of the people has been said to be the voice of God2 and ho&ever %enerall( this 'a:i' has
been >uoted and believed, it is not true in fact. 4he people are turbulent and chan%in%2 the( seldo'
)ud%e or deter'ine ri%ht. Give therefore to the first class a distinct per'anent share in the %overn'entU
Can a de'ocratic asse'bl( &ho annuall( revolve in the 'ass of the people be supposed steadil( to
pursue the public %oodI Nothin% but a per'anent bod( can chec@ the i'prudence of de'ocrac(U
..
4his utterl( paternalistic and bi%oted vie& has not survived into the present a%e of 'odern de'ocrac( &here a
personHs povert(, color, or %ender no lon%er i'pedes the e:ercise of full de'ocratic ri%hts. Get a de'ocrac( that
'erel( %uarantees its citi=ens the ri%ht to live their lives freel( is inco'plete if there is no correspondin%
allo&ance for a 'eans b( &hich the people have a direct choice in deter'inin% their countr(Hs direction.
9nitiative as a 'ode of a'endin% a constitution 'a( see' inco'patible &ith representative de'ocrac(, (et it
e'bodies an even purer for' of de'ocrac(. 9nitiative, &hich our "#!1 Constitution sa& fit to %rant to the
people, is a pro%ressive 'easure that is but a continuation of the line of evolution of the de'ocratic ideal.
B( allo&in% the soverei%n people to directl( propose and enact constitutional a'end'ents, the initiative
process should be ac@no&led%ed as the purest i'ple'ent of de'ocratic rule under la&. 4his ri%ht %ranted to
over si:t( 'illion Ailipinos cannot be denied b( the votes of less than ei%ht 'a%istrates for reasons that bear no
co%itation on the Constitution.
9 854E to GRAN4 the petitions.
DANTE O. TINGA
Associate /ustice
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS,
Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent2
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and
VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD,
RENE B. AZURIN, MANUEL L. QUEZON III, BEN1AMIN T. TOLOSA, 1R., SUSAN V. OPLE and
CARLOS P. MEDINA, 1R., 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, LEONADO SAN 1OSE, 1O1O PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO 1OYO AGU1A, ANA THERESIA
HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TA1ON, FROILAN M. BACUNGAN, 1OAQUIN T. VENUS, 1R., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, 1R., and
SENATORS SERGIO R. OSMEA III, 1AMBY A.S. MADRIGAL, LUISA P. E1ERCITO-ESTRADA,
1INGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, 1OSEPH E1ERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES
CEBU CITY CHAPTER and CEBU CHAPTER, 1OSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA.
TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE
OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, 1R., 5ppositors-9ntervenors2
G.R. No. 174299
vs.
: ---------------------------------------------------------------------------------------- :
DISSENTING OPINION
CHICO-NAZARIO, J.:
<he people made the #onstitution- and the people #an unma0e it. =t is the #reature of their will- and li"es onl/
b/ their will. 4ut this supreme and irresistible power to ma0e or unma0e- resides onl/ in the whole bod/ of the
people; not in an/ subdi"ision of them.<
-- Marshall, C./., Cohens v. 8ir%inia ,"!", E6+ $ Cheat $-, .!#, 7 L ed. 71, !1.
9 e:press '( concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of
/ustice Re(nato 6. Puno. 0o&ever, 9 'a@e so'e additional observations in connection &ith '( concurrence.
Chile it is but proper to accord %reat respect and reverence to the Philippine Constitution of "#!1 for bein% the
supre'e la& of the land, &e should not lose si%ht of the truth that there is an ulti'ate authorit( to &hich the
Constitution is also subordinate S the will o$ the people. No less than its ver( first para%raph, the Prea'ble,
"

e:pressl( reco%ni=es that the Constitution ca'e to be because it &as ordained and pro'ul%ated b( the soverei%n
Ailipino people. 9t is a principle reiterated (et a%ain in Article 99, 6ection ", of the Constitution, &hich e:plicitl(
declares that <OtPhe Philippines is a de'ocratic and republican 6tate. 6overei%nt( resides in the people and all
%overn'ent authorit( e'anates fro' the'.< 4hus, the resolution of the issues and controversies raised b( the
instant Petition should be %uided accordin%l( b( the fore%oin% principle.
9f the Constitution is the e:pression of the &ill of the soverei%n people, then, in the event that the people chan%e
their &ill, so 'ust the Constitution be revised or a'ended to reflect such chan%e. Resultantl(, the ri%ht to revise
or a'end the Constitution inherentl( resides in the soverei%n people &hose &ill it is supposed to e:press and
e'bod(. 4he Constitution itself, under Article D899, provides for the 'eans b( &hich the revision or
a'end'ent of the Constitution 'a( be proposed and ratified.
Ender 6ection " of the said Article, proposals to a'end or revise the Constitution 'a( be 'ade ,a+ b(
Con%ress, upon a vote of three-fourths of all its Me'bers, or ,b+ b( constitutional convention. 4he Con%ress
and the constitutional convention possess the po&er to propose a'end'ents to, or revisions of, the Constitution
not si'pl( because the Constitution so provides, but because the soverei%n people had chosen to dele%ate their
inherent ri%ht to 'a@e such proposals to their representatives either throu%h Con%ress or throu%h a
constitutional convention.
5n the other hand, the soverei%n people, &ell-inspired and %reatl( e'po&ered b( the People Po&er Revolution
of "#!$, reserved to the'selves the ri%ht to directl( propose a'end'ents to the Constitution throu%h initiative,
to &it S
4he afore->uoted section does not confer on the Ailipino people the ri%ht to a'end the Constitution because, as
previousl( discussed, such ri%ht is inherent in the'. 4he section onl( reduces into &ritin% this ri%ht to initiate
a'end'ents to the Constitution &here the( collectivel( and &illfull( a%reed in the 'anner b( &hich the( shall
e:ercise this ri%ht* ,a+ throu%h the filin% of a petition2 ,b+ supported b( at least t&elve percent ,"M+ of the total
nu'ber of re%istered voters nation&ide2 ,c+ &ith each le%islative district represented b( at least three percent
,.M+ of the re%istered voters therein2 ,d+ sub)ect to the li'itation that no such petition 'a( be filed &ithin five
(ears after the ratification of the Constitution, and not oftener than once ever( five (ears thereafter2 and ,e+ a
dele%ation to Con%ress of the authorit( to provide the for'al re>uire'ents and other details for the
i'ple'entation of the ri%ht.
9t is '( earnest opinion that the ri%ht of the soverei%n people to directl( propose a'end'ents to the
Constitution throu%h initiative is 'ore superior than the po&er the( dele%ated to Con%ress or to a constitutional
convention to a'end or revise the Constitution. 4he initiative process %ives the soverei%n people the voice to
e:press their collective &ill, and &hen the people spea@, &e 'ust be read( to listen. Article D899, 6ection of
the Constitution reco%ni=es and %uarantees the soverei%n peopleHs ri%ht to initiative, rather than li'its it. 4he
enablin% la& &hich Con%ress has been tas@ed to enact 'ust %ive life to the said provision and 'a@e the e:ercise
of the ri%ht to initiative possible, not re%ulate, li'it, or restrict it in an( &a( that &ould render the peopleHs
option of resortin% to initiative to a'end the Constitution 'ore strin%ent, difficult, and less feasible, as
co'pared to the other constitutional 'eans to a'end or revise the Constitution. In fact, it is worth recalling
that under Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the
extent reserved to the people by the provisions on initiative and referendum.
9t is &ith this fra'e of 'ind that 9 revie& the issues raised in the instant Petitions, and &hich has led 'e to the
conclusions, in support of the dissent of /ustice Puno, that ,a+ 4he Co''ission on Election ,C5MELEC+ had
indeed co''itted %rave abuse of discretion in su''aril( dis'issin% the petition for initiative to a'end the
Constitution filed b( herein petitioners Raul L. La'bino and Erico B. Au'entado2 ,b+ 4he Court should revisit
the pronounce'ents it 'ade in %antia(o ". ,ommission on +le#tions2
.
,c+ 9t is the soverei%n peopleHs inherent
ri%ht to propose chan%es to the Constitution, re%ardless of &hether the( constitute 'erel( a'end'ents or a total
revision thereof2 and ,d+ 4he C5MELEC should ta@e co%ni=ance of La'bino and Au'entadoHs petition for
initiative and, in the e:ercise of its )urisdiction, deter'ine the factual issues raised b( the oppositors before this
Court.
9
4he C5MELEC had indeed co''itted %rave abuse of discretion &hen it su''aril( dis'issed La'bino and
Au'entadoHs petition for initiative entirel( on the basis of the %antia(o case &hich, alle%edl(, per'anentl(
en)oined it fro' entertainin% or ta@in% co%ni=ance of an( petition for initiative to a'end the Constitution in the
absence of a sufficient la&.
After a careful readin%, ho&ever, of the %antia(o case, 9 believe in earnest that the per'anent in)unction
actuall( issued b( this Court a%ainst the C5MELEC pertains onl( to the petition for initiative filed b( /esus 6.
3elfin, and not to all subse>uent petitions for initiative to a'end the Constitution.
4he Conclusion
-
in the 'a)orit( opinion in the %antia(o case reads S
C5NCLE695N
4his petition 'ust then be %ranted, and the C5MELEC should be per'anentl( en)oined fro'
b+ 3ECLAR9NG R.A. No. $1.7 inade>uate to cover the s(ste' of initiative on a'end'ents to the
c+ 3ECLAR9NG void those parts of Resolution No. .;; of the Co''ission on Elections prescribin%
d+ 5R3ER9NG the Co''ission on Elections to forth&ith 396M966 the 3ELA9N petition ,EN3-#$-
;.1+.
4he 4e'porar( Restrainin% 5rder issued on "! 3ece'ber "##$ is 'ade per'anent as a%ainst the
Resolution on the 'atter of conte'pt is hereb( reserved.
9t is clear fro' the fallo, as it is reproduced above, that the Court 'ade per'anent the 4e'porar( Restrainin%
5rder ,4R5+ it issued on "! 3ece'ber "##$ a%ainst the C5MELEC. 4he said 4R5 en)oined the C5MELEC
fro' proceedin% &ith the 3elfin Petition, and Alberto and Car'en Pedrosa fro' conductin% a si%nature drive
for peopleHs initiative.
7
9t &as this restrainin% order, 'ore particularl( the portion thereof referrin% to the 3elfin
Petition, &hich &as e:pressl( 'ade per'anent b( the Court. 9t &ould see' to 'e that the C5MELEC and all
other oppositors to La'bino and Au'entadoHs petition for initiative %ave un&arranted si%nificance and &ei%ht
to the first para%raph of the Conclusion in the %antia(o case. The first and second paragraphs of the
Conclusion, preceding the dispositive portion, merely express the opinion of the ponente; while the
definite orders of the Court for implementation are found in the dispositive portion.
Ce have previousl( held that S
4he dispositive portion or the fallo is &hat actuall( constitutes the resolution of the court and &hich is
the sub)ect of e:ecution, althou%h the other parts of the decision 'a( be resorted to in order to deter'ine
the ratio decidendi for such a resolution. Chere there is conflict bet&een the dispositive part and the
opinion of the court contained in the te:t of the decision, the for'er 'ust prevail over the latter on the
theor( that the dispositive portion is the final order &hile the opinion is 'erel( a state'ent orderin%
nothin%. 0ence e:ecution 'ust confor' 'ore particularl( to that ordained or decreed in the dispositive
$

9s there a conflict bet&een the first para%raph of the Conclusion and the dispositive portion of the %antia(o
caseI Apparentl(, there is. 4he first para%raph of the Conclusion states that the C5MELEC should be
per'anentl( en)oined fro' entertainin% or ta@in% co%ni=ance of any petition for initiative on a'end'ents to the
Constitution until the enact'ent of a valid la&. 5n the other hand, the fallo onl( 'a@es per'anent the 4R5
1

a%ainst C5MELEC en)oinin% it fro' proceedin% &ith the Del$in Petition. Chile the per'anent in)unction
conte'plated in the Conclusion enco'passes all petitions for initiative on a'end'ents to the Constitution, the
fallo is e:pressl( li'ited to the 3elfin Petition. 4o resolve the conflict, the final order of the Court as it is stated
in the dispositive portion or the fallo should be controllin%.
Neither can the C5MELEC dis'iss La'bino and Au'entadoHs petition for initiative on the basis of this CourtHs
Resolution, dated . 6epte'ber "##1, in the case of 8eople>s =nitiati"e for Reform- 'odernization and A#tion
A8=R'AC ". he ,ommission on +le#tions- et al.
!
4he Court therein found that the C5MELEC did not co''it
%rave abuse of discretion in dis'issin% the P9RMA Petition for initiative to a'end the Constitution for it onl(
co'plied &ith the 3ecision in the %antia(o case.
9t is onl( proper that the %antia(o case should also bar the P9RMA Petition on the basis of res 2udi#ata because
P9RMA participated in the proceedin%s of the said case, and had @no&led%e of and, thus, 'ust be bound b( the
)ud%'ent of the Court therein. As e:plained b( for'er Chief /ustice 0ilario G. 3avide, /r. in his separate
opinion to the Resolution in the P9RMA case S
Airst, it is barred b( res 2udi#ata. No one a&are of the pleadin%s filed here and in %antia(o ".
,$'+)+, ,G.R. No. "1.7, "# March "##1+ 'a( plead i%norance of the fact that the for'er is
substantiall( identical to the latter, e:cept for the reversal of the roles pla(ed b( the principal parties and
inclusion of additional, (et not indispensable, parties in the present petition. But plainl(, the sa'e issues
and reliefs are raised and pra(ed for in both cases.
4he principal petitioner here is the PE5PLEH6 9N949A498E A5R REA5RM, M53ERN9KA495N,
AN3 AC495N ,P9RMA+ and 6pouses ALBER45 PE3R56A and CARMEN PE3R56A. P9RMA is
self-described as <a non-stoc@, non-profit or%ani=ation dul( or%ani=ed and e:istin% under Philippine
la&s &ith office address at 6uite -;., Aed'an 6uites, "## 6alcedo 6treet, Le%aspi 8illa%e, Ma@ati Cit(,<
&ith <ALBER45 PE3R56A and CARMEN PE3R56A< as a'on% its <officers.< 9n %antia(o, the
PE3R56A6 &ere 'ade respondents as foundin% 'e'bers of P9RMA &hich, as alle%ed in the bod( of
the petition therein, <proposes to underta@e the si%nature drive for a peopleHs initiative to a'end the
Constitution.< 9n 6antia%o then, the PE3R56A6 &ere sued in their capacit( as foundin% 'e'bers of
P9RMA.
4he decision in %antia(o specificall( declared that 8=R'A &as dul( represented at the hearin% of the
3elfin petition in the C5MELEC. 9n short, P9RMA &as intervenor-petitioner therein. 3elfin alle%ed in
his petition that he &as a foundin% 'e'ber of the Move'ent for PeopleHs 9nitiative, and under footnote
no. $ of the decision, it &as noted that said 'ove'ent &as <OlPater identified as the PeopleHs 9nitiative for
Refor's, Moderni=ation and Action, or P9RMA for brevit(.< 9n their Co''ent to the petition in
6antia%o, the PE3R56AH6 did not den( that the( &ere foundin% 'e'bers of P9RMA, and b( their
ar%u'ents, de'onstrated be(ond a shado& of a doubt that the( had )oined 3elfin or his cause.
No a'ount of se'antics 'a( then shield herein petitioners P9RMA and the PE3R56A6, as &ell as the
others )oinin% the', fro' the operation of the principle of res 2udi#ata, &hich needs no further
elaboration.
#
Chile the %antia(o case bars the 8=R'A case because of res 2udi#ata, the sa'e cannot be said to the Petition at
bar. Res )udicata is an absolute bar to a subse>uent action for the sa'e cause2 and its re>uisites are* ,a+ the
for'er )ud%'ent or order 'ust be final2 ,b+ the )ud%'ent or order 'ust be one on the 'erits2 ,c+ it 'ust have
been rendered b( a court havin% )urisdiction over the sub)ect 'atter and parties2 and ,d+ there 'ust be bet&een
the first and second actions, identit( of parties, of sub)ect 'atter and of causes of action.
";
Even thou%h it is conceded that the first three re>uisites are present herein, the last has not been co'plied &ith.
Endoubtedl(, the %antia(o case and the present Petition involve different parties, sub)ect 'atter, and causes of
action, and the for'er should not bar the latter.
9n the %antia(o case, the petition for initiative to a'end the Constitution &as filed b( 3elfin alone. 0is petition
does not >ualif( as the initiator( pleadin% over &hich the C5MELEC can ac>uire )urisdiction, bein%
unsupported b( the re>uired nu'ber of re%istered voters, and actuall( i'posin% upon the C5MELEC the tas@
of %atherin% the votersH si%natures. 9n the case before us, the petition for initiative to a'end the Constitution &as
filed b( La'bino and Au'entado, on behalf of the $.. 'illion re%istered voters &ho affi:ed their si%natures on
the si%nature sheets attached thereto. 4heir petition pra(s that the C5MELEC issue an 5rder S
". Aindin% the petition to be sufficient pursuant to 6ection -, Article D899 of the "#!1 Constitution2
. 3irectin% the publication of the petition in Ailipino and En%lish at least t&ice in ne&spapers of %eneral
and local circulation2 and
the C5MELEC of the sufficienc( of the petition, to allo& the Ailipino people to e:press their soverei%n
&ill on the proposition.
Althou%h both cases involve the ri%ht of the people to initiate a'end'ents to the Constitution, the personalities
concerned and the other factual circu'stances attendant in the t&o cases differ. Also dissi'ilar are the
particular pra(er and reliefs sou%ht b( the parties fro' the C5MELEC, as &ell as fro' this Court. Aor these
reasons, 9 find that the C5MELEC acted &ith %rave abuse of discretion &hen it su''aril( dis'issed the
petition for initiative filed b( La'bino and Au'entado. 9t behooves the C5MELEC to accord due course to a
petition &hich on its face co'plies &ith the rudi'ents of the la&. C5MELEC &as openl( ne%li%ent in
su''aril( dis'issin% the La'bino and Au'entado petition. 4he haste b( &hich the instant Petition &as struc@
do&n is characteristic of bad faith, &hich, to '( 'ind, is a patent and %ross evasion of C5MELECHs positive
dut(. 9t has so obviousl( copped out of its dut( and responsibilit( to deter'ine the sufficienc( thereof and
sou%ht protection and )ustification for its craven decision in the supposed per'anent in)unction issued a%ainst it
b( the Court in the %antia(o case. 4he C5MELEC had see'in%l( e:panded the scope and application of the
said per'anent in)unction, readin% into it 'ore than &hat it actuall( states, &hich is surprisin%, considerin% that
the Chair'an and 'a)orit( of the 'e'bers of C5MELEC are la&(ers &ho should be able to understand and
appreciate, 'ore than a la( person, the le%al conse>uences and intricacies of the pronounce'ents 'ade b( the
Court in the 6antia%o case and the per'anent in)unction issued therein.
No less than the Constitution itself, under the second para%raph of Article D899, 6ection -, i'poses upon the
C5MELEC the 'andate to set a date for plebiscite after a positive deter'ination of the sufficienc( of a petition
for initiative on a'end'ents to the Constitution, vi= S
6EC. -. : : :
As a rule, the &ord <shall< co''onl( denotes an i'perative obli%ation and is inconsistent &ith the idea of
discretion, and that the presu'ption is that the &ord <shall< &hen used, is 'andator(.
""
Ender the above->uoted
constitutional provision, it is the 'andator( or i'perative obli%ation of the C5MELEC to ,a+ deter'ine the
sufficienc( of the petition for initiative on a'end'ents to the Constitution and issue a certification on its
findin%s2 and ,b+ in case such petition is found to be sufficient, to set the date for the plebiscite on the proposed
a'end'ents not earlier than $; da(s nor later than #; da(s after its certification. 4he C5MELEC should not be
allo&ed to shun its constitutional 'andate under the second para%raph of Article D899, 6ection -, throu%h the
su''ar( dis'issal of the petition for initiative filed b( La'bino and Au'entado, &hen such petition is
supported b( $.. 'illion si%natures of re%istered voters. 6hould all of these si%natures be authentic and
representative of the re>uired percenta%es of re%istered voters for ever( le%islative district and the &hole nation,
then the initiative is a true and le%iti'ate e:pression of the &ill of the people to a'end the Constitution, and
C5MELEC had caused the' %rave in)ustice b( silencin% their voice based on a patentl( inapplicable per'anent
in)unction.
99
Ce should li@e&ise ta@e the opportunit( to revisit the pronounce'ents 'ade b( the Court in its 3ecision in the
%antia(o case, especiall( as re%ards the supposed insufficienc( or inade>uac( of Republic Act No. $1.7 as the
enablin% la& for the i'ple'entation of the peopleHs ri%ht to initiative on a'end'ents to the Constitution.
4he declaration of the Court that Republic Act No. $1.7 is insufficient or inade>uate actuall( %ave rise to 'ore
>uestions rather than ans&ers, due to the fact that there has never been a )udicial precedent &herein the Court
invalidated a la& for insufficienc( or inade>uac(. 4he confusion over such a declaration thereb( i'pelled
for'er Chief /ustice 3avide, /r., the ponente in the %antia(o case, to provide the follo&in% clarification in his
separate opinion to the Resolution in the 8=R'A case, thus S
6i'pl( put, %antia(o did, in realit(, declare as unconstitutional that portion of R.A. No. $1.7 relatin% to
Constitutional initiatives for failure to co'pl( &ith the <co'pleteness and sufficient standard tests< &ith
respect to per'issible dele%ation of le%islative po&er or subordinate le%islation. 0o&ever petitioners
atte'pt to t&ist the lan%ua%e in 6antia%o, the conclusion is inevitable2 the portion of R.A. No. $1.7 &as
held to be unconstitutional.
9t is i'portant to note, ho&ever, that &hile the 3ecision in the %antia(o case pronounced repeatedl( that
Republic Act No. $1.7 &as insufficient and inade>uate, there is no cate%orical declaration therein that the said
statute &as unconstitutional. 4he e:press findin% that Republic Act No. $1.7 is unconstitutional can onl( be
found in the separate opinion of for'er Chief /ustice 3avide to the Resolution in the P9RMA case, &hich &as
not concurred in b( the other 'e'bers of the Court.
Even assu'in% ar(uendo that the declaration in the 6antia%o case, that Republic Act No. $1.7 is insufficient
and inade>uate, is alread( tanta'ount to a declaration that the statute is unconstitutional, it &as rendered in
violation of established rules in statutor( construction, &hich state that S
OAPll presu'ptions are indul%ed in favor of constitutionalit(2 one &ho attac@s a statute, alle%in%
unconstitutionalit( 'ust prove its invalidit( be(ond a reasonable doubt ,*i#toriano ". +lizalde Rope
7or0ers> Gnion, 7# 6CRA 7- O"#1-"+. 9n fact, this Court does not decide >uestions of a constitutional
nature unless that >uestion is properl( raised and presented in appropriate cases and is necessar( to a
deter'ination of the case, i.e., the issue of constitutionalit( 'ust be lis 'ota presented ,ropi#al Homes
". National Housin( Authorit/, "7 6CRA 7-; O"#!1P+.
Airst, the Court, in the %antia(o case, could have ver( &ell avoided the issue of constitutionalit( of Republic
Act No. $1.7 b( orderin% the C5MELEC to dis'iss the 3elfin petition for the si'ple reason that it does not
constitute an initiator( pleadin% over &hich the C5MELEC could ac>uire )urisdiction. And second, the
unconstitutionalit( of Republic Act No. $1.7 has not been ade>uatel( sho&n. 9t &as b( and lar%e 'erel(
inferred or deduced fro' the &a( Republic Act No. $1.7 &as &orded and the provisions thereof arran%ed and
or%ani=ed b( Con%ress. 4he dissentin% opinions rendered b( several /ustices in the 6antia%o case reveal the
other side to the ar%u'ent, adoptin% the 'ore liberal interpretation that &ould allo& the Court to sustain the
constitutionalit( of Republic Act No. $1.7. 9t &ould see' that the 'a)orit( in the 6antia%o case failed to heed
the rule that all presu'ptions should be resolved in favor of the constitutionalit( of the statute.
4he Court, actin% en ban# on the Petition at bar, can revisit its 3ecision in the %antia(o case and a%ain open to
)udicial revie& the constitutionalit( of Republic Act No. $1.72 in &hich case, 9 shall cast '( vote in favor of its
constitutionalit(, havin% satisfied the co'pleteness and sufficienc( of standards tests for the valid dele%ation of
le%islative po&er. 9 full( a%ree in the conclusion 'ade b( /ustice Puno on this 'atter in his dissentin% opinion
"

in the %antia(o case, that reads S
R.A. No. $1.7 sufficientl( states the polic( and the standards to %uide the C5MELEC in pro'ul%atin%
the la&Hs i'ple'entin% rules and re%ulations of the la&. As aforestated, 6ection spells out the polic( of
the la&2 vi=* <4he po&er of the people under a s(ste' of initiative and referendu' to directl( propose,
enact, approve or re)ect, in &hole or in part, the Constitution, la&s, ordinances, or resolutions passed b(
an( le%islative bod( upon co'pliance &ith the re>uire'ents of this Act is hereb( affir'ed, reco%ni=ed
and %uaranteed.< 6pread out all over R.A. No. $1.7 are the standards to canali=e the dele%ated po&er to
the C5MELEC to pro'ul%ate rules and re%ulations fro' overflo&in%. 4hus, the la& states the nu'ber
of si%natures necessar( to start a peopleHs initiative, directs ho& initiative proceedin% is co''enced,
&hat the C5MELEC should do upon filin% of the petition for initiative, ho& a proposition is approved,
&hen a plebiscite 'a( be held, &hen the a'end'ent ta@es effect, and &hat 'atters 'a( not be the
sub)ect of an( initiative. B( an( 'easure, these standards are ade>uate.
999
4he dissent of /ustice Puno has alread( a &ell-presented discourse on the difference bet&een an <a'end'ent<
and a <revision< of the Constitution. Allo& 'e also to articulate '( additional thou%hts on the 'atter.
5ppositors to La'bino and Au'entadoHs petition for initiative ar%ue that the proposed chan%es therein to the
provisions of the Constitution alread( a'ount to a revision thereof, &hich is not allo&ed to be done throu%h
peopleHs initiative2 Article D899, 6ection of the Constitution on peopleHs initiative refers onl( to proposals for
a'end'ents to the Constitution. 4he( assert the traditional distinction bet&een an a'end'ent and a revision,
&ith a'end'ent referrin% to isolated or piece'eal chan%e onl(, &hile revision as a reva'p or re&ritin% of the
&hole instru'ent.
".

0o&ever, as pointed out b( /ustice Puno in his dissent, there is no >uantitative or >ualitative test that can
establish &ith definiteness the distinction bet&een an a'end'ent and a revision, or bet&een a substantial and
si'ple chan%e of the Constitution.
4he chan%es proposed to the Constitution b( La'bino and Au'entadoHs petition for initiative basicall( affect
onl( Article 89 on the Le%islative 3epart'ent and Article 899 on the E:ecutive 3epart'ent. Chile the
proposed chan%es &ill drasticall( alter the constitution of our %overn'ent b( vestin% both le%islative and
e:ecutive po&ers in a unica'eral Parlia'ent, &ith the President as the 0ead of 6tate and the Pri'e Minister
e:ercisin% the e:ecutive po&er2 the( &ould not essentiall( affect the other "$ Articles of the Constitution. 4he
";; or so chan%es counted b( the oppositors to the other provisions of the Constitution are constituted 'ostl( of
the no'inal substitution of one &ord for the other, such as Parlia'ent for Con%ress, or Pri'e Minister for
President. As elo>uentl( pointed out in the dissent of /ustice Puno, the chan%es proposed to transfor' our for'
of %overn'ent fro' bica'eral-presidential to unica'eral-parlia'entar(, &ould not affect the funda'ental
nature of our state as a de'ocratic and republican state. 9t &ill still be a representative %overn'ent &here
officials continue to be accountable to the people and the people 'aintain control over the %overn'ent throu%h
the election of 'e'bers of the Parlia'ent.
Aurther'ore, should the people the'selves &ish to chan%e a substantial portion or even the &hole of the
Constitution, &hat or &ho is to stop the'I Article D899, 6ection of the Constitution &hich, b( the &a( it is
&orded, refers onl( to their ri%ht to initiative on a'end'ents of the ConstitutionI 4he dele%ates to the
Constitutional Convention &ho, accordin% to their deliberations, purposel( li'ited Article D899, 6ection of
the Constitution to a'end'entsI 4his Court &hich has the )urisdiction to interpret the provisionI Bearin% in
'ind '( earlier declaration that the &ill of the soverei%n people is supre'e, there is nothin% or no one that can
preclude the' fro' initiatin% chan%es to the Constitution if the( choose to do so. 4o reiterate, the Constitution
is supposed to be the e:pression and e'bodi'ent of the peopleHs &ill, and should the peopleHs &ill cla'or for a
revision of the Constitution, it is their &ill &hich should prevail. Even the fact that the people ratified the "#!1
Constitution, includin% Article D899, 6ection thereof, as it is &orded, should not prevent the e:ercise b( the
soverei%n people of their inherent ri%ht to chan%e the Constitution, even if such chan%e &ould be tanta'ount to
a substantial a'end'ent or revision thereof, for their actual e:ercise of the said ri%ht should be a clear
renunciation of the li'itation &hich the said provision i'poses upon it. 9t is the inherent ri%ht of the people as
soverei%n to chan%e the Constitution, re%ardless of the e:tent thereof.
98
Lastl(, 9 fail to see the in)ustice in allo&in% the C5MELEC to %ive due course to and ta@e co%ni=ance of
La'bino and Au'entadoHs petition for initiative to a'end the Constitution. 9 reiterate that it &ould be a %reater
evil if one such petition &hich is ostensibl( supported b( the re>uired nu'ber of re%istered voters all over the
countr(, be su''aril( dis'issed.
Givin% due course and ta@in% co%ni=ance of the petition &ould not necessaril( 'ean that the sa'e &ould be
found sufficient and set for plebiscite. 4he C5MELEC still faces the tas@ of revie&in% the petition to deter'ine
&hether it co'plies &ith the re>uire'ents for a valid e:ercise of the ri%ht to initiative. Luestions raised b( the
oppositors to the petition, such as those on the authenticit( of the re%istered votersH si%natures or co'pliance
&ith the re>uisite nu'ber of re%istered voters for ever( le%islative district, are alread( factual in nature and
re>uire the reception and evaluation of evidence of the parties. 6uch >uestions are best presented and resolved
before the C5MELEC since this Court is not a trier of facts.
9n vie& of the fore%oin%, 9 a' of the position that the Resolution of the C5MELEC dated ." Au%ust ;;$
den(in% due course to the Petition for 9nitiative filed b( La'bino and Au'entado be reversed and set aside for
havin% been issued in %rave abuse of discretion, a'ountin% to lac@ of )urisdiction, and that the Petition be
re'anded to the C5MELEC for further proceedin%s.
9n short, 9 vote to GRANT the petition for 9nitiative of La'bino and Au'entado.
MINITA V. CHICO-NAZARIO
Associate /ustice
EN BANC
G.R. No. 174153 October 25, 2006
petitioners, vs. The COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, 1R., and RENE A. Q. SAGUISAG, petitioners
vs. COMMISSION ON ELECTIONS, Represented by Chairman BEN1AMIN S. ABALOS, 1R., and
BRAWNER, RENE V. SARMIENTO, and 1ohn Doe and Peter Doe, respondents.
: ---------------------------------------------------------------------------------------- :
SEPARATE OPINION
VELASCO, 1R., J.:
Introduction
4he fate of ever( de'ocrac(, of ever( %overn'ent based on the 6overei%nt( of the
people, depends on the choices it 'a@es bet&een these opposite principles* absolute
po&er on the one hand, and on the other the restraints of le%alit( and the authorit( of
tradition.
?/ohn Acton
9n this thorn( 'atter of the peopleHs initiative, 9 concur &ith the erudite and hi%hl( persuasive opinion of /ustice
Re(nato 6. Puno upholdin% the peopleHs initiative and raise so'e points of '( o&n.
4he issue of the peopleHs po&er to propose a'end'ents to the Constitution &as once discussed in the land'ar@
case of %antia(o ". ,$'+)+,.
"
Al'ost a decade later, the issue is once a%ain before the Court, and 9 fir'l(
believe it is ti'e to reevaluate the pronounce'ents 'ade in that case.
4he issue of Charter Chan%e is one that has sharpl( divided the nation, and its proponents and opponents &ill
understandabl( ta@e all 'easures to advance their position and defeat that of their opponents. 4he &isdo' or
foll( of Charter Chan%e does not concern the Court. 4he onl( thin% that the Court 'ust revie& is the validit( of
the present step ta@en b( the proponents of Charter Chan%e, &hich is the PeopleHs 9nitiative, as set do&n in
Article D899, 6ec. of the "#!1 Constitution*
A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h initiative
upon a petition of at least t&elve per #entum of the total nu'ber of re%istered voters, of &hich ever(
le%islative district 'ust be represented b( at least three per #entum of the re%istered voters therein. No
a'end'ent under this section shall be authori=ed &ithin five (ears follo&in% the ratification of this
9n the 6antia%o case, the Court discussed &hether the second para%raph of that section had been fulfilled. 9t
deter'ined that Con%ress had not provided for the i'ple'entation of the e:ercise of the peopleHs initiative,
&hen it held that Republic Act No. $1.7, or <4he 9nitiative and Referendu' Act,< &as <inade>uate to cover the
s(ste' of initiative on a'end'ents to the Constitution, and to have failed to provide sufficient standard for
subordinate le%islation.<
Cith all due respect to those /ustices &ho 'ade that declaration, 9 'ust disa%ree.
Republic Act No. 6735 is the proper law for proposing constitutional amendments and it should not have
been considered inadequate.
4he decision in %antia(o focused on &hat it perceived to be fatal fla&s in the draftin% of the la&, in the failin%s
of the &a( the la& &as structured, to co'e to the conclusion that the la& &as inade>uate. 4he Court itself
reco%ni=ed the le%islatorsH intent, but disre%arded this intent. 4he la& &as found &antin%. 4he Court then sa&
the inclusion of the Constitution in RA $1.7 as an afterthou%ht. 0o&ever, it &as included, and it should not be
e:cluded b( the Court via a strained anal(sis of the la&. 4he difficult construction of the la& should not serve to
frustrate the intent of the fra'ers of the "#!1 Constitution* to %ive the people the po&er to propose a'end'ents
as the( sa& fit. 9t is a basic precept in statutor( construction that the intent of the le%islature is the controllin%
factor in the interpretation of a statute.
.
4he intent of the le%islature &as clear, and (et RA $1.7 &as declared
inade>uate. 9t &as not specificall( struc@ do&n or declared unconstitutional, 'erel( inco'plete. 4he Court
focused on &hat RA $1.7 &as not, and lost si%ht of &hat RA $1.7 &as.
9t is '( vie& that the readin% of RA $1.7 in %antia(o should have been 'ore fle:ible. 9t is also a basic precept
of statutor( construction that statutes should be construed not so 'uch accordin% to the letter that 0illeth but in
line &ith the purpose for &hich the( have been enacted.
-
4he readin% of the la& should not have been &ith the
vie& of its defeat, but &ith the %oal of upholdin% it, especiall( &ith its avo&ed noble purpose.
Con%ress has done its part in e'po&erin% the people the'selves to propose a'end'ents to the Constitution, in
accordance &ith the Constitution itself. 9t should not be the 6upre'e Court that stifles the people, and lets their
cries for chan%e %o unheard, especiall( &hen the Constitution itself %rants the' that po&er.
The court's ruling in the Santiago case does not bar the present petition because the fallo in the Santiago
case is limited to the Delfin petition.
4he %antia(o case involved a petition for prohibition filed b( Miria' 3efensor-6antia%o, et al., a%ainst the
C5MELEC, et al., &hich sou%ht to prevent the C5MELEC fro' entertainin% the <Petition to A'end the
Constitution, to Lift 4er' Li'its of Elective 5fficials, b( PeopleHs 9nitiative< filed b( Att(. /esus 3elfin. 9n the
bod( of the )ud%'ent, the Court 'ade the follo&in% conclusion, vi=*
4his petition 'ust then be %ranted and the C5MELEC should be per'anentl( en)oined fro'
entertainin% or ta@in% co%ni=ance of an( petition or initiative on a'end'ents on the Constitution until a
sufficient la& shall have been validl( enacted to provide for the i'ple'entation of the s(ste' ,e'phasis
supplied+.
9n the said case, the CourtHs fallo states as follo&s*
b+ 3ECLAR9NG R. A. $1.7 inade>uate to cover the s(ste' of initiative on a'end'ents to the
c+ 3ECLAR9NG void those parts of Resolutions No. .;; of the Co''ission on Elections prescribin%
d+ 5R3ER9NG the Co''ission on Elections to forth&ith 396M966 the 3ELA9N petition ,EN3-#$-
;.1+.
4he 4e'porar( Restrainin% 5rder issued on "! 3ece'ber "##$ is 'ade per'anent as a%ainst the
Co''ission on Elections, but is L9A4E3 a%ainst private respondents.
Resolution on the 'atter of conte'pt is hereb( reserved.
65 5R3ERE3.
4he >uestion no& is if the rulin% in %antia(o is decisive in this case. 9t is ele'entar( that &hen there is conflict
bet&een the dispositive portion or fallo of the decision and the opinion of the court contained in the te:t or bod(
of the )ud%'ent, the for'er prevails over the latter. An order of e:ecution is based on the disposition, not on the
bod(, of the decision.
7
4he dispositive portion is its decisive resolution2 thus, it is the sub)ect of e:ecution. 4he
other parts of the decision 'a( be resorted to in order to deter'ine the ratio de#idendi for the disposition.
Where there is conflict between the dispositive part and the opinion of the court contained in the text or
body of the decision, the former must prevail over the latter on the theory that the dispositive portion is
the final order, while the opinion is merely a statement ordering nothing. 0ence, the e:ecution 'ust
confor' &ith that &hich is ordained or decreed in the dispositive portion of the decision.
$

A )ud%'ent 'ust be distin%uished fro' an opinion. 4he latter is an infor'al e:pression of the vie&s of the
court and cannot prevail a%ainst its final order or decision. Chile the t&o 'a( be co'bined in one instru'ent,
the opinion for's no part of the )ud%'ent. 6o there is a distinction bet&een the findin%s and conclusions of a
court and its /ud%'ent. Chile the( 'a( constitute its decision and a'ount to the rendition of a )ud%'ent, the(
are not the )ud%'ent itself. 9t is not infre>uent that the %rounds of a decision fail to reflect the e:act vie&s of the
court, especiall( those of concurrin% )ustices in a colle%iate court. Ce often encounter in )udicial decisions
lapses, findin%s, loose state'ents and %eneralities &hich do not bear on the issues or are apparentl( opposed to
the other&ise sound and considered result reached b( the court as e:pressed in the dispositive part, so called, of
the decision.
1

Appl(in% the fore%oin% ar%u'ent to the %antia(o case, it i''ediatel( beco'es apparent that the disposition in
the latter case cate%oricall( 'ade per'anent the 3ece'ber "!, "##$ 4e'porar( Restrainin% 5rder issued
a%ainst the C5MELEC in the 3elfin petition but did N54 for'all( incorporate therein an( directive
PERMANEN4LG en)oinin% the C5MELEC <fro' entertainin% or ta@in% co%ni=ance of an( petition for
initiative on a'end'ents.< Endeniabl(, the perpetual proscription a%ainst the C5MELEC fro' assu'in%
)urisdiction over an( other petition on Charter Chan%e throu%h a PeopleHs 9nitiative is )ust a conclusion and
cannot bind the poll bod(, for such unendin% ban &ould trench on its constitutional po&er to enforce and
ad'inister all la&s and re%ulations relative to the conduct of an election, plebiscite, initiative, referendu' and
recall under 6ection , Article 9D of the Constitution. RA $1.7 %ave the C5MELEC the )urisdiction to
deter'ine the sufficienc( of the petition on the initiative under 6ection !, Rule "" and the for' of the petition
under 6ection ., Rule 92 hence, it cannot be barred fro' entertainin% an( such petition.
9n su', the C5MELEC still retains its )urisdiction to ta@e co%ni=ance of an( petition on initiative under RA
$1.7 and it can rule on the petition and its action can onl( be passed upon b( the Court &hen the sa'e is
elevated throu%h a petition for certiorari. C5MELEC cannot be barred fro' actin% on said petitions since
)urisdiction is conferred b( la& ,RA $1.7+ and said la& has not been declared unconstitutional and hence still
valid thou%h considered inade>uate in the %antia(o case.
Respondents, ho&ever, clai' that the Court in the subse>uent case of 8=R'A ". ,ommission on +le#tions
!

confir'ed the state'ent of the Court in the %antia(o case that the C5MELEC &as <per'anentl( en)oined fro'
entertainin% or ta@in% co%ni=ance of an( petition for initiative on a'end'ents.< Much reliance is placed on the
rulin% contained in a Minute Resolution &hich reads*
4he Court ruled, first, b( a unani'ous vote, that no %rave abuse of 3iscretion could be attributed to the
public respondent C5MELEC in 3is'issin% the petition filed b( P9RMA therein, it appearin% that it
onl( Co'plied &ith the 396P569495N6 in the 3ecision of this Court in G.R. No. "1.7, pro'ul%ated
on March "#, "##1, and its Resolution of /une ";, "##1.
4a@e note that the Court specificall( referred to <dispositions< in the March "#, "##1 3ecision. 4o reiterate, the
dispositions in the 6antia%o case decision refer specificall( to the 3ece'ber "!, "##$ 4R5 bein% 'ade
per'anent a%ainst the C5MELEC but do not pertain to a per'anent in)unction a%ainst an( other petition for
initiative on a'end'ent. 4hus, &hat &as confir'ed or even affir'ed in the Minute Resolution in the P9RMA
case pertains solel( to the 3ece'ber "!, "##$ 4R5 &hich beca'e per'anent, the declaration of the inade>uac(
of RA $1.7, and the annul'ent of certain parts of Resolution No. .;; but certainl( not the alle%ed perpetual
in)unction a%ainst the initiative petition. 4hus, the resolution in the P9RMA case cannot be considered res
2udi#ata to the La'bino petition.
Amendment or Revision
5ne last 'atter to be considered is &hether the petition 'a( be allo&ed under RA $1.7, since onl( a'end'ents
to the Constitution 'a( be the sub)ect of a peopleHs initiative.
4he La'bino petition cannot be considered an act of revisin% the Constitution2 it is 'erel( an atte'pt to a'end
it. 4he ter' a'end'ent has to be liberall( construed so as to effectuate the peopleHs efforts to a'end the
Constitution.
As an e'inent constitutionalist, 3ean 8icente G. 6inco,
#
e:plained*
perhaps onl( so'e of its i'portant provisions. But &hatever results the revision 'a( produce, the factor
that characteri=es it as an act of revision is the ori%inal intention and plan authori=ed to be carried out.
4hat intention and plan 'ust conte'plate a consideration of all the provisions of the constitution to
constitution or of considerin% that possibilit(. 4he intention rather is to i'prove specific parts of the
suppress portions of it that see' obsolete, or dan%erous, or 'isleadin% in their effect.
9n this case, the La'bino petition is not concerned &ith re&ritin% the entire Constitution. 9t &as never its
intention to revise the &hole Constitution. 9t 'erel( concerns itself &ith a'endin% a fe& provisions in our
funda'ental charter.
Chen there are %ra( areas in le%islation, especiall( in 'atters that pertain to the soverei%n peopleHs political
ri%hts, courts 'ust lean 'ore to&ards a 'ore liberal interpretation favorin% the peopleHs ri%ht to e:ercise their
soverei%n po&er.
Conclusion
6overei%nt( residin% in the people is the hi%hest for' of soverei%nt( and thus deserves the hi%hest respect even
fro' the courts. 9t is not so'ethin% that can be overruled, set aside, i%nored or sto'ped over b( &hatever
a'ount of technicalities, blurred or va%ue provisions of the la&.
As 9 find RA $1.7 to be ade>uate as the i'ple'entin% la& for the PeopleHs 9nitiative, 9 vote to %rant the petition
in G.R. No. "1-"7. and dis'iss the petition in G.R. No. "1-##. 4he A'ended Petition for 9nitiative filed b(
petitioners Raul L. La'bino and Erico B. Au'entado should be re'anded to the C5MELEC for deter'ination
&hether or not the petition is sufficient under RA $1.7, and if the petition is sufficient, to schedule and hold the
necessar( plebiscite as re>uired b( RA $1.7.
9t is ti'e to let the peopleHs voice be heard once a%ain as it &as t&ent( (ears a%o. And should this voice de'and
a chan%e in the Constitution, the 6upre'e Court should not be one to stand in its &a(.
PRESBITERO 1. VELASCO, 1R.
Associate /ustice
Footnotes
"
9ncludin% 6i%a& n% Ba(an and Enion of Local Authorities of the Philippines ,ELAP+.
4his provision states* <Re>uire'ents. ? : : : :

,b+ A petition for an initiative on the "#!1 Constitution 'ust have at least t&elve per centu' ,"M+ of
the total nu'ber of re%istered voters as si%natories, of &hich ever( le%islative district 'ust be
represented b( at least three per centu' ,.M+ of the re%istered voters therein. 9nitiative on the
Constitution 'a( be e:ercised onl( after five ,7+ (ears fro' the ratification of the "#!1 Constitution and
onl( once ever( five ,7+ (ears thereafter.
c... the reason or reasons therefor2
c.$. an abstract or su''ar( in not 'ore than one hundred ,";;+ &ords &hich shall be le%ibl( &ritten or
printed at the top of ever( pa%e of the petition.<
.
4his provision states* <8erification of 6i%natures. ? 4he Election Re%istrar shall verif( the si%natures on the
basis of the re%istr( list of voters, votersH affidavits and voters identification cards used in the i''ediatel(
precedin% election.<
-
6ections ", , ., -, 7, $ and 1 of Article 89 &ill be chan%ed thus*
6ection ". ,"+ 4he le%islative and e:ecutive po&ers shall be vested in a unica'eral Parlia'ent &hich
,+ Each Me'ber of Parlia'ent shall be a natural-born citi=en of the Philippines, at least t&ent(-five
districts.
7
6ections ", , ., and - of Article 899 &ill be chan%ed thus*
6ection ". 4here shall be a President &ho shall be the 0ead of 6tate. 4he e:ecutive po&er shall be e:ercised b(
a Pri'e Minister, &ith the assistance of the Cabinet. 4he Pri'e Minister shall be elected b( a 'a)orit( of all the
Me'bers of Parlia'ent fro' a'on% the'selves. 0e shall be responsible to the Parlia'ent for the pro%ra' of
%overn'ent.
$
6ections "-7 of the 4ransitor( Provisions read*
6ection ". ,"+ 4he incu'bent President and 8ice President shall serve until the e:piration of their ter' at noon
on the thirtieth da( of /une ;"; and shall continue to e:ercise their po&ers under the "#!1 Constitution unless
i'peached b( a vote of t&o thirds of all the 'e'bers of the interi' parlia'ent.
a'ended.
a'ended and 6ections "! and - &hich shall be deleted, all other sections of Article 89 are hereb(
retained and renu'bered se>uentiall( as 6ection , ad seriati' up to $, unless the( are inconsistent
<Con%ress<, <6enate<, <0ouse of Representatives< and <0ouses of Con%ress< shall be chan%ed to read
<Parlia'ent<2 that an( and all references therein to <Me'berOsP of Con%ress<, <6enatorOsP< or
<Me'berOsP of the 0ouse of Representatives< shall be chan%ed to read as <Me'berOsP of Parlia'ent<
and an( and all references to the <President< and or <Actin% President< shall be chan%ed to read <Pri'e
Minister<.
6ection .. Epon the e:piration of the ter' of the incu'bent President and 8ice President, &ith the
e:ception of 6ections ", , . and - of Article 899 of the "#!1 Constitution &hich are hereb( a'ended
Parlia'entar( 6(ste' of %overn'ent2 provided ho&ever that an( and all references therein to
<Con%ress<, <6enate<, <0ouse of Representatives< and <0ouses of Con%ress< shall be chan%ed to read
<Parlia'ent<2 that an( and all references therein to <Me'berOsP of Con%ress<, <6enatorOsP< or
<Me'berOsP of the 0ouse of Representatives< shall be chan%ed to read as <Me'berOsP of Parlia'ent<
and an( and all references to the <President< and or <Actin% President< shall be chan%ed to read <Pri'e
Minister<.
initiall( convene the interi' Parlia'ent and shall preside over its sessions for the election of the interi'
,.+ Cithin fort(-five da(s fro' ratification of these a'end'ents, the interi' Parlia'ent shall convene
6ection 7. ,"+ 4he incu'bent President, &ho is the Chief E:ecutive, shall no'inate, fro' a'on% the
perfor' such po&ers and responsibilities as 'a( be dele%ated to hi' b( the incu'bent President.
s(nchroni=ed and held si'ultaneousl( &ith the election of all local %overn'ent officials. 4hereafter, the
8ice President, as Me'ber of Parlia'ent, shall i''ediatel( convene the Parlia'ent and shall initiall(
preside over its session for the purpose of electin% the Pri'e Minister, &ho shall be elected b( a
'a)orit( vote of all
its 'e'bers, fro' a'on% the'selves. 4he dul( elected Pri'e Minister shall continue to e:ercise and
perfor' the po&ers, duties and responsibilities of the interi' Pri'e Minister until the e:piration of the
ter' of incu'bent President and 8ice President.
1
As revised, Article D8999 contained a ne& para%raph in 6ection - ,para%raph .+ and a 'odified para%raph ,
6ection 7, thus*
6ection -. : : : :
: : : :
6ection 7. : : : :
s(nchroni=ed and held si'ultaneousl( &ith the election of all local %overn'ent officials. 4he dul(
elected Pri'e Minister shall continue to e:ercise and perfor' the po&ers, duties and responsibilities of
the interi' Pri'e Minister until the e:piration of the ter' of the incu'bent President and 8ice
President.
!
..$ Phil. !-! ,"##1+2 Resolution dated "; /une "##1.
#
4he C5MELEC held*
Ce a%ree &ith the Petitioners that this Co''ission has the sole'n Constitutional dut( to enforce and
ad'inister all la&s and re%ulations relative to the conduct of, as in this case, initiative.
4his 'andate, ho&ever, should be read in relation to the other provisions of the Constitution particularl(
on initiative.
6ection , Article D899 of the "#!1 Constitution provides*
6ec. . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people throu%h
initiative, upon a petition of at least t&elve per centu' of the total nu'ber of re%istered voters, of &hich
: : :.
4he afore->uoted provision of the Constitution bein% a non self-e:ecutor( provision needed an enablin%
la& for its i'ple'entation. 4hus, in order to breathe life into the constitutional ri%ht of the people under
a s(ste' of initiative to directl( propose, enact, approve or re)ect, in &hole or in part, the Constitution,
la&s, ordinances, or resolution, Con%ress enacted Republic Act No. $1.7.
0o&ever, the 6upre'e Court, in the land'ar@ case of %antia(o "s. ,ommission on +le#tions struc@
do&n the said la& for bein% inco'plete, inade>uate, or &antin% in essential ter's and conditions insofar
as initiative on a'end'ents to the Constitution is concerned.
4he 6upre'e Court li@e&ise declared that this Co''ission should be per'anentl( en)oined fro'
4hus, even if the si%natures in the instant Petition appear to 'eet the re>uired 'ini'u' per #entum of
the total nu'ber of re%istered voters, of &hich ever( le%islative district is represented b( at least three
per #entum of the re%istered voters therein, still the Petition cannot be %iven due course since the
6upre'e Court cate%oricall( declared R.A. No. $1.7 as inade>uate to cover the s(ste' of initiative on
a'end'ents to the Constitution.
4his Co''ission is not un'indful of the transcendental i'portance of the ri%ht of the people under a
s(ste' of initiative. 0o&ever, neither can &e turn a blind e(e to the pronounce'ent of the 0i%h Court
that in the absence of a valid enablin% la&, this ri%ht of the people re'ains nothin% but an <e'pt( ri%ht<,
and that this Co''ission is per'anentl( en)oined fro' entertainin% or ta@in% co%ni=ance of an( petition
for initiative on a'end'ents to the Constitution.
Considerin% the fore%oin%, Ce are therefore constrained not to entertain or %ive due course to the instant
Petition.
";
Arturo M. 3e Castro2 Ronald L. Ada'at, Rolando Manuel Rivera, Ruelo Ba(a2 Philippine 4ransport and
General Cor@ers 5r%ani=ation ,P4GC5+2 4rade Enion Con%ress of the Philippines2 6ulon% Ba(an Move'ent
Aoundation, 9nc.
""
5nevoice 9nc., Christian 6. Monsod, Rene B. A=urin, Manuel L. Lue=on 999, Ben)a'in 4. 4olosa, /r., 6usan
8. 5ple and Carlos P. Medina, /r.2 Alternative La& Groups, 9nc.2 Att(. Pete Luirino Luadra2 Ba(an, Ba(an
Muna, Wilusan% Ma(o Eno, 0ead, Ecu'enical Bishops Aoru', Mi%rante, Gabriela, Gabriela Co'enHs Part(,
Ana@ba(an, Lea%ue of Ailipino 6tudents, /o)o Pineda, 3r. 3arb( 6antia%o, 3r. Re%inald Pa'u%as2 Loretta Ann
P. Rosales, and Mario /o(o A%u)a, Ana 4heresa 0ontiveros-Bara>uel, Lu&alhati Ricasa Antonino2 Philippine
Constitution Association ,P09LC5N6A+, Conrado A. Estrella, 4o'as C. 4oledo, Mariano M. 4a)on, Aroilan M.
Bacun%an, /oa>uin 4. 8enus, /r., Aortunato P. A%uas, and A'ado Gat 9ncion%2 6enate of the Philippines2 /ose
Ansel'o 9. Cadi=, B(ron 3. Bocar, Ma. 4an(a Warina A. Lat, Antonio L. 6alvador and Randall C. 4aba(o(on%,
9nte%rated Bar of the Philippines, Cebu Cit( and Cebu Province Chapters2 6enate Minorit( Leader A>uilino L.
Pi'entel, /r., and 6enators 6er%io R. 5s'e[a 999, /a'b( Madri%al, /in%%o( Estrada, Alfredo 6. Li' and Panfilo
Lacson2 /oseph E)ercito Estrada and P&ersa n% Masan% Pilipino.
"
4his provision states* <A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people
throu%h initiative upon a petition of at least t&elve per centu' of the total nu'ber of re%istered voters, of &hich
ever( le%islative district 'ust be represented b( at least three per centu' of the re%istered voters therein. No
a'end'ent under this section shall be authori=ed &ithin five (ears follo&in% the ratification of this Constitution
nor oftener than once ever( five (ears.<
".
9 REC5R3, .!1-.!!.
"-
3urin% the deliberations of the Constitutional Co''ission, Co''issioner Rene 8. 6ar'iento 'ade the
follo&in% report ,9 REC5R3 .!#+*
MR. 6ARM9EN45* Mada' President, 9 a' happ( that the Co''ittee on A'end'ents and 4ransitor(
Provisions decided to retain the s(ste' of initiative as a 'ode of a'endin% the Constitution. 9 'ade a
surve( of A'erican constitutions and 9 discovered that ". 6tates provide for a s(ste' of initiative as a
'ode of a'endin% the Constitution ? Ari=ona, Ar@ansas, California, Colorado, Massachusetts,
Michi%an, Missouri, Nebras@a, Nevada, North 3a@ota, 5hio, 5@laho'a and 5re%on. 4he initiative for
ordinar( la&s onl( is used in 9daho, Maine, Montana and 6outh 3a@ota. 6o, 9 a' happ( that this &as
accepted or retained b( the Co''ittee.
: : : :
4he A'ericans in turn copied the concept of initiatives fro' the 6&iss be%innin% in "!#! &hen 6outh
3a@ota adopted the initiative in its constitution. 4he 6&iss cantons e:peri'ented &ith initiatives in the
"!.;s. 9n "!#", the 6&iss incorporated the initiative as a 'ode of a'endin% their national constitution.
9nitiatives pro'ote <direct de'ocrac(< b( allo&in% the people to directl( propose a'end'ents to the
constitution. 9n contrast, the traditional 'ode of chan%in% the constitution is @no&n as <indirect
de'ocrac(< because the a'end'ents are referred to the voters b( the le%islature or the constitutional
convention.
"7
Alorida re>uires onl( that the title and su''ar( of the proposed a'end'ent are <printed in clear and
una'bi%uous lan%ua%e.< Advisor( 5pinion to the Attorne( General RE Ri%ht of Citi=ens to Choose 0ealth
Care Providers, No. #;"$;, /anuar( "##!, 6upre'e Court of Alorida.
"$
6tate e:. rel Patton v. M(ers, "1 5hio 6t. #7, "!$ N.E. !1 ,"#..+2 Chit'an v. Moore, 7# Ari=. "", "7
P.d --7 ,"#-+2 0eidt'an v. Cit( of 6ha@er 0ei%hts, ## 5hio App. -"7, ""# N.E. d $-- ,"#7-+2 Christen v.
Ba@er, ".! Colo. 1, .! P.d #7" ,"#7!+2 6top the Pa( 0i@e Co''ittee v. 4o&n Council of 4o&n of
9rvin%ton, "$$ N./. 6uper. "#1, .## A.d ..$ ,"#1#+2 6tate e: rel Evans v. Blac@&ell, 6lip cop(, ;;$ CL
"";!;- ,5hio App. "; 3ist.+, ;;$-5hio-;1$.
"1
-;1 Mass. #-#, #77 ,"##;+. Affir'ed b( the 3istrict Court of Massachusetts in 0enr( v. Conoll(, 1-. A.
6upp. # ,"##;+ and b( the Court of Appeals, Airst Circuit, in 0enr( v. Conoll(, #";# A. d. ";;; ,"##;+, and
cited in Marino v. 4o&n Council of 6outhbrid%e, ". Mass.L.Rptr. "- ,;;"+.
"!
!# P..d "1, ".7 ,;;-+.
"#
6tu'pf v. La&, !.# P. d ";, "- ,"##+.
;
E:hibit <B< of the La'bino GroupHs Me'orandu' filed on "" 5ctober ;;$.
"
Anne: <B< of the Co''entF5pposition in 9ntervention of Att(. Pete Luirino-Luadra filed on 1 6epte'ber
;;$.
&&&.ulap.%ov.ph.
.
&&&.ulap.%ov.phFreso;;$-;.ht'l.
-
4he full te:t of the proposals of the Consultative Co''ission on Charter Chan%e can be do&nloaded at its
official &ebsite at &&&.conco'.ph.
7
4he La'bino GroupHs Me'orandu', p. 7.
$
Ender the proposed 6ection ",+, Article 89 of the Constitution, 'e'bers of Parlia'ent shall be elected for a
ter' of five (ears <&ithout li'itation as to the nu'ber thereof.<
1
Ender the proposed 6ection -,"+, Article D8999, 4ransitor( Provisions of the Constitution, the interi'
Parlia'ent <shall continue until the Me'bers of the re%ular Parlia'ent shall have been elected and shall have
>ualified.< Also, under the proposed 6ection 7,+, Article D8999, of the sa'e 4ransitor( Provisions, the interi'
Parlia'ent <shall provide for the election of the 'e'bers of Parlia'ent.<
!
Ender the proposed 6ection -,.+, Article D8999, 4ransitor( Provisions of the Constitution, the interi'
Parlia'ent, &ithin -7 da(s fro' ratification of the proposed chan%es, <shall convene to propose a'end'ents to,
or revisions of, this Constitution.<
#
--! 6o.d #!-, ##- ,"#!-+, internal citations o'itted.
.;
$#! P.d ""1., ""!- ,"#!7+.
."
9 REC5R3 .!$, .#, -;--;..
.
"#$ P.d 1!1, 1#; ,"#-!+. 6ee also Lo&e v. Weislin%, ".; 5r.App. ", !! P.d #" ,"##-+.
..
.# P.d $.$, $.! ,"#$-+.
.-
#.; P.d "!$, "#$ ,"##$+, internal citations o'itted.
.7
Liver'ore v. Caite, "; Cal. ""., ""!-""# ,"!#-+.
.$
A'ador 8alle( /oint Enion 0i%h 6chool 3istrict v. 6tate Board of E>uali=ation, 7!. P.d "!", "!$ ,"#1!+.
.1
9d.
.!
Le%islature of the 6tate of California v. EE, 7- Cal..d -#, 7;# ,"##"+.
.#
California Association of Retail 4obacconists v. 6tate, ";# Cal.App.-
th
1#, !.$ ,;;.+.
-;
6ee note --, infra.
-"
/oa>uin Bernas, 4he "#!1 Constitution of the Republic of the Philippines* A Co''entar(, p. "#- ,;;.+.
-
.! 6o.d !- ,"#1;+.
-.
9d. at !.;-!..
--
As stated b( Associate /ustice Ro'eo /. Calle)o, 6r. durin% the $ 6epte'ber ;;$ oral ar%u'ents.
-7
Arancisco, /r. v. 0ouse of Representatives, G.R. No. "$;$", "; Nove'ber ;;., -"7 6CRA --2 /.M. 4uason
J Co., 9nc. v. Land 4enure Ad'inistration, "- Phil. .#. ,"#1;+2 Gold Cree@ Minin% Corporation v.
Rodri%ue=, $$ Phil. 7# ,"#.!+.
-$
!! P.d #", #$-#1 ,"##-+. 5n the 'erits, the Court in Lo&e v. Weislin% found the a'end'ent in >uestion
&as not a revision.
-1
6ection ", Article 8 of the Constitution.
-!
6ection "","+, Article D89 of the Constitution.
-#
6ection , Article 899 of the Constitution.
7;
4his section provides* <4he Philippines is a de'ocratic and republican 6tate. 6overei%nt( resides in the
people and all %overn'ent authorit( e'anates fro' the'.<
7"
6pouses Mirasol v. Court of Appeals, -;. Phil. 1$; ,;;"+2 9ntia /r. v. C5A, .$$ Phil. 1. ,"###+.
7
G.R. No. "#17-, Resolution dated . 6epte'ber "##1.
7.
Presidential Procla'ation No. 7! dated Aebruar( "", "#!1, entitled <Proclai'in% the Ratification of the
Constitution of the Republic of the Philippines Adopted b( the Constitutional Co''ission of "#!$, includin%
the 5rdinance Appended thereto.<
PANGANIBAN, CJ.:
"
Chief /ustice McLachlin spo@e on <Libert(, Prosperit( and the Rule of La&< in her speech before the Global
Aoru' on Libert( and Prosperit( held on 5ctober "!-;, ;;$ in Manila. 6he further stated* <Cithout the rule
of la&, %overn'ent officials are not bound b( standards of conduct. Cithout the rule of la&, the di%nit( and
e>ualit( of all people is not affir'ed and their abilit( to see@ redress for %rievances and societal co''it'ents is
li'ited. Cithout the rule of la&, &e have no 'eans of ensurin% 'eanin%ful participation b( people in
for'ulatin% and enactin% the nor's and standards &hich or%ani=e the @inds of societies in &hich &e &ant to
live.<
GR No. "1.7, March "#, "##1, ..$ Phil. !-!. Aor ease of reference, '( 6eparate 5pinion is reproduced in
full*
<5ur distin%uished collea%ue, Mr. /ustice 0ilario G. 3avide /r., &ritin% for the 'a)orit(, holds that*
H,"+ 4he Co'elec acted &ithout )urisdiction or &ith %rave abuse of discretion in entertainin% the
Hinitiator(H 3elfin Petition.
H,+ Chile the Constitution allo&s a'end'ents to Hbe directl( proposed b( the people throu%h initiative,H
there is no i'ple'entin% la& for the purpose. RA $1.7 is Hinco'plete, inade>uate, or &antin% in
essential ter's and conditions insofar as initiative on a'end'ents to the Constitution is concerned.H
H,.+ Co'elec Resolution No. .;;, Hinsofar as it prescribes rules and re%ulations on the conduct of
initiative on a'end'ents to the Constitution, is void.H
<9 concur &ith the first ite' above. Entil and unless an initiator( petition can sho& the re>uired nu'ber
of si%natures ? in this case, "M of all the re%istered voters in the Philippines &ith at least .M in ever(
le%islative district ? no public funds 'a( be spent and no %overn'ent resources 'a( be used in an
initiative to a'end the Constitution. 8eril(, the Co'elec cannot even entertain an( petition absent such
si%natures. 0o&ever, 9 dissent 'ost respectfull( fro' the 'a)orit(Hs t&o other rulin%s. Let 'e e:plain.
<Ender the above restrictive holdin%s espoused b( the CourtHs 'a)orit(, the Constitution cannot be
a'ended at all throu%h a peopleHs initiative. Not b( 3elfin, not b( P9RMA, not b( an(one, not even b(
all the voters of the countr( actin% to%ether. 4his decision &ill effectivel( but unnecessaril( curtail,
nullif(, abro%ate and render inutile the peopleHs ri%ht to chan%e the basic la&. At the ver( least, the
'a)orit( holds the ri%ht hosta%e to con%ressional discretion on &hether to pass a ne& la& to i'ple'ent
it, &hen there is alread( one e:istin% at present. 4his ri%ht to a'end throu%h initiative, it bears stressin%,
is %uaranteed b( 6ection , Article D899 of the Constitution, as follo&s*
their final &eapons a%ainst political e:cesses, opportunis', inaction, oppression and 'is%overnance2 as
&ell as their reserved instru'ents to e:act transparenc(, accountabilit( and faithfulness fro' their
chosen leaders. Chile on the one hand, their 'isuse and abuse 'ust be resolutel( struc@ do&n, on the
other, their le%iti'ate e:ercise should be carefull( nurtured and =ealousl( protected.
<C0EREA5RE, 9 vote to GRAN4 the petition of 6en. Miria' 3. 6antia%o et al. and to 39REC4
Respondent Co''ission on Elections to 396M966 the 3elfin Petition on the %round of pre'aturit(, but
not on the other %rounds relied upon b( the 'a)orit(. 9 also vote to L9A4 the te'porar( restrainin% order
issued on "! 3ece'ber "##$ insofar as it prohibits /esus 3elfin, Alberto Pedrosa and Car'en Pedrosa
fro' e:ercisin% their ri%ht to free speech in proposin% a'end'ents to the Constitution.<
.
GR No. "#17-, 6epte'ber ., "##1 ,still unpublished in the 8hilippine Reports or in the %upreme ,ourt
Reports Annotated+. A%ain, for ease of reference, 9 reproduce '( 6eparate 5pinion in full*
<Petitioners assail the /ul( !, "##1 Resolution of Respondent Co''ission dis'issin% their petition for a
peopleHs initiative to a'end the Constitution. 6aid petition before the Co'elec ,henceforth, P9RMA
petition+ &as bac@ed up b( nearl( si: ,$+ 'illion si%natures constitutin% about "$M of the re%istered
voters of the countr( &ith at least .M in each le%islative district. 4he petition no& before us presents
t&o %rounds*
<". 9n refusin% to act on the P9RMA petition, the Co'elec alle%edl( acted &ith %rave abuse of discretion
a'ountin% to lac@ or e:cess of )urisdiction2 and
<. 9n declarin% R.A. $1.7 <inade>uate to cover its s(ste' of initiative on a'end'ents to the
Constitution< and <declarin% void those parts of Resolution .;; of the Co''ission on Elections
prescribin% rules and re%ulations on the conduct of OanP initiative OonP a'end'ents to the Constitution,<
the 6upre'e CourtHs 3ecision in G.R. No. "1.7 entitled 'iriam !efensor %antia(o "s. ,ommission
on +le#tions ,hereafter referred to as %antia(o+ should be ree:a'ined because said 3ecision is alle%edl(
<unconstitutional,< and because, in an( event, the 6upre'e Court itself, in reconsiderin% the said issue
per its /une ";, "##1 Resolution, &as deadloc@ed at si: votes one each side.
<4he follo&in% in '( position on each of these t&o issues*
First Issue:
No Gra"e Abuse of !is#retion in ,omele#>s Refusal to A#t
<4he Respondent Co''issionHs refusal to act on the <pra(ers< of the P9RMA petition cannot in an( &ise
be branded as <%rave abuse of discretion.< Be it re'e'bered that the CourtHs 3ecision in 6antia%o
per'anentl( en)oined the Co'elec <fro' entertainin% or ta@in% co%ni=ance of an( petition for initiative
on a'end'ents to the
-
Republic v. C5C5AE3, -. Phil. 1.7, 3ece'ber "-, ;;".
7
Cell-entrenched is this definition of %rave abuse of discretion. 9d.2 Benito v. Co'elec, .-# 6CRA 1;7,
/anuar( "#, ;;"2 3efensor-6antia%o v. Guin%ona /r., .7# Phil. 1$, Nove'ber "!, "##!2 and Philippine
Airlines, 9nc. v. Confesor, ." 6CRA -", March ";, "##-.
$
9n P9RMA, 9 sub'itted as follo&s* <9 believed, and still do, that the 'a)orit( %ravel( erred in renderin% such a
s&eepin% in)unction Othat covered ANG petition, not )ust the 3elfin petitionP, but 9 cannot fault the Co'elec for
co'pl(in% &ith the rulin% even if it, too, disa%reed &ith said decisionHs ratio decidendi. Respondent Co'elec
&as directl( en)oined b( the hi%hest Court of the land. 9t had no choice but to obe(. 9ts obedience cannot
constitute %rave abuse of discretion. Re%usal to act on the P9RMA petition &as the onl( recourse open to the
Co'elec. An( other 'ode of action &ould have constituted defiance of the Court and &ould have been struc@
do&n as %rave abuse of discretion and contu'acious disre%ard of this CourtHs supre'ac( as the final arbiter of
)usticiable controversies.<
1
- A'. /r. d, V$, citin% Bir'in%ha' Gas Co. v. Besse'er2 7; Ala ".1, .. 6o d -17, 7; Ala ".12 4ac@er
v. Board of Co'rs., "1 Ala -!, "1; 6o -7!2 0o:ie 8. 6cott, -7 Neb "##, $. NC .!12 Gill v. Board of
Co'rs., "$; NC "1$, 1$, 6E ;-.
!
8artido n( 'an((a(awa ". ,omele#- GR No. "$-1;, March "7, ;;$.
#
Article D899 ,AMEN3MEN46 5R RE89695N6+
<6EC. ". An( a'end'ent to, or revision of, this Constitution 'a( be proposed b(*
,"+ 4he Con%ress, upon the vote of three-fourths of all its Me'bers2 or
<6EC. . A'end'ents to this Constitution 'a( li@e&ise be directl( proposed b( the people thou%h
<6EC. .. 4he Con%ress 'a(, b( a vote of t&o-thirds of all its Me'bers, call a constitutional convention,
or b( a 'a)orit( vote of all its Me'bers, sub'it to the electorate the >uestion of callin% such a
convention.
<6EC. -. An( a'end'ent to, or revision of, this Constitution under 6ection " hereof shall be valid &hen
ratified b( a 'a)orit( of the votes cast in a plebiscite &hich shall be held not earlier than si:t( da(s nor
later than ninet( da(s after the approval of such a'end'ent or revision.
<An( a'end'ent under 6ection hereof shall be valid &hen ratified b( a 'a)orit( of the votes cast in a
b( the Co''ission on Elections of the sufficienc( of the petition.<
";
Republic Act $1.7, 6ec. ";, provides*
<6EC. ";. Prohibited Measures. S 4he follo&in% cannot be the sub)ect of an initiative or referendu'
petition*
,a+ No petition e'bracin% 'ore than one sub)ect shall be sub'itted to the electorate2 and
,b+ 6tatutes involvin% e'er%enc( 'easures, the enact'ent of &hich are specificall( vested in
Con%ress b( the Constitution, cannot be sub)ect to referendu' until ninet( ,#;+ da(s after its
effectivit(.<
""
4he principle of separation of po&ers operates at the core of a presidential for' of %overn'ent. 4hus,
le%islative po&er is %iven to the le%islature2 e:ecutive po&er, to a separate e:ecutive ,fro' &hose pro'inent
position in the s(ste', the presidential no'enclature is derived+2 and )udicial po&er, to an independent
)udiciar(. 4his s(ste' e'bodies interdependence b( separation.
5n the other hand, a parlia'entar( s(ste' personifies interdependence b( inte%ration, its essential features
bein% the follo&in%* <,"+ 4he 'e'bers of the %overn'ent or cabinet or the e:ecutive ar' are, as a rule,
si'ultaneousl( 'e'bers of the le%islature. ,+ 4he %overn'ent or cabinet, consistin% of the political leaders of
the 'a)orit( part( or of a coalition &ho are also 'e'bers of the le%islative, is in effect a co''ittee of the
le%islature. ,.+ 4he %overn'ent or cabinet has a p(ra'idal structure, at the ape: of &hich is the Pri'e Minister
or his e>uivalent. ,-+ 4he %overn'ent or cabinet re'ains in po&er onl( for as lon% as it en)o(s the support of
the 'a)orit( of the le%islature. ,7+ Both %overn'ent and le%islature are possessed of control devices &ith &hich
each can de'and of the other i''ediate political responsibilit(.< 4hese control devices are a vote of no-
confidence ,censure+, &hereb( the %overn'ent 'a( be ousted b( the le%islature2 and the po&er of the
%overn'ent to dissolve the le%islature and call for ne& elections. ,/. BERNA6, 40E C5N6494E495N 5A
40E REPEBL9C 5A 40E P09L9PP9NE6 A C5MMEN4ARG, 8ol. 99, "1-"! ,"#!! ed.+.
Cith respect to the transfor'ation fro' a bica'eral to a unica'eral le%islature, the chan%e involves the for' of
representation and the la&'a@in% process.
"
Attached to the 5pposition-in-9ntervention of 9ntervenors 5ne8oice 9nc., etc., is a photocop( of the
Certification dated Au%ust ., ;;$, issued b( Att(. Marlon 6. Cas>ue)o, the election officer for the .
rd
3istrict
and the officer-in-char%e for the "
st
and the
nd
3istricts of 3avao Cit(. 4he Certification states that <this office
,Airst, 6econd and 4hird 3istrict, 3avao Cit(+ has not verified the si%natures of re%istered voters : : :.<
".
9n People v. 8eneracion, the Court held* <5bedience to the rule of la& for's the bedroc@ of our s(ste' of
)ustice. 9f )ud%es, under the %uide of reli%ious or political beliefs &ere allo&ed to roa' unrestricted be(ond
boundaries &ithin &hich the( are re>uired b( la& to e:ercise the duties of their office, then la& beco'es
'eanin%less. A %overn'ent of la&s, not of 'en, e:cludes the e:ercise of broad discretionar( po&ers b( those
actin% under its authorit(. Ender this s(ste', )ud%es are %uided b( the Rule of La&, and ou%ht Hto protect and
enforce it &ithout fear or favor,H resist encroach'ents b( %overn'ents, political parties, or even the interference
of their o&n personal beliefs.< ,-# 6CRA --, 5ctober "., "##7, per Wapunan, /.+
"-
An A'erican professor on le%al philosoph(, A. Alt'an, puts it thus* <B( ratif(in% the constitution that
included an e:plicit a'end'ent process, the soverei%n people co''itted the'selves to follo&in% the rule of
la&, even &hen the( &ished to 'a@e chan%es in the basic s(ste' of %overn'ent.< A. AL4MAN, ARGE9NG
AB5E4 LAC #- ,;;"+.
"7
6ee '( 6eparate 5pinion in Arancisco /r. v. 0ouse of Representatives, -"7 6CRA -7, Nove'ber ";, ;;..
"$
6ee, for instance, the front pa%e Mala(a report entitled <Lobb(ists soil di%nit( of 6upre'e Court< ,5ctober
., ;;$+.
"1
L@ !*"1.
YNARES-SANTIAGO, J.:
"
G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.
6EC. 7. Re>uire'ents.? : : :
c... the reason or reasons therefore2
c.$. an abstract or su''ar( proposition in not 'ore than one hundred ,";;+ &ords &hich shall be
le%ibl( &ritten or printed at the top of ever( pa%e of the petition.
.
6EC. .. 3efinition of 4er's.? Aor purposes of this Act, the follo&in% ter's shall 'ean* : : :
,d+ <Proposition< is the 'easure proposed b( the voters.
-
9 Record, Constitutional Co''ission .!1-.!# ,/ul( #, "#!$+.
7
Co''unit( Gas and 6ervice Co'pan(, 9nc. v. Calbau', -;- P.d ";"-, "#$7 5W ""! ,"#$7+.
$
6ection $. ,"+ Ever( bill passed b( the Con%ress shall e'brace onl( one sub)ect &hich shall be e:pressed in
the title thereof.
1
4he late 6enator ,then Con%ress'an+ Raul 6. Roco stated this fact in his sponsorship presentation of 0.B. No.
"7;7, thus*
: : : :
3. Prohibited 6ub)ects.
4he bill provides for t&o @inds of 'easures &hich cannot be the sub)ect of an initiative or referendu'
petition. A petition that e'braces 'ore than one sub)ect cannot be sub'itted to the electorate as it &ould
be violative of the constitutional proscription on passin% bills containin% 'ore than one sub)ect, and
statutes involvin% e'er%enc( 'easures cannot be sub)ect to referendu' until #; da(s after its
effectivit(. O/ournal and record of the house of representatives, 6econd Re%ular 6ession, 8ol. $, p. #17
,Aebruar( "-, "#!#+.P
!
Me'orandu' of petitioner Au'entado, p. ""1.
#
4he proposed 6ection -,.+ of Article D8999 of the Constitution states that 6enators &hose ter' of office ends
in ;"; shall be 'e'bers of parlia'ent until noon of the thirtieth da( of /une ;";. No counterpart provision
&as provided for 'e'bers of the 0ouse of Representatives &ho, as 'e'bers of the interi' parlia'ent under
the proposed chan%es, shall schedule the elections for the re%ular parlia'ent in its discretion.
";
4he proposed 6ection -,.+, Article D8999 of the Constitution states that the interi' parlia'ent shall convene
to propose a'end'ents to, or revisions of, the Constitution &ithin -7 da(s fro' ratification of the proposed
chan%es.
""
4he Enited Win%do', for instance, has a t&o-house parlia'ent, the 0ouse of Lords and the 0ouse of
Co''ons.
"
Philippine Political La& O"#7- ed.P, 8icente G. 6inco, pp. -.---, >uoted in 6eparate 5pinion of /. 0ilario G.
3avide, /r. in P9RMA v. C5MELEC, G.R. No. "#17-, 6epte'ber ., "##1, p. 1.
".
"7"-A Phil. .7 ,"#1.+.
"-
"#$ P. d 1!1 ,Cal. "#-!+, cert. denied, ..$ E.6. #"! ,"#-#+.
"7
!;" P. d ";11 ,Cal. "##;+.
"$
7!. P. d "!" ,Cal. "#!+.
"1
Raven v. 3eu@'ei)an, supra, citin% Brosnahan v. Bro&n, $7" P. d 1- ,Cal. "#!+.
"!
6upra note ".. 9t 'a( &ell be pointed out that in 'a@in% the distinction bet&een a'end'ent and revision,
/ustice Antonio relied not onl( in the analo%( presented in 7heeler ". 4oard of rustees, 13 %.+. 2d 122, but
cited also the se'inal rulin% of the California 6upre'e Court in '#9adden ". Jordan, supra.
"#
Philippine Political La&, "##7 ed., /ustice 9sa%ani A. Cru=, p. 1", citin% Pan%asinan 4ransportation Co. v.
P6C, -; 5.G., !
th
6upp. 71.
;
4he "#!1 Constitution of the Philippines* A Co''entar(, "##$ ed., Ar. /oa>uin G. Bernas, 6./., p. ""$".
"
9d.
6upra note "-.

.
4he Constitution of the Republic of the Philippines, 8ol. 99, "
st
ed., Ar. /oa>uin G. Bernas, 6./., p. 7$1, citin%
B. 6ch&art=, 9 4he Po&ers of Govern'ent ,"#$.+.
-
"$ C./.6. V. at -.
7
"- 4.M. Coole(, 99 Constitutional Li'itations, !th ed. ,"#1+, p. ".-#.
$
A bo%us revolution, Philippine 3ail( 9n>uirer, 6epte'ber "", ;;$, Ar. /oa>uin Bernas, 6./., p. A"7.
1
Article 99, 6ection " of the "#!1 Constitution.
SANDOVAL-GUTIERREZ, J.:
"
Cor@s, Letter "$-.
G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.

.
Resolution dated /une ";, "##1, G.R. No. "1.7.
-
G.R. No. "#17-, 6epte'ber ., "##1. /oinin% P9RMA as petitioners &ere its foundin% 'e'bers, spouses
Alberto Pedrosa and Car'en Pedrosa.
7
Entitled <9n the Matter of Proposin% A'end'ents to the "#!1 Constitution throu%h a PeopleHs 9nitiative* A
6hift fro' a Bica'eral Presidential to a Enica'eral Parlia'entar( Govern'ent b( A'endin% Articles 89 and
8992 and Providin% 4ransitor( Provisions for the 5rderl( 6hift fro' the Presidential to the Parlia'entar(
6(ste'.<
$
A'on% the' 5NE859CE, 9nc., Christian 6. Monsod, Rene B. A=urin, Manuel L. Lue=on 999, Ben)a'in 4.
4olosa, /r., 6usan 8. 5ple, and Carlos P. Medina, /r., Alternative La& Groups, 9nc., 6enate Minorit( Leader
A>uilino L. Pi'entel, /r., and 6enators 6er%io 5s'eBa 999, /a'b( A.6. Madri%al, Alfredo 6. Li', Panfilo M.
Lacson, Luisa P. E)ercito-Estrada, and /in%%o( Estrada, Representatives Loretta Ann P. Rosales, Mario /o(o
A%u)a, and Ana 4heresia 0ontiveros-Bara>uel, Ba(an, Wilusan% Ma(o Eno, Ecu'enical Bishops Aoru',
Mi%rante, Gabriela, Gabriela Co'enHs Part(, Ana@ba(an, Lea%ue of Ailipino 6tudents, Leonardo 6an /ose, /o)o
Pineda, 3rs. 3arb( 6antia%o and Re%inald Pa'u%as, and Att(s. Pete Luirino-Luadra, /ose Ansel'o 9. Cadi=,
B(ron 3. Bocar, Ma. 4an(a Warina A. Lat, Antonio L. 6alvador, and Randall C. 4aba(o(on%.
1
<Grounds for contempt
.. Aro' the ti'e the so-called PeopleHs 9nitiative ,hereafter P9+ no& sub)ect of La'bino v. Co'elec, &as
initiated, respondents did nothing to stop what was clearly lawless, and even arguably winked at,
as it were, if not condoned and allowed, the waste and misuse of its personnel, time, facilities and
resources on an enterprise that had no legal basis and in fact was permanently enjoined by this
Honorable Court in 1997. 6ee'in%l( 'es'eri=ed, it is ti'e to disenthrall the'.
..". Aor instance, undersi%ned counsel happened to be in the 6enate on Au%ust #, ;;$ ,on other
business+ &hen respondent Chair sou%ht to be stopped b( the bod( fro' co''entin% on P9 out of
prudential considerations, could not be restrained. On contentious issues, he volunteered that Sigaw
ng Bayan would not cheat in Makati as it was the opposition territory and that the fact that out of
43,405 signatures, only 7,186 were found authentic in one Makati District, to him, showed the
"efficiency" of Comelec personnel. He could not appreciate 1) that Sigaw had no choice but to get
the constitutionality-required 3 in every district, Const., Art. VII, Sec. 2] friendly or otherwise,
including administration critics' turfs, and 2) that $als%s in 12,11C 9C1.1=D: $als%s in omni&%s, in
an exercise that could never be free, orderly, honest and credible, another constitutional
requirement. ONothin( has been heard about probin( and prose#utin( the falsifiers.P
: : : : : : : : :
... 9t &as e:cessivel( obvious to undersi%ned and other observers that respondent Chairman,
strainin% at the leash, was lawyering for Sigaw ng Bayan in the Senate! It was discomfiting that he
would gloss over the seeming wholesale falsification of 96.30 of the signatures in an exercise with
no credibility! Even had he been asked, he should have pled to be excused from answering as the
matter could come up before the Comelec for an official collegial position ,different fro' concedin%
that it is en)oined+.
: : : : : : : : :
-. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even issued widely-
publicized written directives to the field, nne, C, as to Commissione! (!awne!E that as to
Commissione! (o!!a will $ollow.] while the Commission itself was trying to be careful not to be
explicit in what it was abetting implicitly, in hypocritical defiance of the injunction of 1997.
!
=ntestate +state of ,armen de )una ". =ntermediate Appellate ,ourt, G.R. No. 1--, Aebruar( "., "#!#, "1;
6CRA -$.
#
6upra.
";
!e"elopment 4an0 of the 8hilippines ". N)R,, March ", "##7, - 6CRA 7#2 Albert ". ,ourt of 9irst
=nstan#e of 'anila A4ran#h *=C- )-$.$-, Ma( #, "#$!, . 6CRA #-!.
""
7$ 5.G. .7-$ cited in Albert ". ,ourt of 9irst =nstan#e of 'anila A4ran#h *=C- id.
"
%upra.
".
6eparate 5pinion of /ustice Ricardo /. Arancisco, G.R. No. "#17-, 6epte'ber ., "##1.
"-
G.R. No. ";#$-7, March -, "##$, 7- 6CRA .-.
"7
Philippine National Ban@ v. Pal'a, G.R. No. "711#, Au%ust #, ;;7, -$$ C6RA .;1, citin% Moreno,
Philippine La& 3ictionar( ,"#!!+, .
rd
ed. ,citin% 6antia%o v. 8alen=uela, 1! Phil. .#1, O"#-1P+.
"$
9d., citin% 3ela Cru= v. Court of Appeals, G.R. No. "$"!., March 7, "###, .;7 6CRA .;., citin%
Govern'ent v. /alandoni, No. !.1-R, Au%ust .;, "#-1, -- 5.G. "!-;.
"1
Ben)a'in N. Cardo=o, he Nature of the Judi#ial 8ro#ess ,Ne& 0aven and London* Gale Eniversit( Press,
"#"+, pp. ..-.-.
"!
Cillia' W. Aran@ena, Ethics,
nd
ed. ,En%le&ood Cliffs, N./.* Prentice 0all 9nc.,+ "#1., p. -#.
"#
'oradiD%halal ". 9ireman>s 9und =ns. ,ompanies A"#!!+ -$ Cal..d !1, #$.
;
/ul( #, "#!$. Records of the Constitutional Co''ission, No. $.
"
Bernas, 40E "#!1 C5N6494E495N 5A 40E P09L9PP9NE6* A C5MMEN4ARG, "##$ Ed., p. ""$".
- N. C. !#" 7# Mich ".

.
%tate ". $ran(e O4e:. :. Civ. App.P .;; 6C d 1;7, 8eople ". 8er0ins ".1, p. 77.
"!
,it/ of 'idland ". Arbur/ .! Mich. App. 11", "#1 N.C. d ".-.
7
Ada's v. Gunter Ala, .! 6o. d !-.
$
"#$ P.d 1!1.
1
Ada's v. Gunter Ala. .! 6o.d !-.
!
Mc Aadden v. /ordan, supra.
#
Rivera-Cru= v. Gra(, ";- 6o.d 7;", p. 7;7 ,Ala. "#7!+.
.;
/oa>uin Bernas, 6oundin% Board* AMEN3MEN4 5R RE89695N, 8hilippine !ail/ =n.uirer- %eptember 2J-
2II6.
."
6ee 6ections !-" for national initiative and referendu', and sections ".-"# for local initiative and
referendu'.
.
6ection . 6tate'ent of Polic(. S 4he po&er of the people under a s(ste' of initiative and referendu' to
directl( propose, enact, approve or re)ect, in &hole or in part, the Constitution, la&s, ordinances, or resolutions
passed b( an( le%islative bod( upon co'pliance &ith the re>uire'ents of this Act is hereb( affir'ed,
reco%ni=ed and %uaranteed.
..
6ection .. 3efinition of ter's.-
: : :
a.". 9nitiative on the Constitution &hich refers to a petition proposin% a'end'ents to the Constitution2
: : :
.-
6ee 6ection .,e+.
.7
6ection 7 ,b+ S A petition for an initiative on the "#!1 Constitution 'ust have at least t&elve per centu'
,"M+ of the total nu'ber of re%istered voters as si%natories, of &hich ever( le%islative district 'ust be
represented b( at least three per centu' ,.M+ of the re%istered voters therein. 9nitiative on the Constitution 'a(
be e:ercised onl( after five ,7+ (ears fro' the ratification of the "#!1 Constitution and onl( once ever( five ,7+
(ears thereafter.
: : :
.$
6ection # ,b+ S 4he proposition in an initiative on the Constitution approved b( a 'a)orit( of the votes cast in
the plebiscite shall beco'e effective as to the da( of the plebiscite.
.1
1 0o& ,-! E6+ " ,"!-#+.
.!
.! E6 7-# ,"#-$+.
.#
11 Phil. "# ,"#-$+.
-;
";. Phi. ";7" ,"#71+.
-"
G.R. No. .77-$, 6epte'ber "1, "#1-, 7; 6CRA 77#.
-
.$# E6 "!$ ,"#$+.
-.
G.R. No. !7.--, 3ece'ber ", "#!#, "!; 6CRA -#$.
--
G.R. No. !!"", 6epte'ber "7, "#!#, "11 6CRA $$!.
-7
Nos. L-.$"-, L-.$"$-, L-.$"$7, L-.$.$, and L-.$!., March .", "#1., 7; 6CRA .;.
CALLE1O, SR., J.:
"
Entitled An Act Providin% for a 6(ste' of 9nitiative and Referendu' and Appropriatin% Aunds 4herefor.
6ection ,"+, Article 9D-C, "#!1 Constitution.

.
Petition, pp. "-"-.
-
Land Ban@ of the Philippines v. Court of Appeals, G.R. No. "#.$!, Au%ust 7, ;;., -;# 6CRA -77, -!;.
7
Rodson Philippines, 9nc. v. Court of Appears, G.R. No. "-"!71, /une #, ;;-, -." 6CRA -$#, -!;.
$
People v. Court of Appeals, G.R. No. "--.., /une ";, ;;-, -." 6CRA $";.
1
Philippine Rabbit Bus Lines, 9nc. v. Galauran J Pilares Construction Co., G.R. No. L-.7$.;, Nove'ber 7,
"#!, ""! 6CRA $$-.
!
People v. Court of Appeals, supra.
#
G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.
";
Article !, Ne& Civil Code provides that <O)Pudicial decisions appl(in% or interpretin% the la&s or the
Constitution shall for' part of the le%al s(ste' of the Philippines.<
""
6uson v. Court of Appeals, G.R. No. "$1-#, Au%ust 1, "##1, 1! 6CRA !-.
"
Calderon v. Carale, G.R. No. #"$.$, April ., "##, ;! 6CRA 7-.
".
#1- 6.C.d -7" ,"##!+.
"-
9d. at -7..
"7
Entitled 9n Re* Rules and Re%ulations Governin% the Conduct of 9nitiative in the Constitution, and 9nitiative
and Referendu' on National and Local La&s.
"$
6upra note ";, p. "71.
"1
G.R. No. "#17-.
"!
Minute Resolution, 6epte'ber ., "##1, pp. "-.
"#
Republic v. 3e los An%eles, No. L-$"", 5ctober -, "#1", -" 6CRA -.
;
Albert v. Court of Airst 9nstance of Manila, No. L-$.$-, Ma( #, "#$!, . 6CRA #-!.
"
Philippine Constitution Association v. Enri>ue=, G.R. No. "".";7, Au%ust "#, "##-, .7 6CRA 7;$.
4hen Chief /ustice Andres R. Narvasa, /ustices Aloren= 3. Re%alado, Alerida Ruth P. Ro'ero, /osue N.
Bellosillo, 6antia%o M. Wapunan and /usto P. 4orres, /r. full( concurred in the ponencia of /ustice 3avide.
.
/ustices /ose A.R. Melo, 8icente 8. Mendo=a, Re(nato 6. Puno, Ricardo /. Arancisco, /r. and Arte'io 8.
Pan%aniban ,no& Chief /ustice+.
-
4he votin% on the 'otion for reconsideration &as as follo&s* 6i: /ustices, na'el(, Chief /ustice Narvasa, and
/ustices Re%alado, 3avide, /r., Ro'ero, Bellosillo and Wapunan, voted to den( the 'otions for lac@ of 'erit2
and si: /ustices, na'el(, /ustices Melo, Puno, Mendo=a, Arancisco, /r., Re%ino C. 0er'osisi'a and
Pan%aniban voted to %rant the sa'e. /ustice 8itu% 'aintained his opinion that the 'atter &as not ripe for
)udicial ad)udication. /ustices 4eodoro R. Padilla and 4orres inhibited fro' participation in the deliberations.
7
0ouse Bill No. -71 filed b( then Rep. Nachura durin% the 4&elfth Con%ress.
$
6ee Pa%da(a&on v. 6ecretar( of /ustice, G.R. No. "7-7$#, 6epte'ber ., ;;, .!# 6CRA -!;.
1
London 6treet 4ra'&a(s Co., Ltd. v. London Count( Council, O"!#!P A.C. .17, cited in C55LEG, A
4reatise on the Constitutional Li'itations ""1-""!.
!
A'ended Petition for 9nitiative, pp. --1.
#
9d. at 1.
.;
9 Records of the Constitutional Co''ission .1..
."
9d. at .1".
.
9d. at .!$.
..
9d. at .#.
.-
9d. at -;--;..
.7
No. L-.$"-, March .", "#1., 7; 6CRA .;.
.$
9d. at .$1.
.1
69NC5, Philippine Political La& -.---.
.!
.1 6.E.d . ,"#-$+.
.#
9d. at ..;.
-;
9d.
-"
6oundin% Board, Philippine 3ail( 9n>uirer, April ., ;;$.
-
9ntroduction to the /ournal of the Constitutional Co''ission.
-.
BLACW, Constitutional La& "-, citin% " B5E8. 9N64. #.
--
6C0CAR4K, C5N6494E495NAL LAC ".
-7
Procla'ation No. 7!, !. 5.G. No. ., pp. 1;.-1;-, /une !, "#!1.
-$
6ee McBee v. Brad(, "7 9daho 1$", ";; P. #1 ,"#;#+.
-1
9d.
-!
"#$ P.d 1!1 ,"#-!+.
-#
9d. at 1#!.
7;
Ellin%ha' v. 3(e, ## N.E. " ,"#"+.
7"
3issentin% 5pinion of /ustice Puno, p. .$.
7
9d. at .#.
7.
6upra note .!.
7-
McAadden v. /ordan, supra note -!.
77
9d. at 1##.
7$
6upra note -".
71
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Arro(o, /r. v. 4aduran, G.R. No. "-1;", /anuar( #, ;;-, -" 6CRA -..
#!
6ee, for e:a'ple, Mendo=a v. Court of Appeals, No. L-$;!#, March #, "#!!, "7! 6CRA 7;!.
##
Licaros v. 6andi%anba(an, G.R. No. "-7!7", Nove'ber , ;;", .1; 6CRA .#-.
";;
Codilla, 6r. v. 3e 8enecia, G.R. No. "7;$;7, 3ece'ber ";, ;;, .#. 6CRA $.#.
";"
4eope v. People, G.R. No. "-#$!1, April "-, ;;-, -1 6CRA 7-;.
";
4aBada v. Cuenco, ";. Phil. ";7" ,"#71+.
";.
9d.
";-
G.R. No. "177, Au%ust "-, "##1, 11 6CRA $!, .""-.".
";7
3issentin% 5pinion of /ustice Aernando in /avellana v. E:ecutive 6ecretar(, supra note .$.
";$
""# N.C. -;! ,"#;#+.
";1
Minn. -;; ,"!1$+.
";!
#$ 6.C. .#$ ,"#;$+.
";#
$. N./. La& !#.
"";
11 Miss. 7-. ,"#;;+.
"""
6ection ", Article 99, "#!1 Constitution.
""
3issentin% 5pinion of /ustice Puno, p. -#.
"".
C55LEG, A 4reatise on the Constitutional Li'itations 7$, cited in Ellin%ha' v. 3(e, supra.
""-
0unter v. Colfa: Consol. Coal. Co., "7- N.C. ";.1 ,"#"7+.
""7
AL4MAN, ARGE9NG AB5E4 40E LAC #- ,;;"+, citin% AGRE645, 40E 6EPREME C5ER4 AN3
C5N6494E495NAL 3EM5CRACG ,"#!-+
""$
McBee v. Brad(, ";; P. #1 ,"#;#+.
""1
McAadden v. /ordan, supra note -!.
""!
Coole(, A'.La&.Rev. "!!#, p. ."", cited in Ellin%ha' v. 3(e, supra.
""#
"7 N.C. $;# ,"!!.+.
";
9d. at $.;.
AZCUNA, J.:
"
G.R. No. "1.7, March "#, "##1 and /une ";, "##1.
";; Phil. 7;" ,"#7$+.

PUNO, J.:
"
'>#,ullo#h ". 'ar/land, "1 E.6. ,- Cheat+ ."$, -;1 ,"!"#+.
6ection ", Article 99, "#!1 Constitution.

.
1; 6CRA ";$, March "#, "##1.
-
9d. at "7..
7
=d. at "71.
$
/ustice 4eodoro R. Padilla did not ta@e part in the deliberation as he &as related to a co-petitioner and co-
counsel of petitioners.
1
/ustice 3avide ,ponente+, Chief /ustice Narvasa, and /ustices Re%alado, Ro'ero, Bellosillo, and Wapunan.
!
Resolution dated /une ";, "##1, G.R. No. "1.7.
#
8eople>s =nitiati"e for Reforms- 'odernization and A#tion A8=R'AC ". ,ommission on +le#tions- G.R. No.
"#17-, 6epte'ber ., "##1.
";
A'ended Petition for 9nitiative, pp. --1.
""
G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.
"
Petition, pp. "-"-.
".
Advisor( issued b( Court, dated 6epte'ber , ;;$.
"-
E:hibit <B,< Me'orandu' of Petitioner La'bino.
"7
Barnhart, Principled Pra%'atic 6tare 3ecisis in Constitutional Cases, !; Notre 3a'e La& Rev., "#""-"#",
,Ma( ;;7+.
"$
9bid.
"1
9d. at "#"..
"!
Consovo(, 4he Rehn>uist Court and the End of Constitutional 6tare 3ecisis* Case(, 3ic@erson and the
Conse>uences of Pra%'atic Ad)udication, 7. Etah La& Rev. 7., $1 ,;;+.
"#
9d. at $!.
;
=d. at $#.
"
9d. at $1.
9d. at $#.
.
Consovo(, supra note "!, at 71.
-
9d. at 7!.
7
9d. at $-.
$
4urnet ". ,oronado $il P Gas ,o., !7 E.6. -;7-;$ ,"#.+ ,/ustice Brandeis, dissentin%+.
1
Gra"es ". New @or0 e6 rel. $>Meefe, .;$ E.6. -$$, -#"--# ,/ustice Aran@furter, concurrin%+.
!
Co''issioner of 9nternal Revenue v. Ain@, -!. E.6. !# ,"#!1+ ,/ustice 6tevens, dissentin%+.
#
Barnhart, supra note "7, at "#.
.;
9d. at "#".
."
Ailippatos, 4he 3octrine of 6tare 3ecisis and the Protection of Civil Ri%hts and Liberties in the Rehn>uist
Court, "" Boston Colle%e 4hird Corld La& /ournal, ..7, .-. ,6u''er "##"+.
.
.-1 E.6. -!. ,"#7-+.
..
"$. E.6. 7.1 ,"!#$+.
.-
G.R. No. "1!!, 3ece'ber ", ;;-, --7 6CRA ".
.7
G.R. No. ".#-$7, 5ctober "1, ;;;, .-. 6CRA .11.
.$
Barnhart, supra note "7, at "#"7.
.1
"" 6.Ct. 1#" ,"##+.
.!
6ection 7,b+.
.#
=bid.
-;
%antia(o ". ,ommission on +le#tions, supra note "", at "-7.
-"
!7 Record of the 0ouse of Representatives "-;-"- ,Aebruar( "-, "#!#+.
-
!7 Record of the house of representatives "--"-. ,Aebruar( "-, "#!#+.
-.
?erin(ue ". %tate !ept. of 8ubli# %afet/, -$1 6o. d ".7!.
--
9 REC5R3, C5N6494E495NAL C5MM96695N .!$, .# ,/ul( #, "#!$+.
-7
9d. at -;;, -;--;..
-$
v record, constitutional co''ission !;$ ,5ctober ";, "#!$+.
-1
5pposition-in-9ntervention filed b( 5NE859CE, p. .#.
-!
5pposition-in-9ntervention filed b( Alternative La& Groups, 9nc., p. .;.
-#
9ntroduction to Political 6cience, pp. .#1-.#!.
7;
6ection ", Art. 99 of the "#!1 Constitution.
7"
Ei%hth Edition, p. !# ,;;-+.
7
=bid.
7.
=d. at ".-$.
7-
=bid.
77
4hird Edition, p. $1 ,"#$#+.
7$
=d. at $!.
71
=d. at """7.
7!
8icente G. 6inco, Philippine Political La&,
nd
ed., p. -$.
7#
Concurrin% 5pinion of Mr. /ustice Aeli: L. Antonio in Ja"ellana ". he +6e#uti"e %e#retar/, No. L-.$"-.,
March .", "#1., 7; 6CRA .;, .$1-.$!.
$;
/. M. Arue%o, 4he Ne& Philippine Constitution E:plained, iii-iv ,"#1.+.
$"
E. Luisu'bin%-Aernando, Philippine Constitutional La&- pp. ---7 ,"#!-+.
$
N. Gon=ales, Philippine Political La& .; ,"#$# ed.+.
$.
,i"il )iberties Gnion ". +6e#uti"e %e#retar/, G.R. No. !.!#$, Aebruar( , "##", "#- 6CRA ."1, ..1
>uotin% ,ommonwealth ". Ralph, """ Pa. .$7, . Alt. ; ,"!!$+.
$-
L-.$"-, March .", "#1., 7; 6CRA .;, .$1.
$7
i record, constitutional co''ission .1. ,/ul( !, "#!$+.
$$
4he opinion &as actuall( 'ade b( /ustice Aeli: Antonio.
$1
Ja"ellana ". +6e#uti"e %e#retar/, supra note $-, #itin( 7heeler ". 4oard of rustees, .1 6.E.d ., .1
,"#-$+.
$!
4. M. Coole(, 9 A 4reatise on Constitutional Li'itations "-.-"-- ,!
th
ed. "#1+.
$#
0.C. Blac@, 0andboo@ of A'erican Constitutional La& 6. -1, p. $1 ,
nd
ed. "!#1+.
1;
8. 6inco, supra note 7!.
1"
9bid.
1
No. L-"., 1# Phil. !"#, !$ ,"#-!+.
1.
98 REC5R3, C5N6494E495NAL C5MM96695N 1.7 ,6epte'ber "1, "#!$+.
1-
9d. at 17.
17
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9d. at 1$1-1$#.
11
=d. at .11.
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=d. at .#7.
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6inco, supra note 7!, at .
!;
=d. at ;-".
!"
9ri"aldo ". ,ommission on +le#tions, G.R. No. ";#7, /une !, "##$, 71 6CRA 11.
!
G. Cood, 4he Creation of the A'erican Republic, 7.;.
!.
6inco, supra note 7!, at #.
!-
%tate ". 'oore, ";. Ar@ -!, "-7 6C "## ,"#"+2 7hittemore ". %e/del, 1- Cal App d ";# ,"#-$+.
!7
own of 7hitehall ". 8ree#e, "##! M4 7. ,"##!+.
!$
G.R. No. "7-"$, 6epte'ber $, "##$, $ 6CRA -#, 7"$-7"1, #itin( - A'. /ur. d, p. $7..
!1
Me'orandu' for petitioner Au'entado, pp. "7"-"7.
!!
9d. at "7.-"7-.
!#
L---$-;, 5ctober ", "#1$, 1. 6CRA ..., .$;-.$".
#;
6ection , Article D899, "#!1 Constitution.
#"
Anne: <.,< 5pposition-9n-9ntervention of 5ppositors-9ntervenors 5NE859CE, 9NC., et al.
#
Certification dated April ", ;;$ issued b( Re(nne /o( B. Bullecer, Anne: <B,< Me'orandu' of 5ppositor-
9ntervenor Pi'entel, et al.2 Certification dated April ;, ;;$ issued b( Att(. Marlon 6. Cas>ue)o, Anne: <C,<
Me'orandu' of 5ppositor-9ntervenor Pi'entel, et al.2 Certification dated April $, ;;$ issued b( Att(.
Marlon 6. Cascue)o, Anne: <3,< Me'orandu' of 5ppositor-9ntervenor Pi'entel, et al.
#.
Anne: <",< Me'orandu' of 5ppositor-9ntevenor Antonino.
#-
Anne: <";-A,< Me'orandu' of 5ppositor-9ntevenor /oseph E)ercito Estrada, et al.
#7
Anne:es "-#, Me'orandu' of 5ppositor-9ntevenor Alternative La& Groups, 9nc.
#$
Anne:es .;-.", =d.
#1
Anne:es ---$-, =d.
#!
Consolidated Repl( of Petitioner Au'entado, p. 7-.
##
E:hibit <E,< Me'orandu' of Petitioner La'bino.
";;
Anne: <A,< Consolidated Response of Petitioner Au'entado.
";"
Me'orandu' of 5ppositor-9ntevenor Pi'entel, et al., pp. "-"..
";
Hel"e/ ". 7iseman, "## A. 6upp. ;;, ! A.A.4.d 771$ ,"#$"+.
";.
4N$ )easin( ,orp. ". Hollins P Hollins- =n#., --! 6o.d ".# ,"#!-+.
";-
A665C9A4E /E649CE CARP95*
0o& 'an( copies of the petition, that (ou 'ention,ed+, did (ou printI
A44G. LAMB9N5*
Ce printed ";; thousand of this petition last Aebruar( and &e
distributed to the different or%ani=ations that &ere volunteerin% to support us.
6o, (ou are sure that (ou personall( can sa( to us that ";; thousand of
these &ere printedI
A44G. LAMB9N5*
9t could be 'ore than that, Gour 0onor.
: : : : : : : : : : : :
But (ou as@ed (our friends or (our associates to re-print, if the( can,I+
A44G. LAMB9N5*
Ges, Gour 0onor.
5@a(, so (ou %ot $.. Million si%natures, but (ou onl( printed ";;
thousand. 6o (ouHre sa(in%, ho& 'an( did (our friends print of the petitionI
A44G. LAMB9N5*
9 can no lon%er %ive a specific ans&er to that, Gour 0onor. 9 relied
onl( to the assurances of the people &ho are volunteerin% that the( are %oin% to
reproduce the si%nature sheets as &ell as the draft petition that &e have %iven the', Gour 0onor.
: : : : : : : : : : : :
3id (ou also sho& this a'ended petition to the peopleI
A44G. LAMB9N5*
Gour 0onor, the a'ended petition reflects the cop( of the ori%inal
petition that &e circulated, because in the ori%inal petition that &e filed before the C5MELEC, &e
o'itted a certain para%raph that is, 6ection - para%raph . &hich &ere part of the ori%inal petition that &e
circulated and so &e have to correct that oversi%ht because that is &hat &e have circulated to the people
and &e have to correct thatU
But (ou )ust stated no& that &hat (ou circulated &as the petition of
Au%ust 7, no& (ou are chan%in% (our 'ind, (ouHre sa(in% &hat (ou circulated &as the petition of
Au%ust .;, is that correctI
A44G. LAMB9N5*
9n effect, (es, Gour 0onor.
6o, (ou circulated the petition of Au%ust .;, but &hat (ou filed in the
C5MELEC on Au%ust 7 &as a different petition, thatHs &h( (ou have to a'end itI
A44G. LAMB9N5*
Ce have to a'end it, because there &as an oversi%ht, Gour 0onor, that
&e have o'itted one ver( i'portant para%raph in 6ection - of our proposition.
: : : : : : : : : : : :
5@a(, letHs be clear. Chat did (ou circulate &hen (ou %athered the
si%natures, the Au%ust 7 &hich (ou said (ou circulated or the Au%ust .;I
A44G. LAMB9N5*
Both the Au%ust 7 petition that included all the provisions, Gour
0onor, and as a'ended on Au%ust .;. Because &e have to include the one that
&e have inadvertentl( o'itted in the Au%ust 7 petition, Gour 0onor.
: : : : : : : : : : : :
And ,(ou cannot tell that+ (ou can onl( sa( for certain that (ou printed
";; thousand copiesI
A44G. LAMB9N5*
4hat &as the ori%inal printed 'atter that &e have circulated b( the
'onth of Aebruar(, Gour 0onor, until so'e parts of March, Gour 0onor.
4hat is all (ou can assure usI
A44G. LAMB9N5*
4hat is all 9 can assure (ou, Gour 0onor, e:cept that 9 have as@ed so'e
friends, li@e for e:a'ple ,li@e+ Mr. Liberato Laos to help 'e print out so'e 'ore of this petitionU
,46N, 6epte'ber $, ;;$, pp. 1-"1+
";7
6ection ,"+, Article 9D S C, "#!1 Constitution.
";$
Chief /ustice Andres R. Narvasa and /ustices 0ilario G. 3avide, /r., Aloren= 3. Re%alado, Alerida Ruth P.
Ro'ero, /osue N. Bellosillo, 6antia%o M. Wapunan, Re%ino C. 0er'osisi'a, /r. and /usto P. 4orres.
";1
/ustices /ose A.R. Melo, Re(nato 6. Puno, 8icente 8. Mendo=a, Ricardo /. Arancisco and Arte'io 8.
Pan%aniban.
";!
/ustice /ose C. 8itu%.
";#
5nl( fourteen ,"-+ )ustices participated in the deliberations as /ustice 4eodoro R. Padilla too@ no part on
account of his relationship &ith the la&(er of one of the parties.
"";
Citin% conscience as %round.
"""
-;# E.6. "!!, #. 6. Ct. .17, .- L. Ed. d -;" ,"#1+.
""
rans 7orld Airlines- =n#. ". Hardison, #1 6. Ct. $- ,"#11+2 Ar0ansas 7riters> 8ro2e#t- =n#. ". Ra(land,
";1 6. Ct. "1, "1.; n. 1, #7 L. Ed. d ,"#!1+2 9ran#e ". Nelson, # Ar@. "#, 1# 6.C. d "$" ,"#!1+.
"".
-; P. .d !!$ ,;;$+.
""-
1!" P. d #1. ,Alas@a, "#!#+.
""7
9d. at #!-!- ,Co'pton, J., concurrin%+.
""$
9d. at #17-1!.
""1
Ne(ri ". %lot0in, -- N.C. d #! ,"#1$+.
""!
"" Ala. 1.-, "7" 6o. !- ,"#..+.
""#
Penned b( /ustice Chitfield, and concurred in b( Chief /ustice 3avis and /ustice 4errell2 /ustices Ellis,
Bro&n and Buford are of the opinion that chapter "7#.!, Acts of "#.., is a special or local la& not dul(
advertised before its passa%e, as re>uired b( sections ; and " of article . of the state Constitution, and
therefore invalid. 4his evenl( divided vote resulted in the affir'ance of the validit( of the statute but did not
constitute a bindin% precedent on the Court.
";
$ 6. Ct. 77 ,"#-+.
""
.# A. d 7-" ,"#$-+.
"
.# A. d 7. ,#
th
Cir. "#7$+.
".
Citin% Hertz ". 7oodman, "! E.6. ;7, .; 6. Ct. $" ,"#";+.
"-
.." N.E. d $7 ,"#17+.
"7
Neil ". 4i((ers, supra note ";!.
"$
,atherwood ". ,aslon, ". Mees. J C. $"2 4eamish ". 4eamish, # 0. L. Cas. 1-.
"1
Ma%lalan% v. Court of Appeals, G.R. No. !7$#, /ul( .", "#!#, "17 6CRA !;!, !"", !"2 3evelop'ent
Ban@ of the Philippines v. Pundo%ar, G.R. No. #$#", /anuar( #, "##., "! 6CRA ""!.
"!
No. L-.7--;, Au%ust "#, "#!, ""7 6CRA !.#, #itin( Antica'ara v. 5n%, No. L-#$!#, April "-, "#1!, !
6CRA ..1.
"#
6upra note ".
QUISUMBING, J.:
"
Political >uestions have been defined as <Luestions of &hich the courts of )ustice &ill refuse to ta@e
co%ni=ance, or to decide, on account of their purel( political character, or because their deter'ination &ould
involve an encroach'ent upon the e:ecutive or le%islative po&ers2 e.(., &hat sort of %overn'ent e:ists in a
stateU.< Blac@Hs La& 3ictionar(, p. "."# citin% Wenneth v. Cha'bers, "- 0o&. .!, "- L.Ed. ."$.
6ee "#!1 Const., Art. D899, 6ec. .

.
G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.
-
G.R. No. "#17-, 6epte'ber ., "##1.
CORONA, J.:
"
Abrams ". Gnited %tates, 7; E.6. $"$.
..$ Phil. !-! ,"##1+.

.
%antos ". ,ourt of Appeals, G.R. No. ".-1!1, "7 Nove'ber ;;7, -17 6CRA ".
-
Aeria and Noche, Civil Procedure Annotated, vol. 9, ;;" edition, p. -"#.
7
6ec. .;, Petitions and initiatives b( the people, "$ A' /ur d .!;, citin% %tate e6 rel. %tenber( ". 4eermann,
-; Neb. 17-, -!7 N.C. d "7" ,"##+.
$
9d. citin% ,oalition for 8oliti#al Honest/ ". %tate 4oard of +le#tions, !. 9ll. d .$, -1 9ll. 3ec. .$., -"7 N.E.
d .$! ,"#!;+.
1
Balit=er, Alfred, he =nitiati"e and Referendum: A %tud/ and +"aluation of !ire#t )e(islation, 4he California
Roundtable ". ,"#!"+. 4he A'erican Aoundin% Aathers reco%ni=ed that direct de'ocrac( posed a profound
threat to individual ri%hts and libert(. 4he E.6. Constitution &as <desi%ned to provide a s(ste' of %overn'ent
that &ould prevent either a t(rann( of the 'a)orit( or a t(rann( of the fe&.< /a'es Madison <&arned a%ainst the
po&er of a 'a)orit( or a 'inorit( of the population Hunited and actuated b( so'e co''on i'pulse of passion,
or of interest, adverse to the ri%hts of other citi=ens, or to the per'anent and a%%re%ate interest of the
co''unit(.H
!
Gilbert 0ahn J 6teven C. Morton, =nitiati"e and Referendum Q !o he/ +n#oura(e or =mpair 4etter %tate
Go"ernment5 7 ALA. 64. E. L. RE8. #7, #1 ,"#11+.
#
Alorida Advisor( Council on 9nter%overn'ental Relations, 9nitiatives and Referenda* 9ssues in Citi=en
La&'a@in% ,"#!$+.
";
6ec. ", Article 99, Constitution.
""
=n re =nitiati"e 8etition No. 162 %tate Nuestion 669, !## P.d ""-7 ,5@la. "##7+.
TINGA, J.:
"
G.R. No. "1.7, "# March "##1, 1; 6CRA ";$.
G.R. No. "#17-, . 6epte'ber "##1.

.
Petitioner Au'entado aptl( refers to the co''ent of the late 6enator Raul Roco that the %antia(o rulin%
<created a third specie of invalid la&s, a 'on%rel t(pe of constitutional but inade>uate and, therefore, invalid
la&.< Me'orandu' for Au'entado, p. 7-.
-
6ee Civil Code, Art. #.
7
-7$ Phil. " ,;;.+.
$
9d., at ";2 citin% 9 Arturo M. 4olentino, Civil Code of the Philippines -. ,"##;+ and /ustice Ben)a'in N.
Cardo=o, 4he Nature of the /udicial Process "". ,"#"+.
1
6ee 3issentin% 5pinion, 'anila =nternational Airport Authorit/ ". ,it/ of 8ara:a.ue, G.R. No. "77$7;, ;
/ul( ;;$. 9n '( ponen#ia in Globe ele#om ". N,, G.R. No. "-.#$-, $ /ul( ;;-, -.7 6CRA "";, 9 further
observed that &hile an ad'inistrative a%enc( &as not enslaved to obe( its o&n precedent, it &as <essential, for
the sa@e of clarit( and intellectual honest(, that if an ad'inistrative a%enc( decides inconsistentl( &ith previous
action, that it e:plain thorou%hl( &h( a different result is &arranted, or if need be, &h( the previous standards
should no lon%er appl( or should be overturned.< 9d., at "--. 0appil(, /ustice PunoHs present opinion e:pressl(
elucidates &h( %antia(o should be reversed.
!
As /ustice Aran@furter once &rote* <Ce reco%ni=e that stare de#isis e'bodies an i'portant social polic(. 9t
represents an ele'ent of continuit( in la&, and is rooted in the ps(cholo%ic need to satisf( reasonable
e:pectations. But stare de#isis is a principle of polic( and not a 'echanical for'ula of adherence to the latest
decision, ho&ever recent and >uestionable, &hen such adherence involves collision &ith a prior doctrine 'ore
e'bracin% in its scope, intrinsicall( sounder, and verified b( e:perienceU 4his Court, unli@e the 0ouse of
Lords, has fro' the be%innin% re)ected a doctrine of disabilit( at self-correction.< Hel"erin( ". Hallo#0, .;#
E.6. ";$, ""#-"" ,"#-;+.
#
.7" Phil. $# ,"##!+.
";
As Chief /ustice Pan%aniban then cited* <Aor instance, Ebralina% vs. 3avision 6uperintendent of 6chools of
Cebu, "# 6CRA 7$, March ", "##., reversed the CourtHs .--(ear-old doctrine laid do&n in Gerona vs.
6ecretar( of Education, ";$ Phil , Au%ust ", "#7#, and upheld the ri%ht of /ehovahHs Citnesses <to refuse to
salute the Philippine fla% on account of their reli%ious beliefs.< 6i'ilarl(, 5la%uer vs. Militar( Co''ission, "7;
6CRA "--, Ma( , "#!1, abandoned the "-(ear-old rulin% in A>uino /r. vs. Militar( Co''ission, $. 6CRA
7-$, Ma( #, "#17, &hich reco%ni=ed the )urisdiction of 'ilitar( tribunals to tr( civilians for offenses alle%edl(
co''itted durin% 'artial la&. 4he Court li@e&ise reversed itself in EPKA vs. 3ula(, "-# 6CRA .;7, April #,
"#!1, &hen it vacated its earlier rulin% in National 0ousin% Authorit( vs. Re(es, ". 6CRA -7, /une #, "#!.,
on the validit( of certain presidential decrees re%ardin% the deter'ination of )ust co'pensation. 9n the 'uch
earlier case of Philippine 4rust Co. vs. Mitchell, 7# Phil. .;, 3ece'ber !, "#.., the Court revo@ed its holdin% in
9nvoluntar( 9nsolvenc( of Mariano 8elasco J Co., 77 Phil .7., Nove'ber #, "#.;, re%ardin% the relation of
the insolvenc( la& &ith the then Code of Civil Procedure and &ith the Civil Code. /ust recentl(, the Court, in
Wilosba(an vs. Morato, -$ 6CRA 7-;, /ul( "1, "##7, also abandoned the earlier %rant of standin% to
petitioner-or%ani=ation in Wilosba(an vs. Guin%ona, . 6CRA "";, Ma( 7, "##-.< 9d., at 1!;.
""
9bid.
"
"# Phil. 7;1, 7"$ ,"#$1+.
".
G.R. Nos. L-1!-$", L-1#"-$, J L-1#", " Au%ust "#!1, "7. 6CRA $1, 17.
"-
G.R. No. "$;-1, "7 6epte'ber ;;-, -.! 6CRA ."#, .$.
"7
9bid.
"$
G.R. No. "77!77, $ /anuar( ;;-, -" 6CRA #.
"1
9d., at ";-. Relatedl(, the Court held that <OcP ontests &hich do not involve the election, returns and
>ualifications of elected officials are not sub)ected to the e:ercise of the )udicial or >uasi-)udicial po&ers of
courts or ad'inistrative a%encies<. 9bid.
"!
6ee e.%., Me'orandu' of 5ppositors-9ntervenors 6enators Pi'entel, /r., et. al., pp. "#-2 Me'orandu' for
9ntervenor 6enate of the Philippines, pp. .--.7.
"#
6ee "#!1 Const., Art. 89, 6ec. $,"+. 6ee also 6ection "#O"P. "#!1 Const, Art. 8999.
;
6ee e.%., 6u'ulon% v. C5MELEC, 1. Phil. !!, #" ,"#-"+2 Cordero v. 0on. /ose Cabatuando, et al., ""$
Phil. 1.$, 1-" ,"#$+.
"
6ee 4io v. 8RB, G.R. No. L-17$#1, "! /une "#!1, "7" 6CRA ;!, "--"72 citin% 8ubli# %er"i#e ,o.-
Re#0tenwald, #; 9ll. ."-, ! A.L.R. -$$, -1;. 6ee also AariBas v. E:ecutive 6ecretar(, G.R. Nos. "-1.!1 J
"7"$", "; 3ece'ber ;;., -"1 6CRA 7;., 7"#.
<As a polic(, this Court has adopted a liberal construction of the one title - one sub)ect rule.< 4atad v.
6ecretar( of 3epart'ent of Ener%(, .-$ Phil. .", .7# ,"##1+.
.
Civil Liberties Enion v. E:ecutive 6ecretar(, G.R. Nos. !.!#$ J !.!"72 Aebruar( "##", "#- 6CRA ."1.
-
9d. at ..1. 9 have previousl( e:pressed '( o&n doubts in rel(in% on the constitutional or le%islative
deliberations as a definitive source of construction. <9t is eas( to selectivel( cite passa%es, so'eti'es out of
their proper conte:t, in order to assert a 'isleadin% interpretation. 4he effect can be dan%erous. Minorit( or
solitar( vie&s, anecdotal ru'inations, or even the occasional crude &itticis's, 'a( i'properl( ac>uire the
'antle of le%islative intent b( the sole virtue of their publication in the authoritative con%ressional record.
0ence, resort to le%islative deliberations is allo&able &hen the statute is crafted in such a 'anner as to leave
roo' for doubt on the real intent of the le%islature.< 6outhern Cross Ce'ent Corporation v. Phil. Ce'ent
Manufacturers, G.R. No. G.R. No. "7!7-;, ! /ul( ;;-, -.- 6CRA $7, #7.
7
11 Phil. "# ,"#-$+.
$
9d. at "7.
1
Civil Liberties Enion v. E:ecutive 6ecretar(, supra note ., at ..!2 citin% 0ousehold Ainance Corporation v.
6haffner, ;. 6.C. d 1.-, .7$ Mo. !;!.
!
6ee 6ections 7,b+ J !, Rep. Act No. $1.7. 6ee also "#!1 Const., 6ec. , Art. D89.
#
G.R. No. "7"#--, /anuar( ;, ;;-, -; 6CRA .$7.
.;
9d., at .11. E'phasis supplied.
."
6ee 6ections 7,b+ J !, Rep. Act No. $1.7. 6ee also "#!1 Const., 6ec. , Art. D89.
.
Aro' the <Auneral 5ration< b( Pericles, as recorded b( 4huc(dides in the 0istor( of the Peloponnesian Car.
..
0. Kinn, A PeopleHs 0istor( of the Enited 6tates ,"#!; ed.+, at #7.
CHICO-NAZARIO, J.:
"
4he full te:t of the Prea'ble reads*
Ce, the soverei%n Ailipino people, i'plorin% the aid of Al'i%ht( God, in order to build a )ust and
hu'ane societ( and establish a Govern'ent that shall e'bod( our ideals and aspirations, pro'ote the
co''on %ood, conserve and develop our patri'on(, and secure to ourselves and our posterit( the
blessin%s of independence and de'ocrac( under the rule of la& and a re%i'e of truth, )ustice, freedo',
love, e>ualit(, and peace, do ordain and pro'ul%ate this Constitution.
Article D899, Constitution.

.
G.R. No. "1.7, "# March "##1, 1; 6CRA ";$.
-
9d. at "71.
7
9d. at "-.
$
5lac v. Rivera, G.R. No. !-7$, 6epte'ber "##, ". 6CRA .", .!-.#2 6ee also the 'ore recent cases
of Republic v. Nolasco, G.R. No. "77";!, 1 April ;;7, -71 6CRA -;;2 and P0 Credit Corporation v. Court
of Appeals, -" Phil. !" ,;;"+.
1
6upra note at "-.
!
G.R. No. "#17-.
#
6eparate 5pinion of for'er Chief /ustice 0ilario G. 3avide, /r. to the Resolution, dated . 6epte'ber "##1, in
G.R. No. "#17-, P9RMA v. C5MELEC, pp. -..
";
Mirpuri v. Court of Appeals, .1$ Phil. $!, $7; ,"###+.
""
Pioneer 4e:turi=in% Corporation v. NLRC, G.R. No. ""!$7", "$ 5ctober "##1.
"
6antia%o v. Co'elec, supra note at "1;-"1".
".
9sa%ani A. Cru=, Philippine Political La&, "##$ ed., p. .7.
VELASCO, 1R., J.:
"
G.R. No. "17.7, March "#, "##1, 1; 6CRA ";$.
9d.
.
Co''ission on Audit of the Province of Cebu v. Province of Cebu, G.R. No. "-".!$, Nove'ber #, ;;",
.1" 6CRA "#$, ;.
-
Enited 0arbor PilotsH Association of the Philippines, 9nc. v. Association of 9nternational 6hippin% Lines, 9nc.,
G.R. No. "..1$., Nove'ber "., ;;, .#" 6CRA 7, 7...
7
P0 Credit Corporation v. Court of Appeals and Carlos M. Aarrales, G. R. No. ";#$-!, Nove'ber , ;;",
.1; 6CRA "77, "$$-"$1.
$
9d.
1
Alorentino v. Rivera, et al., G. R. No. "$1#$!, /anuar( ., ;;$, -1# 6CRA 7, 7#.
!
G.R. No. "#17-, 6epte'ber ., "##1.
#
8. 6inco, Philippine Political La&, Principles and Concept -$ ,"#$+.
SUPREME COURT
Manila
EN BANC

G.R. No. L33:154 Ma,'& 31, 1973
JOS"E JA2ELLANA, petitioner,
vs.
T#E E?EC"TI2E SECRETAR9, T#E SECRETAR9 OF NATIONAL DEFENSE, T#E SECRETAR9
OF J"STICE AND T#E SECRETAR9 OF FINANCE, respondents.
G.R. No. L33:1:5 Ma,'& 31, 1973
2IDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MAN"EL CR"DO, ANTONIO ".
MIRANDA, EMILIO DE .ERALTA AND LOREN1O M. TADADA, petitioners,
vs.
T#E E?EC"TI2E SECRETAR9, T#E SECRETAR9 OF FINANCE , T#E SECRETAR9 OF
J"STICE, T#E SECRETAR9 OF LAND REFORM, T#E SECRETAR9 OF NATIONAL DEFENSE,
T#E A"DITOR GENERAL, T#E $"DGET COMMISSIONER, T#E C#AIRMAN OF .RESIDENTIAL
COMMISSION ON REORGANI1ATION, T#E TREAS"RER OF T#E .#ILI..INES, T#E
COMMISSION ON ELECTIONS AND T#E COMMISSIONER OF CI2IL SER2ICE, respondents.
G.R. No. L33:1:5 Ma,'& 31, 1973.
GERARDO RO?AS, AM$ROSIO .ADILLA, JO2ITO R. SALONGA, SAL2ADOR #. LA"REL,
RAMON 2. MITRA, JR. a! E2A ESTRADA36ALA;, petitioners,
vs.
ALEJANDRO MELC#OR, % &%s 'a(a'%t) as EE+'ut%*+ S+',+ta,)F J"AN .ONCE ENRILE, % &%s
'a(a'%t) as S+',+ta,) o- Nat%oa0 D+-+s+F G++,a0 ROMEO ES.INO, % &%s 'a(a'%t) as C&%+-
o- Sta-- o- t&+ A,7+! Fo,'+s o- t&+ .&%0%((%+sF TANCIO E. CASTADEDA, % &%s 'a(a'%t) as
S+',+ta,) G++,a0 S+,*%'+sF S+ato, GIL J. ."9AT, % &%s 'a(a'%t) as .,+s%!+t o- t&+ S+at+F
a! S+ato, JOSE RO9, &%s 'a(a'%t), as .,+s%!+t .,o T+7(o,+ o- t&+ o- t&+ S+at+,
respondents.
G.R. No. L33:43: Ma,'& 31, 1973
EDDIE $. MONTECLARO, G(+,soa00) a! % &%s 'a(a'%t) as .,+s%!+t o- t&+ Nat%oa0 .,+ss
C0u8 o- t&+ .&%0%((%+sH, petitioner,
vs.
T#E E?EC"TI2E SECRETAR9, T#E SECRETAR9 OF ."$LIC INFORMATION, T#E A"DITOR
GENERAL, T#E $"DGET COMMISSIONER @ T#E NATIONAL TREAS"RER, respondents.
G.R. No. L33:483 Ma,'& 31, 1973
NA.OLEON 2. DILAG, ALFREDO SALA.ANTAN, JR., LEONARDO ASODISEN, JR., a! RA"L
M. GON1ALE1, petitioners,
vs.
T#E #ONORA$LE E?EC"TI2E SECRETAR9, T#E #ONORA$LE SECRETAR9 OF NATIONAL
DEFENSE, T#E #ONORA$LE $"DGET COMMISSIONER, T#E #ONORA$LE A"DITOR
GENERAL, respondents.
>a(on 3. Gonzales ,or petitioner Josue Javellana.
0orenzo '. TaAa!a an! 3ssociates ,or petitioners @i!al Tan, et al.
TaAa!a, Salon+a, Or!oAez, >o!ri+o, Sani!a!, >o6as. Gonzales an! 3rroo ,or petitioners Gerar!o
>o6as, et al.
Jo-er P. 3rroo an! >o+elio ". Pa!illa ,or petitioner E!!ie 'onteclaro.
>aul '. Gonzales an! 3ssociates ,or petitioners Napoleon @. .ila+, et al.
3rturo '. Tolentino ,or respon!ents Gil J. Puat an! Jose >o.
O,,ice o, t*e Solicitor General Estelito P. 'en!oza, Solicitor @icente @. 'en!oza an! Solicitor
>enato S. Puno ,or ot*er respon!ents.
! / - 0 + = % 0 ?

CONCE.CION, C.J.:
he aboveCentitled five ;B< cases are a se#uel of cases 3.!. ?os. +CAB(*B,
+CAB(*(, +CAB(J9, +CAB(J&, +CAB(J*, +CAB(J), +CAB(BA, +CAB(2&, +CAB(2B and
+CAB('(, decided on .anuary **, &('A, to ,hich Ee ,ill hereafter refer collectively as the plebiscite
cases.
"ac-+roun! o, t*e Ple#iscite Cases.
he factual setting thereof is set forth in the decision therein rendered, from ,hich Ee #uote7
0n March &2, &(2', Congress of the Philippines passed !esolution ?o. *, ,hich ,as amended by
!esolution ?o. J of said body, adopted on .une &', &(2(, calling a Convention to propose amendments
to the Constitution of the Philippines. -aid !esolution ?o. *, as amended, ,as implemented by !epublic
Act ?o. 2&A*, approved on August *J, &('9, pursuant to the provisions of ,hich the election of delegates
to said Convention ,as held on ?ovember &9, &('9, and the &('& Constitutional Convention began to
perform its functions on .une &, &('&. Ehile the Convention ,as in session on -eptember *&, &('*, the
President issued Proclamation ?o. &9)& placing the entire Philippines under Martial +a,. 0n ?ovember
*(, &('*, the Convention approved its Proposed Constitution of the !epublic of the Philippines. he ne8t
day, ?ovember A9, &('*, the President of the Philippines issued Presidential Decree ?o. 'A, 4submitting
to the 1ilipino people for ratification or rejection the Constitution of the !epublic of the Philippines
proposed by the &('& Constitutional Convention, and appropriating funds therefor,4 as ,ell as setting the
plebiscite for said ratification or rejection of the Proposed Constitution on .anuary &B, &('A.
-oon after, or on December ', &('*, Charito Planas filed, ,ith this Court, Case 3.!. ?o. +CAB(*B,
against the Commission on /lections, the reasurer of the Philippines and the Auditor 3eneral, to enjoin
said 4respondents or their agents from implementing Presidential Decree ?o. 'A, in any manner, until
further orders of the Court,4 upon the grounds, inter alia, that said Presidential Decree 4has no force and
effect as la, 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 #uestion to be ans,ered by the voters, and the
appropriation of public funds for the purpose, are, by the Constitution, lodged e8clusively in Congress ...,4
and 4there is no proper submission to the people of said Proposed Constitution set for .anuary &B, &('A,
there being no freedom of speech, press and assembly, and there being no sufficient time to inform the
people of the contents thereof.4
-ubstantially identical actions ,ere filed, on December ), &('*, by Pablo C. -anidad against the
Commission on /lections ;Case 3.!. ?o. +C AB(*(< on December &&, &('*, by 3erardo !o8as, et al.,
against the Commission on /lections, the Director of Printing, the ?ational reasurer and the Auditor
3eneral ;Case 3.!. +CAB(J9<, by /ddie B. Monteclaro against the Commission on /lections and the
reasurer of the Philippines ;Case 3.!. ?o. +CAB(J&<, and by -edfrey 0rdoLe", et al. against the
?ational reasurer and the Commission on /lections ;Case 3.!. ?o. +CAB(J*<: on December &*, &('*,
by 6idal an, et al., against the Commission on /lections, the reasurer of the Philippines, the Auditor
3eneral and the Director of Printing ;Case 3.!. ?o. +CAB(J)< and by .ose E. Diokno and Benigno -.
A#uino against the Commission on /lections ;Case 3.!. ?o. +CAB(BA<: on December &J, &('*, by
.acinto .imene" against the Commission on /lections, the Auditor 3eneral, the reasurer of the
Philippines and the Director of the Bureau of Printing ;Case 3.!. ?o. +CAB(2&<, and by !aul M. 3on"ales
against the Commission on /lections, the Budget Commissioner, the ?ational reasurer and the Auditor
3eneral ;Case 3.!. ?o. +CAB(2B<: and on December &2, &('*, by /rnesto C. >idalgo against the
Commission on /lections, the -ecretary of /ducation, the ?ational reasurer and the Auditor 3eneral
;Case 3.!. ?o. +CAB('(<.
%n all these cases, e8cept the last ;3.!. ?o. +CAB('(<, the respondents ,ere re#uired to file their ans,ers
4not later than &*799 ;o$clock< noon of -aturday, December &2, &('*.4 -aid cases ,ere, also, set for
hearing and partly heard on Monday, December &), &('*, at (7A9 a.m. he hearing ,as continued on
December &(, &('*. By agreement of the parties, the aforementioned last case K 3.!. ?o. +CAB('( K
,as, also, heard, jointly ,ith the others, on December &(, &('*. At the conclusion of the hearing, on that
date, the parties in all of the aforementioned cases ,ere given a short period of time ,ithin ,hich 4to
submit their notes on the points they desire to stress.4 -aid notes ,ere filed on different dates, bet,een
December *&, &('*, and .anuary J, &('A.
Mean,hile, or on December &', &('*, the President had issued an order temporarily suspending the
effects of Proclamation ?o. &9)&, for the purpose of free and open debate on the Proposed Constitution.
0n December *A, the President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. ?o formal action to this effect ,as taken until .anuary ', &('A,
,hen 3eneral 0rder ?o. *9 ,as issued, directing 4that the plebiscite scheduled to be held on .anuary &B,
&('), be postponed until further notice.4 -aid 3eneral 0rder ?o. *9, moreover, 4suspended in the
meantime4 the 4order of December &', &('*, temporarily suspending the effects of Proclamation ?o.
&9)& for purposes of free and open debate on the proposed Constitution.4
%n vie, 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 ,hich said plebiscite ,ould be held ,ere kno,n or announced officially. hen, again,
Congress ,as, pursuant to the &(AB Constitution, scheduled to meet in regular session on .anuary **,
&('A, and since the main objection to Presidential Decree ?o. 'A ,as that the President does not have
the legislative authority to call a plebiscite and appropriate funds therefor, ,hich Congress un#uestionably
could do, particularly in vie, of the formal postponement of the plebiscite by the President K reportedly
after consultation ,ith, among others, the leaders of Congress and the Commission on /lections K the
Court deemed it more imperative to defer its final action on these cases.
4%n the afternoon of .anuary &*, &('A, the petitioners in Case 3.!. ?o.
+CAB(J) filed an 4urgent motion,4 praying that said case be decided 4as soon as possible, preferably not
later than .anuary &B, &('A.4 %t ,as alleged in said motion, inter alia7
42. hat the President subse#uently announced the issuance of Presidential Decree ?o. )2 organi"ing
the soCcalled Citi"ens Assemblies, to be consulted on certain public #uestions GBulletin oday, .anuary &,
&('AH:
4'. hat thereafter it ,as later announced that 4the Assemblies ,ill be asked if they favor or oppose K
G&H he ?e, -ociety:
G*H !eforms instituted under Martial +a,:
GAH he holding of a plebiscite on the proposed ne, Constitution and ,hen ;the tentative
ne, dates given follo,ing the postponement of the plebiscite from the original date of
.anuary &B are 1ebruary &( and March B<:
GJH he opening of the regular session slated on .anuary ** in accordance ,ith the
e8isting Constitution despite Martial +a,.4 GBulletin oday, .anuary A, &('A.H
4). hat it ,as later reported that the follo,ing are to be the forms of the #uestions to be asked to the
Citi"ens Assemblies7 K
G&H Do you approve of the ?e, -ocietyI
G*H Do you approve of the reform measures under martial la,I
GAH Do you think that Congress should meet again in regular sessionI
GJH >o, soon ,ould you like the plebiscite on the ne, Constitution to be heldI GBulletin
oday, .anuary B, &('AH.
4(. hat the voting by the soCcalled Citi"ens Assemblies ,as announced to take place during the period
from .anuary &9 to .anuary &B, &('A:
4&9. hat on .anuary &9, &('A, it ,as reported that on more #uestion ,ould be added to the four ;J<
#uestion previously announced, and that the forms of the #uestion ,ould be as follo,s7 K
G&H Do you like the ?e, -ocietyI
G*H Do you like the reforms under martial la,I
GAH Do you like Congress again to hold sessionsI
GJH Do you like the plebiscite to be held laterI
GBH .o ou li-e t*e )a Presi!ent 'arcos runnin+ t*e a,,airs o, t*e +overn(ent2 GBulletin
oday, .anuary &9, &('A: emphasis an additional #uestion.H
4&&. hat on .anuary &&, &('A, it ,as reported that si8 ;2< more #uestions ,ould be submitted to the soC
called Citi"ens Assemblies7 K
G&H Do you approve of the citi"ens assemblies as the base of popular government to
decide issues of national interestsI
G*H .o ou approve o, t*e ne) Constitution2
GAH Do you ,ant a plebiscite to be called to ratify the ne, ConstitutionI
GJH Do you ,ant the elections to be held in ?ovember, &('A in accordance ,ith the
provisions of the &(AB ConstitutionI
GBH %f the elections ,ould not be held, ,hen do you ,ant the ne8t elections to be calledI
G2H Do you ,ant martial la, to continueI GBulletin oday, .anuary &&, &('A: emphasis
suppliedH
4&*. hat according to reports, the returns ,ith respect to the si8 ;2< additional #uestions #uoted above
,ill be on a form similar or identical to Anne8 4A4 hereof:
4&A. hat attached to page & of Anne8 4A4 is another page, ,hich ,e marked as Anne8 4AC&4, and ,hich
reads7 K
C0MM/?- 0?
P=/-%0? ?o. &
%n order to broaden the base of citi"ens$ participation in government.
P=/-%0? ?o. *
But ,e do not ,ant the Ad %nterim Assembly to be convoked. 0r if it is to be convened at all, it should not be done so
until after at least seven ;'< years from the approval of the ?e, Constitution by the Citi"ens Assemblies.
P=/-%0? ?o. A
he vote of the Citi"ens Assemblies should already be considered the plebiscite on the ?e, Constitution.
%f the Citi"ens Assemblies approve of the ?e, Constitution, then the ne, Constitution should be deemed ratified.
P=/-%0? ?o. J
Ee are sick and tired of too fre#uent elections. Ee are fed up ,ith politics, of so many debates and so much e8penses.
P=/-%0? ?o. B
Probably a period of at least seven ;'< years moratorium on elections ,ill be enough for stability to be established in
the country, for reforms to take root and normalcy to return.
P=/-%0? ?o. 2
Ee ,ant President Marcos to continue ,ith Martial +a,. Ee ,ant him to e8ercise his po,ers ,ith more authority. Ee
,ant him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the
country. %f all other measures fail, ,e ,ant President Marcos to declare a revolutionary government along the lines of
the ne, Constitution ,ithout the ad interim Assembly.4
4Attention is respectfully invited to the comments on 4Puestion ?o. A,4 ,hich reads7 K
P=/-%0? ?o. A
he vote of the Citi"ens Assemblies should be considered the plebiscite on the ?e, Constitution.
his, ,e are afraid, and therefore allege, is pregnant ,ith ominous possibilities.
&J. hat, in the meantime, speaking on television and over the radio, on .anuary ', &('A, the President
announced that the limited freedom of debate on the proposed Constitution ,as being ,ithdra,n and that
the proclamation of martial la, and the orders and decrees issued thereunder ,ould thenceforth strictly
be enforced GDaily /8press, .anuary ), &('AH:
&B. hat petitioners have reason to fear, and therefore state, that the #uestion added in the last list of
#uestions to be asked to the Citi"ens Assemblies, namely7 K
Do you approve of the ?e,
ConstitutionI K
in relation to the #uestion follo,ing it7 K
Do you still ,ant a plebiscite to be called to ratify the
ne, ConstitutionI4 K
,ould be an attempt to byCpass and shortCcircuit this >onorable Court before ,hich the #uestion of the
validity of the plebiscite on the proposed Constitution is no, pending:
4&2. hat petitioners have reason to fear, and therefore allege, that if an affirmative ans,er to the t,o
#uestions just referred to ,ill be reported then this >onorable Court and the entire nation ,ill be
confronted ,ith a ,ait acco(pli ,hich has been attained in a highly unconstitutional and undemocratic
manner:
4&'. hat the ,ait acco(pli ,ould consist in the supposed e8pression of the people approving the
proposed Constitution:
4&). hat, if such event ,ould happen, then the case before this >onorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such
supposed e8pression of the ,ill of the people through the Citi"ens Assemblies, it ,ould be announced
that the proposed Constitution, ,ith all its defects, both congenital and other,ise, has been ratified:
4&(. hat, in such a situation the Philippines ,ill be facing a real crisis and there is likelihood of confusion
if not chaos, because then, the people and their officials ,ill not kno, ,hich Constitution is in force.
4*9. hat the crisis mentioned above can only be avoided if this >onorable Court ,ill immediately decide
and announce its decision on the present petition:
4*&. hat ,ith the ,ithdra,al by the President of the limited freedom of discussion on the proposed
Constitution ,hich ,as given to the people pursuant to -ec. A of Presidential Decree ?o. 'A, the
opposition of respondents to petitioners$ prayer at the plebiscite be prohibited has no, collapsed and that
a free plebiscite can no longer be held.4
At about the same time, a similar prayer ,as made in a 4manifestation4 filed by the petitioners in +CAB(J(,
43erardo !o8as, et al. v. Commission on /lections, et al.,4 and +CAB(J*, 4-edfrey A. 0rdoLe", et al. v.
he ?ational reasurer, et al.4
he ne8t day, .anuary &A, &('A, ,hich ,as a -aturday, the Court issued a resolution re#uiring the
respondents in said three ;A< cases to comment on said 4urgent motion4 and 4manifestation,4 4not later
than uesday noon, .anuary &2, &('A.4 Prior thereto, or on .anuary &B, &('A, shortly before noon, the
petitioners in said Case 3.!. ?o. +CAB(J) riled a 4supplemental motion for issuance of restraining order
and inclusion of additional respondents,4 praying K
4... that a restraining order be issued enjoining and restraining respondent Commission
on /lections, as ,ell as the Department of +ocal 3overnments and its head, -ecretary
.ose !oLo: the Department of Agrarian !eforms and its head, -ecretary Conrado
/strella: the ?ational !atification Coordinating Committee and its Chairman, 3uillermo de
6ega: their deputies, subordinates and substitutes, and all other officials and persons
,ho may be assigned such task, from collecting, certifying, and announcing and reporting
to the President or other officials concerned, the soCcalled Citi"ens$ Assemblies
referendum results allegedly obtained ,hen they ,ere supposed to have met during the
period comprised bet,een .anuary &9 and .anuary &B, &('A, on the t,o #uestions
#uoted in paragraph & of this -upplemental =rgent Motion.4
%n support of this prayer, it ,as alleged K
4A. hat petitioners are no, before this >onorable Court in order to ask further that this >onorable Court
issue a restraining order enjoining herein respondents, particularly respondent Commission on /lections
as ,ell as the Department of +ocal 3overnments and its head, -ecretary .ose !oLo: the Department of
Agrarian !eforms and its head, -ecretary Conrado /strella: the ?ational !atification Coordinating
Committee and its Chairman, 3uillermo de 6ega: and their deputies, subordinates andFor substitutes,
from collecting, certifying, announcing and reporting to the President the supposed Citi"ens$ Assemblies
referendum results allegedly obtained ,hen they ,ere supposed to have met during the period bet,een
.anuary &9 and .anuary &B, &('A, particularly on the t,o #uestions #uoted in paragraph & of this
-upplemental =rgent Motion:
4J. hat the proceedings of the soCcalled Citi"ens$ 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 because7 K
GaH he elections contemplated in the Constitution, Article D6, at ,hich the proposed
constitutional amendments are to be submitted for ratification, are elections at ,hich only
#ualified and duly registered voters are permitted to vote, ,hereas, the so called Citi"ens$
Assemblies ,ere participated in by persons &B years of age and older, regardless of
#ualifications or lack thereof, as prescribed in the /lection Code:
GbH /lections or plebiscites for the ratification of constitutional amendments contemplated
in Article D6 of the Constitution have provisions for the secrecy of choice and of vote,
,hich is one of the safeguards of freedom of action, but votes in the Citi"ens$ Assemblies
,ere open and ,ere cast by raising hands:
GcH he /lection Code makes ample provisions for free, orderly and honest elections, and
such provisions are a minimum re#uirement for elections or plebiscites for the ratification
of constitutional amendments, but there ,ere no similar provisions to guide and regulate
proceedings of the so called Citi"ens$ Assemblies:
GdH %t is seriously to be doubted that, for lack of material time, more than a handful of the
so called Citi"ens$ Assemblies have been actually formed, because the mechanics of
their organi"ation ,ere still being discussed a day or so before the day they ,ere
supposed to begin functioning7 K
4Provincial governors and city and municipal mayors had been meeting
,ith barrio captains and community leaders since last Monday G.anuary
), &('A< to thresh out the mechanics in the formation of the Citi"ens
Assemblies and the topics for discussion.4 GBulletin oday, .anuary &9,
&('AH
4%t should be recalled that the Citi"ens$ Assemblies ,ere ordered formed only at the beginning of the year
GDaily /8press, .anuary &, &('AH, and considering the lack of e8perience of the local organi"ers of said
assemblies, as ,ell as the absence of sufficient guidelines for organi"ation, it is too much to believe that
such assemblies could be organi"ed at such a short notice.
4B. hat for lack of material time, the appropriate amended petition to include the additional officials and
government agencies mentioned in paragraph A of this -upplemental =rgent Motion could not be
completed because, as noted in the =rgent Motion of .anuary &*, &('A, the submission of the proposed
Constitution to the Citi"ens$ Assemblies ,as not made kno,n to the public until .anuary &&, &('A. But be
that as it may, the said additional officials and agencies may be properly included in the petition at bar
because7 K
GaH he herein petitioners have prayed in their petition for the annulment not only of
Presidential Decree ?o. 'A, but also of 4any similar decree, proclamation, order or
instruction.
so that Presidential Decree ?o. )2, insofar at least as it attempts to submit the proposed Constitution to a
plebiscite by the soCcalled Citi"ens$ Assemblies, is properly in issue in this case, and those ,ho enforce,
implement, or carry out the said Presidential Decree ?o. )2. and the instructions incidental thereto clearly
fall ,ithin the scope of this petition:
GbH %n their petition, petitioners sought the issuance of a ,rit of preliminary injunction
restraining not only the respondents named in the petition but also their 4agents4 from
implementing not only Presidential Decree ?o. 'A, but also 4any other similar decree,
order, instruction, or proclamation in relation to the holding of a plebiscite on .anuary &B,
&('A for the purpose of submitting to the 1ilipino people for their ratification or rejection
the &('* Draft or proposed Constitution approved by the Constitutional Convention on
?ovember A9, &('*4: and finally,
GcH Petitioners prayed for such other relief ,hich may be just and e#uitable. Gp. A(,
PetitionH.
4herefore, vie,ing the case from all angles, the officials and government agencies mentioned in
paragraph A of this -upplemental =rgent Motion, can la,fully be reached by the processes of this
>onorable Court by reason of this petition, considering, furthermore, that the Commission on /lections
has under our la,s the po,er, among others, of7 K
;a< Direct and immediate supervision and control over national, provincial, city, municipal
and municipal district officials re#uired by la, to perform duties relative to the conduct of
elections on matters pertaining to the enforcement of the provisions of this Code ...4
G/lection Code of &('&, -ec. AH.
42. hat unless the petition at bar is decided immediately and the Commission on /lections, together ,ith
the officials and government agencies mentioned in paragraph A of this -upplemental =rgent Motion are
restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of
the alleged voting of the soCcalled Citi"ens$ Assemblies, irreparable damage ,ill be caused to the
!epublic of the Philippines, the 1ilipino people, the cause of freedom an democracy, and the petitioners
herein because7
GaH After the result of the supposed voting on the #uestions mentioned in paragraph &
hereof shall have been announced, a conflict ,ill arise bet,een those ,ho maintain that
the &(AB Constitution is still in force, on the one hand, and those ,ho ,ill maintain that it
has been superseded by the proposed Constitution, on the other, thereby creating
confusion, if not chaos:
GbH /ven the jurisdiction of this Court ,ill 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 soCcalled Citi"ens$ Assemblies ,ill
argue that, 3eneral 0rder ?o. A, ,hich shall also be deemed ratified pursuant to the
ransitory Provisions of the proposed Constitution, has placed Presidential Decree ?os.
'A and )2 beyond the reach and jurisdiction of this >onorable Court.4
0n the same date K .anuary &B, &('A K the Court passed a resolution re#uiring the respondents in said
case 3.!. ?o. +CAB(J) to file 4file an ans,er to the said motion not later than J P.M., uesday, .anuary
&2, &('A,4 and setting the motion for hearing 4on .anuary &', &('A, at (7A9 a.m.4 Ehile the case ,as
being heard, on the date last mentioned, at noontime, the -ecretary of .ustice called on the ,riter of this
opinion and said that, upon instructions of the President, he ;the -ecretary of .ustice< ,as delivering to
him ;the ,riter< a copy of Proclamation ?o. &&9*, ,hich had just been signed by the President.
hereupon, the ,riter returned to the -ession >all and announced to the Court, the parties in 3.!. ?o. +C
AB(J) K inasmuch as the hearing in connection there,ith ,as still going on K and the public there
present that the President had, according to information conveyed by the -ecretary of .ustice, signed
said Proclamation ?o. &&9*, earlier that morning. hereupon, the ,riter read Proclamation ?o. &&9*
,hich is of the follo,ing tenor7
4B@ >/ P!/-%D/? 01 >/ P>%+%PP%?/-
4P!0C+AMA%0? ?0. &&9*
4A??0=?C%?3 >/ !A%1%CA%0? B@ >/ 1%+%P%?0 P/0P+/ 01 >/ C0?-%=%0?
P!0P0-/D B@ >/ &('& C0?-%=%0?A+ C0?6/?%0?.
4E>/!/A-, the Constitution proposed by the nineteen hundred seventyCone Constitutional Convention
is subject to ratification by the 1ilipino people:
4E>/!/A-, Citi"ens Assemblies ,ere created in barrios, in municipalities and in districtsF,ards in
chartered cities pursuant to Presidential Decree ?o. )2, dated December A&, &('*, composed of all
persons ,ho are residents of the barrio, district or ,ard for at least si8 months, fifteen years of age or
over, citi"ens of the Philippines and ,ho are registered in the list of Citi"en Assembly members kept by
the barrio, district or ,ard secretary:
4E>/!/A-, the said Citi"ens Assemblies ,ere established precisely to broaden the base of citi"en
participation in the democratic process and to afford ample opportunity for the citi"enry to e8press their
vie,s on important national issues:
4E>/!/A-, responding to the clamor of the people and pursuant to Presidential Decree ?o. )2CA, dated
.anuary B, &('A, the follo,ing #uestions ,ere posed before the Citi"ens Assemblies or Barangays7 Do
you approve of the ?e, ConstitutionI Do you still ,ant a plebiscite to be called to ratify the ne,
ConstitutionI
4E>/!/A-, fourteen million nine hundred seventyCsi8 thousand five hundred si8tyCone ;&J,('2,B2&<
members of all the Barangays ;Citi"ens Assemblies< voted for the adoption of the proposed Constitution,
as against seven hundred fortyCthree thousand eight hundred si8tyCnine ;'JA,)2(< ,ho voted for its
rejection: ,hile on the #uestion as to ,hether or not the people ,ould still like a plebiscite to be called to
ratify the ne, Constitution, fourteen million t,o hundred ninetyCeight thousand eight hundred fourteen
;&J,*(),)&J< ans,ered that there ,as no need for a plebiscite and that the vote of the Barangays
;Citi"ens Assemblies< should be considered as a vote in a plebiscite:
4E>/!/A-, since the referendum results sho, that more than ninetyCfive ;(B< per cent of the members
of the Barangays ;Citi"ens Assemblies< are in favor of the ne, Constitution, the Gatipunan n+ '+a
"aran+a has strongly recommended that the ne, Constitution should already be deemed ratified by the
1ilipino people:
4?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers
in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventyCone ;&('&< Constitutional Convention has been ratified by an
over,helming majority of all of the votes cast by the members of all the Barangays ;Citi"ens Assemblies<
throughout the Philippines, and has thereby come into effect.
4%? E%?/-- E>/!/01, % have hereunto set my hand and caused the seal of the !epublic of the
Philippines to be affi8ed.
4Done in the City of Manila, this &'th day of .anuary, in the year of 0ur +ord, nineteen hundred and
seventyCthree.
;-gd.< 1/!D%?A?D /.
MA!C0-
4President of the
Philippines
4By the President7
4A+/.A?D!0 M/+C>0!
4/8ecutive -ecretary4
-uch is the background of the cases submitted determination. After admitting some of the allegations
made in the petition in +CAB(J) and denying the other allegations thereof, respondents therein alleged in
their ans,er thereto, by ,ay affirmative defenses7 &< that the 4#uestions raised4 in said petition 4are
political in character4: *< that 4the Constitutional Convention acted freely and had plenary authority to
propose not only amendments but a Constitution ,hich ,ould supersede the present Constitution4: A< that
4the President$s call for a plebiscite and the appropriation of funds for this purpose are valid4: J< that
4there is not an improper submission4 and 4there can be a plebiscite under Martial +a,4: and B< that the
4argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation
of po,er, includes a referendum on the proclamation of Martial +a, and purports to e8ercise judicial
po,er4 is 4not relevant and ... ,ithout merit.4 %dentical defenses ,ere set up in the other cases under
consideration.
%mmediately after the hearing held on .anuary &', &('A, or since the afternoon of that date, the Members
of the Court have been deliberating on the aforementioned cases and, after e8tensive discussions on the
merits thereof, have deemed it best that each Member ,rite his o,n vie,s thereon and that thereafter the
Chief .ustice should state the result or the votes thus cast on the points in issue. >ence, the individual
vie,s of my brethren in the Court are set forth in the opinions attached hereto, e8cept that, instead of
,riting their separate opinions, some Members have preferred to merely concur in the opinion of one of
our colleagues.
hen the ,riter of said decision e8pressed his o,n opinion on the issues involved therein, after ,hich
he recapitulated the vie,s of the Members of the Court, as follo,s7
&. here is unanimity on the justiciable nature of the issue on the legality of Presidential Decree ?o. 'A.
*. 0n the validity of the decree itself, .ustices Makalintal, Castro, 1ernando, eehankee, /sguerra and
myself, or si8 ;2< Members of the Court, are of the opinion that the issue has become moot and academic,
,hereas .ustices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.
A. 0n the authority of the &('& Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in +CAB(J), .ustices Makalintal, Castro,
eehankee and /sguerra opine that the issue has become moot and academic. .ustices 1ernando,
Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention.
J. .ustice 1ernando, like,ise, e8pressed the vie, that the &('& Constitutional Convention had authority
to continue in the performance of its functions despite the proclamation of Martial +a,. %n effect, .ustices
Barredo, Makasiar and Antonio hold the same vie,.
B. 0n the #uestion ,hether the proclamation of Martial +a, affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, .ustice
1ernando is of the opinion that there is a repugnancy bet,een the election contemplated under Art. D6 of
the &(AB Constitution and the e8istence of Martial +a,, and ,ould, therefore, grant the petitions ,ere
they not moot and academic. .ustices Barredo, Antonio and /sguerra are of the opinion that issue
involves #uestions of fact ,hich cannot be predetermined, and that Martial +a, per se does not
necessarily preclude the factual possibility of ade#uate freedom, for the purposes contemplated.
2. 0n Presidential Proclamation ?o. &&9*, the follo,ing vie,s ,ere e8pressed7
a. .ustices Makalintal, Castro, 1ernando, eehankee, Makasiar, /sguerra and myself are
of the opinion that the #uestion of validity of said Proclamation has not been properly
raised before the Court, ,hich, accordingly, should not pass upon such #uestion.
b. .ustice Barredo holds that the issue on the constitutionality of Proclamation ?o. &&9*
has been submitted to and should be determined by the Court, and that the 4purported
ratification of the Proposed Constitution ... based on the referendum among Citi"ens$
Assemblies falls short of being in strict conformity ,ith the re#uirements of Article D6 of
the &(AB Constitution,4 but that such unfortunate dra,back not,ithstanding, 4considering
all other related relevant circumstances, ... the ne, Constitution is legally recogni"able
and should be recogni"ed as legitimately in force.4
c. .ustice 5aldivar maintains un#ualifiedly that the Proposed Constitution has not been
ratified in accordance ,ith Article D6 of the &(AB Constitution, and that, accordingly, it
has no force and effect ,hatsoever.
d. .ustice Antonio feels 4that the Court is not competent to act4 on the issue ,hether the
Proposed Constitution has been ratified by the people or not, 4in the absence of any
judicially discoverable and manageable standards,4 since the issue 4poses a #uestion of
fact.
'. 0n the #uestion ,hether or not these cases should be dismissed, .ustices Makalintal, Castro, Barredo,
Makasiar, Antonio and /sguerra voted in the affirmative, for the reasons set forth in their respective
opinions. .ustices 1ernando, eehankee, and the ,riter similarly voted, e8cept as regards Case ?o. +C
AB(J) as to ,hich they voted to grant to the petitioners therein a reasonable period of time ,ithin ,hich to
file appropriate pleadings should they ,ish to contest the legality of Presidential Proclamation ?o. &&9*.
.ustice 5aldivar favors the granting of said period to the petitioners in said Case ?o. +CAB(J) for the
aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the
merits everyone of the cases under consideration.
Accordingly, the Court K acting in conformity ,ith the position taken by si8 ;2< of its members,
1
,ith
three ;A< members dissenting,
4
,ith respect to 3.!. ?o. +CAB(J), only and another member
3

dissenting, as regards all of the cases dismissed the same, ,ithout special pronouncement as to
costs.
T*e Present Cases
Prior thereto, or on .anuary *9, &('A, .osue .avellana filed Case 3.!. ?o. +CA2&J* against the
/8ecutive -ecretary and the -ecretaries of ?ational Defense, .ustice and 1inance, to restrain said
respondents 4and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution4 K referring to that of &(AB. he petition
therein, filed by .osue .avellana, as a 41ilipino citi"en, and a #ualified and registered voter4 and as 4a
class suit, for himself, and in behalf of all citi"ens and voters similarly situated,4 ,as amended on or
about .anuary *J, &('A. After reciting in substance the facts set forth in the decision in the plebiscite
cases, .avellana alleged that the President had announced 4the immediate implementation of the
?e, Constitution, thru his Cabinet, respondents including,4 and that the latter 4are acting ,ithout, or
in e8cess of jurisdiction in implementing the said proposed Constitution4 upon the ground7 4that the
President, as CommanderCinCChief of the Armed 1orces of the Philippines, is ,ithout authority to
create the Citi"ens Assemblies4: that the same 4are ,ithout po,er to approve the proposed
Constitution ...4: 4that the President is ,ithout po,er to proclaim the ratification by the 1ilipino people
of the proposed Constitution4: and 4that the election held to ratify the proposed Constitution ,as not a
free election, hence null and void.4
-imilar actions ,ere filed, on .anuary *A, &('A, by 6idal an, .. Antonio Araneta, Alejandro !oces,
Manuel Crudo, Antonio =. Miranda, /milio de Peralta and +oren"o M. aLada, against the /8ecutive
-ecretary, the -ecretaries of 1inance, .ustice, +and !eform, and ?ational Defense, the Auditor
3eneral, the Budget Commissioner, the Chairman of the Presidential Commission on !eorgani"ation,
the reasurer of the Philippines, the Commission on /lections and the Commissioner of Civil -ervice
5
on 1ebruary A, &('A, by /ddie Monteclaro, personally and as President of the ?ational Press Club of
the Philippines, against the /8ecutive -ecretary, the -ecretary of Public %nformation, the Auditor
3eneral, the Budget Commissioner and the ?ational reasurer
5
and on 1ebruary &*, &('A, by
?apoleon 6. Dilag, Alfredo -alapantan, .r., +eonardo Asodisen, .r. and !aul M. 3on"ales,
:
against
the /8ecutive -ecretary, the -ecretary of ?ational Defense, the Budget Commissioner and the
Auditor 3eneral.
+ike,ise, on .anuary *A, &('A, 3erardo !o8as, Ambrosio Padilla, .ovito !. -alonga, -alvador >.
+aurel,
7
!amon 6. Mitra, .r. and /va /stradaCNala,, the first as 4duly elected -enator and Minority
1loor +eader of the -enate,4 and others as 4duly elected members4 thereof, filed Case 3.!. ?o. +C
A2&2B, against the /8ecutive -ecretary, the -ecretary ?ational Defense, the Chief of -taff of the
Armed 1orces of the Philippines, the -ecretary of 3eneral -ervices, the President and the President
Pro empore of the -enate. %n their petition K as amended on .anuary *2, &('A K petitioners
3erardo !o8as, et al. allege, inter alia, that the term of office of three of the aforementioned
petitioners
8
,ould e8pire on December A&, &('B, and that of the others
9
on December A&, &('': that
pursuant to our &(AB Constitution, 4,hich is still in force Congress of the Philippines 4must convene
for its )th -ession on Monday, .anuary **, &('A, at &9799 A.M., ,hich is regular customary hour of
its opening session4: that 4on said day, from &9799 A.M. up to the afternoon,4 said petitioner 4along
,ith their other colleagues, ,ere unla,fully prevented from using the -enate -ession >all, the same
having been closed by the authorities in physical possession and control the +egislative Building4:
that 4;a<t about B799 to 2799 P.M. the said day, the premises of the entire +egislative Building ,ere
ordered cleared by the same authorities, and no one ,as allo,ed to enter and have access to said
premises4: that 4;r<espondent -enate President 3il .. Puyat and, in his absence, respondent
President Pro empore .ose !oy ,e asked by petitioning -enators to perform their duties under the
la, and the !ules of the -enate, but unla,fully refrained and continue to refrain from doing so4: that
the petitioners ready and ,illing to perform their duties as duly elected members of the -enate of the
Philippines,4 but respondent -ecretary of ?ational Defense, /8ecutive -ecretary and Chief of -taff,
4through their agents and representatives, are preventing petitioners from performing their duties as
duly elected -enators of the Philippines4: that 4the -enate premise in the Congress of the Philippines
Building ... are occupied by and are under the physical control of the elements military organi"ations
under the direction of said respondents4: that, as per 4official reports, the Department of 3eneral
-ervices ... is no, the civilian agency in custody of the premises of the +egislative Building4: that
respondents 4have unla,fully e8cluded and prevented, and continue to so e8clude and prevent4 the
petitioners 4from the performance of their s,orn duties, invoking the alleged approval of the &('*
;&('A< Constitution of the Philippines by action of the soCcalled Citi"ens$ Assemblies on .anuary &9,
&('A to .anuary &B, &('A, as stated in and by virtue of Proclamation ?o. &&9* signed and issued by
the President of the Philippines4: that 4the alleged creation of the Citi"ens$ Assemblies as
instrumentalities for the ratification of the Constitution of the !epublic of the Philippines4 is inherently
illegal and palpably unconstitutional: that respondents -enate President and -enate President Pro
empore 4have unla,fully refrained and continue to refrain from andFor unla,fully neglected and
continue to neglect the performance of their duties and functions as such officers under the la, and
the !ules of the -enate4 #uoted in the petition: that because of events supervening the institution of
the plebiscite cases, to ,hich reference has been made in the preceding pages, the -upreme Court
dismissed said cases on .anuary **, &('A, by a majority vote, upon the ground that the petitions
therein had become moot and academic: that the alleged ratification of the &('* ;&('A< Constitution
4is illegal, unconstitutional and void and ... can not have superseded and revoked the &(AB
Constitution,4 for the reasons specified in the petition as amended: that, by acting as they did, the
respondents and their 4agents, representatives and subordinates ...have e8cluded the petitioners
from an office to ,hich4 they 4are la,fully entitled4: that 4respondents 3il .. Puyat and .ose !oy have
unla,fully refrained from convening the -enate for its )th session, assuming general jurisdiction over
the -ession >all and the premises of the -enate and ... continue such inaction up to this time and ...
a ,rit of (an!a(us is ,arranted in order to compel them to comply ,ith the duties and functions
specifically enjoined by la,4: and that 4against the above mentioned unla,ful acts of the respondents,
the petitioners have no appeal nor other speedy and ade#uate remedy in the ordinary course of la,
e8cept by invoking the e#uitable remedies of (an!a(us and prohibition ,ith the provisional remedy
of preliminary mandatory injunction.4
Premised upon the foregoing allegations, said petitioners prayed that, 4pending hearing on the merits,
a ,rit of preliminary mandatory injunction be issued ordering respondents /8ecutive -ecretary, the
-ecretary of ?ational Defense, the Chief of -taff of the Armed 1orces of the Philippines, and the ...
-ecretary of 3eneral -ervice, as ,ell as all their agents, representatives and subordinates to vacate
the premises of the -enate of the Philippines and to deliver physical possession of the same to the
President of the -enate or his authori"ed representative4: and that hearing, judgment be rendered
declaring null and Proclamation ?o. &&9* ... and any order, decree, proclamation having the same
import and objective, issuing ,rits of prohibition and (an!a(us, as prayed for against aboveC
mentioned respondents, and making the ,rit injunction permanent: and that a ,rit of (an!a(us be
issued against the respondents 3il .. Puyat and .ose !oy directing them to comply ,ith their duties
and functions as President and President Pro empore, respectively, of the -enate of Philippines, as
provided by la, and the !ules of the -enate.4
!e#uired to comment on the aboveCmentioned petitions andFor amended petitions, respondents filed,
,ith the leave Court first had and obtained, a consolidated comment on said petitions andFor
amended petitions, alleging that the same ought to have been dismissed outright: controverting
petitioners$ allegations concerning the alleged lack impairment of the freedom of the &('&
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citi"ens$ Assemblies 4for the purpose submitting to them the matter of ratification
of the ne, Constitution,4 the alleged 4improper or inade#uate submiss of the proposed constitution,4
the 4procedure for ratification adopted ... through the Citi"ens Assemblies4: a maintaining that7 &<
4;t<he Court is ,ithout jurisdiction to act on these petitions4: *< the #uestions raised therein are
4political in character and therefore nonjusticiable4: A< 4there substantial compliance ,ith Article D6 of
the & Constitution4: J< 4;t<he Constitution ,as properly submitted the people in a free, orderly and
honest election: B< 4Proclamation ?o. &&9*, certifying the results of the election, is conclusive upon
the courts4: and 2< 4;t<he amending process outlined in Article D6 of the &(AB Constitution is not
e8clusive of other modes of amendment.4
!espondents Puyat and !oy, in said Case 3.!. ?o. +CA2&2B, filed their separate comment therein,
alleging that 4;t<he subject matter4 of said case 4is a highly political #uestion ,hich, under the
circumstances, this ...Court ,ould not be in a position to act upon judicially,4 and that, in vie, of the
opinions e8pressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation ?o. &&9*, 4further proceedings in this case may only be an
academic e8ercise in futility.4
0n 1ebruary B, &('A, the Court issued a resolution re#uiring respondents in +CA2*A2 to comment on
the petition therein not later than -aturday, 1ebruary &9, &('A, and setting the case for hearing on
1ebruary &*, &('A, at (7A9 a.m. By resolution dated 1ebruary ', &('A, this Court resolved to consider
the comments of the respondents in cases 3.!. ?os. +CA2&J*, +CA2&2J, and +CA2&2B, as motions to
dismiss the petitions therein, and to set said cases for hearing on the same date and time as +C
A2*A2. 0n that date, the parties in 3.!. ?o. +CA2*)A
10
agreed that the same be, like,ise, heard, as it
,as, in fact, heard jointly ,ith the aforementioned cases 3.!. ?os. +CA2&J*, +CA2&2J, +CA2&2B and +C
A2*A2. he hearing, ,hich began on 1ebruary &*, &('A, shortly after (7A9 a.m., ,as continued not
only that afternoon, but, also, on 1ebruary &A, &J, &B and &2, morning and afternoon, after ,hich the
parties ,ere granted up to 1ebruary *J, &('A, noon, ,ithin ,hich to submit their notes of oral
arguments and additional arguments, as ,ell as the documents re#uired of them or ,hose
presentation ,as reserved by them. he same resolution granted the parties until March &, &('A, to
reply to the notes filed by their respective opponents. Counsel for the petitioners in 3.!. ?os. +C
A2&2J and +CA2&2B filed their aforementioned notes on 1ebruary *J, &('A, on ,hich date the
-olicitor 3eneral sought an e8tension of time up to March A, &('A, ,ithin ,hich to file his notes,
,hich ,as granted, ,ith the understanding that said notes shall include his reply to the notes already
filed by the petitioners in 3.!. ?os. +CA2&2J a +CA2&2B. Counsel for the petitioners, like,ise, moved
and ,ere granted an e8tension of time, to e8pire on March &9, &('A, ,ithin ,hich to file, as they did,
their notes in reply to those submitted by the -olicitor 3eneral on March A, &('A. 0n March *&, &('A,
petitioners in +CA2&2B filed a 4Manifestation a -upplemental !ejoinder,4 ,hereas the 0ffice of the
-olicitor 3eneral submitted in all these cases a 4!ejoinder Petitioners$ !eplies.4
After deliberating on these cases, the members of the Court agreed that each ,ould ,rite his o,n
opinion and serve a copy thereof on his colleagues, and this they did. -ubse#uently, the Court
discussed said opinions and votes ,ere cast thereon. -uch individual opinions are appended hereto.
Accordingly, the ,riter ,ill first e8press his person opinion on the issues before the Court. After the
e8position his aforesaid opinion, the ,riter ,ill make, concurrently ,ith his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
KriterDs Personal Opinion
%.
3lle+e! aca!e(ic ,utilit o, ,urt*er procee!in+s in G.>. 047/$/8.
his defense or theory, set up by counsel for respondents 3il .. Puyat and .ose !oy in 3.!. ?o. +C
A2&2B, and, also, by the -olicitor 3eneral, is predicated upon the fact that, in 0ur decision in the
plebiscite cases, Mr. .ustice Barredo had e8pressed the vie, that the &(AB Constitution had 4pro
tanto passed into history4 and 4been legitimately supplanted by the Constitution no, in force by virtue
of Proclamation ?o. &&9* ...4: that Mr. .ustice Antonio did not feel 4that this Court competent to act4 in
said cases 4in the absence of any judicially discoverable and manageable standards4 and because
4the access to relevant information is insufficient to assure the correct determination of the issue,4
apart from the circumstance that 4the ne, constitution has been promulgated and great interests
have already arisen under it4 and that the political organ of the 3overnment has recogni"ed its
provisions: ,hereas, Mr. .ustice /sguerra had postulated that 4;,<ithout any competent evidence ...
about the circumstances attending the holding4 of the 4referendum or plebiscite4 thru the Citi"ens$
Assemblies, he 4cannot say that it ,as not la,fully held4 and that, accordingly, he assu(e! 4that ,hat
the proclamation ;?o. &&9*< says on its face is true and until overcome by satisfactory evidence4 he
could not 4subscribe to the claim that such plebiscite ,as not held accordingly4: and that he accepted
4as a ,ait acco(pli that the Constitution adopted ;by the &('& Constitutional Convention< on
?ovember A9, &('*, has been duly ratified.
Counsel for respondents 3il .. Puyat and .ose !oy goes on to say that, under these circumstances,
4it seems remote or improbable that the necessary eight ;)< votes under the &(AB Constitution, and
much less the ten ;&9< votes re#uired by the &('* ;&('A< Constitution, can be obtained for the relief
sought in the Amended Petition4 in 3.!. ?o.
+CA2&2B.
% am unable to share this vie,. o begin ,ith, Mr. .ustice Barredo announced publicly, in open court,
during the hearing of these cases, that he ,as and is ,illing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. %n effect, he thus declared that
he had an open mind in connection ,ith the cases at bar, and that in deciding the same he ,ould not
necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
vie, should be sustained.
-econdly, counsel for the aforesaid respondents had apparently assumed that, under the &(AB
Constitution, eight ;)< votes are necessary to declare invalid the contested Proclamation ?o. &&9*. %
do not believe that this assumption is borne out by any provision of said Constitution. -ection &9 of
Article 6%%% thereof reads7
All cases involving the constitutionality of a treaty or la, shall be heard and decided by the -upreme
Court in #anc, and no treaty or la, may be declared unconstitutional ,ithout the concurrence of t,o thirds
of all the members of the Court.
Pursuant to this section, the concurrence of t,oCthirds of all the Members of the -upreme Court is
re#uired only to declare 4treaty or la,4 unconstitutional. Construing said provision, in a resolution
dated -eptember &2, &(J(, then Chief .ustice Moran, voicing the unani(ous vie, of the Members of
this Court, postulated7
... here is not*in+ either in the Constitution or in the .udiciary Act re#uiring the vote of eight .ustices to
nullify a rule or regulation or an e8ecutive order issued by the President. %t is very significant that in the
previous drafts of section &9, Article 6%%% of the Constitution, 4e8ecutive order4 and 4regulation4 )ere
inclu!e! among those that re#uired for their nullification the vote of t,oCthirds of all the members of the
Court. But 4e8ecutive order4 and 4regulation4 ,ere later !elete! from the final draft ;Aruego, he 1raming
of the Philippine Constitution, 6ol. %, pp. J(B, J(2<, and t*us a (ere (a5orit o, si6 (e(#ers o, t*is Court
is enou+* to nulli, t*e(.
11

he distinction is not ,ithout reasonable foundation. he t,o thirds vote ;eight G)H votes< re#uirement,
indeed, ,as made to apply only to treaty and la,, because, in these cases, the participation of the
t,o other departments of the government K the /8ecutive and the +egislative K is present, ,hich
circumstance is absent in the case of rules, regulations and e8ecutive orders. %ndeed, a la, ;statute<
passed by Congress is subject to the approval or veto of the President, ,hose disapproval cannot be
overridden e8cept by the vote of t,oCthirds ;*FA< of all members of each >ouse of Congress.
14
A
treaty is entered into by the President ,ith the concurrence of the -enate,
13
,hich is not re#uired in
the case of rules, regulations or e8ecutive orders ,hich are e8clusive acts of the President. >ence, to
nullify the same, a lesser number of votes is necessary in the -upreme Court than that re#uired to
invalidate a la, or treaty.
Although the foregoing refers to rules, regulations and e8ecutive orders issued by the President, the
dictum applies ,ith e#ual force to e8ecutive proclamation, like said Proclamation ?o. &&9*, inasmuch
as the authority to issue the same is governed by section 2A of the !evised Administrative Code,
,hich provides7
Administrative acts and commands of the ;3overnorC3eneral< President of the Philippines touching the
organi"ation or mode of operation of the 3overnment or rearranging or readjusting any of the districts,
divisions, parts or ports of the ;Philippine %slands< Philippines and all acts and commands governing the
general performance of duties by public employees or disposing of issues of general concern shall be
made effective in e8ecutive orders.
/8ecutive orders fi8ing the dates ,hen specific la,s, resolutions, or orders are to have or cease to ;have<
effect and an in,or(ation concernin+ (atters o, pu#lic (o(ent determined by la,, resolution, or
e8ecutive orders, may be promulgated in an e8ecutive proclamation, )it* all t*e ,orce o, an e6ecutive
or!er.
15

%n fact, ,hile e8ecutive order embody administrative acts or commands of the President, e8ecutive
proclamations are mainly informative and declaratory in character, and so does counsel for
respondents 3il .. Puyat and .ose !oy maintain in 3.!. ?o.
+CA2&2B.
15
As conse#uence, an e8ecutive proclamation has no (ore than 4the force of an e8ecutive
order,4 so that, for the -upreme Court to declare such proclamation unconstitutional, under the &(AB
Constitution, the same number of votes needed to invalidate an e8ecutive order, rule or regulation K
namely, si8 ;2< votes K ,ould suffice.
As regards the applicability of the provisions of the proposed ne, Constitution, approved by the &('&
Constitutional Convention, in the determination of the #uestion ,hether or not it is no, in force, it is
obvious that such #uestion depends upon ,hether or not the said ne, Constitution has been ratified
in accordance ,ith the re#uirements of the &(AB Constitution, upon the authority of ,hich said
Constitutional Convention ,as called and approved the proposed Constitution. %t is ,ell settled that
the matter of ratification of an amendment to the Constitution should be settled by applin+ t*e
provisions o, t*e Constitution in ,orce at t*e ti(e o, t*e alle+e! rati,ication, or t*e ol! Constitution.
1:

%%
.oes t*e issue on t*e vali!it o, Procla(ation No. $$F2 parta-e o, t*e nature o, a political, an!,
*ence, non45usticia#le ;uestion2
he -olicitor 3eneral maintains in his comment the affirmative vie, and this is his main defense. %n
support thereof, he alleges that 4petitioners ,ould have this Court declare as invalid the ?e,
Constitution of the !epublic4 from ,hich K he claims K 4this Court no, derives its authority4: that
4nearly &B million of our body politic from the age of &B years have mandated this Constitution to be
the ?e, Constitution and the prospect of unsettling acts done in reliance on it caution against
interposition of the po,er of judicial revie,4: that 4in the case of the ?e, Constitution, the government
has been recogni"ed in accordance ,ith the ?e, Constitution4: that 4the country$s foreign relations
are no, being conducted in accordance ,ith the ne, charter4: that 4foreign governments have taken
note of it4: that the 4plebiscite cases4 are 4not precedents for holding #uestions regarding proposal
and ratification justiciable4: and that 4to abstain from judgment on the ultimate issue of
constitutionality is not to abdicate duty.4
At the outset, it is obvious to me that Ee are not being asked to 4declare4 the ne) Constitution
invalid. Ehat petitioners dispute is the theory that it has been validly ratified by the people, especially
that they have done so in accor!ance )it* 3rticle I@ o, t*e $%78 Constitution. he petitioners
maintain that the conclusion reached by the Chief /8ecutive in the dispositive portion of Proclamation
?o. &&9* is not borne out by the ,hereases preceding the same, as the predicates from ,hich said
conclusion ,as dra,n: that the plebiscite or 4election4 re#uired in said Article D6 has not been held:
that the Chief /8ecutive has no authority, under the &(AB Constitution, to !ispense ,ith said election
or plebiscite: that the proceedings before the Citi"ens$ Assemblies did not constitute and may not be
considered as such plebiscite: that the facts of record abundantly sho, that the aforementioned
Assemblies could not have been held throughout the Philippines from .anuary &9 to .anuary &B,
&('A: and that, in any event, the proceedings in said Assemblies are null and void as an alleged
ratification of the ne, Constitution proposed by the &('& Constitutional Convention, not only because
of the circumstances under ,hich said Assemblies had been created and held, but, also, because
persons dis#ualified to vote under Article 6 of the Constitution ,ere allo,ed to participate therein,
because the provisions of our /lection Code ,ere not observed in said Assemblies, because the
same ,ere not held under the supervision of the Commission on /lections, in violation of section * of
Article D of the &(AB Constitution, and because the e8istence of Martial +a, and 3eneral 0rder ?o.
*9, ,ithdra,ing or suspending the limited freedom to discuss the merits and demerits of said
proposed Constitution, impaired the people$s freedom in voting thereon, particularly a viva voce, as it
,as done in many instances, as ,ell as their ability to have a reasonable kno,ledge of the contents
of the document on ,hich they ,ere allegedly called upon to e8press their vie,s.
!eferring no, more specifically to the issue on ,hether the ne, Constitution proposed by the &('&
Constitutional Convention has been ratified in accordance ,ith the provisions of Article D6 of the
&(AB Constitution is a political #uestion or not, % do not hesitate to state that the ans,er must be in
the negative. %ndeed, such is the position taken by this Court, &' in an endless line of decisions, too
long to leave any room for possible doubt that said issue is inherently and essentially justiciable.
-uch, also, has been the consistent position of the courts of the =nited -tates of America, ,hose
decisions have a persuasive effect in this jurisdiction, our constitutional system in the &(AB
Constitution being patterned after that of the =nited -tates. Besides, no plausible reason has, to my
mind, been advanced to ,arrant a departure from said position, consistently ,ith the form of
government established under said Constitution..
hus, in the aforementioned plebiscite cases,
18
Ke re5ecte! the theory of the respondents therein
that the #uestion ,hether Presidential Decree ?o. 'A calling a plebiscite to be held on .anuary &B,
&('A, for the ratification or rejection of the proposed ne, Constitution, ,as valid or not, ,as not a
proper subject of judicial in#uiry because, they claimed, it partook of a political nature, and Ee
unani(ousl declared that the issue ,as a 5usticia#le one. Kit* i!entical unani(it, Ee overruled the
respondents$ contention in the &('& *a#eas corpus cases,
19
#uestioning 0ur authority to determine
the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the
privilege of the ,rit of *a#eas corpus on August *&, &('&, despite the opposite vie, taken by this
Court in "arcelona v. "a-er
40
and 'ontene+ro v. CastaAe!a,
41
insofar as it adhered to the former
case, ,hich vie, Ee, accordingly, abandoned and refused to apply. 1or the same reason, Ee did not
apply and e8pressly modified, in Gonzales v. Co((ission on Elections,
44
the politicalC#uestion theory
adopted in 'a#ana+ v. 0opez @ito.
43
>ence, respondents herein urge =s to reconsider the action
thus taken by the Court and to revert to and follo, the vie,s e8pressed in "arcelon v. "a-er an!
'a#ana+ v. 0opez @ito.
45

he reasons adduced in support thereof are, ho,ever, substantially the same as those given in
support of the politicalC#uestion theory advanced in said *a#eas corpus and plebiscite cases, ,hich
,ere carefully considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a conse#uence, 0ur decision in the aforementioned *a#eas corpus cases partakes of
the nature and effect of a stare decisis, ,hich gained added ,eight by its virtual reiteration in the
plebiscite cases.
he reason ,hy the issue under consideration and other issues of similar character are justiciable,
not political, is plain and simple. 0ne of the principal bases of the nonCjusticiability of soCcalled
political #uestions is the principle of separation of po,ers K characteristic of the Presidential system
of government K the functions of ,hich are classified or divided, by reason of their nature, into three
;A< categories, namely7 &< those involving the making of la,s, ,hich are allocated to the legislative
department: *< those concerned mainly ,ith the enforcement of such la,s and of judicial decisions
applying andFor interpreting the same, ,hich belong to the e8ecutive department: and A< those
dealing ,ith the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, ,hich are apportioned to courts of justice.
Eithin its o,n sphere K but onl )it*in such sphere K each department is supreme and
independent of the others, and each is devoid of authority, not only to encroach upon the po,ers or
field of action assigned to any of the other departments, but, also, to in#uire into or pass upon the
advisability or )is!o( of the acts performed, measures taken or decisions made by the other
departments K provided that such acts, measures or decisions are )it*in the area allocated thereto
by the Constitution.
45

his principle of separation of po,ers under the presidential system goes hand in hand ,ith the
system of checks and balances, under ,hich each department is vested by the 1undamental +a,
,ith some po,ers to forestall, restrain or arrest a possible or actual misuse or abuse of po,ers by the
other departments. >ence, the appointing po,er of the /8ecutive, his pardoning po,er, his veto
po,er, his authority to call the +egislature or Congress to special sessions and even to prescribe or
limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof K such as the commission on Appointments K may approve
or disapprove some appointments made by the President. %t, also, has the po,er of appropriation, to
4define, prescribe, and apportion the jurisdiction of the various courts,4 as ,ell as that of
impeachment. =pon the other hand, under the judicial po,er vested by the Constitution, the
4-upreme Court and ... such inferior courts as may be established by la,,4 may settle or decide ,ith
finality, not only justiciable controversies bet,een private individuals or entities, but, also, disputes or
conflicts bet,een a private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or bet,een t,o ;*< officers or branches of service, ,hen the latter officer or
branch is charged ,ith acting ,ithout jurisdiction or in e8cess thereof or in violation of la,. And so,
,hen a po,er vested in said officer or branch of the government is a#solute or un;uali,ie!, the acts in
the e8ercise of such po,er are said to be political in nature, and, conse#uently, nonCjusticiable or
beyond judicial revie,. 0ther,ise, courts of justice ,ould be arrogating upon themselves a po,er
conferred by the Constitution upon another branch of the service to the e8clusion of the others.
>ence, in TaAa!a v. Cuenco,
4:
this Court #uoted ,ith approval from %n re McConaughy,
47
the
follo,ing7
4At the threshold of the case ,e are met ,ith the assertion that the #uestions involved are political, and
not judicial. %f this is correct, the court has no jurisdiction as the certificate of the state canvassing board
,ould then be final, regardless of the actual vote upon the amendment. he #uestion thus raised is a
fundamental one: #ut it *as #een so o,ten !eci!e! contrar to t*e vie) conten!e! ,or # t*e 3ttorne
General t*at it )oul! see( to #e ,inall settle!.
888 888 888
4... Ehat is generally meant, ,hen it is said that a #uestion is political, and not judicial, is that it is a (atter
)*ic* is to #e e6ercise! # t*e people in t*eir pri(ar political capacit, or that it has been specifically
delegated to some other department or particular officer of the government, )it* !iscretionar po)er to
act. -ee State vs. Cunnin+*a(, )& Eis. J(', ?.E. '*J, &B +.!.A. B2&: In re Gunn, B9 Nan. &BB: A* Pac.
J'9, (J), &( +.!.A. B&(: Green vs. 'ills, 2( 1ed. )B*, &2 C.C.A. B&2, A9 +.!.A. (9: Fletc*er vs. Tuttle
&B& %ll. J&, A' ?./. 2)A, *B +.!.A. &JA, J* Am. -t. !ep. **9. hus the 0e+islature (a in its !iscretion
determine ,hether it ,ill pass la, or submit a proposed constitutional amendment to the people. he
courts have no judicial control over such matters, not merely because t*e involve political ;uestions, but
because they are matters ,hich the people have by the Constitution delegated to the +egislature. he
3overnor may e8ercise the po,ers delegated him, free from judicial control, so lon+ as *e o#serves t*e
la)s act )it*in t*e li(its o, t*e po)er con,erre!. >is !iscretionar acts cannot be controllable, not
primarily because they are of a politics nature, but because the Constitution and la,s have placed the
particular matter under his control. "ut ever o,,icer un!er constitutional +overn(ent (ust act accor!in+l
to la) an! su#5ect its restrictions, an! ever !eparture t*ere,ro( or !isre+ar! t*ereo, (ust su#5ect *i( to
t*at restrainin+ an! controllin+ po)er o, t*e people, actin+ t*rou+* t*e a+enc o, t*e 5u!iciar9 ,or it (ust
#e re(e(#ere! t*at t*e people act t*rou+* courts, as )ell as t*rou+* t*e e6ecutive or t*e 0e+islature.
0ne department is just as representative as the other, and t*e 5u!iciar is t*e !epart(ent )*ic* is
c*ar+e! )it* t*e special !ut o, !eter(inin+ t*e li(itations )*ic* t*e la) places upon all o,,icial action.
he recognition of this principle, unkno,n e8cept in 3reat Britain and America, is necessar, to 1t*e en!
t*at t*e +overn(ent (a #e one o, la)s an! not o, (en4 K ,ords ,hich Eebster said ,ere t*e +reatest
contained in any ,ritten constitutional document.4 ;/mphasis supplied.<
and, in an attempt to describe the nature of a political #uestion in terms, it ,as hoped,
understandable to the laymen, Ee added that 4... the term 4political #uestion4 connotes, in legal
parlance, ,hat it means in ordinary parlance, namely, a #uestion of policy4 in matters concerning the
government of a -tate, as a body politic. 4%n other ,ords, in the language of Corpus .uris -ecundum
;supra<, it refers to 4those #uestions ,hich, under the Constitution, are to be !eci!e! # t*e people in
their sovereign capacity, or in regard to ,hich ,ull !iscretionar aut*orit has been delegated to the
+egislature or e8ecutive branch of the government.4 %t is concerned ,ith issues dependent upon the
)is!o(, not le+alit, of a particular measure.4
Accordingly, ,hen the grant of po,er is #ualified, conditional or subject to limitations, the issue on
,hether or not the prescribed #ualifications or conditions have been met, or the limitations respected,
is justiciable or nonCpolitical, the cru8 of the problem being one of le+alit or vali!it of the contested
act, not its ,isdom. 0ther,ise, said #ualifications, conditions or limitations K particularly those
prescribed or imposed by the Constitution K ,ould be set at naught. Ehat is more, the judicial
in#uiry into such issue and the settlement thereof are the (ain functions of courts of justice under the
Presidential form of government adopted in our &(AB Constitution, and the system of checks and
balances, one of its basic predicates. As a conse#uence, Ee have neither the authority nor the
discretion to decline passing upon said issue, but are un!er t*e inelucta#le o#li+ation K made
particularly more e8acting and peremptory by our oath, as members of the highest Court of the land,
to support and defend the Constitution K to settle it. his e8plains ,hy, in 'iller v. Jo*nson,
48
it ,as
held that courts have a 4!ut, rather than a po,er4, to determine ,hether another branch of the
government has 4kept )it*in constitutional li(its.4 ?ot satisfied ,ith this postulate, the court ,ent
farther and stressed that, if the Constitution provides ho, it may be amended K as it is in our &(AB
Constitution K 4then, unless t*e (anner is ,ollo)e!, t*e 5u!iciar as t*e interpreter o, t*at
constitution, )ill !eclare t*e a(en!(ent invali!.4
49
%n fact, this very Court K speaking through .ustice
+aurel, an outstanding authority on Philippine Constitutional +a,, as ,ell as one of the highly
respected and foremost leaders of the Convention that drafted the &(AB Constitution K declared, as
early as .uly &B, &(A2, that 4;i<n times of social dis#uietude or political e8citement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. %n cases of
conflict, the 5u!icial department is the onl constitutional or+an ,hich can be called upon to determine
the proper allocation of po,ers bet,een the several departments4 of the government.
30

he -olicitor 3eneral has invoked 0ut*er v. "or!en
31
in support of his stand that the issue under
consideration is nonCjusticiable in nature. ?either the factual background of that case nor the action
taken therein by the 1ederal -upreme Court has any similarity ,ith or bearing on the cases under
consideration.
0ut*er v. "or!en ,as an action for trespass filed by +uther ,ith the Circuit Court of the =nited -tates
against Borden and others for having forcibly entered into +uther$s house, in !hode %sland, sometime
in &)J*. he defendants ,ho ,ere in the military service of said former colony of /ngland, alleged in
their defense that they had acted in obedience to the commands of a superior officer, because +uther
and others ,ere engaged in a conspiracy to overthro, the government by force and the state had
been placed by competent authority under Martial +a,. -uch authority ,as the charter government of
!hode %sland at the time of the Declaration of %ndependence, for K unlike other states ,hich adopted
a ne, Constitution upon secession from /ngland K !hode %sland retained its form of government
under a British Charter, making only such alterations, by acts of the +egislature, as ,ere necessary to
adapt it to its subse#uent condition as an independent state. %t ,as under this form of government
,hen !hode %sland joined other American states in the Declaration of %ndependence and, by
subse#uently ratifying the Constitution of the =nited -tates, became a member of the =nion. %n &)JA,
it adopted a ne, Constitution.
Prior thereto, ho,ever, many citi"ens had become dissatisfied ,ith the charter government.
Memorials addressed by them to the +egislature having failed to bring about the desired effect,
meetings ,ere held and associations formed K by those ,ho belonged to this segment of the
population K ,hich eventually resulted in a convention called for the drafting of a ne, Constitution to
be submitted to the people for their adoption or rejection. he convention ,as not authori"ed by any
la, of the e8isting government. he delegates to such convention framed a ne, Constitution ,hich
,as submitted to the people. =pon the return of the votes cast by them, the convention declared that
said Constitution had been adopted and ratified by a majority of the people and became the
paramount la, and Constitution of !hode %sland.
he charter government, ,hich ,as supported by a large number of citi"ens of the state, contested,
ho,ever, the validity of said proceedings. his not,ithstanding, one homas E. Dorr, ,ho had been
elected governor under the ne, Constitution of the rebels, prepared to assert authority by force of
arms, and many citi"ens assembled to support him. hereupon, the charter government passed an
Act declaring the state under Martial +a, and adopted measures to repel the threatened attack and
subdue the rebels. his ,as the state of affairs ,hen the defendants, ,ho ,ere in the military service
of the charter government and ,ere to arrest +uther, for engaging in the support of the rebel
government K ,hich ,as never able to e8ercise an authority in the state K broke into his house.
Mean,hile, the charter government had taken measures to call its o,n convention to revise the
e8isting form of government. /ventually, a ne, constitution ,as drafted by a convention held under
the authority of the charter government, and thereafter ,as adopted and ratified by the people. 4;<he
times and places at ,hich the votes ,ere to be given, the persons ,ho ,ere to receive and return
them, and the #ualifications of the voters *avin+ all #een previousl aut*orize! an! provi!e! ,or #
la) passe! # t*e c*arter +overn(ent,4 the latter formally surrendered all of its po,ers to the ne,
government, established under its authority, in May &)JA, ,hich had been in operation
uninterrupte!l since then.
About a year before, or in May &)J*, Dorr, at the head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in Providence, but he ,as repulsed, and, after an
4assemblage of some hundreds of armed men under his command at Chepatchet in the .une
follo,ing, ,hich dispersed upon approach of the troops of the old government, no further effort ,as
made to establish4 his government. 4... until the Constitution of &)JA4 K adopted under the auspices
of the charter government K 4,ent into operation, the charter government continue! to assert its
authority and e8ercise its po,ers and to en,orce o#e!ience t*rou+*out t*e state ... .4
>aving offered to introduce evidence to prove that the constitution of the rebels had been ratified by
the majority of the people, ,hich the Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for revie, to the 1ederal -upreme Court ,hich affirmed the
action of the Circuit Court, stating7
%t is ,orthy of remark, ho,ever, ,hen ,e are referring to the authority of -tate decisions, that the trial of
homas E. Dorr took place after the constitution of &)JA ,ent into operation. T*e 5u!+es )*o !eci!e!
t*at case *el! t*eir aut*orit un!er t*at constitution an! it is a!(itte! on all *an!s t*at it )as a!opte! #
t*e people o, t*e State, an! is t*e la),ul an! esta#lis*e! +overn(ent. It is t*e !ecision, t*ere,ore, o, a
State court, )*ose 5u!icial aut*orit to !eci!e upon t*e constitution an! la)s o, >*o!e Islan! is not
;uestione! # eit*er part to this controversy, although the government under ,hich it acted ,as framed
and adopted under the sanction and la,s of the charter government.
T*e point, t*en, raise! *ere *as #een alrea! !eci!e! # t*e courts o, >*o!e Islan!. he #uestion
relates, altogether, to the constitution and la,s o, t*at State, an! t*e )ell settle! rule in t*is court is, t*at
t*e courts o, t*e Enite! States a!opt an! ,ollo) t*e !ecisions o, t*e State courts in ;uestions )*ic*
concern (erel t*e constitution an! la)s o, t*e State.
Epon )*at +roun! coul! t*e Circuit Court o, t*e Enite! States )*ic* trie! t*is case *ave !eparte! ,ro(
t*is rule, an! !isre+ar!e! an! overrule! t*e !ecisions o, t*e courts o, >*o!e Islan!2 =ndoubtedly the
courts of the =nited -tates have certain po,ers under the Constitution and la,s of the =nited -tates
,hich do not belong to the -tate courts. But t*e po)er o, !eter(inin+ t*at a State +overn(ent *as #een
la),ull esta#lis*e!, )*ic* t*e courts o, t*e State !iso)n an! repu!iate, is not one o, t*e(. Epon suc* a
;uestion t*e courts o, t*e Enite! States are #oun! to ,ollo) t*e !ecisions o, t*e State tri#unals, and must
therefore regard the charter government as the la,ful and established government during the time of this
contest.
34

%t is thus apparent that the conte8t ,ithin ,hich the case of 0ut*er v. "or!en ,as decided is basically
and fundamentally different from that of the cases at bar. o begin ,ith, the case did not involve a
federal #uestion, but one purely municipal in nature. >ence, the 1ederal -upreme Court ,as 4bound
to follo, the decisions of the -tate tribunals4 of !hode %sland upholding the constitution adopted
under the authority of the charter government. Ehatever else ,as said in that case constitutes,
therefore, an o#iter !ictu(. Besides, no decision analogous to that rendered by the -tate Court of
!hode %sland e8ists in the cases at bar. -econdly, the states of the =nion have a measure of internal
soverei+nt upon ,hich the 1ederal 3overnment may not encroach, ,hereas ours is a unitary form of
government, under ,hich our local governments derive their authority from the national government.
Again, unli-e our &(AB Constitution, the charter or organic la, of !hode %sland contained no provision
on the manner, procedure or conditions for its amendment.
hen, too, the case of 0ut*er v. "or!en hinged more on the #uestion of recognition of +overn(ent,
than on recognition of constitution, and there is a fundamental difference bet,een these t,o ;*< types
of recognition, the first being generally conceded to be a political #uestion, ,hereas the nature of the
latter depends upon a number of factors, one of them being ,hether the ne, Constitution has been
adopted in the manner prescribed in the Constitution in force at the time of the purported ratification
of the former, ,hich is essentiall a 5usticia#le #uestion. here ,as, in 0ut*er v. "or!en, a conflict
bet,een t)o ;*< rival governments, antagonistic to each other, ,hich is absent in the present cases.
>ere, the 3overnment established under the &(AB Constitution is the very same government ,hose
/8ecutive Department has urged the adoption of the ne, or revised Constitution proposed by the
&('& Constitutional Convention and no, alleges that it has been ratified by the people.
%n short, the vie,s e8pressed by the 1ederal -upreme Court in 0ut*er v. "or!en, decided in &)J(, on
matters ot*er than those referring to its po,er to revie, decisions of a state court concerning the
constitution and government of t*at state, not the 1ederal Constitution or 3overnment, are manifestly
neither, controlling, nor even persuasive in the present cases, having as the Fe!eral -upreme Court
admitted K no authority ,hatsoever to pass upon such matters or to revie, decisions of said state
court thereon. %n fact, referring to that case, the -upreme Court of Minnessota had the follo,ing to
say7
0ut*er v. "or!en, ' >o,. &, &* +. /d. B)&, is al,ays cited by those ,ho assert that the courts have no
po,er to determine #uestions of a political character. %t is interesting historically, but it has not t*e
sli+*test application to the case at bar. Ehen carefully analy"ed, it appears that it merely determines that
the ,e!eral courts )ill accept as ,inal an! controllin+ a !ecision o, t*e *i+*est court o, a state upon a
;uestion o, t*e construction o, t*e Constitution o, t*e state. ... .
33

"a-er v. Carr,
35
cited by respondents, involved an action to annul a ennessee statute apportioning
the seats in the 3eneral Assembly among the counties of the -tate, upon the theory that the
legislation violated the e#ual protection clause. A district court dismissed the case upon the ground,
among others, that the issue ,as a political one, but, after a painstaking revie, of the jurisprudence
on the matter, the 1ederal -upreme Court reverse! the appealed decision and held that said issue
)as 5usticia#le and nonCpolitical, inasmuch as74... ;d<eciding ,hether a matter has in any measure
been committed by the Constitution to anot*er branch of government, or ,hether the action of that
branch e6cee!s ,hatever authority has been committed, is itself a delicate e8ercise in constitutional
interpretation, and is a responsi#ilit o, t*is Court as ulti(ate interpreter o, t*e Constitution ... .4
-imilarly, in Po)ell v. 'cCor(ac-,
35
the same Court, speaking through then Chief .ustice Earren,
reversed a decision of the Court of Appeals of ?e, @ork affirming that of a 1ederal District Court,
dismissing Po,ell$s action for a declaratory judgment declaring thereunder that he K ,hose
#ualifications ,ere uncontested K had been unla,fully e8cluded from the (9th Congress of the =.-.
-aid dismissal ,as predicated upon the ground, inter alia, that the issue ,as political, but the 1ederal
-upreme Court held that it )as clearl a 5usticia#le one.
he -upreme Court of Minnessota undertook a careful revie, of American jurisprudence on the
matter. 0,ing to the lucidity of its appraisal thereof, Ee append the same to this opinion as Anne8 A
thereof.
After an, e8haustive analysis of the cases on this subject, the Court concluded7
he authorities are thus practicall uni,or( in holding that ,hether a constitutional amendment has been
properly adopted according to the re#uirements of an e8isting Constitution is a 5u!icial ;uestion. here
can be little doubt that the consensus of judicial opinion is to the effect that it is the a#solute !ut of the
judiciary to determine ,hether the Constitution has been amended in the manner re#uired by the
Constitution, unless a special tribunal has been created to determine the #uestion: and even then many of
the courts hold that the tribunal cannot be permitted to illegally amend the organic la,. ... .
3:

%n the light of the foregoing, and considering that Art. D6 of our &(AB Constitution prescribes the
method or procedure for its amendment, it is clear to my mind that the #uestion ,hether or not the
revised Constitution drafted by the &('& Constitutional Convention has been ratified in accordance
,ith said Art. D6 is a justiciable one and nonCpolitical in nature, and that it is not only subject to
judicial in#uiry, but, also, that it is the Court$s bounden !ut to decide such #uestion.
he -upreme Court of the =nited -tates has meaningfully postulated that 4the courts cannot reject as
$no la, suit$ 4 K because it allegedly involves a political #uestion K 4a bona fide controversy as to
,hether some action denominated 4political4 e6cee!s constitutional aut*orit.4
37

%%%
Cas t*e propose! ne) or revise! Constitution #een rati,ie! con,or(a#l to sai! 3rt. I@ o, t*e $%78
Constitution2
Petitioners in +CA2&J* maintain the negative vie,, upon ground7 &< that the President 4is ,ithout
authority to create the Citi"ens$ Assemblies4 through ,hich, respondents maintain, the proposed ne,
Constitution has been ratified: that said Assemblies 4are ,ithout po,er to approve the proposed
Constitution4: A< that the President 4is ,ithout po,er to proclaim the ratification by the 1ilipino people
of the proposed Constitution4: and J< that 4the election held ;in the Citi"ens$ Assemblies< to ratify the
proposed Constitution ,as not a free election, hence null and void.4
Apart from substantially reiterating these grounds support of said negative vie,, the petitioners in +C
A2&2J contend7 &< that the President 4has no po,er to call a plebiscite for the ratification or rejection4
of the proposed ne, Constitution or 4to appropriate funds for the holding of the said plebiscite4: *<
that the proposed ne, or revised Constitution 4is vague and incomplete,4 as ,ell as 4contains
provisions ,hich are beyond the po,ers of the &('& Convention to enact,4 thereby rendering it 4unfit
for ... submission the people:4 A< that 4;t<he period of time bet,een ?ovember &('* ,hen the &('*
draft ,as approved and .anuary &&C&B, &('A,4 ,hen the Citi"ens$ Assemblies supposedly ratified
said draft, 4,as too short, ,orse still, there ,as practically no time for the Citi"ens$ Assemblies to
discuss the merits of the Constitution ,hich the majority of them have not read a ,hich they never
kne, ,ould be submitted to them ratification until they ,ere asked the #uestion K 4do you approve of
the ?e, ConstitutionI4 during the said days of the voting4: and that 4;t<here ,as altogether no
freedom discussion and no opportunity to concentrate on the matter submitted to them ,hen the
&('* draft ,as supposedly submitted to the Citi"ens$ Assemblies for ratification.4
Petitioner in +CA2*A2 added, as arguments in support of the negative vie,, that 7 &< 4;,<ith a
governmentCcontrolled press, there can never be a fair and proper submission of the proposed
Constitution to the people4: and *< Proclamation ?o. &&9* is null and void 4;i<nasmuch as the
ratification process4 prescribed 4in the &(AB Constitution ,as not follo,ed.4
Besides adopting substantially some of the grounds relied upon by the petitioners in the aboveC
mentioned cases, the petitioners in +CA2*)A argue that 4;t<he creation of the Citi"ens$ Assemblies as
the vehicle for the ratification of the Constitution ,as a deception upon the people since the President
announced the postponement of the .anuary &B, &('A plebiscite to either 1ebruary &( or March B,
&('A.4
38

he reasons adduced by the petitioners in +CA2&2B in favor of the negative vie, have already been
set forth earlier in this opinion. >ence, it is unnecessary to reproduce them here. -o it is, ,ith respect
to the positions taken in +CA2&2B by counsel for therein respondents 3il .. Puyat and .ose !oy K
although more ,ill be said later about them K and by the -olicitor 3eneral, on behalf of the other
respondents in that case and the respondents in the other cases.
&. K*at is t*e proce!ure prescri#e! # t*e $%78 Constitution ,or its a(en!(ent2
=nder section & of Art. D6 of said Constitution, three ;A< steps are essential, namely7
&. hat the amendments to the Constitution be proposed either by Congress or by a convention
called for that purpose, 4by a vote of threeCfourths of all the Members of the -enate and the >ouse of
!epresentatives voting separately,4 but 4in joint session assembled4:
*. hat such amendments be 4submitted to the people for their ratification4 at an 4election4: and
A. hat such amendments be 4approved by a majority of the votes cast4 in said election.
Compliance ,ith the first re#uirement is virtually conceded, although the petitioners in +CA2&2J
#uestion the authority of the &('& Constitutional Convention to incorporate certain provisions into the
draft of the ne, or revised Constitution. he main issue in these five ;B< cases hinges, therefore, on
,hether or not the last t,o ;*< re#uirements have been complied ,ith.
*. Cas t*e conteste! !ra,t o, t*e ne) or revise! Constitution #een su#(itte! to t*e people ,or t*eir
rati,ication con,or(a#l to 3rt. I@ o, t*e Constitution2
%n this connection, other provisions of the &(AB Constitution concerning 4elections4 must, also, be
taken into account, namely, section % of Art. 6 and Art. D of said Constitution. he former reads7
-ection &. -uffrage may be e8ercised by male citi"ens of the Philippines not other,ise dis#ualified by la,,
,ho are t,entyCone years of age or over and are able to read and ,rite, and ,ho shall have resided in
the Philippines for one year and in the municipality ,herein they propose to vote for at least si8 months
preceding the election. he ?ational Assembly shall e8tend the right of suffrage to ,omen, if in a
plebiscite ,hich shall be held for that purpose ,ithin t,o years after the adoption of this Constitution, not
less than three hundred thousand ,omen possessing the necessary #ualifications shall vote affirmatively
on the #uestion.
-ections & and * of Art. D of the Constitution ordain in part7
-ection &. here shall be an in!epen!ent Commission on /lections composed of a Chairman and t,o
other Members to be appointed by the President ,ith the consent of the Commission on Appointments,
,ho shall hold office for a term of nine years and may not be reappointed. ...
888 888 888
-ec. *. he Commission on /lections shall have e6clusive charge of the enforcement and administration
of all la)s relative to the con!uct o, elections and shall e8ercise all other functions ,hich may be
conferred upon it by la,. %t shall decide, save those involving the right to vote, all administrative
#uestions, affecting elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. 3ll la) en,orce(ent a+encies
an! instru(entalities o, t*e Govern(ent, ,hen so re#uired by the Commission, shall act as its !eputies
for the purpose of insurin+ ,ee, or!erl, an! *onest elections. he decisions, orders, and rulings of the
Commission shall be subject to revie, # t*e Supre(e Court.
888 888 888
39

a. K*o (a vote in a ple#iscite un!er 3rt. @ o, t*e Constitution2
Petitioners maintain that section & of Art. 6 of the Constitution is a li(itation upon the e8ercise of the
right of suffrage. hey claim that no other persons than 4citi"ens of the Philippines not other,ise
dis#ualified by la,, ,ho are t,entyCone years of age or over and are able to read and ,rite, and ,ho
shall have resided in the Philippines for one year and in the municipality ,herein they propose to vote
for at least si8 months preceding the election,4 may e8ercise the right of suffrage in the Philippines.
=pon the other hand, the -olicitor 3eneral contends that said provision merely +uarantees the right of
suffrage to persons possessing the aforementioned #ualifications and none of the dis#ualifications,
prescribed by la,, and that said right may be vested by competent authorities in persons lac-in+
some or all of the aforementioned #ualifications, and possessin+ some of the aforesaid
dis#ualifications. %n support of this vie,, he invokes the permissive nature of the language K
4;s<uffrage may be e8ercised4 K used in section & of Art. 6 of the Constitution, and the provisions of
the !evised Barrio Charter, !epublic Act ?o. AB(9, particularly sections J and 2 thereof, providing
that citi"ens of the Philippines 4eighteen years of age or over,4 ,ho are registered in the list of barrio
assembly members, shall be members thereof and may participate as such in the plebiscites
prescribed in said Act.
% cannot accept the -olicitor 3eneral$s theory. Art. 6 of the Constitution declares )*o may e8ercise
the right of suffrage, so that those lacking the #ualifications therein prescribed may not e8ercise such
right. his vie, is borne out by the records of the Constitutional Convention that drafted the &(AB
Constitution. %ndeed, section & of Art. 6 of the &(AB Constitution ,as largely based on the report of
the committee on suffrage of the Convention that drafted said Constitution ,hich report ,as, in turn,
4strongly influenced by the election la,s then in force in the Philippines ... .4
50
4 -aid committee had
recommended7 &< 4hat the right of suffrage should e8ercised onl by male citi"ens of the
Philippines.4 *< 4hat should be li(ite! to those ,ho could read and ,rite.4 A< 4hat the !ut to vote
should be made o#li+ator.4 %t appears that the first recommendation ,as discussed e8tensively in
the Convention, and that, by ,ay of compromise, it ,as eventually agreed to include, in section & of
Art. 6 of the Constitution, the second sentence thereof imposing upon the ?ational Assembly
established by the original Constitution K instead of the bicameral Congress subse#uently created by
amendment said Constitution K the duty to 4e8tend the right of suffrage ,omen, if in a plebiscite to,
be held for that purpose ,ithin t,o years after the adoption of this Constitution, not less than three
hundred thousand ,omen possessing the necessary #ualifications shall vote affirmatively on the
#uestion.4
51

he third recommendation on 4compulsory4 voting ,as, also debated upon rather e8tensively, after
,hich it ,as rejected by the Convention.
54
his accounts, in my opinion, for the permissive language
used in the first sentence of said Art. 6. Despite some debates on the age #ualification K
amendment having been proposed to reduce the same to &) or *9, ,hich ,ere rejected, and the
residence #ualification, as ,ell as the dis#ualifications to the e8ercise of the right of suffrage K the
second recommendation li(itin+ the right of suffrage to those ,ho could 4read and ,rite4 ,as K in
the language of Dr. .ose M. Aruego, one of the Delegates to said Convention K 4rea!il approve! in
the Convention ,ithout any dissenting vote,4 although there ,as some debate on ,hether the
1undamental +a, should specify the language or dialect that the voter could read and ,rite, ,hich
,as decided in the negative.
53

Ehat is relevant to the issue before =s is the fact that the constitutional provision under consideration
,as meant to be and is a +rant or con,er(ent of a right to persons possessing the #ualifications and
none of the dis#ualifications therein mentioned, ,hich in turn, constitute a li(itation of or restriction to
said right, and cannot, accordingly, be dispensed ,ith, e8cept by constitutional amendment.
0bviously, every such constitutional grant or conferment of a right is necessarily a negation of the
authority of Congress or of any other branch of the 3overnment to deny said right to the subject of
the grant K and, in this sense only, may the same partake of the nature of a guarantee. But, this
does not imply not even remotely, that the 1undamental +a, allo,s Congress or anybody else to vest
in those lacking the #ualifications and having the dis#ualifications mentioned in the Constitution the
right of suffrage.
At this juncture, it is note,orthy that the committee on suffrage responsible for the adoption of section
& of Art. 6 of the Constitution ,as 4strongly influenced by the election la,s then in force in the
Philippines.4 0ur first /lection +a, ,as Act &B)*, passed on .anuary (, &(9', ,hich ,as partly
amended by Acts &22(, &'9(, &'*2 and &'2), and incorporated into the Administrative Code of &(&2
K Act *2B' K as chapter *9 thereof, and then in the Administrative Code of &(&' K Act *'&& K as
chapter &) thereof, ,hich, in turn, ,as amended by Act AA)', approved on December A, &(*'.
-ections JA& and JA* of said Code of &(&', prescribing, respectively, the #ualifications for and
dis#ualifications from voting, are #uoted belo,.
55
%n all of these legislative acts, the provisions
concerning the #ualifications of voters partook of the nature of a +rant or recognition of the right of
suffrage, and, hence, of a !enial thereof to those ,ho lacked the re#uisite #ualification and
possessed any of the statutory dis#ualifications. %n short, the history of section &, Art. 6 of the
Constitution, sho,s beyond doubt than the same conferred K not guaranteed K the authority to
persons having the #ualifications prescribed therein and none of dis#ualifications to be specified in
ordinary la,s and, necessary implication, !enie! such right to those lacking any said #ualifications, or
*avin+ any of the aforementioned dis#ualifications.
his vie, is further bolstered by the fact that the &('& Constitutional Convention sought the
submission to a plebiscite of a 4partial amendment4 to said section & of Art. 6 of the &(AB
Constitution, by reducing the voting age from t,entyCone ;*&< years to eighteen ;&)< years, ,hich,
ho,ever, did not materiali"e on account of the decision of this Court in Tolentino v. Co((ission on
Elections,
55
granting the ,rits, of prohibition and injunction therein applied for, upon the ground that,
under the Constitution, all of the amendments adopted by the Convention should be submitted in 4an
election4 or a single election, not separately or in several or distinct elections, and that the proposed
amendment sought to be submitted to a plebiscite ,as not even a co(plete amendment, but a
4partial amendment4 of said section &, )*ic* coul! #e a(en!e! ,urt*er, a,ter its rati,ication, had the
same taken place, so that the aforementioned partial amendment ,as, for legal purposes, no more
than a provisional or te(porar amendment. -aid partial amendment ,as predicated upon the
generally accepted contemporary construction that, under the &(AB Constitution, persons belo,
t,entyCone ;*&< years of age could not e8ercise the right of suffrage, ,ithout a previous amendment
=pon the other hand, the #uestion, ,hether &)CyearCold members of barrio assemblies may vote in
barrio assembly plebiscites is, to say the least, a debatable one. %ndeed, there seems to be a conflict
bet,een the last paragraph of said section 2 of !ep. Act ?o. AB(9,
5:
pursuant to ,hich the 4majority
vote of all the barrio assembly (e(#ers4 ;,hich include all barrio residents &) years of age or over,
duly registered in the list of barrio assembly members< is necessary for the approval, in an assembly
plebiscite, of 4any budgetary, supplemental appropriations or special ta8 ordinances,4 ,hereas,
according to the paragraph preceding the penultimate one of said section,
57
4;a<ll duly registered
barrio assembly members ;uali,ie! to vote4 K ,ho, pursuant to section &9 of the same Act, must be
citi"ens 4of the Philippines, t)ent4one ears o, a+e or over, able to read and ,rite,4 and residents the
barrio 4during the si8 months immediately preceding election, duly registered in the list of voters4 and
4 other,ise dis#ualified ...4 K just like the provisions of present and past election codes of the
Philippines and Art. 6 of the &(AB Constitution K 4may vote in the plebiscite.4
% believe, ho,ever, that the apparent conflict should resolved in favor of the *&CyearCold members of
the assembly, not only because this interpretation is in accord ,ith Art. 6 the Constitution, but, also,
because provisions of a Constitution K particularly of a ,ritten and rigid one, like ours generally
accorded a mandatory status K unless the intention to the contrary is manifest, ,hich is not so as
regards said Art. 6 K for other,ise they ,ould not have been considered sufficiently important to be
included in the 1undamental +a, of the land.
58
Besides, it ,ould be illogical, if not absurd, believe
that !epublic Act ?o. AB(9 re#uires, for the (ost i(portant measures for ,hich it demands K in
addition to favorable action of the #arrio council K the approval of #arrio asse(#l through a
ple#iscite, lesser #ualifications than those prescribed in dealing ,ith ordinary measures for ,hich
such plebiscite need not be held.
%t is similarly inconceivable that those ,ho drafted the &(AB Constitution intended section & of Art. 6
thereof to apply onl to elections of pu#lic o,,icers, not to ple#iscites for the ratification of amendments
to the 1undamental +a, or revision thereof, or of an entirely ne, Constitution, and permit the
legislature to re#uire lesser #ualifications for such ratification, not,ithstanding the fact that the object
thereof much more important K if not fundamental, such as the basic changes introduced in the draft
of the revised Constitution adopted by the &('& Constitutional Convention, ,hich a intended to be in
force permanently, or, at least, for many decades, and to affect the ,ay of life of the nation K and,
accordingly, demands greater e8perience and maturity on the part of the electorate than that re#uired
for the election of public officers,
59
,hose average term ranges from * to 2 years.
%t is admitted that persons &B years of age or over, but belo, *& years, regardless of ,hether or not
they possessed the other #ualifications laid do,n in both the Constitution and the present /lection
Code,
50
and of ,hether or not they are dis#ualified under the provisions of said Constitution and
Code,
51
or those of !epublic Act ?o. AB(9,
54
have participated and voted in the Citi"ens$ Assemblies
that have allegedly ratified the ne, or revised Constitution drafted by the &('& Constitutional
Convention.
%n fact, according to the latest official data, the total number of registered voters *& years of age or
over in the entire Philippines, available in .anuary &('A, ,as less than &* million. @et, Proclamation
?o. &&9* states that &J,('2,B2 4members of all the Barangays ;Citi"ens Assemblies< voted for the
adoption of the proposed Constitution, as against ... 'JA,)2( ,ho voted for its rejection,4 ,hereas, on
the #uestion ,hether or not the people still ,anted a plebiscite to be called to ratify the ne,
Constitution, 4... &J,*(),)&J ans,ered that there ,as no need for a plebiscite and that the vote of the
Barangays ;Citi"ens Assemblies< should be considered as a vote in a plebiscite.4 %n other ,ords, it is
conceded that the number of people ,ho allegedly voted at the Citi"ens$ Assemblies ,or e6cee!e!
t*e nu(#er o, re+istere! voters under the /lection Code in force in .anuary &('A.
%t is thus clear that the proceedings held in such Citi"ens$ Assemblies K and Ee have more to say on
this point in subse#uent pages K ,ere fundamentally irregular, in that persons lacking the
#ualifications prescribed in section & of Art. 6 of the Constitution ,ere allo,ed to vote in said
Assemblies. And, since there is no means by ,hich the invalid votes of those less than *& years of
age can be separated or segregated from those of the #ualified voters, the proceedings in the
Citi"ens$ Assemblies must be considered null and void.
53

%t has been held that 4;t<he po,er to reject an entire poll ... s*oul! #e e6ercise! ... in a case ,here it
is i(possi#le to ascertain ,ith reasonable certainty the true vote,4 as ,here 4it is i(possi#le to
separate the legal votes from the illegal or spurious ... .4
55

%n Es(an v. Co((ission on Elections, et al.,
55
Ee held7
-everal circumstances, defying e8act description and dependent mainly on the factual milieu of the
particular controversy, have the effect of destroying the integrity and authenticity of disputed election
returns and of avoiding their pri(a ,acie value and character. %f satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the
election returns ,ith the indelible mark of falsity and irregularity, and, conse#uently, of unreliability, and
justify their e8clusion from the canvass.
hen, too, the &(AB Constitution re#uires 4a majority of the votes cast4 for a proposed amendment to
the 1undamental +a, to be 4valid4 as part thereof, and the term 4votes cast4 has a ,ellCsettled
meaning.
he term 4votes cast4 ... ,as held in S(it* v. >enville Count Co((issioners, 2B ?.E. (B2, 2J Minn. &2,
to have been used as an e#uivalent of 4#allots cast.4
5:

he ,ord 4cast4 is defined as 4to !eposit formally or officially.4
57

%t seems to us that a vote is cast ,hen a #allot is !eposite! indicating a 4choice.4 ... he ,ord 4cast4
means 4!eposit ;a #allot< formally or officially ... .
... %n simple ,ords, ,e ,ould define a 4vote cast4 as the e8ercise on a #allot of the choice of the voter on
the measure proposed.
58

%n short, said Art. D6 envisages K ,ith the term 4votes cast4 K choices made on #allots K not orally
or by raising K by the persons taking part in plebiscites. his is but natural and logical, for, since the
early years of the American regime, ,e had adopted the Australian Ballot -ystem, ,ith its major
characteristics, namely, uni,or( o,,icial #allots prepared and furnished by the 3overnment and
secrecy in the voting, ,ith the advantage of keeping records that permit judicial in#uiry, ,hen
necessary, into the accuracy of the election returns. And the &(AB Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from &(AB
to &(2'. >ence, the viva voce voting in the Citi"ens$ Assemblies ,as and is null and void a# initio.
b. Co) s*oul! t*e ple#iscite #e *el!2 :CO'E0EC supervision in!ispensa#le9 essential re;uisites<
.ust as essential as compliance ,ith said Art. 6 of the &( Constitution is that of Art. D thereof,
particularly its sections & and *. %ndeed, section & provides that 4;t<here shall be an in!epen!ent
Commission on /lections ... .4 he point to be stressed here is the term 4independent.4 %ndeed, ,hy
,as the term usedI
%n the absence of said constitutional provision as to the independence of the Commission, ,ould it
have been depends upon either Congress or the .udiciaryI he ans,er must be the negative,
because the functions of the Commission K 4enforcement and administration4 of election la,s K are
neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or
courts of justice. -aid functions are by their nature essentially e6ecutive, for ,hich reason, the
Commission ,ould be under the 4control4 of the President, pursuant to section &9, paragraph ;&< of
Art. 6%% of the Constitution, if Art. D thereof did not e8plicitly declare that it ;the Commission< is an
4independent4 body. %n other ,ords, in amending the original &(AB Constitution, by inserting therein
said Art. D, on the Commission on /lections, the purpose ,as to make said Commission in!epen!ent
principall o, t*e C*ie, E6ecutive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on /lections as a
constitutional organ, election la,s in the Philippines ,ere enforced by the then Department of the
%nterior, through its /8ecutive Bureau, one of the offices under the supervision and control of said
Department. he same K like other departments of the /8ecutive Branch of the 3overnment K ,as,
in turn, under the control of the Chief /8ecutive, before the adoption of the &(AB Constitution, and
had been K until the abolition of said Department, sometime ago K under the control of the
President of the Philippines, since the effectivity of said 1undamental +a,. =nder the provisions
thereof, the /8ecutive could so use his po,er of control over the Department of the %nterior and its
/8ecutive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in po,er, and, hence, to enable the
same to perpetuate itself therein. o forestall this possibility, the original &(AB Constitution ,as
amended by the establishment of the Commission on /lections as a constitutional body in!epen!ent
pri(aril o, t*e Presi!ent of the Philippines.
he independence of the Commission ,as sought to be strengthened by the long term of office of its
members K nine ;(< years, e8cept those first appointed
59
K the longest under the Constitution,
second only to that of the Auditor 3eneral
:0
: by providing that they may not be removed from office
e8cept by impeachment, placing them, in this respect, on the same plane as the President, the 6iceC
President, the .ustices of the -upreme Court and the Auditor 3eneral: that they may not be
reappointed: that their salaries, 4shall be neither increased nor diminished during their term of office4:
that the decisions the Commission 4shall be subject to revie, by the -upreme Court4 only
:1
: that
4;n<o pardon, parole, or suspension sentence for the violation of any election la, may be granted
,ithout the favorable recommendation of the Commission4
:4
: and, that its chairman and members
4shall not, during the continuance in office, engage in the practice of any profession or intervene,
directly or indirectly, in the management or control of any private enterprise ,hich in any,ay may
affected by the functions of their office: nor shall they, directly or indirectly, be financially interested in
any contract ,ith the 3overnment or any subdivision or instrumentality thereof.4
:3
hus, the framers
of the amendment to the original Constitution of &(AB endeavored to do everything possible protect
and insure the independence of each member of the Commission.
Eith respect to the functions thereof as a body, section * of said Art. D ordains that 4;t<he
Commission on /lections shall have e6clusive charge of the enforcement and administration all la,s
relative to the conduct of elections,4 apart from such other 4functions ,hich may be conferred upon it
by la,.4 %t further provides that the Commission 4shall decide, save those involving the right to vote,
all administrative #uestion affecting elections, including the determination of the number and location
of polling places, and the appointment of election inspectors and of other election officials.4 And, to
forests possible conflicts or frictions bet,een the Commission, on one hand, and the other offices or
agencies of the e8ecutive department, on the other, said section * postulates that 4:a<ll la,
enforcement agencies and instrumentalities of the 3overnment, ,hen so re;uire! by the
Commission, shall act as its !eputies for the purpose of insuring free, orderly, and honest elections.4
?ot satisfied ,ith this, it declares, in effect, that 4;t<he decisions, orders, and ruling of the
Commission4 shall not be subject to revie,, e8cept by the -upreme Court.
%n accordance ,ith the letter and spirit of said Art. D of the Constitution, !ep. Act ?o. 2A)), other,ise
kno,n as the /lection Code of &('&, implements the constitutional po,ers of the Commission on
/lections and grants additional po,ers thereto, some of ,hich are enumerated in sections B and 2 of
said Act, #uoted belo,.
:5
Moreover, said Act contains, inter alia, detailed provisions regulating
contributions and other ;corrupt< practices: the establishment of election precincts: the designation
and arrangement of polling places, including voting booths, to protect the secrecy of the ballot:
formation of lists of voters, the identification and registration of voters, the proceedings therefor, as
,ell as for the inclusion in, or e8clusion or cancellation from said list and the publication thereof: the
establishment of municipal, provincial and files of registered voters: the composition and appointment
of board of election inspectors: the particulars of the official ballots to be used and the precautions to
be taken to insure authenticity thereof: the procedure for the casting of votes: the counting of votes by
boards of inspectors: the rules for the appreciation of ballots and the preparation and disposition of
election returns: the constitution and operation of municipal, provincials and national boards of
canvassers: the presentation of the political parties andFor their candidates in each election precinct:
the proclamation of the results, including, in the case of election of public officers, election contests:
and the jurisdiction of courts of justice in cases of violation of the provisions of said /lection Code and
the penalties for such violations.
1e, la,s may be found ,ith such meticulous and elaborate set of provisions aimed at 4insuring free,
orderly, and honest election,4 as envisaged in section * of Art. D of the Constitution. @et, none of the
foregoing constitutional and statutory provisions ,as follo,ed by the soCcalled Barangays or Citi"ens$
Assemblies. And no reasons have been given, or even sou+*t to be given therefor. %n many, if not
most, instances, the election ,ere held a viva voce, thus depriving the electorate of the right to vote
secretly K one of the most, fundamental and critical features of our election la,s from time
immemorial K particularly at a time ,hen the same ,as of ut(ost importance, o,ing to the e6istence
o, 'artial 0a).
%n Glen v. Gnau,
:5
involving the casting of many votes, openly, ,ithout complying ,ith the
re#uirements of the la, pertinent thereto, it ,as held that the 4election officers4 involved 4cannot #e
too stron+l con!e(ne!4 therefor and that if they 4could legally dispense ,ith such re#uirement ...
they could ,ith e#ual propriety dispense ,ith all of them, inclu!in+ t*e one t*at t*e vote s*all #e #
secret #allot, or even # #allot
at all ... .4
Moreover, upon the formal presentation to the /8ecutive of the proposed Constitution drafted by the
&('& Constitutional Convention, or on December &, &('*, Presidential Decree ?o. 'A ;on the validity
of ,hich K ,hich ,as contested in the plebiscite cases, as ,ell as in the &('* *a#eas corpus cases
::
K Ee need not, in the case of bar, e8press any opinion< ,as issued, calling a plebiscite, to be held
on .anuary &B, &('A, at ,hich the proposed Constitution ,ould be submitted to the people for
ratification or rejection: directing the publication of said proposed Constitution: and declaring, inter
alia, that 4;t<he provision of the /lection Code of &('&, insofar as they are not inconsistent4 ,ith said
decree K e8cepting those 4regarding right and obligations of political parties and candidates4 K
4s*all appl to the conduct of the plebiscite.4 %ndeed, section * of said /lection Code of &('& provides
that 4;a<ll elections of public officers e8cept barrio officials an! ple#iscites shall be conducted in the
manner provided by this Code.4 3eneral 0rder ?o. *9, dated .anuary ', &('A, postponing until
further notice, 4the plebiscite scheduled to be held on .anuary &B, &('A,4 said nothing about the
procedure to be follo,ed in plebiscite to take place at such notice, and no other order or decree has
been brought to 0ur attention, e8pressly or impliedly repealing the provisions of Presidential Decree
'A, insofar as said procedure is concerned.
=pon the other hand, said 3eneral 0rder ?o. *9 e8pressly suspended 4the provisions of -ection A of
Presidential Decree ?o. 'A insofar as they allo, free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation ?o. &9)& for the purposes of free open dabate on the
proposed Constitution ... .4 his specific mention of the portions of the decrees or orders or
instructions suspended by 3eneral 0rder ?o. *9 necessarily implies that all other portions of said
decrees, orders or instructions K and, hence, the provisions of Presidential Decree ?o. 'A outlining
the procedure to be follo,ed in the plebiscite for ratification or rejection of the proposed Constitution
K remained in force, assuming that said Decree is valid.
%t is claimed that by virtue of Presidential Decree ?o. )2CA K the te8t of ,hich is #uoted belo,
:7
K
the /8ecutive declared, inter alia, that the collective vie,s e8pressed in the Citi"ens$ Assemblies
4shall be consi!ere! in the formulation of national policies or programs and, ,herever practicable,
shall be translated into concrete and specific decision4: that such Citi"ens$ Assemblies 4shall consider
vital national issues ... like the holding of the plebiscite on the ne, Constitution ... and others in the
future, ,hich shall serve as +ui!e or #asis ,or action or decision by the national government4: and that
the Citi"ens$ Assemblies 4shall conduct bet,een .anuary &9 and &B, &('A, a re,eren!u( on
important national issues, including those specified in paragraph * hereof, and submit the results
thereof to the Department of +ocal 3overnments and Community Development immediately
thereafter, ... .4 As in Presidential Decree ?o. )2, this Decree ?o. )2CA does not and cannot e8clude
the e8ercise of the constitutional supervisory po,er of the Commission on /lections or its
participation in the proceedings in said Assemblies, if the same had been intended to constitute the
4election4 or Plebiscite re#uired Art. 6 of the &(AB Constitution. he provision of Decree ?o. )2CA
directing the immediate submission of the result thereof to the Department of +ocal 3overnments
Community Development is not necessarily inconsistent ,ith, and must be subordinate to the
constitutional po,er of the Commission on /lections to e8ercise its 4e8clusive authority over the
enforcement and administration of all la,s to the conduct of elections,4 if the proceedings in the
Assemblies ,ould partake of the nature of an 4election4 or plebiscite for the ratification or rejection of
the proposed Constitution.
Ee are told that Presidential Decree ?o. )2 ,as further amended by Presidential Decree ?o. )2CB,
dated &('A, ordering 4that important national issues shall from time to time: be referred to the
Barangays ;Citi"ens Assemblies< for resolution in accordance ,ith Presidential Decree ?o. )2CA
dated .anuary B, &('A and that the initial referendum include the matter of ratification of the
Constitution by the &('& Constitutional Convention4 and that 4;t<he -ecretary of the Department of
+ocal 3overnments and Community Development shall insure the implementation of this order.4 As in
the case of Presidential Decrees ?os. )2 and )2CA, the foregoing directives do not necessarily
e8clude e8ercise of the po,ers vested by the &(AB Constitution in the Commission on /lections, even
if the /8ecutive had the authority to repeal Art. D of our 1undamental +a, K ,hich he does not
possess. Copy of Presidential Decree ?o. )2CB is appended hereto as Anne8 B hereof.
he point is that, such of the Barrio Assemblies as ,ere held took place ,ithout the intervention of
the Commission on /lections, and ,ithout complying ,ith the provisions of the /lection Code of &('&
or even of those of Presidential Decree ?o. 'A. Ehat is more, they ,ere held under the supervision
o, t*e ver o,,icers an! a+encies o, t*e E6ecutive .epart(ent sou+*t to #e e6clu!e! therefrom by
Art. D of the &(AB Constitution. Eorse still, said officers and agencies of the &(AB Constitution ,ould
be favored thereby, o,ing to the practical indefinite e8tension of their respective terms of office in
conse#uence of section ( of the ransitory Provisions, found in Art. D6%% of the proposed Constitution,
,ithout any elections therefor. And the procedure therein mostly follo,ed is such that there is no
reasona#le (eans o, c*ec-in+ the accuracy of the returns files by the officers ,ho conducted said
plebiscites. his is another patent violation of Art. of the Constitution ,hich can hardly be sanctioned.
And, since the provisions of this article form part of the ,un!a(ental scheme set forth in the &(AB
Constitution, as amended, to insure the 4free, orderly, and honest4 e8pression of the people$s ,ill, the
aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite
in the Citi"ens$ Assemblies, insofar as the same are claimed to have ratified the revised Constitution
proposed by the &('& Constitutional Convention. 4... :a<ll t*e aut*orities a+ree that the legal definition
of an election, as ,ell as that ,hich is usually and ordinarily understood by the term, is a choosing or
as election by those having a right to participate ;in the selection< of those ,ho shall fill the offices, or
o, t*e a!option or re5ection o, an pu#lic (easure a,,ectin+ t*e territor involve!. &B Cyc. *'(: 0e)is
v. "onton, *B Colo. J)2, BB Pac. 'A*: Saun!ers v. Canes, &A Cal. &JB: Sea(an v. "au+*(an, )*
%o,a *&2, J' ?.E. &9(&, && +.!.A. ABJ: State v. Cirs*, &*B %nd. *9', *J ?./. &92*, ( +.!.A. &'9:
Bouvier$s +a, Dictionary.
:8

%6
Cas t*e propose! Constitution a,ore(entione!
#een approve! # a (a5orit o, t*e people in
CitizensD 3sse(#lies alle+e!l *el!
t*rou+*out t*e P*ilippines2
!espondents maintain the affirmative, relying upon Proclamation ?o. &&9*, the validity of ,hich is
precisely being contested by petitioners herein. !espondents claim that said proclamation is
4conclusive4 upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill: that
the proposed Constitution has been, in fact, ratified, approved or adopted by the 4over,helming4
majority of the people: that Art. D6 of the &(AB Constitution has thus been 4substancially4 complied
,ith: and that the Court refrain from passing upon the validity of Proclamation ?o. &&9*, not only
because such #uestion is political in nature, but, also, because should the Court invalidate the
proclamation, the former ,ould, in effect, veto the action of the people in ,hom sovereignty resides
and from its po,er are derived.
he major fla, in this process of rationali"ation is that it assumes, as a fact, the very premise on
,hich it is predicated, and ,hich, moreover, is contested by the petitioners. As the -upreme Court of
Minnessota has aptly put it K
... ever officer under a constitutional government must act according to la, and subject to its restrictions,
and ever !eparture therefrom or disregard thereof must subject him to the restraining and controlling of
the people, actin+ t*rou+* t*e a+enc o, t*e 5u!iciar9 ,or it (ust #e re(e(#ere! t*at t*e people act
t*rou+* courts, as ,ell as through the e8ecutive or the +egislature. 0ne department is just as
representative as the other, and t*e 5u!iciar is t*e !epart(ent )*ic* is c*ar+e! )it* t*e special !ut o,
!eter(inin+ t*e li(itations )*ic* t*e la) places upon all o,,icial action. ... .
Accordingly, the issue boils do,ns to ,hether or not the /8ecutive acted ,ithin the limits of his
authority ,hen he certified in Proclamation ?o. &&9* 4that the Constitution proposed by the nineteen
hundred and seventyCone ;&('&< Constitutional Convention has been ratified by an over,helming
majority of all of the votes cast by the members of all the Barangays ;Citi"ens Assemblies< throughout
the Philippines and has thereby come into effect.4
%n this connection, it is not claimed that the Chief /8ecutive had personal kno,ledge of the data he
certified in said proclamation. Moreover, Art. D of the &(AB Constitution ,as precisely inserted to
place #eon! the /8ecutive the po,er to supervise or even e8ercise an authority ,hatsoever over
4all la,s relative to the conduct of elections,4 and, hence, ,hether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed amendment, or revision
of the 1undamental +a,, since the proceedings for the latter are, also, referred to in said Art. D6 as
4elections4.
he -olicitor 3eneral stated, in his argument before this Court, that he had been informed that there
,as in each municipality a municipal association of presidents of the citi"ens$ assemblies for each
barrio of the municipality: that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations: that the president of each
one of these provincial or city associations in turn formed part of a ?ational Association or 1ederation
of Presidents of such Provincial or City Associations: and that one 1rancisco Cru" from Pasig, !i"al,
as President of said ?ational Association or 1ederation, reported to the President of the Philippines,
in the morning of .anuary &', &('A, the total result of the voting in the citi"ens$ assemblies all over the
country from .anuary &9 to .anuary &B, &('A. he -olicitor 3eneral further intimated that the said
municipal associations had reported the results of the citi"ens$ assemblies in their respective
municipalities to the corresponding Provincial Association, ,hich, in turn, transmitted the results of
the voting in the to the Department of +ocal 3overnments and Community Development, ,hich
tabulated the results of the voting in the citi"ens$ assemblies throughout the Philippines and then
turned them over to Mr. 1ranciso Cru", as President or acting President of the ?ational Association or
1ederation, ,hereupon Mr. Cru", acting in a ceremonial capacity, reported said results ;tabulated by
the Department of 3overnments and Community Development< to the Chief /8ecutive, ,ho,
accordingly, issued Proclamation ?o. &&9*.
he record sho,s, ho,ever, that Mr. Cru" ,as not even a (e(#er of any barrio council since &('*,
so that he could possibly have been a (e(#er on .anuary &', &('A, of a (unicipal association of
presi!ents of barrio or ,ard citi"ens$ assemblies, much less of a Provincial, City or ?ational
Association or 1ederation of Presi!ents of any such provincial or city associations.
-econdly, at the conclusion of the hearing of these cases 1ebruary &2, &('A, and in the resolution of
this Court of same date, the -olicitor 3eneral ,as asked to submit, together ,ith his notes on his oral
argument, a true copy of aforementioned report of Mr. Cru" to the President and of 4;p<roclamation,
decree, instruction, order, regulation or circular, if any, creating or directing or authori"ing creation,
establishment or organi"ation4 of said municipal, provincial and national associations, but neither a
copy of alleged report to the President, nor a copy of any 4;p<roclamation, decree, instruction, order,
regulation or circular,4 has been submitted to this Court. %n the absence of said report,
4;p<roclamation, decree, instruction,4 etc., Proclamation ?o. &&9* is devoid of any ,actual and le+al
foundation. >ence, the conclusion set forth in the dispositive portion of said Proclamation ?o. &&9*,
to the effect that the proposed ne, or revised Constitution had been ratified by majority of the votes
cast by the people, can not possibly have any legal effect or value.
he theory that said proclamation is 4conclusive upon Court is clearly untenable. %f it ,ere, acts of the
/8ecutive and those of Congress could not possibly be annulled or invalidated by courts of justice.
@et, such is not the case. %n fact, even a resolution of Congress declaring that a given person has
been elected President or 6iceCPresident of the Philippines as provi!e! in t*e Constitution,
:9
is not
conclusive upon the courts. %t is no (ore than pri(a ,acie evidence of ,hat is attested to by said
resolution.
70
%f assailed directly in appropriate proceedings, such as an election protest, if and ,hen
authori"ed by la,, as it is in the Philippines, the Court may receive evidence and declare, in
accordance there,ith, ,ho ,as duly elected to the office involved.
71
%f prior to the creation of the
Presidential /lectoral ribunal, no such protest could be filed, it ,as not because the resolution of
Congress declaring ,ho had been elected President or 6iceCPresident ,as conclusive upon courts of
justice, but because there ,as no la) permitting the filing of such protest and declaring )*at court or
#o! ,ould hear and decide the same. -o, too, a declaration to the effect that a given amendment to
the Constitution or revised or ne, Constitution has been ratified by a majority of the votes cast
therefor, (a #e !ul assaile! in court and #e t*e o#5ect o, 5u!icial in;uir, in !irect proceedings
therefor K such as the cases at bar K and the issue raised therein (a an! s*oul! #e !eci!e! in
accordance ,ith the evidence presented.
he case of %n re McConaughy
74
is s#uarely in point. 4As the Constitution stood from the organi"ation
of the state4 K of Minnessota K 4all ta8es ,ere re#uired to be raised under the system kno,n as the
$general property ta8.$ Dissatisfaction ,ith the results of this method and the development of more
scientific and satisfactory methods of raising revenue induced the +egislature to submit to the people
an amendment to the Constitution ,hich provided merely that ta8es shall be uniform upon the same
class of subjects. his proposed amendment ,as submitted at the general election held in ?ovember,
&(92, and in due time it ,as certi,ie! by the state canvassing board and proclaimed by the 3overnor
as having been legally adopted. Acting upon the assumption that the amendment had become a part
of the Constitution, the +egislature enacted statutes providing for a -tate a8 Commission and a
mortgage registry ta8, and the latter statute, upon the same theory, ,as held constitutional4 by said
Court. 4he district court found that the amendment had no in fact been adopted, and on this appeal4
the -upreme Court ,as 4re;uire! to !eter(ine t*e correctness of that conclusion.4
!eferring to the effect of the certi,ication of the -tate Board of Canvassers created by the +egislature
and of the procla(ation made by the 3overnor based thereon, the Court held7 4%t ,ill be noted that
this board does no more than tabulate the reports received from the various county board and add up
and certify the results. -tate v. Mason, JB Eash. *AJ, )) Pac. &*2, ( +.!.A. ;=.-.< &**&. %t is settle!
la, that the decisions of election officers, and canvassing boards are not conclusive and that t*e ,inal
!ecision (ust rest )it* t*e courts, unless the la, declares that the decisions of the board shall be
final4 K and there is no such la, in the cases at bar. 4... he correctness of the conclusion of the
state board rests upon the correctness of the returns made by the county boards and it is
inconceiva#le that it ,as intended that this statement of result should be ,inal an! conclusive
re+ar!less o, t*e actual ,acts. he proclamation of the 3overnor adds not*in+ in the ,ay of
conclusiveness to the legal effect of the action of the canvassing board. %ts purpose is to formally
notify the people of the state of the result of the voting as found by the canvassing board. .ames on
Const. Conv. ;Jth /d.< sec. B*A.4
%n "ott v. Kartz,
73
the Court revie)e! the statement of results of the election made by the canvassing
board, in order that the true results could be judicially determined. And so did the court in >ice v.
Pal(er.
75

%nasmuch as Art. D of the &(AB Constitution places under the 4e8clusive4 charge of the Commission
on /lections, 4the enforcement and administration of all la,s relative to the conduct of elections,4
in!epen!entl of the /8ecutive, and t*ere is not even a certi,ication # t*e Co((ission in support of
the alleged results of the citi"ens$ assemblies relied upon in Proclamation ?o. &&9* H apart from the
fact that on .anuary &', &('A neither the alleged president of the 1ederation of Provincial or City
Barangays nor the Department of +ocal 3overnments had certified to the President the alleged result
of the citi"ens$ assemblies all over the Philippines K it follo,s necessarily that, from a constitutional
and legal vie,point, Proclamation ?o. &&9* is not even pri(a ,acie evidence of the alleged ratification
of the proposed Constitution.
!eferring particularly to the cases before =s, it ,ill be noted that, as pointed out in the discussion of
the preceding topic, the ne, or revised Constitution proposed by the &('& Constitutional Convention
,as not ratified in accordance ,ith the provisions of the &(AB Constitution. %n fact, it *as not even
#een, rati,ie! in accor!ance )it* sai! propose! Constitution, the minimum age re#uirement therein
for the e8ercise of the right of suffrage being ei+*teen ;&)< years, apart from the fact that Art. 6% of the
proposed Constitution re#uires 4secret4 voting, ,hich ,as not observed in many, if not most, Citi"ens$
Assemblies. Besides, #ot* the &(AB Constitution and the proposed Constitution re#uire a 4majority of
the votes cast4 in an election or plebiscite called for the ratification of an amendment or revision of the
first Constitution or the effectivity of the proposed Constitution, and the phrase 4votes cast4 has been
construed to mean 4votes made in ,riting not orally, as it ,as in many Citi"ens$ Assemblies.
75

/ven counsel for 3il .. Puyat and .ose !oy, as respondents in +CA2&2B, asserts openly that Art. D6
of the Constitution has not been complied ,ith, and since the alleged substantial compliance ,ith the
re#uirements thereof partakes of the nature of a defense set up by the other respondents in these
cases, the burden of proving such defense K ,hich, if true, should be ,ithin their peculiar kno,ledge
K is clearly on such respondents. Accordingly, if despite the e8tensive notes and documents
submitted by the parties herein, the members of the Court do not kno, or are not prepared to say
,hether or not the majority of the people or of those ,ho took part in the Citi"ens$ Assemblies have
assented to the proposed Constitution, the logical step ,ould be to give due course to these cases,
re#uire the respondents to file their ans,ers, and the plaintiffs their reply, and, thereafter, to receive
the pertinent evidence and then proceed to the determination of the issues raised thereby. 0ther,ise,
,e ,ould be placing upon the petitioners the burden of disproving a defense set up by the
respondents, ,ho have not so ,ar established the truth of such defense.
/ven more important, and decisive, than the foregoing is the circumstance that there is ample reason
to believe that many, if not most, of the people did not kno, that the Citi"ens$ Assemblies ,ere, at the
time they ,ere held, plebiscites for the ratification or rejection of the proposed Constitution. >ence, in
0ur decision in the plebiscite cases, Ee said, inter alia7
Mean,hile, or on December &', &('*, the President had issued an order temporarily suspending the
effects of Proclamation ?o. &9)&, for the purpose of free and open debate on the Proposed Constitution.
0n December *A, the President announced the postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. ?o formal action to this effect ,as taken until .anuary ', &('A,
,hen 3eneral 0rder ?o. *9 ,as issued, directing 4that the plebiscite scheduled to be held on .anuary &B,
&('A, be postponed until further notice.4 -aid 3eneral 0rder ?o. *9, moreover, 4suspended in the
meantime4 the 4order of December &', &('*, temporarily suspending the effects of Proclamation ?o.
&9)& for purposes of free and open debate on the proposed Constitution.
In vie) o, t*ese events relative to t*e postpone(ent o, t*e a,ore(entione! ple#iscite, t*e Court !ee(e!
it ,it to re,rain, ,or t*e ti(e #ein+, ,ro( !eci!in+ t*e a,ore(entione! cases, ,or neit*er t*e !ate nor t*e
con!itions un!er )*ic* sai! ple#iscite )oul! #e *el! )ere -no)n or announce! o,,iciall. T*en a+ain,
Con+ress )as, pursuant to t*e $%78 Constitution, sc*e!ule! to (eet in re+ular session on Januar 22,
$%77, an! since t*e (ain o#5ection to Presi!ential .ecree No. 77 )as t*at t*e Presi!ent !oes not *ave
t*e le+islative aut*orit to call a ple#iscite an! appropriate ,un!s t*ere,or, )*ic* Con+ress
un;uestiona#l coul! !o, particularl in vie) o, t*e ,or(al postpone(ent o, t*e ple#iscite # t*e Presi!ent
H reporte!l a,ter consultation )it*, a(on+ ot*ers, t*e lea!ers o, Con+ress an! t*e Co((ission on
Elections H t*e Court !ee(e! it (ore i(perative to !e,er its ,inal action on t*ese cases.
And, apparently, the parties in said cases entertained the same belief, for, on December *A, &('* K
four ;J< days after the last hearing of said cases
7:
K the President announced the postpone(ent of
the plebiscite scheduled by Presidential Decree ?o. 'A to be held on .anuary &B, &('A, after
consultation ,ith the Commission on /lections and the leaders of Congress, o,ing to doubts on the
sufficiency of the time available to translate the proposed Constitution into some local dialects and to
comply ,ith some preCelectoral re#uirements, as ,ell as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. 0n
.anuary ', &('A, 3eneral 0rder ?o. *9 ,as issued formally, postponing said plebiscite 4until further
notice.4 >o, can said postpone(ent be reconciled ,ith the theory that the proceedings in the
Citi"ens$ Assemblies scheduled to be held from .anuary &9 to .anuary &B, &('A, ,ere 4plebiscites,4 in
effect, accelerate!, according to the theory of the -olicitor 3eneral, for the ratification of the proposed
ConstitutionI %f said Assemblies ,ere meant to be the plebiscites or elections envisaged in Art. D6 of
the Constitution, ,hat, then, ,as the 4plebiscite4 postpone! by 3eneral 0rder ?o. *9I =nder these
circumstances, it ,as only reasonable for the people ,ho attended such assemblies to believe that
the same ,ere not an 4election4 or plebiscite for the ratification or adoption of said proposed
Constitution.
And, this belief is further bolstered up by the #uestions propounded in the Citi"ens$ Assemblies,
namely7
G&H Do you like the ?e, -ocietyI
G*H Do you like the reforms under martial la,I
GAH Do you like Congress again to hold sessionsI
GJH Do you like the plebiscite to be held laterI
GBH .o ou li-e t*e )a Presi!ent 'arcos is runnin+ t*e a,,airs o, t*e +overn(ent2 GBulletin oday,
.anuary &9, &('A: emphasis an additional #uestion.H
G2H Do you approve of the citi"ens assemblies as the base of popular government to decide issues of
national interestsI
G'H Do you approve of the ne, ConstitutionI
G)H Do you ,ant a plebiscite to be called to ratify the ne, ConstitutionI
G(H Do you ,ant the elections to be held in ?ovember, &('A in accordance ,ith the provisions of the &(AB
ConstitutionI
G&9H %f the elections ,ould not be held, ,hen do you ,ant the ne8t elections to be calledI
G&&H Do you ,ant martial la, to continueI GBulletin oday, .anuary &&, &('AH
o begin ,ith, #uestions nos. &, *, A, J, B, 2, (, &9 and && are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. -econdly, neither is the
language of #uestion ?o. ' K 4Do you approve the ne, ConstitutionI4 0ne approves 4of4 the act of
another ,hich does not need such approval for the effectivity of said act, ,hich the first person,
ho,ever, finds to be good, ,ise satisfactory. he approval of the majority of the votes cast in
plebiscite is, ho,ever, essential for an amendment to the Constitution to be valid as part thereof.
hirdly, if the proceedings in the Citi"ens$ Assemblies constituted a plebiscite #uestion ?o. ) ,ould
have been unnecessary and improper, regardless of ,hether #uestion ?o. ' ,ere ans,ered
affirmatively or negatively. %f the majority of the ans,ers to #uestion ?o. ' ,ere in the affirmative, the
proposed Constitution ,ould have become effective and no other plebiscite could be held thereafter
in connection there,ith, even if the majority of the ans,ers to #uestion ?o. ) ,ere, also, in the
affirmative. %f the majority of the ans,ers to #uestion ?o. ' ,ere in the negative, neither may another
plebiscite be held, even if the majority of the ans,ers to #uestion ?o. ) ,ere in the affirmative. %n
either case, not more than one plebiscite could be held for the ratification or rejection of the proposed
Constitution. %n short, the insertion of said t,o ;*< #uestions K apart from the other #uestions
adverted to above K indicates strongly that the proceedings therein did not partake of the nature of a
plebiscite or election for the ratification or rejection of the proposed Constitution.
%ndeed, % can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citi"ens$ assemblies all over the Philippines, ,hen it is, to my mind, a
matter of judicial kno,ledge that there have been no such citi"ens$ assemblies in (an parts of
Manila and suburbs, not to say, also, in other parts of the Philippines. %n a letter of 3overnor /fren B.
Pascual of Bataan, dated .anuary &B, &('A, to the Chief /8ecutive, the former reported7
... his report includes a resumee ;sic< of the activities ,e undertook in effecting the re,eren!u( on the
eleven #uestions you ,anted our people consulte! on and the -ummary of !esults thereof for each
municipality and for the ,hole province.
888 888 888
... 0ur initial plans and preparations, ho,ever, dealt only on the original five #uestions. Conse#uently,
,hen )e receive! an instruction on Januar $F to c*an+e the #uestions, )e ur+entl suspen!e! all
sc*e!ule! Citizens 3sse(#l (eetin+s on t*at !a and called all Mayors, Chiefs of 0ffices and other
government officials to another conference to discuss ,ith them the ne, set of guidelines and materials
to be used.
On Januar $$, ... anot*er instruction ,ro( t*e top )as receive! to include the original five #uestions
among those to be discussed and asked in the Citi"ens$ Assembly meetings. Eith this latest order, )e
a+ain *a! to (a-e (o!i,ications in our instructions to all those managing and supervising the holding of
the Citi"ens$ Assembly meetings throughout the province. ... Aside from the coordinators ,e had from the
0ffice of the 3overnor, the splendid cooperation and support e8tended by almost all +overn(ent o,,icials
an! e(ploees in the province, particularly of the Department of /ducation, PC and PACD personnel,
provided us ,ith enough hands to trouble shoot and implement sudden changes in the instructions
anytime and any,here needed. ...
... As to our people, in general, their enthusiastic participation sho,ed their preference and readiness to
accept this ne, method of government to people consultation in s*apin+ up government policies.
hus, as late as .anuary &9, &('A, the Bataan officials had to suspen! 4all scheduled Citi"ens$
Assembly meetings ...4 and call all available officials 4... to !iscuss ,ith them t*e ne) set o,
+ui!elines and materials to be used ... .4 hen, 4on .anuary && ... another instruction from the top ,as
received to include the original five #uestions among those be !iscusse! and asked in the Citi"ens$
Assembly meetings. Eith this latest order, ,e again had to make modifications in our instructions to
all those managing and supervising holding of the Citi"ens$ Assembly meetings throughout
province. ... As to our people, in general, their enthusiastic participation sho,ed their preference and
readiness to accept the ne, method of government to people consultation in s*apin+ up government
policies.4
his communication manifestly sho,s7 &< that, as late a .anuary &&, &('A, the Bataan officials had
still to !iscuss K not put into operation K means and ,ays to carry out the changing instructions
from the top on ho, to organi"e the citi"ens$ assemblies, ,hat to do therein and even ,hat #uestions
or topics to propound or touch in said assemblies: *< that the assemblies ,ould involve no more than
consultations or dialogues bet,een people and government K not !ecisions be made # t*e people:
and A< that said consultations ,ere aimed only at 4shaping up +overn(ent policies4 and, hence could
not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed
amendment of a ne, or revised Constitution for the latter does not entail the formulation of a polic o,
t*e Govern(ent, but the making of !ecision # t*e people on the ne, ,ay of life, as a nation, they
,ish to have, once the proposed Constitution shall have been ratified.
%f this ,as the situation in Bataan K one of the provinces nearest to Manila K as late as .anuary &&,
&('A, one can easily imagine the predicament of the local officials and people in the remote barrios in
northern and southern +u"on, in the Bicol region, in the 6isayan %slands and Mindanao. %n fact,
several members of the Court, including those of their immediate families and their household,
although duly registered voters in the area of 3reater Manila, ,ere not even noti,ie! that citi"ens$
assemblies ,ould be held in the places ,here their respective residences ,ere located. %n the
Prohibition and Amendment case,
77
attention ,as called to the 4!ut cast upon the court of ta-in+
5u!icial co+nizance of anything affecting the e8istence and validity of any la, or portion of the
Constitution ... .4 %n line ,ith its o,n pronouncement in another case, the 1ederal -upreme Court of
the =nited -tates stressed, in "a-er v. Carr,
78
that 4a court is not at liberty to s*ut its ees to an
o#vious (ista-e, ,hen the vali!it o, t*e la) depends upon the truth of ,hat is declared.4
%n the light of the foregoing, % cannot see ho, the #uestion under consideration can be ans,ered or
resolved other,ise than in the negative.
6
Cave t*e people ac;uiesce! in t*e propose! Constitution2
%t is urged that the present 3overnment of the Philippines is no, and has been run, since .anuary &',
&('&, under the Constitution drafted by the &('& Constitutional Convention: that the political
department of the 3overnment has recogni"ed said revised Constitution: that our foreign relations are
being conducted under such ne, or revised Constitution: that the +egislative Department has
recogni"ed the same: and that the people, in general, have, by their acts or omissions, indicated their
conformity thereto.
As regards the soCcalled political organs of the 3overnment, gather that respondents refer mainly to
the offices under the /8ecutive Department. %n a sense, the latter performs some functions ,hich,
from a constitutional vie,point, are politics in nature, such as in recogni"ing a ne, state or
government, in accepting diplomatic representatives accredited to our 3overnment, and even in
devising administrative means and ,ays to better carry into effect. Acts of Congress ,hich define the
goals or objectives thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the po,er to do so, e8pressly or impliedly,
to the /8ecutive. his, not,ithstanding, the political organ of a government that purports to be
republican is essentially the Congress or +egislative Department. Ehatever may be the functions
allocated to the /8ecutive Department K specially under a ,ritten, rigid Constitution ,ith a republican
system of 3overnment like ours K the role of that Department is inherently, basically and
fundamentally e8ecutive in nature K to 4take care that the la,s be faithfully e8ecuted,4 in the
language of our &(AB Constitution.
79

Conse#uently, % am not prepared to concede that the acts the officers and offices of the /8ecutive
Department, in line ,ith Proclamation ?o. &&9*, connote a recognition thereof o an ac#uiescence
thereto. Ehether they recogni"ed the proposed Constitution or ac#uiesce thereto or not is something
that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance
there,ith, because the are #oun! to obey and act in conformity ,ith the orders of the President,
under ,hose 4control4 they are, pursuant to t*e $%78 Constitution. hey have absolutely no ot*er
c*oice, specially in vie, of Proclamation ?o. &9)& placing the Philippines under Martial +a,.
Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he
had assumed all po,ers of 3overnment K although some #uestion his authority to do so K and,
conse#uently, there is hardly anything he has done since the issuance of Proclamation ?o. &&9*, on
.anuary &', &('A K declaring that the Constitution proposed by the &('& Constitutional Convention
has been ratified by the over,helming majority of the people K that he could not do under the
authority he claimed to have under Martial +a,, since -eptember *&, &('*, e8cept the po,er of
supervision over inferior courts and its personnel, ,hich said proposed Constitution ,ould place
under the -upreme Court, and ,hich the President has not ostensibly e8ercised, e8cept as to some
minor routine matters, ,hich the Department of .ustice has continued to handle, this Court having
preferred to maintain the status ;uo in connection there,ith pending final determination of these
cases, in ,hich the effectivity of the aforementioned Constitution is disputed.
hen, again, a given department of the 3overnment cannot generally be said to have 4recogni"ed4 its
o)n acts. !ecognition normally connotes the ackno,ledgment by a party of the acts of anot*er.
Accordingly, ,hen a subordinate officer or office of the 3overnment complies ,ith the commands of a
superior officer or office, under ,hose supervision and control he or it is, the former merely o#es the
latter. -trictly speaking, and from a legal and constitutional vie,point, there is no act of recognition
involved therein. %ndeed, the lo,er officer or office, if he or it acted other,ise, ,ould just be guilty of
insubordination.
hus, for instance, the case of Talor v. Co((on)ealt*
80
K cited by respondents herein in support
of the theory of the people$s ac#uiescence K involved a constitution ordained in &(9* and
4proclaimed by a convention duly called by a direct vote of the people of the state to revise and
amend the Constitution of &)2(. he result of the ,ork of that Convention has been recogni"ed,
accepted and acted upon as the onl valid Constitution of the -tate4 by K
&. he 43overnor of the -tate in s,earing fidelity to it and proclaiming it, as directed thereby4:
*. he 4+egislature in its ,or(al o,,icial act adopting a 5oint resolution, .uly &B, &(9*, recogni"ing the
Constitution ordained by the Convention ...4:
A. he 4individual oaths of its members to support it, and # its *avin+ #een en+a+e! ,or nearl a
ear, in legislating under it and putting its provisions into
operation ...4:
J. he 4judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ...4:
and
B. he 4people in their primary capacity by peacefully accepting it and ac#uiescing in it, by registering
as voters under it to the e8tent of thousands throughout the -tate, and by voting, under its provisions,
at a general election for their representatives in the Congress of the =nited -tates.4
?ote that the ?e, Constitution of 6irginia, drafted by a convention ,hose members ,ere elected
directly by the people, ,as not submitted to the people for ratification or rejection thereof. But, it ,as
recogni"ed, not by the convention itself, but by ot*er sectors of the 3overnment, namely, the
3overnor: the +egislature K not merely by individual acts of its members, but by ,or(al 5oint
resolution of its t,o ;*< chambers: by the judiciary: and by the people, in the various ,ays specified
above. Ehat is more, there ,as no (artial la). %n the present cases, none of the foregoing acts of
ac#uiescence ,as present. Eorse still, there is martial la,, the strict en,orce(ent of ,hich ,as
announced s*ortl #e,ore the alleged citi"ens$ assemblies. o top it all, in the aylor case, the
effectivity of the contested amendment ,as not contested judicially until about one :$< ear after the
amendment had been put into operation in all branches of the 3overnment, and complied ,ith by the
people ,ho participated in the elections held pursuant to the provisions of the ne, Constitution. %n the
cases under consideration, the legality of Presidential Decree ?o. 'A calling a plebiscite to be held on
.anuary &B, &('A, ,as impugned as early as December ', &('*, or five ;B< ,eeks #e,ore the
scheduled plebiscite, ,hereas the validity of Proclamation ?o. &&9* declaring on .anuary &', &('A,
that the proposed Constitution had been ratified K despite 3eneral 0rder ?o. *9, issued on .anuary
', &('*, formally and officially suspending the plebiscite until further notice K ,as impugned as early
as .anuary *9, &('A, ,hen +CA2&J* ,as filed, or t*ree :7< !as after the issuance of Proclamation
?o. &&9*.
%t is further alleged that a majority of the members of our >ouse of !epresentatives and -enate have
ac#uiesced in the ne, or revised Constitution, by filing ,ritten statements opting to serve in the Ad
%nterim Assembly established in the ransitory Provisions of said Constitution. %ndividual acts of
recognition by members of our legislature, as ,ell as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies, unless its members have performed said
acts in session !ul asse(#le!, or unless the la, provides other,ise, and there is no such la, in the
Philippines. his is a ,ellCestablished principle of Administrative +a, and of the +a, of Public
0fficers, and no plausible reason has been adduced to ,arrant departure therefrom.
81

%ndeed, if the members of Congress ,ere generally agreeable to the proposed Constitution, ,hy did it
become necessary to padlock its premises to prevent its meeting in session on .anuary **, &('A,
and thereafter as provided in the &(AB ConstitutionI %t is true that, theoretically, the members of
Congress, if bent on discharging their functions under said Constitution, could have met in any other
place, the building in ,hich they perform their duties being immaterial to the legality of their official
acts. he force of this argument is, ho,ever, offset or dissipated by the fact that, on or about
December *', &('*, immediately after a conference bet,een the /8ecutive, on the one hand, and
members of Congress, on the other, some of ,hom e8pressed the ,ish to meet in session on
.anuary **, &('A, as provided in the &(AB Constitution, a Daily /8press columnist ;Primitivo Mijares<
attributed to Presidential Assistant 3uillermo de 6ega a statement to the effect that 4$certain members
of the -enate appear to be missing the point in issue$ ,hen they reportedly insiste! on ta-in+ up ,irst
t*e ;uestion o, convenin+ Con+ress.4 he Daily /8press of that date,
84
like,ise, headlined, on its
front page, a 4-enatorial Plot Against $Martial +a, 3overnment$ Disclosed4. hen, in its issue of
December *(, &('*, the same paper imputed to the /8ecutive an appeal 4to diverse groups involved
in a conspirac to undermine4 his po,ers4 under martial la, to !esist ,ro( provo-in+ a constitutional
crisis ... )*ic* (a result in t*e e6ercise # (e o, aut*orit I *ave not e6ercise!.4
?o matter ho, good the intention behind these statement may have been, the idea implied therein
,as too clear an o(inous for any member of Congress ,ho thought of organi"ing, holding or taking
part in a session of Congress, not to get the impression that he could hardly do so ,ithout inviting or
risking the application of Martial +a, to him. =nder these conditions, % do not feel justified in holding
that the failure of the members of Congress to meet since .anuary **, &('A, ,as due to their
recognition, ac#uiescence in or conformity ,ith the provisions of the aforementioned Constitution, or
its alleged ratification.
1or the same reasons, especially because of Proclamation ?o. &9)&, placing the entire Philippines
under Martial +a,, neither am % prepared to declare that the people$s inaction as regards
Proclamation ?o. &&9*, and their compliance ,ith a number of Presidential orders, decrees andFor
instructions K some or many of ,hich have admittedly had salutary effects K issued subse#uently
thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation ?o.
&&9*. %n the ,ords of the Chief /8ecutive, 4martial la, connotes po)er o, t*e +un, meant coercion by
the military, and co(pulsion and inti(i!ation.4
83
he failure to use the gun against those ,ho co(pl
,ith the orders of the party ,ielding the ,eapon does not detract from the intimidation that Martial
+a, necessarily connotes. %t may reflect the good, reasonable and ,holesome attitude of the person
,ho has the gun, either pointed at others, ,ithout pulling the trigger, or merely kept in its holster, but
not ,ithout ,arning that he may or ,ould use it if he deemed it necessary. -till, the intimidation is
there, and inaction or obedience of the people, under these conditions, is not necessarily an act of
conformity or ac#uiescence. his is specially so ,hen ,e consider that the masses are, by and large,
un,a(iliar ,ith the parliamentary system, the ne, form of government introduced in the proposed
Constitution, ,ith the particularity that it is not even i!entical to that e8isting in /ngland and other
parts of the ,orld, and that even e6perience! la)ers an! social scientists find it difficult to grasp the
full implications of some provisions incorporated therein.
As regards the applicability to these cases of the 4enrolled bill4 rule, it is ,ell to remember that the
same refers to a document certified to the President K for his action under the Constitution K by the
-enate President and the -peaker of the >ouse of !epresentatives, and attested to by the -ecretary
of the -enate and the -ecretary of the >ouse of !epresentatives, concerning legislative measures
approved by the t,o >ouses of Congress. he argument of the -olicitor 3eneral is, roughly, this7 %f
the enrolled bill is entitled to full faith and credence and, to this e8tent, it is conclusive upon the
President and the judicial branch of the 3overnment, ,hy should Proclamation ?o. &&9* merit less
consideration than in enrolled billI
Before ans,ering this #uestion, % ,ould like to ask the follo,ing7 %f, instead of being certified by the
aforementioned officers of Congress, the soCcalled enrolled bill ,ere certified by, say, the President of
the Association of -ugar Planters andFor Millers of the Philippines, and the measure in #uestion ,ere
a proposed legislation concerning -ugar Plantations and Mills sponsored by said Association, ,hich
even prepared the draft of said legislation, as ,ell as lobbied actually for its approval, for ,hich
reason the officers of the Association, particularly, its aforementioned president K ,hose honesty
and integrity are un#uestionable K ,ere present at the deliberations in Congress ,hen the same
approved the proposed legislation, ,ould the enrolled bill rule apply theretoI -urely, the ans,er
,ould have to be in the negative. EhyI -imply, because said Association President has absolutely
no official authority to perform in connection there,ith, and, hence, his certification is legally, as good
as nonCe8istent.
-imilarly, a certification, if any, of the -ecretary of the Department of +ocal 3overnments and
Community Development about the tabulated results of the voting in the Citi"ens Assemblies
allegedly *el! all over the Philippines K and the records do not sho, that any such certification, to
the President of the Philippines or to the President 1ederation or ?ational Association of presidents of
Provincial Associations of presidents of municipal association presidents of barrio or ,ard assemblies
of citi"ens K ,ould not, legally and constitutionally, be ,orth the paper on ,hich it is ,ritten. EhyI
Because said Department -ecretary is not the officer designated by la, to superintend plebiscites or
elections held for the ratification or rejection of a proposed amendment or revision of the Constitution
and, hence, to tabulate the results thereof. Eorse still, it is the department ,hich, according to Article
D of the Constitution, should not and must not be all participate in said plebiscite K if plebiscite there
,as.
After citing approvingly its ruling in Enite! States v. San!oval,
85
the >ighest Court of the =nited
-tates that courts 4,ill not stan! i(potent before an obvious instance of a (ani,estl unaut*orize!
e6ercise o, po)er.4
85

% cannot honestly say, therefore, that the people impliedly or e8pressly indicated their conformity to
the proposed Constitution.
6%
3re t*e Parties entitle! to an relie,2
Before attempting to ans,er this #uestion, a fe, ,ords be said about the procedure follo,ed in these
five ;B< cases. %n this connection, it should be noted that the Court has not decided ,hether or not to
give due course to the petitions herein or to re#uire the respondents to ans,er thereto. %nstead, it has
re#uired the respondents to comment on the respective petitions K ,ith three ;A< members of the
voting to dismiss them outright K and then considers comments thus submitted by the respondents
as motions to dismiss, as ,ell as set the same for hearing. his ,as due to the transcendental nature
of the main issue raised, the necessity of deciding the same ,ith utmost dispatch, and the main
defense set up by respondents herein, namely, the alleged political nature of said issue, placing the
same, according to respondents, beyond the ambit of judicial in#uiry and determination. %f this
defense ,as sustained, the cases could readily be dismissed: but, o,ing to the importance of the
#uestions involved, a reasoned resolution ,as demanded by public interest. At the same time,
respondents had cautioned against a judicial in#uiry into the merits of the issues posed on account of
the magnitude of the evil conse#uences, it ,as claimed, ,hich ,ould result from a decision thereon, if
adverse to the 3overnment.
As a matter of fact, some of those issues had been raised in the plebiscite cases, ,hich ,ere
dismissed as moot and academic, o,ing to the issuance of Proclamation ?o. &&9* subse#uently to
the filing of said cases, although before the rendition of judgment therein. -till one of the members of
the Court ;.ustice 5aldivar< ,as of the opinion that the aforementioned issues should be settled in
said cases, and he, accordingly, filed an opinion passing upon the merits thereof. 0n the other hand,
three ;A< members of the Court K .ustices Barredo, Antonio and /sguerra K filed separate opinions
favorable to the respondents in the plebiscite cases, .ustice Barredo holding 4that the &(AB
Constitution has pro tanto passed into history and has been legitimately supplanted by the
Constitution in force by virtue of Proclamation &&9*.4
8:
Ehen the petitions at bar ,ere filed, the same
three ;A< members of the Court, conse#uently, voted for the dismissal of said petitions. he majority
of the members of the Court did not share, ho,ever, either vie,, believing that the main #uestion that
arose before the rendition of said judgment had not been sufficiently discussed and argued as the
nature and importance thereof demanded.
he parties in the cases at bar ,ere accordingly given every possible opportunity to do so and to
elucidate on and discuss said #uestion. hus, apart from hearing the parties in oral argument for five
;B< consecutive days K morning and afternoon, or a total of e8actly *2 hours and A& minutes K the
respective counsel filed e8tensive notes on their or arguments, as ,ell as on such additional
arguments as they ,ished to submit, and reply notes or memoranda, in addition to rejoinders thereto,
aside from a si"eable number of document in support of their respective contentions, or as re#uired
by the Court. he arguments, oral and ,ritten, submitted have been so e8tensive and e8haustive,
and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes,
the situation is as if K disregarding forms K the petitions had been given due course and the cases
had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should e8press their vie,s on
the aforementioned issues as if the same ,ere being decided on the merits, and they have done so in
their individual opinion attached hereto. >ence, the resume of the votes cast and the tenor of the
resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formally
given due course to the petitions herein.
And, no,, here are ( vie,s on the reliefs sought by the parties.
%n +CA2&2B, it is clear that ,e should not issue the ,rit of (an!a(us prayed for against 3il .. Puyat
and .ose !oy, President and President Pro empore respectively of the -enate, it being settled in
our jurisdiction, based upon the theory of separation of po,ers, that the judiciary ,ill not issue such
,rit to the head of a coCe#ual department, like the aforementioned officers of the -enate.
%n all other respects and ,ith regard to the other respondent in said case, as ,ell as in cases +C
A2&J*, +CA2&2J, +CA2*A2 and +CA2*)A, my vote is that the petitions therein should be given due
course, there being more than pri(a ,acie sho,ing that the proposed Constitution has not been
ratified in accordance ,ith Article D6 of the &(AB Constitution, either strictly, substantially, or has
been ac#uiesced in by the people or majority thereof: that said proposed Constitution is not in ,orce
and effect: and that the &(AB Constitution is still the 1undamental +a, of the +and, ,ithout prejudice
to the submission of said proposed Constitution to the people at a plebiscite for its ratification or
rejection in accordance ,ith Articles 6, D and D6 of the &(AB Constitution and the provisions of the
!evised /lection Code in force at the time of such plebiscite.
Perhaps others ,ould feel that my position in these cases overlooks ,hat they might consider to be
the demands of 4judicial statesmanship,4 ,hatever may be the meaning of such phrase. % am a,are
of this possibility, if not probability: but 4judicial statesmanship,4 though consistent ,ith !ule of +a,,
cannot prevail over the latter. Among consistent ends or consistent values, there al,ays is a
hierarchy, a rule of priority.
Ee must reali"e that the ?e, -ociety has many achievements ,hich ,ould have been very difficult, if
not impossible, to accomplish under the old dispensation. But, in an! ,or t*e 5u!iciar, states(ans*ip
should not prevail over the !ule of +a,. %ndeed, t*e pri(ac o, t*e la) or o, t*e >ule o, 0a) an!
,ait*,ul a!*erence t*ereto are #asic, ,un!a(ental an! essential parts o, states(ans*ip itsel,.
>esu(e o, t*e @otes Cast an! t*e CourtDs >esolution
As earlier stated, after the submittal by the members of the Court of their individual opinions andFor
concurrences as appended hereto, the ,riter ,ill no, make, ,ith the concurrence of his colleagues, a
resume or summary of the votes cast by each of them.
%t should be stated that by virtue of the various approaches and vie,s e8pressed during the
deliberations, it ,as agreed to synthesi"e the basic issues at bar in broad general terms in five
#uestions for purposes of taking the votes. %t ,as further agreed of course that each member of the
Court ,ould e8pound in his individual opinion andFor concurrence his o,n approach to the stated
issues and deal ,ith them and state ;or not< his opinion thereon singly or jointly and ,ith such priority,
#ualifications and modifications as he may deem proper, as ,ell as discuss thereon other related
issues ,hich he may consider vital and relevant to the cases at bar.
he five #uestions thus agreed upon as reflecting the basic issues herein involved are the follo,ing7
&. %s the issue of the validity of Proclamation ?o. &&9* a justiciable, or political and therefore nonC
justiciable, #uestionI
*. >as the Constitution proposed by the &('& Constitutional Convention been ratified validly ;,ith
substantial, if not strict, compliance< conformably to the applicable constitutional and statutory
provisionsI
A. >as the aforementioned proposed Constitution ac#uiesced in ;,ith or ,ithout valid ratification< by
the peopleI
J. Are petitioners entitled to reliefI and
B. %s the aforementioned proposed Constitution in forceI
he results of the voting, premised on the individual vie,s e8pressed by the members of the Court in
their respect opinions andFor concurrences, are as follo,s7
&. 0n the first issue involving the politicalC#uestion doctrine .ustices Makalintal, 5aldivar, Castro,
1ernando, eehankee and myself, or si8 ;2< members of the Court, hold that the issue of the validity
of Proclamation ?o. &&9* presents a justiciable and nonCpolitical #uestion. .ustices Makalintal and
Castro did not vote s#uarely on this #uestion, but, only inferentially, in their discussion of the second
#uestion. .ustice Barredo #ualified his vote, stating that 4inasmuch as it is claimed there has been
approval by the people, the Court may in#uire into the #uestion of ,hether or not there has actually
been such an approval, and, in the affirmative, the Court should keep handsCoff out of respect to the
people$s ,ill, but, in negative, the Court may determine from both factual and legal angles ,hether or
not Article D6 of the &(AB Constitution been complied ,ith.4 .ustices Makasiar, Antonio, /sguerra, or
three ;A< members of the Court hold that the issue is political and 4beyond the ambit of judicial
in#uiry.4
*. 0n the second #uestion of validity of the ratification, .ustices Makalintal, 5aldivar, Castro,
1ernando, eehankee and myself, or si8 ;2< members of the Court also hold that the Constitution
proposed by the &('& Constitutional Convention ,as not validly ratified in accordance ,ith Article D6,
section & of the &(AB Constitution, ,hich provides only one ,ay for ratification, i.e., 4in an election or
plebiscite held in accordance ,ith la, and participated in only by #ualified and duly registered voters.
87

.ustice Barredo #ualified his vote, stating that 4;A<s to ,hether or not the &('A Constitution has been
validly ratified pursuant to Article D6, % still maintain that in the light of traditional concepts regarding
the meaning and intent of said Article, the referendum in the Citi"ens$ Assemblies, specially in the
manner the votes therein ,ere cast, reported and canvassed, falls short of the re#uirements thereof.
%n vie,, ho,ever, of the fact that % have no means of refusing to recogni"e as a judge that factually
there ,as voting and that the majority of the votes ,ere for considering as approved the &('A
Constitution ,ithout the necessity of the usual form of plebiscite follo,ed in past ratifications, % am
constrained to hold that, in the political sense, if not in the orthodo8 legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did the part re#uired of
them by Article D6, hence, it may be said that in its political aspect, ,hich is ,hat counts most, after
all, said Article has been substantially complied ,ith, and, in effect, the &('A Constitution has been
constitutionally ratified.4
.ustices Makasiar, Antonio and /sguerra, or three ;A< members of the Court hold that under their
vie, there has been in effect substantial compliance ,ith the constitutional re#uirements for valid
ratification.
A. 0n the third #uestion of ac#uiescence by the 1ilipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.
1our ;J< of its members, namely, .ustices Barredo, Makasiar, Antonio and /sguerra hold that 4the
people have already accepted the &('A Constitution.4
,o ;*< members of the Court, namely, .ustice 5aldivar and myself hold that there can be no free
e8pression, and there has even been no e8pression, by the people #ualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial +a,. .ustice
1ernando states that 4;%<f it is conceded that the doctrine stated in some American decisions to the
effect that independently of the validity of the ratification, a ne, Constitution once accepted
ac#uiesced in by the people must be accorded recognition by the Court, % am not at this stage
prepared to state that such doctrine calls for application in vie, of the shortness of time that has
elapsed and the difficulty of ascertaining ,hat is the mind of the people in the absence of the freedom
of debate that is a concomitant feature of martial la,.4
88

hree ;A< members of the Court e8press their lack of kno,ledge andFor competence to rule on the
#uestion. .ustices Makalintal and Castro are joined by .ustice eehankee in their statement that
4=nder a regime of martial la,, ,ith the free e8pression of opinions through the usual media vehicle
restricted, ;they< have no means of kno,ing, to the point of judicial certainty, ,hether the people have
accepted the Constitution.4
89

J. 0n the fourth #uestion of relief, si8 ;2< members of the Court, namely, .ustices Makalintal, Castro,
Barredo, Makasiar, Antonio and /sguerra voted to D%-M%-- the petition. .ustice Makalintal and
Castro so voted on the strength of their vie, that 4;<he effectivity of the said Constitution, in the final
analysis, is the basic and ultimate #uestion posed by these cases to resolve ,hich considerations
other than judicial, an therefore beyond the competence of this Court,
90
are relevant and
unavoidable.4
91

1our ;J< members of the Court, namely, .ustices 5aldivar, 1ernando, eehankee and myself voted to
deny respondents$ motion to dismiss and to give due course to the petitions.
B. 0n the fifth #uestion of ,hether the ne, Constitution of &('A is in force7
1our ;J< members of the Court, namely, .ustices Barredo, Makasiar, Antonio and
/sguerra hold that it is in force by virtue of the people$s acceptance thereof:
1our ;J< members of the Court, namely, .ustices Makalintal, Castro, 1ernando and
eehankee cast no vote thereon on the premise stated in their votes on the third
#uestion that they could not state ,ith judicial certainty ,hether the people have
accepted or not accepted the Constitution: and
,o ;*< members of the Court, namely, .ustice 5aldivar and myself voted that the
Constitution proposed by the &('& Constitutional Convention is not in force:
,ith the result that there are not enough votes to declare that the ne, Constitution is not in force.
ACC0!D%?3+@, by virtue of the majority of si8 ;2< votes of .ustices Makalintal, Castro, Barredo,
Makasiar, Antonio and /sguerra ,ith the four ;J< dissenting votes of the Chief .ustice and .ustices
5aldivar, 1ernando and eehankee, all the aforementioned cases are hereby dismissed. his being
the vote of the majority, there is no further judicial obstacle to the ne, Constitution being considered
in force and effect.
%t is so ordered.
'a-alintal, Castro, "arre!o, 'a-asiar, 3ntonio an! Es+uerra, JJ., concur.
A??/D A
P/!%?/? P0!%0?-
01 >/
M%??/--0A -=P!/M/ C0=!
D/C%-%0?
0? >/ CA-/
IN >E 'cCON3EGCY
4;a< An e8amination of the decisions sho,s that the courts *ave al(ost uni,or(l e6ercise! t*e
aut*orit to !eter(ine t*e vali!it o, t*e proposal, su#(ission, or rati,ication o, constitutional
a(en!(ents. %t has been 5u!iciall !eter(ine! ,hether a proposed amendment receive! t*e
constitutional (a5orit o, votes ;Dayton v. -t. Paul, ** Minn. J99: !ice v. Palmer, ') Ark. JA*, (2
-.E. A(2: Bott v. Eurt", 2A ?... +a,, *)(, JA Atl. 'JJ, ))&, JB +.!.A. *B&: -tate v. 1oraker, J2 0hio
-t. 2'', *A ?./. J(l: 2 +.!.A. J**: ecumseh ?ational Bank 6. -aunders, B& ?eb. )9&, '& ?.E. ''(:
3reen v. -tate Board, B %daho, &A9, J' Pac. *B(, (B Am. -t. !ep. &2(: %n re Denny, &B2 %nd. &9J, B(
?./. AB(, B& +.!.A. '**: Nnight v. -helton GC.C.H &AJ 1ed. J*A<: ,hether a proposed amendment is a
single amendment, ,ithin the constitutional re#uirement that every amendment must be separately
submitted ;-tate v. Po,ell, '' Miss. BJA, *' -outh. (*': 3abbert v. Chicago, etc., !. Co., &'& Mo.
)J, '9 -.E. )(&: -tate v. imme, BJ Eis. A&), && ?.E. ')B: %n re Denny, &B2 %nd. &9J, B( ?./. AB(,
B& +.!.A. '**: +obaugh v. Cook, &*' %o,a, &)&, &9* ?.E. &&*&: People v. -ours, A& Colo. A2(, 'J
Pac. &2', &9* Am. -t. !ep. AJ: -tate v. Board, AJ Mont. J*2, )' Pac. JB9: -tate v. Einnett G?eb.H
&&9 ?.E. &&&A, &9 +.!.A. G?.-.H &J(<: ,hether the failure to enter the resolution of submission upon
the legislative journals invalidates the amendment ;Noehler v. >ill, 29 %o,a, BJA,&J ?.E. 'A),&B ?.E.
29(: 0akland Paving Co. v. >ilton, 2( Cal. J'(, && Pac. A: Eest v. -tate, B9 1la. &BJ, A( -outh. J&*:
Durfee v. >arper, ** Mont. ABJ, B2 Pac. B2: -tate v. ufly, &( ?ev. A(&, &* Pac. )AB, A Am. -t. !ep.
)(B<: )*et*er t*e !escription o, t*e a(en!(ent an! t*e ,or( o, t*e #allot are su,,icient ;!ussell v.
Croy, &2J M 2(, 2A -.E. )J(: -tate v. Einnett G ?eb.H &&9 ?.E. &&&A, +.!.A. G?.-.H &J(: Murphy
Chair Co. v. Attorney 3eneral GMich.H &&* ?.E. &*'<: ,hether the method of submission sufficient
;+ovett v. 1erguson,, &9 -.D. JJ, '& ?.E. '2B: !ussell v. Croy, &2J Mo. 2(, 2A -.E. )J(<: ,hether
the publication of the amendment or of a notice relative to it is sufficient ;Com. v. 3riest, &(2 Pa. A(2,
J2 Atl. B9B, B9 +.!.A. B2): !ussell v. Croy, &2J Mo. 2(, 2A -.E. )J(<: ,hether the submission may
be ,ell by resolution as by a legislative act approved by the e8ecutive ;Com. v. 3riest, &(2 Pa. A(2,
J2 Atl. B9B, B9 +.!. B2): Earfield vi 6andiver, &9& Md. '), 29 Atl. BA): /d,ard +esueur, &A* Mo.
J&9, AA -.E. &&A9, A& +.!.A. )&B: >ays v. >ays, B %daho, &BJ, J' Pac. 'A*: -tate v. Dahl, 2 ?.D. )&,
2 ?.E. J&), AJ +.!.A. ('<: at )*at election t*e a(en!(ent #e su#(itte! ;People v. Curry, &A9 Cal.
)*, 2* Pac. B&2<.
%n >ic* v. "oar! o, Canvassers, &99 Mich. JB), B( ?.E. &)A, the court said7 4%t is contended that the
determination of the #uestion ,hether an amendment to the Constitution has been carried involves
the e8ercise of political, and not judicial, po,er. %f this be so, it follo,s that the promulgation of any
purported amendment by the e8ecutive or any e8ecutive department is final, and that the action
cannot be #uestioned by the judiciary: #ut, )it* re,erence to t*e con!itions prece!ent to su#(ittin+ a
propose! a(en!(ent to a vote o, t*e people, it *as #een repeate!l *el!, # courts o, t*e *i+*est
respecta#ilit, t*at it is )it*in t*e po)er o, t*e 5u!iciar to in;uire into t*e ;uestion, even in a
collateral procee!in+. ... %t is to be noted that under section & of article *9 of the Constitution of the
state no amendment can become a part of the Constitution until rati,ie! # a vote o, t*e people. 0ne
prere#uisite is e#ually as essential as the other. he amendment must first receive the re#uisite
majority in the +egislature, and after,ards be adopted by the re#uisite vote. ... %t is the ,act of a
majority vote ,hich makes the amendment a part of the Constitution.4
4%n considering the cases it is necessary to note ,hether in the particular case the court ,as called
upon to determine bet,een rival +overn(ents, or ,hether the +egislature, or some board or official,
had le+all per,or(e! t*e !ut i(pose! # t*e Constitution or statutes. %n re State v. 'c"ri!e, J Mo.
A9A, *( Am. Dec. 2A2, it ,as held that the 3eneral Assembly, un!er t*e po)er +rante! # t*e
Constitution, could change the Constitution onl in t*e (anner prescri#e! # it, and that it )as t*e
!ut o, t*e court to determine ,hether all prere#uisites had been complied ,ith. %n Collier v. Frierson,
*J Ala. &99, it ,as held that a Constitution can be changes only by the people in convention or in a
mode described # t*e Constitution itself, and that if the latter mode is adopted ever re;uisite o, t*e
Constitution (ust #e o#serve!. $%t has been said,4 says the court, 4that certain acts are to be done,
certain re#uisitions are to be observed, before a change can be effected: but to ,hat purpose are
these acts re#uired, or these re#uisitions enjoined, if the +egislature or any other department of the
government can !ispense ,ith them. o do so ,ould be to violate the instrument ,hich they are
s,orn to support: and ever principle o, pu#lic la) an! soun! constitutional polic re;uires t*e court
to pronounce a+ainst ever a(en!(ent )*ic* is s*o)n not to *ave #een (a!e in accor!ance )it*
t*e rules prescri#e! # t*e ,un!a(ental la).$
4%n State v. S)i,t, 2( %nd. B9B, it ,as said that7 $he people of a state may form an ori+inal
Constitution, or abrogate an old one and form a ne, one, at any time, ,ithout any political restriction,
e6cept the Constitution of the =nited -tates, but i, t*e un!erta-e to a!! an a(en!(ent, by the
authority of legislation to a Constitution already in e8istence, they can do it only by the method
pointed out by the Constitution to ,hich the amendment is added. he po,er to amend a Constitution
by legislative action does not confer the po,er to #rea- it, any more than it confers the po,er to
legislate on any other subject contrary to its prohibitions.$ -o, in State v. Ti((e, BJ Eis. A&), && ?.E.
')B, it ,as held that no amendments can be made to the Constitution of the state )it*out a
co(pliance )it* t*e provisions t*ereo,, both in the passage of such amendment by the +egislature
an! t*e (anner o, su#(ittin+ it to t*e people. he courts have not all agreed as to the strictness of
compliance ,hich should be re#uired.
4%n the Prohibition and Amendment Case, *J Nan. '99, the court !eter(ine! 5u!iciall ,hether an
amendment to the Constitution had been legally adopted. After approving the statement #uoted from
Collier v. Frierson, supra, that $,e entertain no !ou#t that, to change the Constitution in an other
mode than by a convention, ever re;uisite )*ic* is !e(an!e! # t*e instru(ent itsel, (ust #e
o#serve!, an! t*e o(ission o, an one is ,atal to t*e a(en!(ent,$ the court held that, $as substance
of right is grander and more potent than methods of form,$ there had been substantial compliance
,ith the constitutional re#uirement that a proposed amendment to the Constitution must be entere!
at len+t* on the legislative journal. %t appears that the joint resolution making submission simply
provided that a proposition should be submitted to the electors at the general election of &))9. %t did
not declare that the machinery of the general election la, should control, or t*at an particular
o,,icers or #oar! )oul! receive, count, or canvass t*e votes cast. "ut t*e e6istin+ election (ac*iner
)as a!e;uate, and the votes ,ere received, counted, and canvassed, and the result declared as fully
as though it had been in terms so ordered. T*ese (et*o!s *a! #een ,ollo)e! in t*e a!option o,
previous a(en!(ents, and ,as held that, conceding the irregularity of the proceedings the
+egislature and the doubtful scope of the provisions for the election, yet in vie, of the very
uncertainty of such provision the past le+islative *istor of similar propositions, the universal prior
ac;uiescence in the same forms of procedure and the popular and unc*allen+e! acceptance of the
legal pendency before the people of the #uestion of the amendment for decision, and in vie, of t*e
!ut cast upon t*e court ta-in+ 5u!icial -no)le!+e o, ant*in+ a,,ectin+ t*e e6istence an! vali!it o,
an la) or portion o, t*e Constitution, it must be adjudged that the proposed amendment became part
of the Constitution. he effect ,as to hold that a provision of the Constitution re#uiring the proposed
amendment to be entered in full on the journals ,as !irector, and not mandatory. his li#eral vie,
,as approved in -tate v. Einnett ;?eb.< &&9 ?. &&&A, &9 +.!.A. ;?.-.< &J(, and People v. -ours, A&
Colo. A2(, Pac. &2', &9* Am. -t. !ep. AJ. But it has not been universally accepted.
4%n Oa-lan! Pavin+ Co. v. Cilton, 2( Cal. J'(, && Pac. A, the court, in commenting upon the Nansas
case said7 $he reasoning by ,hich the learned court reached the conclusion it did is not based on
an soun! legal principles, but contrar to t*e(. Neit*er the argument nor the conclusion can
command our assent or approval. he argument is illo+ical, and based on premises ,hich are
)it*out an soun! ,oun!ation, and rests (erel on assu(ption.$ -ee, also, the ,ellCconsidered case
of Ga!!erl v. Portlan!, JJ 0r. &&), 'J Pac. '&9, 'B Pac. ***. 3ll these cases conce!e t*e
5uris!iction o, t*e court to determine ,hether, in submitting a proposed amendment to the people, the
+egislature le+all o#serve! t*e constitutional provisions as to t*e (anner o, proce!ure. %n 0iver(ore
v. Kaite, &9* Cal. &&A, A2 Pac. J*J, *B +.!.A. A&*, the court, at the instance of a citi"en and a
ta8payer, restrained the -ecretary of -tate from taking steps to submit to the people a proposed
amendment to the Constitution agreed to by the +egislature on the ground that the +egislature had
not acted in conformity ,ith the Constitution and that the proposed amendment ,as of such a
character that it could not properly become a part of the Constitution. he -upreme Court of
Colorado, in People v. Sours, supra, refused to e8ercise this authority.
4he entire #uestion received elaborate consideration in Noehler v. >ill, 29 %o,a, BJA, &J ?.E. 'A),
&B ?.E. 29(. he amendment, ,hich conce!e!l *a! #een a!opte! # t*e people, had not, #e,ore
its su#(ission, #een entere! in ,ull upon t*e le+islative 5ournals, as re#uired by the Constitution, and
it ,as held that this ,as a (aterial variance in both form and substance from the constitutional
re#uirements, and that the amendment did not, therefore, become a part of the Constitution. As to the
claim that the #uestion ,as political, and not judicial, it ,as said that, ,hile it is not competent for
courts to in#uire into the validity of the Constitution and the form of government under ,hich they
themselves e8ist, and from ,hich they derive their po,ers, yet, )*ere t*e e6istin+ Constitution
prescri#es a (et*o! ,or its o)n a(en!(ent, an a(en!(ent t*ereto, to #e vali!, (ust #e a!opte! in
strict con,or(it to t*at (et*o!: and it is the !ut of the courts in a proper case, ,hen an amendment
does not relate to their o,n po,er or functions, to in;uire ,hether, in the adoption of the amendment,
t*e provisions o, t*e e6istin+ Constitution *ave #een o#serve!, and, if not, to !eclare t*e a(en!(ent
invali! an! o, no ,orce. his case ,as follo,ed in State v. "roo-*art, &&A %o,a, *B9, )J ?.E. &92J.
4%n Eniversit v. 'cIver, '* ?.C. '2, the #uestion ,hether a proposed amendment to the Constitution
had been legally adopted ,as treated as a 5u!icial #uestion. By the Constitution a proposed
amendment ,as re#uired to be approved by +egislatures before its submission to the people. %n this
instance a bill ,as passed ,hich contained &' amendments. he ne8t +egislature re5ecte! % and
adopted ) of the amendments, and submitted them to the people. T*e (a5orit o, t*e people vote!
,or t*eir a!option: but it ,as contended that the Constitution contemplated and re#uired that the same
bill and the same amendments, )it*out c*an+e, should approved by both +egislatures, and that it did
not follo, because the second +egislature adopted separately & out o, $7 amendments adopted by
the first +egislature, it ,ould have adopted the &', or any of them, if they had been voted upon the
second in the form adopted by the first body. he substance of the contention ,as that there had not
been a concurrence of the t)o +egislatures on the same amendments, according to the letter and
spirit of the Constitution. he court held that the po,er of the +egislature in submitting amendments
could not be distinguished from the po,ers of convention, and that, as the people had spoken and
ratified the amendments, they became a part of the Constitution.
4%n Kestin+*ausen v. People, JJ Mich. *2B, 2 ?.E. 2J&, it ,as held that prior to &)'2 a proposed
amendment to Constitution could not be submitted to the people at any other than a general election:
but, as the amendment under consideration had been submitted a,ter the Constitution been changed,
it had been legally submitted and adopted.
4%n State v. Po)ell, '' Miss. BJA, *' -outh. (*', the #uestion ,hether an amendment to the
Constitution had been legally submitted and adopted by the people )as held to be judicial, and not
political, in its nature. he amendment under consideration c*an+e! the Constitution by providing for
an elective, instead of an appointive, judiciary. %t ,as contented that the amendments had been
i(properl submitted and adopted by a majority of the #ualified voters voting at election, as re#uired
by the Constitution. he la, did direct ho, the result of the election should be determined. T*e
0e+islature by joint resolution recited that the election had been duly held throughout the state, and,
as it appeared from the returns made to the -ecretary of -tate, that *&,&2( votes ,ere cast in favor
of, and ),2JA votes against, the amendment, it resolved $that said amendment be, and hereby is,
inserte! into the Constitution of the state of Mississippi as a part of the Constitution.$ %n fact, the
amendment ,as not submitted in t*e (anner prescribed by the Constitution, and it !i! not receive a
(a5orit o, all t*e ;uali,ie! voters votin+ at t*e election. %t ,as argued that the rules prescribed by the
Constitution 4are all for the guidance of the +egislature, and from the very nature of the thing the
+egislature must be the e6clusive judge of all #uestions to be measured or determined by these rules.
Ehether the #uestion be political, and certainly a legislative one, or judicial, to be determined by the
courts, this section of rules, not only of procedure, but of final judgment as ,ell, confides to the
separate magistracy of the le+islative department ,ull po,er to hear, consider, and adjudge that
#uestion. he +egislature puts the #uestion to the ;uali,ie! electors. he ;uali,ie! electors ans,er
back to the +egislature. 4%f it shall appear4 to the +egislature that its #uestion has been ans,ered in
the affirmative, the amendment is inserted and made a part of the Constitution. he 3overnor and the
courts have no authority to speak at any stage of the proceedings bet,een the sovereign and the
+egislature, and ,hen the matter is thus concluded it is closed, and the judiciary is as po,erless to
interfere as the e8ecutive.$ But it ,as held that the #uestion ,hether the proposition submitted to the
voters constituted one, or more than one, amendment, )*et*er t*e su#(ission )as accor!in+ to t*e
re;uire(ents o, t*e Constitution, and ,hether the proposition ,as in ,act a!opte!, ,ere all judicial,
and not political, #uestions. $Ee do not,$ said Chief .ustice Ehitfield, $seek a jurisdiction not imposed
upon us by the Constitution. Ke coul! not, i, )e )oul!, escape t*e e6ercise o, t*at 5uris!iction ,hich
the Constitution has imposed upon us. %n the particular instance in ,hich ,e are no, acting, our duty
to kno, ,hat the Constitution of the state is, and in accordance ,ith our oaths to support and
maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one )*ic* )e *ave
not sou+*t, #ut one )*ic*, li-e all ot*ers, (ust #e !isc*ar+e!.4
4%n "ott v. Kurtz, 2A ?... +a,, *)(, JA Atl. 'JJ, ))&, JB +.!.A. *B&, it ,as held that it ,as the !ut of
the judicial department of the government to !eter(ine )*et*er t*e le+islative !epart(ent or its
o,,icers *a! o#serve! t*e constitutional in5unctions in atte(ptin+ to a(en! t*e Constitution, an! to
annul t*eir acts i, t*e *a! not !one so. he case is an interesting and ,ellCconsidered one. he
Constitution provided the manner in ,hich proposed amendments should be submitted to the people,
but did not provide a (et*o! ,or canvassin+ the votes. he +egislature having agreed to certain
proposed amendments, passed an act for submitting the same to the people. his statute provided
for the transmission to the -ecretary of -tate of certificate sho,ing the result of the voting throughout
the state, and made it the duty of the 3overnor at the designated time summon four or more
-enators, ,ho, ,ith the 3overnor, should constitute a board of state canvassers to canvass and
estimate the votes for and against each amendment. his board ,as to determine and declare ,hich
of the proposed amendments had been adopted and to deliver a statement of the results to the
-ecretary of -tate, and 4any proposed amendment, ,hich by said certificate and determination of the
board of canvassers shall appear to have received in its favor the majority of all the votes cast in the
state for and against said proposed amendment, shall from the time of filing such certificate be and
become an amendment to and a part of the Constitution of the state: and it shall be the duty of the
3overnor of the state forth,ith, after such a determination, to issue a proclamation declaring ,hich of
the said proposed amendments have been adopted by the people.4 his board ,as re#uired to file a
statement of the result of the election, and the 3overnor to issue his proclamation declaring that the
amendment had been adopted and become a part of the Constitution. At the instance of a ta8payer
the -upreme Court allo)e! a ,rit of certiorari to re(ove into t*e court ,or revie) the statement of the
results of the election made by the canvassing board, in or!er t*at it (i+*t #e 5u!iciall !eter(ine!
,hether on the facts sho,n in that statement the board had legally determined that the proposed
amendment had been adopted. he -upreme Court decided that the concurrence of the board of
state canvassers and the e8ecutive department of the government in their respective official functions
placed the subjectCmatter #eon! the cogni"ance of the judicial department of the state. he Court of
Appeals, after a full revie, of the authorities, reverse! this decision, and held that the #uestions ,ere
o, a 5u!icial nature, and properly determinable by the court on their merits. Mr. .ustice Di8on, after
stating the facts, said7 $%t thus becomes manifest that there ,as present in the -upreme Court, and is
no, pending in this court, every element tending to maintain jurisdiction over the subjectCmatter,
unless it be true, as insisted, that the judicial department of the government has not the right to
consider ,hether the legislative department and its agencies have observed constitutional injunctions
in attempting to amend the Constitution, and to annul t*eir acts in case t*at t*e *ave not !one so.
hat such a proposition is not true seems to be indicated by the )*ole history of jurisprudence in this
country.$ he court, after considering the case on the merits, held that the proper conclusion had
been dra,n therefrom, and that the amendment in #uestion ,as legally submitted and adopted.
4he recent case of >ice v. Pal(er, ') Ark. JA*, (2 -.E. A(2, presented the identical #uestion ,hich
,e have under consideration. %n reference to the contention that the Constitution intended to delegate
to the -peaker of the >ouse of !epresentatives the po,er to determine ,hether an amendment had
been adopted, and that the #uestion ,as political, and not judicial, the court observed7 4he argument
has often been made in similar cases to the courts, and it is found in many dissenting opinions: but,
,ith probably a ,e) e8ceptions, it is not ,oun! in any prevailin+ opinion.4
4%n State v. Too-er, &B Mont. ), A' Pac. )J9, *B +.!.A. B29, it ,as held that the constitutional
re#uirement of publication of a proposed constitutional provision for three months prior to the election
at ,hich it is to be submitted to the people is (an!ator and that nonco(pliance t*ere)it* ren!ers
t*e a!option o, an a(en!(ent o, no e,,ect.4
A??/D B
MA+ACAUA?3
MA?%+A
B@ >/ P!/-%D/? 01 >/ P>%+%PP%?/-
P!/-%D/?%A+ D/C!// ?0. )2CB
.e,inin+ Furt*er t*e >ole o, "aran+as :Citizens 3sse(#lies<
E>/!/A-, since their creation pursuant to Presidential Decree ?o. )2 dated December A&, &('*,
the Barangays ;Citi"ens Assemblies< have petitioned the 0ffice of the President to submit to them for
resolution important national issues:
E>/!/A-, one of the #uestions persistently mention refers to the ratification of the Constitution
proposed by the &('& Constitutional Convention:
E>/!/A-, on the basis of the said petitions, it is evident that the people believe that the submission
of the proposed Constitution to the Citi"ens Assemblies or Barangays should taken as a plebiscite in
itself in vie, of the fact that freedom of debate has al,ays been limited to the leadership in political,
economic and social fields, and that it is no, necessary to bring this do,n to the level of the people
themselves through the Barangays or Citi"ens Assemblies:
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the
po,ers in me vested by the Constitution, do hereby order that important national issues shall from
time to time be referred to the Barangays ;Citi"ens Assemblies< for resolution in accordance ,ith
Presidential Decree ?o. )2CA dated .anuary B, &('A an that the initial referendum shall include the
matter of ratification of the Constitution proposed by the &('& Constitutional Convention.
he -ecretary of the Department of +ocal 3overnment and Community Development shall insure the
implementation of this 0rder.
Done in the City of Manila, this 'th day of .anuary in the year of 0ur +ord, nineteen hundred and
seventyCthree.
;-3D.< 1/!D%?A?D /.
MA!C0-
By the President7
;-3D.< A+/.A?D!0 M/+C>0!
/8ecutive -ecretary

S+(a,at+ O(%%os

MA6ALINTAL, J., concurring7
CASTRO, J., concurring7
he preliminary #uestion before this Court ,as ,hether or not the petitioners had made out a
sufficient pri(a ,acie case in their petitions to justify their being given due course. Considering on the
one hand the urgency of the matter and on the other hand its transcendental importance, ,hich
suggested the need for hearing the side of the respondents before that preliminary #uestion ,as
resolved, Ee re#uired them to submit their comments on the petitions. After the comments ,ere filed
Ee considered them as motions to dismiss so that they could be orally argued. As it turned out, the
hearing lasted five days, morning and afternoon, and could not have been more e8haustive if the
petitions had been given due course from the beginning.
he major thrust of the petitions is that the act of the Citi"ens Assemblies as certified and proclaimed
by the President on .anuary &', &('A ;Proclamation ?o. &&9*< ,as not an act of ratification, let alone
a valid one, of the proposed Constitution, because it ,as not in accordance ,ith the e8isting
Constitution ;of &(AB< and the /lection Code of &('&. 0ther grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely subordinate and
peripheral.
Article D6, -ection &, of the &(AB Constitution provides that amendments ;proposed either by
Congress in joint session or by a Convention called by it for the purpose< 4shall be valid part of this
Constitution ,hen approved by a majority of votes cast at an election at ,hich the amendments
submitted to the people for their ratification.4 At the time Constitution ,as approved by the
Constitutional Convention on 1ebruary ), &(AB, and ratified in a plebiscite held on follo,ing May &J,
the ,ord 4election4 had already a definite meaning in our la, and jurisprudence. %t ,as not a vague
and amorphous concept, but a procedure prescribed by statute ascertaining the people$s choices
among candidates for public offices, or their ,ill on important matters submitted to the pursuant to
la,, for approval. %t ,as in this sense that ,ord ,as used by the framers in Article D6 ;also in Articles
6% and 6%%<, and in accordance ,ith such procedure that plebiscites ,ere held to ratify the very same
Constitution in &(AB as ,ell as the subse#uent amendments thereto, thus7 in &(A( ;0rdinance
appended to the Constitution<: &(J9 ;establishment of a bicameral legislature: eligibility of the
President and the 6ice President for re election: creation of the Commission of /lections<: &(J'
;Parity Amendment<: and &(2' ;increase in membership of the >ouse of !epresentatives and
eligibility of members of Congress to run for the Constitutional Convention ,ithout forfeiture of their
offices<.
he /lection Code of &('&, in its -ection *, states that 4all elections of public officers e8cept barrio
officials and ple#iscites shall be conducted in the manner provided by this Code.4 his is a statutory
re#uirement designed, as ,ere the other election la,s previously in force, to carry out the
constitutional mandate relative to the e8ercise of the right suffrage, and ,ith specific reference to the
term 4plebiscites,4 the provision of Article D6 regarding ratification of constitutional amendments.
he manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. -ection (( re#uires that #ualified voters be registered in a permanent list, the
#ualifications being those set forth in Article 6, -ection &, of the &(AB Constitution on the basis of age
;*&<, literacy and residence. hese #ualifications are reiterated in -ection &9& of the /lection Code.
-ection &9* enumerates the classes of persons dis#ualified to vote. -ucceeding sections prescribe
the election paraphernalia to be used, the procedure for registering voters, the records, of registration
and the custody thereof, the description and printing of official ballots, the actual casting of votes and
their subse#uent counting by the boards of inspectors, the rules for appreciation of ballots, and then
the canvass and proclamation of the results.
Eith specific reference to the ratification of the &('* draft Constitution, several additional
circumstances should be considered7
;&< his draft ,as prepared and approved by a Convention ,hich had been convened pursuant to
!esolution ?o. * passed by Congress on March &2, &(2', ,hich provides7
-ec. '. he amendments proposed by the Convention shall be valid and considered part of the
;*< Article D6%%, -ection &2, of the draft itself states7
-ec. &2. his Constitution shall take effect immediately upon its ratification by a majority of the votes cast
nineteen hundred and thirtyCfive and all amendments thereto.
he same procedure is prescribed in Article D6%, -ection *, for the ratification of any future
amendment to or revision of the said Constitution.
;A< After the draft Constitution ,as approved by the Constitutional Convention on ?ovember A9, &('*
the said body adopted !esolution ?o. B)JA, proposing 4to President 1erdinand /. Marcos that a
decree be issued calling a ple#iscite for the ratification of the proposed ?e, Constitution on such
appropriate date as he shall determine and providing for the necessary funds therefor.4 Pursuant to
said !esolution the President issued Decree ?o. 'A on the same day, calling a plebiscite to be held
on .anuary &B, &('A, at ,hich the proposed Constitution 4shall be submitted to the people for
ratification or rejection.4 he Decree had eighteen ;&)< sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such as7 ;a< publication of the
proposed Constitution in /nglish and Pilipino: ;b< freedom of information and discussion: ;c<
registration of voters7 ;d< appointment of boards of election inspectors and designation of ,atchers in
each precinct: ;e< printing of official ballots: ;f< manner of voting to insure freedom and secrecy
thereof: ;g< canvass of plebiscite returns: and ;h< in general, compliance ,ith the provisions of the
/lection Code of &('&, ,ith the Commission on /lections e8ercising its constitutional and statutory
po,ers of supervision of the entire process.
here can hardly be any doubt that in everybody$s vie, K from the framers of the &(AB Constitution
through all the Congresses since then to the &('& Constitutional Convention K amendments to the
Constitution should be ratified in only one ,ay, that is, in an election or plebiscite held in accordance
,ith la, and participated in only by #ualified and duly registered voters. %ndeed, so concerned ,as
this Court ,ith the importance and indispensability of complying ,ith the mandate of the ;&(AB<
Constitution in this respect that in the recent case of Tolentino vs. Co((ission on Elections, ?o. +C
AJ&B9, 0ctober &2, &('& ;J& -C!A '9*<, a resolution of the ;&('&< Constitutional Convention
submitting a proposed amendment for ratification to a plebiscite to be held in ?ovember &('& ,as
declared null and void. he amendment sought to reduce the voting age from t,entyCone to eighteen
years and ,as approved by the Convention for submission to a plebiscite ahead of and separately
from other amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later. his
Court held that such separate submission ,as violative of Article D6, -ection &, of the Constitution,
,hich contemplated that 4all the amendments to be proposed by the same Convention must be
submitted to the people in a single 4election4 or plebiscite.4 > hus a grammatical construction based
on a singular, instead of plural, rendition of the ,ord 4election4 ,as considered a sufficient ground to
rule out the plebiscite ,hich had been called to ratify a proposed amendment in accordance ,ith the
procedure and under all the safeguards provided in the /lection +a,.
%n the cases no, before =s ,hat is at issue is not merely the ratification of just one amendment, as in
Tolentino vs. CO'E0EC, but the ratification of an entire charter setting up a ne, form of government:
and the issue has arisen not because of a disputed construction of one ,ord or one provision in the
&(AB Constitution but because no election or plebiscite in accordance ,ith that Constitution and ,ith
the /lection Code of &('& ,as held for the purpose of such ratification.
he Citi"ens Assemblies ,hich purportedly ratified the draft Constitution ,ere created by Presidential
Decree ?o. )2 dated December A&, &('*, 4to broaden the base of citi"en participation in the
democratic process and to afford ample opportunities for the citi"enry to e6press t*eir vie)s on
important national issues.4 he Assemblies 4shall consist of all persons ,ho are residents of the
barrio, district or ,ard for at least si8 months, ,i,teen years of age or over, citi"ens of the Philippines
and ,ho are registered in the lists of Citi"en Assembly members kept by the barrio, district or ,ard
secretary.4 By Presidential Decree ?o. )2CA, dated .anuary B, &('A, the Assemblies ,ere convened
for a referendum bet,een .anuary &9 and &B, to 4consider vital national issues no, confronting the
country, like the holding of the plebiscite on the ne, Constitution, the continuation of martial rule, the
convening of Congress on .anuary **, &('A, and the holding of elections in ?ovember &('A.4
0n .anuary B, &('A the ne,spapers came out ,ith a list of four #uestions to be submitted to the
Citi"ens Assemblies, the fourth one being as follo,s7 4>o, soon ,ould you like plebiscite on the ne,
Constitution to be heldI4 %t should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite ,hich he had called for .anuary &B,
&('A ;Presidential Decree ?o. 'A< for the ratification of the Constitution, and that he ,as considering
t,o ne, dates for the purpose K 1ebruary &( or March B: that he had ordered that the registration of
voters ;pursuant to Decree ?o. 'A< be e8tended to accommodate ne, voters: and that copies of the
ne, Constitution ,ould be distributed in eight dialects the people. ;"ulletin To!a, December *J,
&('*.<
0n .anuary &9, &('A it ,as reported that one more #uestion ,ould be added to the original four
,hich ,ere to be submitted to the Citi"ens Assemblies. he #uestion concerning plebiscite ,as
re,orded as follo,s7 4Do you like the plebiscite to be held laterI4 he implication, it may like,ise be
noted, ,as that the Assemblies should e8press their vie,s as to the plebiscite should be held, not as
to ,hether or not it should be held at all.
he ne8t day, .anuary &&, it ,as reported that si8 additional #uestions ,ould be submitted, namely7
;&< Do you approve of the citi"ens assemblies as the base of popular government to decide issues of
national interestI
;*< .o ou approve o, t*e ne) Constitution2
;A< .o ou )ant a ple#iscite to #e calle! to rati, t*e ne) Constitution2
;J< Do you ,ant the elections to be held in ?ovember, &('A accordance ,ith the provisions of the &(AB
ConstitutionI
;B< %f the elections ,ould not be held, ,hen do you ,ant the ne8t elections to be calledI
;2< Do you ,ant martial la, to continueI GBulletin oday, .anuary &&, &('A: emphasis suppliedH.
Appended to the si8 additional #uestions above #uoted ,ere the suggested ans,ers, thus7
C0MM/?- 0?
P=/-%0? ?o. &
P=/-%0? ?o. *
P=/-%0? ?o. A
P=/-%0? ?o. J
P=/-%0? ?o. B
P=/-%0? ?o. 2
,ant him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country.
%f all other measures fail, ,e ,ant President Marcos to declare a revolutionary government along the lines of the ne,
Constitution ,ithout the ad interim Assembly.
-o it ,as that on .anuary &&, &('A, the second day of the purported referendum, the suggestion ,as
broached, for the first time, that the plebiscite should be done a,ay ,ith and a favorable vote by the
Assemblies deemed e#uivalent ratification. his ,as done, not in the #uestionnaire itself, but in the
suggested ans,er to #uestion ?o. A. -trangely, ho,ever, it ,as not similarly suggested that an
unfavorable vote be considered as rejection.
here should be no serious dispute as to the fact that the manner in ,hich the voting ,as conducted
in the Citi"en Assemblies, assuming that such voting ,as held, ,as not ,ithin the intendment of
Article D6, -ection &, of the &(AB Constitution nor in accordance ,ith the /lection Code of &('&. he
referendum can by no means be considered as the plebiscite contemplated in -ection * of said Code
and in Article D6%%, -ection &2, of the draft Constitution itself, or as the election intended by Congress
,hen it passed !esolution ?o. * on March &2, &(2' calling a Convention for the revision of the &(AB
Constitution. he Citi"ens Assemblies ,ere not limited to #ualified, let alone registered voters, but
included all citi"ens from the age of fifteen, and regardless of ,hether or not they ,ere illiterates,
feebleCminded, or e8 convicts > K these being the classes of persons e8pressly dis#ualified from
voting by -ection &9* of the /lection Code. %n short, the constitutional and statutory #ualifications
,ere not considered in the determination of ,ho should participate. ?o official ballots ,ere used in
the voting: it ,as done mostly by acclamation or open sho, of hands. -ecrecy, ,hich is one of the
essential features of the election process, ,as not therefore observed. ?o set of rules for counting the
votes or of tabulating them and reporting the figures ,as prescribed or follo,ed. he Commission on
/lections, ,hich is the constitutional body charged ,ith the enforcement and administration of all la,s
relative to the conduct of elections, took no part at all, either by ,ay of supervision or in the
assessment of the results.
%t has been suggested that since according to Proclamation ?o. &&9* the over,helming majority of all
the members of the Citi"ens Assemblies had voted for the adoption of the proposed Constitution
there ,as a substantial compliance ,ith Article D6, -ection &, of the &(AB Constitution and ,ith the
/lection Code of &('&. he suggestion misses the point entirely. %t is of the essence of a valid
e8ercise of the right of suffrage that not only must a majority or plurality of the voters carry the day but
that the same must be duly ascertained in accordance ,ith the procedure prescribed by la,. %n other
,ords the very e8istence of such majority or plurality depends upon the manner of its ascertainment,
and to conclude that it e8ists even if it has not been ascertained according to la, is simply to beg the
issue, or to assume the very fact to be established. 0ther,ise no election or plebiscite could be
#uestioned for nonCcompliance ,ith the provisions of the /lection +a, as long as it is certified that a
majority of the citi"ens had voted favorably or adversely on ,hatever it ,as that ,as submitted to
them to vote upon.
>o,ever, a finding that the ratification of the draft Constitution by the Citi"ens Assemblies, as certified
by the President in Proclamation ?o. &&9*, ,as not in accordance ,ith the constitutional and
statutory procedure laid do,n for the purpose does not #uite resolve the #uestions raised in these
cases. -uch a finding, in our opinion, is on a matter ,hich is essentially justiciable, that is, ,ithin the
po,er of this Court to in#uire into. %t imports nothing more than a simple reading and application of
the pertinent provisions of the &(AB Constitution, of the /lection Code and of other related la,s and
official acts. ?o #uestion of ,isdom or of policy is involved. But from this finding it does not
necessarily follo, that this Court may justifiably declare that the Constitution has not become
effective, and for that reason give due course to these petitions or grant the ,rits herein prayed for.
he effectivity of the said Constitution, in the final analysis, is the basic and ultimate #uestion posed
by these cases, to resolve ,hich considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.
-everal theories have been advanced respectively by the parties. he petitioners lay stress on the
invalidity of the ratification process adopted by the Citi"ens Assemblies and on that premise ,ould
have this Court grant the reliefs they seek. he respondents represented by the -olicitor 3eneral,
,hose theory may be taken as the official position of the 3overnment, challenge the jurisdiction of
this Court on the ground that the #uestions raised in the petitions are political and therefore nonC
justiciable, and that in any case popular ac#uiescence in the ne, Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition of the po,er of judicial
revie,. !espondents 3il .. Puyat and .ose !oy ;in +CA2&2B<, in their respective capacities as
President and President Pro empore of the -enate of the Philippines, and through their counsel,
-enator Arturo olentino, like,ise invoke the political #uestion doctrine, but on a ground not
concurred in by the -olicitor 3eneral, namely, that approval of the &('A Constitution by the people
,as made under a revolutionary government, in the course of a successful political revolution, ,hich
,as converted by act of the people to the present !e 5ure government under the &('A Constitution.4
>eretofore, constitutional disputes ,hich have come before this Court for adjudication proceeded on
the assumption, conceded by all, that the Constitution ,as in full force and effect, ,ith the po,er and
authority of the entire 3overnment behind it: and the task of this Court ,as simply to determine
,hether or not the particular act or statute that ,as being challenged contravened some rule or
mandate of that Constitution. he process employed ,as one of interpretation and synthesis. %n the
cases at bar there is no such assumption7 the Constitution ;&(AB< has been derogated and its
continued e8istence as ,ell as the validity of the act of derogation is issue. he legal problem posed
by the situation is aggravated by the fact that the political arms of the 3overnment K the /8ecutive
Departments and the t,o >ouses of Congress K have accepted the ne, Constitution as effective7
the former by organi"ing themselves and discharging their functions under it, and the latter by not
convening on .anuary **, &('A or at any time thereafter, as ordained by the &(AB Constitution, and in
the case of a majority of the members by e8pressing their option to serve in the %nterim ?ational
Assembly in accordance ,ith Article D6%%%, -ection *, of the &('A Constitution. >
he theory advanced by -enator olentino, as counsel for respondents Puyat and !oy, may be taken
up and restated at same length if only because it ,ould constitute, if sustained, the most convenient
ground for the invocation of the politicalC#uestion doctrine. %n support of his theory, -enator olentino
contends that after President Marcos declared martial la, on -eptember *&, &('* ;Proclamation ?o.
&9)&< he established a revolutionary government ,hen he issued 3eneral 0rder ?o. & the ne8t day,
,herein he proclaimed 4that % shall govern the nation and direct the operation of the entire
government, including all its agencies and instrumentalities, in my capacity, and shall e8ercise all the
po,ers and prerogatives appurtenant and incident to my position as such CommanderCinCChief of all
the Armed 1orces of the Philippines.4 By this order, it is pointed out, the CommanderCinCChief of the
Armed 1orces assumed all the po,ers of government K e8ecutive, legislative, and judicial: and
thereafter proceeded to e8ercise such po,ers by a series of 0rders and Decrees ,hich amounted to
legislative enactments not justified under martial la, and, in some instances, trenched upon the
domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as 4those
involving the validity, legality, or constitutionality of Proclamation ?o. &9)&, or of any decree, order or
act issued, promulgated or performed by me or by my duly designated representative pursuant
thereto.4 ;3eneral 0rder ?o. A as amended by 3eneral 0rder ?o. ACA, dated -eptember *J, &('*.<
he ratification by the Citi"ens Assemblies, it is averred, ,as the culminating act of the revolution,
,hich thereupon converted the government into a !e 5ure one under the &('A Constitution.
%f indeed it be accepted that the Citi"ens Assemblies had ratified the &('A Constitution and that such
ratification as ,ell as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of ,hether or not that Constitution has become effective and, as
necessary corollary, ,hether or not the government legitimately functions under it instead of under
the &(AB Constitution, is political and therefore nonCjudicial in nature. =nder such a postulate ,hat the
people did in the Citi"en Assemblies should be taken as an e8ercise of the ultimate sovereign po,er.
%f they had risen up in arms and by force deposed the then e8isting government and set up a ne,
government in its place, there could not be the least doubt that their act ,ould be political and not
subject to judicial revie, but only to the judgment of the same body politic act, in the conte8t just set
forth, is based on realities. %f a ne, government gains authority and dominance through force, it can
be effectively challenged only by a stronger force: judicial dictum can prevail against it. Ee do not see
that situation ,ould be any different, as far as the doctrine of judicial revie, is concerned, if no force
had been resorted to and the people, in defiance of the e8isting Constitution but peacefully because
of the absence of any appreciable opposition, ordained a ne, Constitution and succeeded in having
the government operate under it. Against such a reality there can be no ade#uate judicial relief: and
so courts forbear to take cogni"ance of the #uestion but leave it to be decided through political
means.
he logic of the politicalC#uestion doctrine is illustrated in statement of the =.-. -upreme Court in a
case > relied upon, curiously enough, by the -olicitor 3eneral, ,ho disagrees ,ith the revolutionary
government theory of -enator olentino. he case involved the issue of ,hich of t,o opposing
governments struggling for supremacy in the -tate of !hode %sland ,as the la,ful one. he issue had
previously come up in several other cases before the courts of the -tate, ,hich uniformly held that
the in#uiry belonged to the political po,er and not to the judicial. Commenting on the ruling thus
arrived at, the =.-. -upreme Court said7 4And if a -tate court should enter upon the in#uiry proposed
in this case, and should come to the conclusion that the government under ,hich it acted had been
put aside and displaced by an opposing government, it ,ould cease to be a court, and incapable of
pronouncing a judicial decision upon the #uestion it undertook to try. %f it decides at all as a court, it
necessarily affirms the e8istence and authority of the government under ,hich it is e8ercising judicial
po,er.4 %n other ,ords, since the court ,ould have no choice but to decide in one ,ay alone in order
to be able to decide at all, the #uestion could not be considered proper for judicial determination.
%t should be noted that the above statement from +uther vs. Borden ,ould be applicable in the cases
at bar only on the premise that the ratification of the Constitution ,as a revolutionary act and that the
government no, functioning it is the product of such revolution. >o,ever, ,e are not prepared to
agree that the premise is justified.
%n the first, place, ,ith specific reference to the #uestioned ratification, several significant
circumstances may be noted. ;&< he Citi"ens Assemblies ,ere created, according to Presidential
Decree ?o. )2, 4to broaden the base of citi"en participation in the democratic process and to afford
ample opportunities for the citi"enry to e6press t*eir vie)s on important national issues.4 ;*< he
President announced, according to the .ail E6press of .anuary *, &('A, that 4the referendum ,ill be
in the nature of a loose consultation ,ith the people.4 ;A< he #uestion, as submitted to them on the
particular point at issue here, ,as 4Do you a approve o, the ConstitutionI4 ;J< President Marcos, in
proclaiming that the Constitution had been ratified, stated as follo,s7 4;-<ince the referendum results
sho, that more than ninetyCfive ;(B< per cent of the members of the Barangays ;Citi"ens Assemblies<
are in favor of the ne, Constitution, the Gatipunan n+ (+a "aran+a has stron+l reco((en!e! that
the ne, Constitution should already #e !ee(e! ratified by the 1ilipino people.4 ;B< here ,as not
enough time for the Citi"ens Assemblies to really familiari"e themselves ,ith the Constitution, much
less ,ith the many other subjects that ,ere submitted to them. %n fact the plebiscite planned for
.anuary &B, &('A under Presidential Decree ?o. 'A had been postponed to an indefinite date, the
reasons for the postponement being, as attributed to the President in the ne,spapers, that 4there ,as
little time to campaign for or against ratification4 ;.ail E6press, Dec. **, &('*<: that he ,ould base
his decision ;as to the date, of the plebiscite< on the compliance by the Commission ;on /lections< on
the publication re#uirement of the ne, Charter and on the position taken by national leaders4 ;.ail
E6press, Dec. *A, &('*<: and that 4the postponement ,ould give us more time to debate on the
merits of the Charter.4 ;"ulletin To!a, Dec. *J, &('*.<
he circumstances above enumerated lead us to the conclusion that the Citi"ens Assemblies could
not have understood the referendum to be for the ratification of the Constitution, but only for the
e8pression of their vie,s on a consultative basis. %ndeed, if the e8pression of those vie,s had been
intended as an act of ratification ;or of rejection as a logical corollary< K there ,ould have been no
need for the Gatipunan n+ (+a "aran+a to reco((en! that the Constitution should already be
deemed ratified, for recommendation imports recognition of some higher authority in ,hom the final
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had
been ratified and had come into effect. he more relevant consideration, therefore, as far as ,e can
see, should be as to ,hat the President had in mind in convening the Citi"ens Assemblies, submitting
the Constitution to them and proclaiming that the favorable e8pression of their vie,s ,as an act of
ratification. %n this respect subjective factors, ,hich defy judicial analysis and adjudication, are
necessarily involved.
%n positing the problem ,ithin an identifiable frame of reference ,e find no need to consider ,hether
or not the regime established by President Marcos since he declared martial la, and under ,hich the
ne, Constitution ,as submitted to the Citi"ens Assemblies ,as a revolutionary one. he pivotal
#uestion is rather ,hether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation ?o. &&9*, upon the recommendation of the Gatipunan n+ (+a "aran+a, ,as intended
to be definite and irrevocable, regardless of nonCcompliance ,ith the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. Ee must confess that after considering
all the available evidence and all the relevant circumstances ,e have found no reasonably reliable
ans,er to the #uestion. 0n one hand ,e read, for instance, the follo,ing public statements of the
President7
-peaking about the proclamation of martial la,, he said7
% reiterate ,hat % have said in the past7 there is no turning back for our people.
Ee have committed ourselves to this revolution. Ee have pledged to it our future, our fortunes, our lives,
our destiny. Ee have burned our bridges behind us. +et no man misunderstand the strength of our
resolution. ;A !eport to the ?ation, .an. ', &('A.<
0n the occasion of the signing of Proclamation ?o. &&9* on .anuary &', &('A, the President said the
follo,ing, among other things7
... Ee can, perhaps delimit the po,er of the people to speak on legal matters, on justiciable matters, on
matters that may come before the e8perts and interpreters of the la,. But ,e cannot dis#ualify the people
from speaking on ,hat ,e and the people consider purely political matters especially those that affect the
fundamental la, of the land.
... he political #uestions that ,ere presented to the people are e8actly those that refer to the form of
government ,hich the people ,ant ... he implications of disregarding the people$s ,ill are too a,esome
to be even considered. 1or if any po,er in government should even dare to disregard the people$s ,ill
there ,ould be valid ground for revolt.
... +et it be kno,n to everybody that the people have spoken and they ,ill no longer tolerate any attempt
to undermine the stability of their !epublic: they ,ill rise up in arms not in revolt against the !epublic #ut
in protection o, t*e >epu#lic )*ic* t*e *ave installe!. %t is #uite clear ,hen the people say, ,e ratify the
Constitution, that they mean they ,ill not discard, the Constitution.
0n .anuary &(, &('A the .ail E6press published statement of the President made the day before,
from ,hich the follo,ing portion is #uoted7
... the times are too grave and the stakes too high for us permit the customary concessions to traditional
democratic process to hold back our people$s clear and une#uivocal resolve and mandate to meet and
overcome the e8traordinary challenges presented by these e8traordinary times.
0n the same occasion of the signing of Proclamation ?o. &&9* the President made pointed reference
to 4the demand of some of our citi"ens ... that ,hen all other measures should fail, that the President
be directed to organi"e and establish a !evolutionary 3overnment,4 but in the ne8t breath added7 4...
if ,e do ratify the Constitution, ho, can ,e speak of !evolutionary 3overnmentI hey cannot be
compatible ...4 4;%<t is my feeling,4 he said, 4that the Citi"ens$ Assemblies ,hich submitted this
recommendation merely sought articulate their impatience ,ith the status ;uo that has brought about
anarchy, confusion and misery to the masses ...4 he only alternatives ,hich the President clearly
implied by the foregoing statements ,ere the ratification of the ne, Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratified. he third obvious alternative ,as entirely ruled out,
namely, a return to the &(AB Constitution, for it ,as the status ;uo under that Constitution that had
caused 4anarchy, confusion and misery.4 he message seems clear7 rather than return to such status
;uo, he ,ould heed the recommendation of the Citi"ens$ Assemblies to establish a revolutionary
government, because that ,ould be the only other ,ay to carry out the reforms he had envisioned
and initiated K reforms ,hich, in all fairness and honesty, must be given credit for the improved
#uality of life in its many aspects, e8cept only in the field of civil liberties.
%f there is any significance, both e8plicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection ,ith the ratification of the Constitution ,as
meant to be irreversible, and that nothing anyone could say ,ould make the least difference. And if
this is a correct and accurate assessment of the situation, then ,e ,ould say that since it has been
brought about by political action and is no, maintained by the government that is in undisputed
authority and dominance, the matter lies beyond the po,er of judicial revie,.
0n the other hand, by avo,als no less significant if not so emphatic in terms, President Marcos has
professed fealty to the Constitution. %n 4oday$s !evolution7 Democracy4 he says7
% believe, therefore, in the necessity of !evolution as an instrument of individual and social change ... but
that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.
%n his 6 address of -eptember *A, &('*, President Marcos told the nation7
% have proclaimed martial la, in accordance ,ith the po,ers veste! in t*e Presi!ent # t*e Constitution
o, t*e P*ilippines.
888 888 888
% repeat, this is not a military takeover of civil government functions. he 3overnment of the >epu#lic o,
t*e P*ilippines )*ic* )as esta#lis*e! # our people in $%J/ continues.
888 888 888
% assure you that % am utili"ing this po,er veste! in (e # t*e Constitution to save the !epublic and
reform our society...
% have had to use this constitutional po,er in order that ,e may not completely lose the civil rights and
freedom ,hich ,e cherish...
... Ee are against the ,all. Ee must no, defend the !epublic )it* t*e stron+er po)ers o, t*e
Constitution.
;6ital Documents, pp. &C&*: emphasis supplied<.
%n the report of an intervie, granted by the President to the ?e,s,eek Maga"ine ;published in the
issue of .anuary *(, &('A<, the follo,ing appears7
888 888 888
P. ?o, that you have gotten off the constitutional track, ,on$t you be in serious trouble if you run into critical problems
,ith your programsI
!. % have never gotten off the constitutional track. /verything % am doing is in accordance ,ith the &(AB Constitution.
he only thing is that instead of &)CyearColds voting, ,e have allo,ed &BCyearColds the right to vote. But the &BCyearC
olds of today are highCschool students, if not graduates, and they are better informed than my contemporaries at that
age. 0n the matter of ,hether it is constitutional to proclaim martial la,, it is constitutional because the Constitution
provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. Ee may #uarrel about
,hether ,hat ,e have gone through is sufficient cause to proclaim martial la, but at the very least there is a danger of
rebellion because so many of our soldiers have been killed. @ou must remember this ;martial la, provision< ,as lifted
from the American legislation that ,as the fundamental la, of our country.
888 888 888
%n the light of this seeming ambivalence, the choice of ,hat course of action to pursue belongs to the
President. Ee have earlier made reference to subjective factors on ,hich this Court, to our mind, is in
no position to pass judgment. Among them is the President$s o,n assessment of the ,ill of the
people as e8pressed through the Citi"ens Assemblies and of the importance of the &('A Constitution
to the successful implementation of the social and economic reforms he has started or envisioned. %f
he should decide that there is no turning back, that ,hat the people recommended through the
Citi"ens Assemblies, as they ,ere reported to him, demand that the action he took pursuant thereto
be final and irrevocable, then judicial revie, is out of the #uestion.
%n articulating our vie, that the procedure of ratification that ,as follo,ed ,as not in accordance ,ith
the &(AB Constitution and related statutes, ,e have discharged our s,orn duty as ,e conceive it to
be. he President should no, perhaps decide, if he has not already decided, ,hether adherence to
such procedure is ,eighty enough a consideration, if only to dispel any cloud of doubt that may no,
and in the future shroud the nation$s Charter.
%n the deliberations of this Court one of the issues formulated for resolution is ,hether or not the ne,
Constitution, since its submission to the Citi"ens Assemblies, has found acceptance among the
people, such issue being related to the political #uestion theory propounded by the respondents. Ee
have not tarried on the point at all since ,e find no reliable basis on ,hich to form a judgment. =nder
a regime of martial la,, ,ith the free e8pression of opinions through the usual media vehicles
restricted, ,e have no means of kno,ing, to the point of judicial certainty, ,hether the people have
accepted the Constitution. %n any event, ,e do not find the issue decisive insofar as our vote in these
cases is concerned. o interpret the Constitution K that is judicial. hat the Constitution should be
deemed in effect because of popular ac#uiescence K that is political, and therefore beyond the
domain of judicial revie,.
Ee therefore vote not to give due course to the instant petitions.
$ARREDO, J., concurring7
As far as % am concerned, % regard the present petitions as no more than mere reiterations of the
-upplemental Petitions filed by Counsel +oren"o M. aLada on .anuary &B, &('A in the so called
Plebiscite Cases decided by this Court on .anuary **, &('). 0f course, there are amplifications of
some of the grounds previously alleged and in the course of the unprecedented fiveCday hearing that
,as held from 1ebruary &* to &2 last, more e8tensive and illuminating arguments ,ere heard by =s,
but, in my estimation, and ,ith due recognition of the sincerety, brilliance and elo#uence of counsels,
nothing more cogent and compelling than ,hat had already been previously presented by Counsel
aLada is before =s no,. Accordingly, % cannot see any reason ,hy % should change the position %
took in regard to the earlier cases. % reiterate, therefore, the vote % cast ,hen these petitions ,ere
initially considered by the Court: namely, to dismiss them.
%n vie,, ho,ever, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that % reserved before
the filing of a more e8tended opinion, % ,ill take this opportunity to e8plain further ,hy % hold that the
&('A Constitution is already in force, if only to clarify that apart from the people$s right of revolution to
,hich % made pointed reference in my previous opinion, % can see no,, after further reflection, that the
vote of the people in the referendum in the Citi"ens Assemblies held on .anuary &9 to &B, &('A, upon
the result of ,hich Proclamation &&9* is based, may be vie,ed more importantly as a political act
than as a purely legal one ,ith the result that such vote to consider the &('A Constitution as ratified
,ithout the necessity of holding a plebiscite in the form follo,ed in the previous ratification plebiscites
in &(AB of the Constitution itself, &(A' of ,omen$s suffrage, &(A( of the amendments to the
0rdinance Appended to the Constitution, &(J9 of the reCelection of the President, the bicameral
legislature and the Commission on /lections, &(J' of the parity amendment and &(2', rejecting the
proposed increase in the members of the >ouse of !epresentatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in
compliance ,ith the basic intent of Article D6 of the &(AB Constitution. %f indeed this e8planation may
be considered as a modification of my rationali"ation then, % ,ish to emphasi"e that my position as to
the fundamental issue regarding the enforceability of the ne, Constitution is even firmer no, than
ever before. As % shall elucidate anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned ,ould be best served by the -upreme Court holding
that the &('A Constitution is no, in force, not necessarily as a conse#uence of the revolutionary
concept previously suggested by me, but upon the ground that as a political, more than as a legal, act
of the people, the result of the referendum may be construed as a compliance ,ith the substantiality
of Article D6 of the &(AB Constitution.
%
he facts that gave rise to these proceedings are historical and ,ell kno,n. 3enerally, they may be
taken judicial notice of. hey revolve around the purported ratification of the Constitution of &('A
declared in Proclamation &&9* issued by the President on .anuary &', &('A.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March
&2, &(2', delegates to a constitutional convention to propose amendments to the Constitution of &(AB
,ere elected in accordance ,ith the implementing la,, !epublic Act 2&A*, on ?ovember &9, &('9.
Nno,n as the Constitutional Convention of &('&, the assembly began its sessions on .une &, &('&.
After encountering a lot of difficulties, due to bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating po,ers in their officers, the delegates ,ent about
their ,ork in comparatively slo, pace, and by the third #uarter of &('* had finished deliberations and
secondCreading voting only on an insignificant number of proposals K until -eptember *&, &('*,
,hen the President, not altogether une8pectedly, yet abruptly, issued Proclamation &9)& declaring
martial la, throughout the country. An attempt ,as made to have the Convention recessed until after
the lifting of martial la,, and not long after the motion of Delegate Nala, to such effect ,as turned
do,n, the activities ,ithin the assembly shifted to high gear. As if unmindful of the arrest and
continued detention of several of its members, the convention gathered s,ift momentum in its ,ork,
and on ?ovember A9, &('*, it approved by over,helming vote the draft of a complete constitution,
instead of mere specific amendments of particular portions of the Constitution of &(AB. ?eedless to
say, before martial la, ,as declared, there ,as full and unlimited coverage of the ,orkings in the
convention by the mass media. At the same time, public debates and discussions on various aspects
of proposed amendments ,ere not uncommon.
/arlier, on ?ovember **, &('*, the Convention had !esolution ?o. B)JA proposing 4to President
1erdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed ne,
Constitution on appropriate date as he shall determine and providing for necessary funds therefor.4
Acting under this authority, December &, &('*, the President issued Presidential Decree ?o. 'A
submitting the draft constitution for ratification by the people at a plebiscite set for .anuary &B, &('A.
his order contained provisions more or less similar to the plebiscite la,s passed by Congress
relative to the past plebiscites held in connection ,ith previous proposed amendments.
%n connection ,ith the plebiscite thus contemplated, 3eneral 0rder ?o. &' ,as issued ordering and
enjoining the authorities to allo, and encourage public and free discussions on proposed constitution.
?ot only this, subse#uently, under date of December &', &('*, the President ordered the suspension
the effects of martial la, and lifted the suspension of privilege of the ,rit of *a#eas corpus insofar as
activities connected ,ith the ratification of the draft constitution ,ere concerned. hese t,o orders
,ere not, ho,ever, to last very long. 0n .anuary ', &('A, the President, invoking information related
to him that the area of public debate and discussion had opened by his previous orders ,as being
taken advantage of by subversive elements to defeat the purposes for ,hich they ,ere issued and to
foment public confusion, ,ithdre, said orders and enjoined full and stricter implementation of martial
la,.
%n the meantime, the President had issued on December A, &('* Presidential Decree ?o. )2 creating
Citi"ens Assemblies 4so as to afford ample opportunities for the citi"enry to e8press their vie,s on
important national issues4 and one of the #uestions presented to said assemblies ,as7 4Do you like
the plebiscite on the proposed Constitution to be held later4 -o, the same order of .anuary ', &('A,
3eneral 0rder ?o. *9, the President ordered, 4that the plebiscite scheduled to be held .anuary &B,
&('A, be postponed until further notice4.
%n the mean,hile also, on .anuary B, &('A, the President issued Presidential Decree, ?o. )2CA
providing as follo,s7
P!/-%D/?%A+ D/C!// ?0. )2CA
-!/?3>/?%?3 A?D D/1%?%?3 >/ !0+/ 01
BA!A?3A@- ;C%%5/?- A--/MB+%/-<
E>/!/A-, on the basis of preliminary and initial reports from the field as gathered from barangays
;citi"ens assemblies< that have so far been established, the people ,ould like to decide for themselves
#uestions or issues, both local and national, affecting their dayCtoCday lives and their future:
E>/!/A-, the barangays ;citi"ens assemblies< ,ould like themselves to be the vehicle for e8pressing
the vie,s of the people on important national issues:
E>/!/A-, such barangays ;citi"ens assemblies< desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid e8pression of the popular ,ill: and
E>/!/A-, the people ,ould like the citi"ens assemblies to conduct immediately a referendum on
certain specified #uestions such as the ratification of the ne, Constitution, continuance of martial la,, the
convening of Congress on .anuary **, &('A, and the elections in ?ovember &('A pursuant to the &(AB
Constitution.
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers
vested in me by the Constitution as CommanderCinCChief of all Armed 1orces of the Philippines, do
hereby declare as part of the la, of the land the follo,ing7
&. he present barangays ;citi"ens assemblies< are created under Presidential Decree ?o. )2 dated
December A&, &('*, shall constitute the base for citi"en participation in governmental affairs and their
collective vie,s shall be considered in the formulation of national policies or programs and, ,herever
practicable, shall be translated into concrete and specific decision:
*. -uch barangays ;citi"ens assemblies< shall consider vital national issues no, confronting the country,
like the holding of the plebiscite on the ne, Constitution, the continuation of martial rule, the convening of
Congress on .anuary **, &('A, and the holding of elections in ?ovember &('A, and others in the future,
,hich shall serve as guide or basis for action or decision by the national government:
A. he barangays ;citi"ens assemblies< shall conduct bet,een .anuary &9 and &B, &('A, a referendum on
important national issues, including those specified in paragraph * hereof, and submit results thereof to
the Department of +ocal 3overnments Community Development immediately thereafter, pursuant to
e8press ,ill of the people as reflected in the reports gathered from the many thousands of barangays
;citi"ens assemblies< throughout the country.
J. his Decree shall take effect immediately.
Done in the City of Manila, this Bth day of .anuary, in the year of 0ur +ord, nineteen hundred and seventy
three.
And on .anuary ', &('A, this ,as follo,ed by Presidential Decree ?o. )2CB reading thus7
P!/-%D/?%A+ D/C!// ?0. )2CB
D/1%?%?3 1=!>/! >/ !0+/ 01 BA!A?3A@- ;C%%5/?-
A--/MB+%/-<
E>/!/A-, since their creation pursuant to Presidential Decree ?o. )2 dated December A&, &('*, the
Barangays ;Citi"ens Assemblies< have petitioned the 0ffice of the President to submit them for resolution
important national issues:
E>/!/A-, one of the #uestions persistently mentioned refers to the ratification of the Constitution
E>/!/A-, on the basis of the said petitions, it is evident that the people believe that the submission of
the proposed Constitution to the Citi"ens Assemblies or Barangays should be taken as a plebiscite in
?0E >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers in
me vested by the Constitution, do hereby order that important national issues shall from time to time be
referred to the Barangays ;Citi"ens Assemblies< for resolution in accordance ,ith Presidential Decree ?o.
)2CA dated .anuary B, &('A and that the initial referendum shall include the matter of ratification of the
Constitution proposed by the &('& Constitutional Convention.
he -ecretary of the Department of +ocal 3overnments and Community Development shall insure the
Done in the City of Manila, this 'th day of .anuary in the year of 0ur +ord, nineteen hundred and seventyC
three.
And so it ,as that by .anuary &9, &('A, ,hen the Citi"ens Assemblies thus created started the
referendum ,hich ,as held from said date to .anuary &B, &('A, the follo,ing #uestions ,ere
submitted to them7
;&< Do you like the ?e, -ocietyI
;*< Do you like the reforms under martial la,I
;A< Do you like Congress again to hold sessionsI
;J< Do you like the plebiscite to be held laterI
;B< Do you like the ,ay President Marcos is running the affairs of the governmentI.
but on .anuary &&, &('A, si8 #uestions ,ere added as follo,s7
national interestsI
;*< Do you approve of the ?e, ConstitutionI
;A< Do you ,ant a plebiscite to be called to ratify the ne, ConstitutionI
;J< Do you ,ant the elections to be held in ?ovember, &('A in accordance ,ith the provisions of the &(AB
ConstitutionI
;B< %f the elections ,ould not be held, ,hen do you ,ant it to be calledI
;2< Do you ,ant martial la, to continueI
%t is not seriously denied that together ,ith the #uestion the voters ,ere furnished 4comments4 on the
said #uestions more or less suggestive of the ans,er desired. %t may assumed that the said
4comments4 came from official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these 4comments4 ,ere the follo,ing7
C0MM/?- 0?
888 888 888
P=/-%0? ?o. *
But ,e do not ,ant the Ad %nterim Assembly to be convoke. 0r if it is to be convened at all, it should not be done so
P=/-%0? ?o. A
%f the Citi"ens Assemblies approve of the ne, Constitution then the ne, Constitution should be deemed ratified.
he -olicitor 3eneral claims, and there seems to be sho,ing other,ise, that the results of the
referendum ,ere determined in the follo,ing manner7
hereafter, the results of the voting ,ere collated and sent to the Department of +ocal 3overnments. he
transmission of the results ,as made by telegram, telephone, the provincial government --B -ystem in
each province connecting all to,ns: the --B communication of the PACD connecting most provinces: the
Department of Public %nformation ?et,ork -ystem: the Eeather Bureau Communication -ystem
connecting all provincial capitals and the ?ational Civil Defense ?et,ork connecting all provincial capitals.
he certificates of results ,ere then flo,n to Manila to confirm the previous figures received by the
aforementioned means of transmission. he certificates of results tallied ,ith the previous figures taken
,ith the e8ception of fe, cases of clerical errors.
he Department adopted a system of regionali"ing the receiving section of the Citi"ens Assemblies
operation at the Department ,herein the identity of the barrio and the province ,as immediately given to
a staff in charge of each region. /very afternoon at *799 o$clock, the && regions submitted the figures they
received from the field to the central committee to tabulate the returns. he last figures ,ere tabulated at
&* midnight of .anuary &2, &('A and early morning of .anuary &', &('A and ,ere then communicated to
the President by the Department of +ocal 3overnments.
he development culminated in the issuance by the President of Proclamation &&9* on .anuary &',
&('A. -aid proclamation reads7
P!0C+AMA%0? ?0. &&9* A??0=?C%?3 >/ !A%1%CA%0? B@ >/ 1%+%P%?0 P/0P+/ 01 >/
C0?-%=%0? P!0P0-/D B@ >/ &('& C0?-%=%0?A+ C0?6/?%0?.
E>/!/A-, the Constitution proposed by the nineteen hundred seventyCone Constitutional Convention is
subject to ratification by the 1ilipino people:
E>/!/A-, Citi"ens Assemblies ,ere created in barrios in municipalities and in districtsF,ards in
chartered cities pursuant to Presidential Decree ?o. 2, dated December A&, &('*, composed of all
E>/!/A-, the said Citi"ens Assemblies ,ere establish precisely to broaden the base of citi"en
participation in the democratic process and to afford ample opportunity for the citi"en to e8press their
E>/!/A-, responding to the clamor of the people an pursuant to Presidential Decree ?o. )2CA, dated
.anuary B, &('A, the follo,ing #uestions ,ere posed before Citi"ens$ Assemblies or Barangays7 Do you
approve of the ?e, ConstitutionI Do you still ,ant a plebiscite to be called to ratify the ne, ConstitutionI
E>/!/A-, fourteen million nine hundred seventyCsi8 thousand five hundred si8ty one ;&J,('2,B2&<
as against seven hundred fortyCthree thousand eight hundred si8ty nine ;'JA,)2(< ,ho voted for its
ratify the ne, Constitution fourteen million t,o hundred ninetyCeight thousand eight hundred fourteen
;&J,*(),)&J< ans,ered that there ,as no need for plebiscite and that the vote of the Barangays ;Citi"ens
Assemblies< should be considered as a vote in a plebiscite:
E>/!/A-, since the referendum results sho, that more than ninetyCfive ;(B< percent of the members of
the Barangays ;Citi"en Assemblies< are in favor of the ?e, Constitution, the Natipunan ng Mga Barangay
has strongly recommended that the ne, Constitution should already be deemed ratified by the 1ilipino
people:
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers in
me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the
over,helmingly majority of all of the votes cast by the members of all the Barangays ;Citi"ens
Assemblies< throughout the Philippines, and has thereby come into effect.
%? E%?/-- E>/!/01, % have hereunto set my hand and caused the seal of the !epublic of the
Done in the City of Manila, this &'th day of .anuary, in the year of 0ur +ord, nineteen hundred and
seventyCthree.
he first attempt to #uestion the steps just enumerated taken by the President ,as in the soCcalled
Plebiscite Cases, ten in number, ,hich ,ere filed by different petitioners during the first half of
December &('*.
1
heir common target then ,as Presidential Decree ?o. 'A, but before the said
cases could be decided, the series of moves tending in effect to make them moot and academic
insofar as they referred e8clusively to the said Presidential Decree began to take shape upon the
issuance of Presidential Decree ?o. )2CA, #uoted above. And ,hen Presidential Decree ?o. )2CB,
also above #uoted, ,as issued and the si8 additional #uestions ,hich ,ere first publici"ed on
.anuary &&, &('A ,ere kno,n, together ,ith the 4comments4, petitioners sensed that a ne, and
unorthodo8 procedure ,as being adopted to secure approval by the people of the ne, Constitution,
hence Counsel aLada, not being satisfied ,ith the fate of his urgent motion for early decision of the
above ten cases dated .anuary &*, &('A, filed on .anuary &B, &('A, his supplemental motion seeking
the prohibition against and injunction of the proceedings going on. Principal objective ,as to prevent
that the President be furnished the report of the results of the referendum and thereby disable him
from carrying out ,hat petitioners ,ere apprehensively foreseeing ,ould be done K the issuance of
some kind of proclamation, order or decree, declaring that the ne, Constitution had been ratified.
!eacting s,iftly, the Court resolved on the same day, .anuary &B, ,hich ,as Monday, to consider the
supplemental motion as a supplemental petition and to re#uire the respondents to ans,er the same
the ne8t Eednesday, .anuary &'th, before the hour of the hearing of the petition ,hich set for (7A9
o$clock in the morning of that day. he details ,hat happened that morning form part of the recital of
facts the decision rendered by this Court in the ten cases on .anuary **, &('A and need not be
repeated here. -uffice it to state no that before the hearing could be closed and ,hile Counsel
aLada ,as still insisting on his prayer for preliminary injunction or restraining order, the -ecretary of
.ustice arrived and personally handed to the Chief .ustice a copy Proclamation &&9* ,hich had been
issued at about &&799 o$clock that same morning. %n other ,ords, the valiant and persistent efforts of
petitioners and their counsels ,ere overtaken by adverse developments, and in the mind of the
majority of the members of the Court, the cases had become academic. 1or my part, % took the vie,
that even on the basis of the supplemental petition and the ans,er thereto filed by respondents, the
Court could already decide on the fundamental issue of the validity Proclamation &&9*, as .ustices
5aldivar, Antonio and /sguerra also believed, inasmuch as Counsel aLada$s pleading and argument
had anticipated its issuance, but the majority felt it ,as not ready to resolve the matter, for lack,
according them, of full ventilation, and so, the decision reserved petitioners the filing of the
4appropriate4 cases, evidently, the present ones.
%%
At the threshold, % find myself confronted by a matter ,hich, although believed to be inconse#uential
by my learned brethren, % strongly feel needs special attention. % refer to the point raised by Counsel
Arturo M. olentino for respondent 3il .. Puyat and .ose !oy, ,ho have been sued as President and
President Pro empore of the -enate, to the effect that change in the composition of the -upreme
Court provided for the &('A Constitution, from the &&Cman tribunal under the &(AB Constitution to a
&BCman Court, makes of these cases ,hich ,ere filed after .anuary &', &('A the date ,hen
Proclamation &&9* declared the ne, Constitution as ratified, political nature and beyond our
jurisdiction. he main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from si8 to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, e8ecutive agreement
4
or la,, the
Court ,ould have to resolve first as a prejudicial #uestion ,hether the Court is acting in these cases
as the &BCman or the &&Cman Court, in ,hich event, it ,ould be faced ,ith the dilemma that if it acts
either as the former or as the latter, it ,ould be prejudging the very matter in issue one ,ay or the
other, and, in effect, it ,ould be choosing bet,een t,o constitutions, ,hich is a political determination
not ,ithin the Court$s competence.
Ehile % agree that the problem is at first blush rather involved, % do not share the vie, that the
premises laid do,n by counsel necessarily preclude this Court from taking a definite stand on
,hether the Court is acting in these cases as the &BCMan or the &&Cman Court. % feel very strongly
that the issue should not be ignored or dodged, if only to make the ,orld kno, that the -upreme
Court of the Philippines is never incogni"ant of the capacity in ,hich it is acting, much less lacking in
courage or ,isdom to resolve an issue that relates directly to its o,n composition. Ehat a disgrace it
,ould be to admit that this -upreme Court does not kno,, to use a common apt e8pression, ,hether
it is fish or fo,l. Eithal, scholars and researchers ,ho might go over our records in the future ,ill
inevitably e8amine minutely ho, each of us voted and upon ,hat considerations ,e have individually
acted, and, indeed, doubts may arise as to ,hether or not, despite the general result ,e might
announce, there had been the re#uisite number of votes for a valid collegiate action.
1or instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if ,e are acting as the &&Cman Court, only si8 votes ,ould suffice to declare Proclamation
&&9* ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
si8 of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees )2CA and )2CB and related orders of the
President as not being in conformity ,ith Article D6 of the old Constitution, a cloud ,ould e8ist as to
efficacy of the dispositive portion of 0ur decision dismiss these cases, even if ,e have it understood
that by the vote of justices in favor of such dismissal, Ee intended to mean the implementation or
enforcement of the ne, Constitution no, being done could continue.
Be that as it may, % am against leaving such an important point open to speculation. By nature % am
averse to ambiguity and e#uivocation and as a member of the -upreme Court, last thing % should
kno,ingly countenance is uncertainty as to the juridical significance of any decision of the Court
,hich is precisely being looked upon as the haven in ,hich doubts are supposed to be authoritatively
dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute K ,e cannot
act in both capacities of a &BCman and an &&Cman Court at the same time, in like manner that it is
inconceivable that the &(AB and &('A Constitution can be considered by =s both in force. 0ur
inescapable duty is to make a choice bet,een them, according to ,hat la, and other considerations
inherent to our function dictate. % cannot bear the thought that someone may someday say that the
-upreme Court of the Philippines once decided a case ,ithout kno,ing the basis of its author to act
or that it ,as ever ,anting in judicial courage to define the same.
Accordingly, ,ith full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in ,hich the Court acting in
these cases, % hold that ,e have no alternative but adopt in the present situation the orthodo8 rule
that ,hen validity of an act or la, is challenged as being repugnant constitutional mandate, the same
is allo,ed to have effect until the -upreme Court rules that it is unconstitutional. -tated differently,
Ee have to proceed on the assumption that the ne, Constitution is in force and that Ee are acting in
these cases as the &BCman -upreme Court provided for there Contrary to counsel$s contention, there
is here no prejudgment for or against any of the t,o constitutions. he truth of matter is simply that in
the normal and logical conduct governmental activities, it is neither practical nor ,ise to defer the
course of any action until after the courts have ascertained their legality, not only because if that ,ere
to be the rule, the functioning of government ,ould correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first instance accord due respect
to the acts of the other departments, as other,ise, the smooth running of the government ,ould have
to depend entirely on the unanimity of opinions among all its departments, ,hich is hardly possible,
unless it is assumed that only the judges have the e8clusive prerogative of making and enforcing the
la,, aside from being its sole interpreter, ,hich is contrary to all norms of juridical and political
thinking. o my kno,ledge, there is yet no country in the ,orld that has recogni"ed judicial
supremacy as its basic governmental principle, no matter ho, desirable ,e might believe the idea to
be.
%ndeed, it is not hard to visuali"e the difficulty if not absurdity of 0ur acting on the assumption that this
Court is still functioning under the &(AB Constitution. %t is undeniable that the ,hole government,
including the provincial, municipal and barrio units and not e8cluding the lo,er courts up to the Court
of Appeals, is operating under the &('A Constitution. Almost daily, presidential orders and decrees of
the most legislative character affecting practically every aspect of governmental and private activity
as ,ell as the relations bet,een the government and the citi"enry are pouring out from MalacaLang
under the authority of said Constitution. 0n the other hand, ta8es are being e8acted and penalties in
connection there,ith are being imposed under said orders and decrees. 0bligations have been
contracted and business and industrial plans have been and are being projected pursuant to them.
Displacements of public officials and employees in big numbers are going on in obedience to them.
1or the ten justices of the -upreme Court to constitute an island of resistance in the midst of these
developments, ,hich even unreasoning obstinacy cannot ignore, much less impede, is unimaginable,
let alone the absurd and complicated conse#uences such a position entails in the internal ,orkings
,ithin the judiciary amount its different components, ,hat ,ith the lo,er courts considering such
orders and decrees as forming part of the la, of the land in making their orders and decisions,
,hereas the -upreme Court is holding, as it ,ere, their effectivity at bay if it is not being indifferent to
or ignoring them.
%t is suggested that the President, being a man of la,, committed to abide by the decision of the
-upreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
ne, Constitution, he can ,ait for its decision. Accepting the truth of this assertion, it does necessarily
follo, that by this attitude of the President, considers the -upreme Court as still operating under the
Constitution. Puite on the contrary, it is a fact that he has given instructions for the payment of the
justices in accordance ,ith the rate fi8ed in the ?e, Constitution. ?ot only that, official alter e+o, the
-ecretary of .ustice, has been shoving this Court, since .anuary &), &('A, all matters related to the
administrative supervision of the lo,er courts ,hich by the ne, charter has been transferred from the
Department of .ustice to the -upreme Court, and as far as % kno,, President has not countermanded
the -ecretary$s steps in that direction. hat, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no
conse#uence considering that ,ith the presence of ten justices ,ho are the Court no,, there is a
,orking #uorum, and the addition of ne, justices cannot in any,ay affect the voting on the
constitutional #uestions no, before =s because, ,hile there sufficient justices to declare by their
unanimous vote illegality of Proclamation &&9*, the votes of the justices to added ,ould only be
committed to upholding the same, since they cannot by any standard be e8pected to vote against
legality of the very Constitution under ,hich they ,ould be appointed.
Moreover, ,hat makes the premise of presumptive valid preferable and, even imperative, is that Ee
are dealing here ,ith a ,hole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. %t is, to mind, unrealistic to insist on that, fundamentally, the &('A Constitution is
the same &(AB Constitution, ,ith a fe, improvements. A cursory perusal of the former should
convince anyone that it is in essence a ne, one. Ehile it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are some,hat different in
certain respects. 0ne cannot but note that the change embraces practically every part of the old
charter, from its preamble do,n to its amending and effectivity clauses, involving as they do the
statement of general principles, the citi"enship and suffrage #ualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citi"ens but also of officers of the government and the provisions on the national economy as ,ell as
the patrimony of the nation, not to mention the distinctive features of the general provisions. Ehat is
more, the transitory provisions notably depart from traditional and orthodo8 vie,s in that, in general,
the po,ers of government during the interim period are more or less concentrated in the President, to
the e8tent that the continuation or discontinuance of ,hat is no, practically a oneCmanCrule, is even
left to his discretion. ?otably, the e8press ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously meant to encompass those issued during
martial la,, is a commitment to the concept of martial la, po,ers being implemented by President
Marcos, in defiance of traditional vie,s and prevailing jurisprudence, to the effect that the /8ecutive$s
po,er of legislation during a regime of martial la, is all inclusive and is not limited to the matters
demanded by military necessity. %n other ,ords, the ne, constitution unlike any other constitution
countenances the institution by the e8ecutive of reforms ,hich normally is the e8clusive attribute of
the legislature.
Eithal, the best proofs that by its e8pressed and implied intent, the Constitution of &('A is a ne, one,
are that ;&< -ection &2 of its Article D6%% ,hich provides that this constitution shall 4supersede the
Constitution of nineteen hundred and thirtyCfive and all amendments thereto4 and ;*< its transitory
provisions e8pressly continue the effectivity of e8isting la,s, offices and courts as ,ell as the tenure
of all incumbent officials, not adversely affected by it, ,hich ,ould have been unnecessary if the old
constitution ,ere being merely amended.
he ne, Constitution, in its -ection &9, Article D6%%, provides that 4;<he incumbent members of the
.udiciary ;,hich include the Chief .ustice and Associate .ustices of -upreme Court< may continue in
office ;under the constitution< until they reach the age of seventy years, etc.4 By virtue of the
presumptive validity of the ne, charter, all of form part of the &BCmanCCourt provided for therein
correspondingly, Ee have in legal contemplation, ceased in the mean,hile to be members of the &&C
manCCourt in the &(AB Constitution. -hould the Court finally decide that the Constitution is invalid,
then Ee ,ould automatically revert to our positions in the &&CmanC Court, other,ise, Ee ,ould just
continue to be in our membership in the &BCmanCCourt, unless Ee feel Ee cannot in conscience
accept the legality of e8istence. 0n the other hand, if it is assumed that Ee are the &&CmanCCourt and
it happens that 0ur collective decision is in favor of the ne, constitution, it ,ould be problematical for
any dissenting justice to consider himself as included automatically in the &BCmanCCourt, since that
,ould tantamount to accepting a position he does not honestly believe e8ists.
%%%
%n brief, the main contention of the petitioners is that Proclamation &&9* is invalid because the
ratification of the &('A Constitution it purports to declare as having taken place as a result of the
referendum aboveCreferred to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been 4approved by a majority of the votes cast at an election4 in the
manner prescribed by Article D6 the Constitution of &(AB. More specifically, they maintain that the
,ord 4election4 in the said Article has already ac#uired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the 0ld Constitution than that ,hich had been
follo,ed &(AB, &(A', &(A(, &(J9, &(J2 and &(2', the last three or four ,hich ,ere held under the
supervision of the Commission on /lections. 1urthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum ,as a farce and its
results ,ere manufactured or prefabricated, considering that Mr. 1rancisco Cru", ,ho is supposed to
have submitted the final report to the President, ,hich served as basis for Proclamation &&9*, had no
official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the &B million votes allegedly reported ,ithin the
short period of time employed. 0f course, they also contend that in any event, there ,as no proper
submission because martial la, per se creates constructive duress ,hich deprives the voters of the
complete freedom needed for the e8ercise of their right of choice and actually, there ,as neither time
nor opportunity for real debate before they voted.
0n the other hand, the position of the -olicitor 3eneral as counsel for the respondents is that the
matter raised in the petitions is a political one ,hich the courts are not supposed to in#uire into, and,
any,ay, there has been a substantial compliance ,ith Article D6 of the &(AB Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the ?e, Constitution.
% need not d,ell at length on these variant positions of the parties. %n my separate opinion in the
Plebiscite Cases, % already made the observation that in vie, of the lack of solemnity and regularity in
the voting as ,ell as in the manner of reporting and canvassing conducted in connection ,ith the
referendum, % cannot say that Article D6 of the 0ld Constitution has been complied ,ith, albeit % held
that nonetheless, the Constitution of &('A is already in force. %n order, ho,ever, to make myself
clearer on some relevant points, % ,ould like to add a fe, considerations to ,hat % have already said
in the former cases.
%n my opinion in those cases, the most important point % took into account ,as that in the face of the
Presidential certification through Proclamation &&9* itself that the ?e, Constitution has been
approved by a majority of the people and having in mind facts of general kno,ledge ,hich % have
judicial notice of, % am in no position to deny that the result of the referendum ,as as the President
had stated. % can believe that the figures referred to in the proclamation may not accurate, but %
cannot say in conscience that all of them are manufactured or prefabricated, simply because % sa,
,ith o,n eyes that people did actually gather and listen discussions, if brief and inade#uate for those
,ho are abreast of current events and general occurrences, and that they did vote. % believe % can
safely say that ,hat % have seen have also been seen by many others throughout the country and
unless it can be assumed, ,hich honestly, % do not believe to be possible, that in fact there ,ere
actually no meetings held and no voting done in more places than those ,herein there ,ere such
meetings and votings, % am not prepared to discredit entirely the declaration that there ,as voting and
that the majority of the votes ,ere in favor of the ?e, Constitution. %f in fact there ,ere substantially
less than &J million votes of approval, the real figure, in my estimate, could still be significant enough
and legally sufficient to serve as basis for a valid ratification.
%t is contended, ho,ever, that the understanding ,as that the referendum among the Citi"ens
Assemblies ,as to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. % can see that at the outset, ,hen the first set of #uestions ,as released,
such may have been the idea. %t must not be lost sight of, ho,ever, that if the ne,spaper reports are
to be believed, and % say this only because petitioners ,ould consider the ne,spapers as the official
ga"ettes of the administration, the last set of si8 #uestions ,ere included precisely because the
reaction to the idea of mere consultation ,as that the people ,anted greater direct participation, thru
the Citi"ens Assemblies, in decisionCmaking regarding matters of vital national interest. hus, looking
at things more understandingly and realistically the t,o #uestions emphasi"ed by counsel, namely,
;&< Do yo approve of the ?e, ConstitutionI and ;*< Do you ,ant plebiscite to be called to ratify the
ne, ConstitutionI should be considered no longer as loose consultations but as direct in#uiries about
the desire of the voters regarding the matters mentioned. Accordingly, % take it that if the majority had
e8pressed disapproval of the ne, Constitution, the logical conse#uence ,ould have been the
complete abandonment of the idea of holding any plebiscite at all. 0n the other hand, it is very plain
to see that since the majority has already approved the ne, Constitution, a plebiscite ,ould be
superfluous. Clear as these rationali"ations may be, it must have been thought that if the holding of a
plebiscite ,as to be abandoned, there should be a direct and e8pressed desire of the people to such
effect in order to forestall as much as possible any serious controversy regarding the nonCholding of
the plebiscite re#uired by the letter of -ection &2 of Article D6%%, the effectivity clause, of the ne,
Constitution. 0ddly enough, the 4comments4 accompanying the #uestions do strongly suggest this
vie,. And as it turned out, the majority found no necessity in holding a plebiscite.
%n connection ,ith the #uestion, Do you approve of the ?e, ConstitutionI capital is being made of the
point that as so framed, the thrust of the said #uestion does not seek an ans,er of fact but of opinion.
%t is argued that it ,ould have been factual ,ere it ,orded categorically thus K Do you approve the
?e, ConstitutionI he contention ,ould have been ,eighty ,ere it not unrealistic. % remember
distinctly that the observation regarding the construction of the subject #uestion ,as not originally
made by any of the talented counsels for petitioners. %t came from Mr. .ustice 1red !ui" Castro
,hose mastery of the /nglish language can rightly be the cause of envy of even professors of
/nglish. ?one of the other members of the Court, as far as % can recall, ever noticed ho, the said
#uestion is phrased, or if anyone of =s did, % am not a,are that he gave it more than passing
attention. Ehat % mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said #uestion other,ise than calling for a factual ans,er instead
of a mere opinion, ho, could anyone e8pect the millions of unlettered members of the Citi"ens
Assemblies to have noticed the point brought out by .ustice CastroI ruth to tell, % myself did not
reali"e the difference until .ustice Castro gave it emphasis. Besides, reading the #uestion in the light
of the accompanying 4comment4 corresponding to it in particular, % am certain that any one ,ho
ans,ered the same understood it in no other sense than a direct in#uiry as to ,hether or not, as a
matter of fact, he approves the ?e, Constitution, and naturally, affirmative ans,er must be taken as
a categorical vote of approval thereof, considering, particularly, that according to the reported result of
the referendum said ans,er ,as even coupled ,ith the re#uest that the President defer the
convening of the %nterim ?ational Assembly.
%t is also contended that because of this reference in ans,er to that #uestion to the deferment of the
convening of the interim assembly, the said ans,er is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. he contention has no basis. %n interest of accuracy,
the additional ans,er proposed in pertinent 4comment4 reads as follo,s7 4But ,e do not ,ant Ad
%nterim Assembly to be convoked etc.4 0n the assumption that the actual ans,er, as reported, ,as of
similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more
than a suggestion or a ,ish.
As regards said 4comments4, it must be considered that a martial la, ,as declared, the
circumstances surrounding making of the Constitution ac#uired a different and more meaningful
aspect, namely, the formation of a ne, society. 1rom the point of vie, of the President and on the
basis of intelligence reports available to him, the only ,ay to meet situation created by the subversive
elements ,as to introduce immediately effective reforms calculated to redeem the people from the
depth of retrogression and stagnation caused by rampant graft and corruption in high places,
influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of
peace and order, the so ine#ualities ,idening the gap bet,een the rich and the poor, and many other
deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of
rebellious movement that threatened the Puirino Administration, the remedy ,as far from using
bullets alone. %f a constitution ,as to be approved as an effective instrument to,ards the eradication
of such grave problems, it had to be approved ,ithout loss of time and sans the cumbersome
processes that, from the realistic vie,point, have in the past obstructed rather than hastened the
progress of the people. -tated other,ise, in the conte8t of actualities, the evident objective in having
a ne, constitution is to establish ne, directions in the pursuit of the national aspirations and the
carrying out of national policies. 0nly by bearing these considerations in mind can the 4comments4
already referred to be properly appreciated. o others said 4comments4 may appear as evidence of
corruption of the ,ill of those ,ho attended the assemblies, but actually, they may also be vie,ed in
the same light as the sample ballots commonly resorted to in the elections of officials, ,hich no one
can contend are per se means of coercion. +et us not forget that the times are abnormal, and
prolonged dialogue and e8change of ideas are not generally possible, nor practical, considering the
need for faster decisions and more resolute action. After all voting on a ,hole ne, constitution is
different from voting on one, t,o or three specific proposed amendments, the former calls for nothing
more than a collective vie, of all the provisions of the ,hole charter, for necessarily, one has to take
the good together ,ith the bad in it. %t is rare for anyone to reject a constitution only because of a fe,
specific objectionable features, no matter ho, substantial, considering the ever present possibility
that after all it may be cured by subse#uent amendment. Accordingly, there ,as need to indicate to
the people the paths open to them in their #uest for the betterment of their conditions, and as long as
it is not sho,n that those ,ho did not agree to the suggestions in the 4comments4 ,ere actually
compelled to vote against their ,ill, % am not convinced that the e8istence of said 4comments4 should
make any appreciable difference in the court$s appraisal of the result of the referendum.
% must confess that the fact that the referendum ,as held during martial la, detracts someho, from
the value that the referendum ,ould other,ise have had. As % intimated, ho,ever, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
la, per se. 1or one thing, many of the objectionable features of martial la, have not actually
materiali"ed, if only because the implementation of martial la, since its inception has been generally
characteri"ed by restraint and consideration, thanks to the e8pressed ,ishes of the President that the
same be made 4Philippine style4, ,hich means ,ithout the rigor that has attended it in other lands
and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial la, do have their corresponding adverse effects on the area of information
,hich should be open to a voter, in its real sense ,hat 4chills4 his freedom of choice and mars his
e8ercise of discretion is suspension of the privilege of the ,rit of *a#eas corpus. he reason is simply
that a man may freely and correctly vote even if the needed information he possesses as to the
candidates or issues being voted upon is more or less incomplete, but ,hen he is subject to arrest
and detention ,ithout investigation and ,ithout being informed of the cause thereof, that is something
else ,hich may actually cause him to cast a captive vote. hus it is the suspension of the ,rit of
*a#eas corpus accompanying martial la, that can cause possible restraint on the freedom choice in
an election held during martial la,. %t is a fact, ho,ever, borne by history and actual e8perience, that
in the Philippines, the suspension of the privilege of the ,rit *a#eas corpus has never produced any
chilling effect upon the voters, since it is kno,n by all that only those ,ho run afoul the la,, saving
inconse#uential instances, have any cause for apprehension in regard to the conduct by them of the
normal activities of life. And so it is recorded that in the elections &(B& and &('&, held ,hile the
privilege of ,rit of *a#eas corpus ,as under suspension, the 1ilipino voters gave the then opposition
parties over,helming if not s,eeping victories, in defiance of the respective administrations that
ordered the suspensions.
At this juncture, % think it is fit to make it clear that % am not trying to sho, that the result of the
referendum may considered as sufficient basis for declaring that the ?e, Constitution has been
ratified in accordance ,ith the amending clause of the &(AB Constitution. % reiterate that in point of
la,, % find neither strict nor substantial compliance. he foregoing discussion is only to counter, if %
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum ,hich could have in one ,ay or another affected the e8ercise of the freedom of choice
and the use of discretion by the members of the Citi"ens Assemblies, to the end that as far as the
same conditions may be relevant in my subse#uent discussions of the acceptance by the people of
the ?e, Constitution they may also be considered.
%6
%t is my sincere conviction that the Constitution of &('A has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. 1actors ,hich are nonClegal but nevertheless ponderous and
compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
%n my opinion in the Plebiscite Cases, % joined my colleagues in holding that the #uestion of ,hether
or not there ,as proper submission under Presidential Decree ?o. 'A is justiciable, and % still hold that
the propriety of submission under any other la, or in any other form is constitutionally a fit subject for
in#uiry by the courts. he ruling in the decided cases relied upon by petitioners are to this effect. %n
vie,, ho,ever, of the factual background of the cases at bar ,hich include ratification itself, it is
necessary for me to point out that ,hen it comes to ratification, % am persuaded that there should be a
boundary beyond ,hich the competence of the courts no longer has any reason for being, because
the other side is e8clusively political territory reserved for their o,n dominion by the people.
he main basis of my opinion in the previous cases ,as acceptance by the people. 0thers may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. 1or my part, % consider it unnecessary to be strictly judicial in in#uiring into
such fact. Being personally a,are, as % have already stated, that the Citi"ens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out ,ith absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of e8cess votes
may be found, even if e8trapolated ,ill not, as far as % can figure out, suffice to overcome the outcome
officially announced. !ather than try to form a conclusion out of the ra, evidence before =s ,hich the
parties did not care to really complete, % feel safer by referring to the results announced in the
proclamation itself. 3iving substantial allo,ances for possible error and do,nright manipulation, it
must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government ,hich under the principle separation of po,ers is clothed ,ith presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, ,hich in these
cases does not e8ist. %n any event, considering that due to the unorthodo8y of the procedure adopted
and the difficulty of an accurate checking of all the figures, % am unable to conceive of any
manageable means of ac#uiring information upon ,hich to predicate a denial, % have no alternative
but to rely on ,hat has been officially declared. At this point, % ,ould venture to e8press the feeling
that if it ,ere not generally conceded that there has been sufficient sho,ing of the acceptance in
#uestion by this time, there ,ould have been already demonstrative and significant indications of a
rather ,idespread, if not organi"ed resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, % cannot accord to
the filing of these cases as indicative enough of the general attitude of the people.
%t is true that in the opinion % had the privilege of penning the Court in olentino vs. Comelec, J&
-C!A '9*, % made strong and une#uivocal pronouncements to the effect that any amendment to the
Constitution of &(AB, to be valid, must appear to have been made in strict conformity ,ith the
re#uirements of Article D6 thereof. Ehat is more, that decision asserted judicial competence to
in#uire into the matter of compliance or non compliance as a justiciable matter. % still believe in the
correctness of those vie,s and % ,ould even add that % sincerely feel it reflects the spirit of the said
constitutional provision. Eithout trying to strain any point ho,ever, %, submit the follo,ing
considerations in the conte8t of the peculiar circumstances of the cases no, at bar, ,hich are entirely
different from those in the backdrop of the olentino rulings % have referred to.
&. Consider that in the present case ,hat is involved is not just an amendment of a particular
provision of an e8isting Constitution: here, it is, as % have discussed earlier above, an entirely ne,
Constitution that is being proposed. his important circumstance makes a great deal of difference.
?o less than counsel olentino for herein respondents Puyat and !oy, ,ho ,as himself the petitioner
in the case % have just referred to is, no, inviting 0ur attention to the e8act language of Article D6 and
suggesting that the said Article may be strictly applied to proposed amendments but may hardly
govern the ratification of a ne, Constitution. %t is particularly stressed that the Article specifically
refers to nothing else but 4amendments to this Constitution4 ,hich if ratified 4shall be valid as part of
this Constitution.4 %ndeed, ho, can a ,hole ne, constitution be by any manner of reasoning an
amendment to any other constitution and ho, can it, if ratified, form part of such other constitutionI %n
fact, in the olentino case % already someho, hinted this point ,hen % made reference in the
resolution denying the motion for reconsideration to the fact that Article D6 must be follo,ed 4as long
as any amendment is formulated and submitted under the aegis of the present Charter.4 -aid
resolution even added. 4;<his is not to say that the people may not, in the e8ercise of their inherent
revolutionary po,ers, amend the Constitution or promulgate an entirely ne, one other,ise.4.
%t is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that a
ne, constitution is being adopted implies a general intent to put aside the ,hole of the old one, and
,hat ,ould be really incongrous is the idea that in such an eventuality, the ne, Constitution ,ould
subject its going into effect to any provision of the constitution it is to supersede, to use the language
precisely of -ection 2, Article D6%%, the effectivity clause, of the ?e, Constitution. My understanding is
that generally, constitutions are selfCborn, they very rarely, if at all, come into being, by virtue of any
provision of another constitution. A his must be the reason ,hy every constitution has its o,n
effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the ratification of the ?e, Constitution, %
,ould have had serious doubts as to ,hether Article D6 could have had priority of application.
*. Ehen an entirely ne, constitution is proposed to supersede the e8isting one, ,e cannot but take
into consideration the forces and the circumstances dictating the replacement. 1rom the very nature
of things, the proposal to ordain a ne, constitution must be vie,ed as the most elo#uent e8pression
of a people$s resolute determination to bring about a massive change of the e8isting order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any #uestion arise as to its effectivity and there is
some reasonable indication that the ne, charter has already received in one ,ay or another the
sanction of the people, % ,ould hold that the better rule is for the courts to defer to the people$s
judgment, so long as they are convinced of the fact of their approval, regardless of the form by ,hich
it is e8pressed provided it be reasonably feasible and reliable. 0ther,ise stated, in such instances,
the courts should not bother about in#uiring into compliance ,ith technical re#uisites, and as a matter
of policy should consider the matter nonCjusticiable.
A. here is still another circumstance ,hich % consider to be of great relevancy. % refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. ?either the -enate nor the >ouse of !epresentatives has been reported to have even
made any appreciable effort or attempt to convene as they ,ere supposed to do under the
Constitution of &(AB on .anuary **, &('A for the regular session. %t must be assumed that being
composed of e8perienced, kno,ledgeable and courageous members, it ,ould not have been difficult
for said parliamentary bodies to have conceived some ingenious ,ay of giving evidence of their
determined adherence to the Constitution under ,hich they ,ere elected. 1rankly, much as % admire
the efforts of the handful of senators ,ho had their picture taken in front of the padlocked portals of
the -enate chamber, % do not feel ,arranted to accord such act as enough token of resistance. As
counsel olentino has informed the court, there ,as noting to stop the senators and the congressmen
to meet in any other convenient place and someho, officially organi"e themselves in a ,ay that can
logically be considered as a session, even if nothing ,ere done than to merely call the roll and
disperse. Counsel olentino even pointed out that if there ,ere not enough members to form a
;uorum, any smaller group could have ordered the arrest of the absent members. And ,ith particular
relevance to the present cases, it ,as not constitutionally indispensable for the presiding officers to
issue any call to the members to convene, hence the present prayers for (an!a(us have no legal
and factual bases. And to top it all, #uite to the contrary, the records of the Commission on /lections
sho, that at least &B of *J senators and over (B out of less than &*9 members of the >ouse of
!epresentatives, have officially and in ,riting e8ercised the option given to them to join the %nterim
?ational Assembly under the ?e, Constitution, thereby manifesting their acceptance of the ne,
charter.
?o,, having these facts in mind, and it being obvious that of the three great departments of the
government under the &(AB Constitution, t,o, the /8ecutive and the +egislative, have already
accepted the ?e, Constitution and recogni"ed its enforceability and enforcement, % cannot see ho,
this -upreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial po,er prevail against the decision of those ,ho ,ere duly chosen by the people to be their
authori"ed spokesmen and representatives. %t is not alone the physical futility of such a gesture that
concerns me. More than that, there is the stark reality that the -enators and the Congressmen, no
less than the President, have taken the same oath of loyalty to the Constitution that ,e, the .ustices,
have taken and they are, therefore, e#ually bound ,ith =s to preserve and protect the Constitution. %f
as the representatives of the people, they have already opted to accept the ?e, Constitution as the
more effective instrument for fulfillment of the national destiny, % really ,onder if there is even any
idealistic ,orth in our desperately clinging by 0urselves alone to 0ur s,orn duty visCaCvis the &(AB
Constitution. Conscious of the declared objectives of the ne, dispensation and cogni"ant of the
decisive steps being ,ith the least loss of time, to,ards their accomplishment, cannot but feel
apprehensive that instead of serving the best interests of our people, ,hich to me is in reality the real
meaning of our oath of office, the Court might be standing in the ,ay of the very thing our beloved
country needs to retrieve its past glory and greatness. %n other ,ords, it is my conviction that ,hat
these cases demand most of all is not a decision demonstrative of our legal erudition and -olomonic
,isdom but an all rounded judgment resulting from the consideration of all relevant circumstances,
principally the political, or, in brief, a decision more political than legal, ,hich a court can render only
by deferring to the apparent judgment of the people and the announcement thereof by the political
departments of the government and declaring the matter nonCjusticiable.
J. 6ie,ed from the strictly legal angle and in the light of judicial methods of ascertainment, % cannot
agree ,ith the -olicitor 3eneral that in the legal sense, there has been at least substantial
compliance ,ith Article D6 of the &(AB Constitution, but ,hat % can see is that in a political sense, the
ans,ers to the referendum #uestions ,ere not given by the people as legal conclusions. % take it that
,hen they ans,ered that by their signified approval of the ?e, Constitution, they do not consider it
necessary to hold a plebiscite, they could not have had in mind any intent to do ,hat ,as
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that ,hat ,as being done ,as in conformity ,ith prevailing
constitutional standards. Ee are not to assume that the sovereign people ,ere indulging in a futile
e8ercise of their supreme political right to choose the fundamental charter by ,hich their lives, their
liberties and their fortunes shall be safeguarded. %n other ,ords, ,e must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that conte8t. %t
is my considered opinion that vie,ed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the &('A Constitution declared in Proclamation &&9* complies substantially ,ith Article
D6 of the &(AB Charter, specially ,hen it is considered that the most important element of the
ratification therein contemplated is not in the ,ord 4election4, ,hich conceivably can be in many
feasible and manageable forms but in the ,ord 4approved4 ,hich may be said to constitute the
substantiality of the ,hole article, so long as such approval is reasonably ascertained. %n the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
#uestion ,as constitutionally justified and justifiable.
B. 1inally, if any doubt should still linger as to the legitimacy of the ?e, Constitution on legal grounds,
the same should be dispelled by vie,ing the situation in the manner suggested by Counsel olentino
and by the ,riter of this opinion in his separate opinion, oftCreferred to above, in the Plebiscite Cases
K that is, as an e8tra constitutional e8ercise by the people, under the leadership of President Marcos,
of their inalienable right to change their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the e8isting one is no longer responsive to their
fundamental, political and social needs nor conducive to the timely attainment of their national
destiny. his is not only the teaching of the American Declaration of %ndependence but is indeed, a
truth that is selfCevident. More, it should be regarded as implied in every constitution that regardless
of the language of its amending clause, once the people have given their sanction to a ne, charter,
the latter may be deemed as constitutionally permissible even from the point of vie, of the preceding
constitution. hose ,ho may feel restrained to consider this vie, out of respect to the import of
olentino vs. Comelec, supra., ,ould be ,ell advised to bear in mind that the case ,as decided in the
conte8t of submission, not accomplished ratification.
6
he language of the disputed amending clause of the &(AB Constitution should not be deemed as the
be all and end all the nation. More important than even the Constitution itself ,ith all its e8cellent
features, are the people living under it K their happiness, their posterity and their national destiny.
here is nothing that cannot be sacrificed in the pursuit of these objectives, ,hich constitute the
totality of the reasons for national e8istence. he sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy ,e have hitherto observed are mere
integral parts of this totality: they are less important by themselves.
Ehat seems to me to be bothering many of our countrymen no, is that by denying the present
petitions, the Court ,ould be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the #ualified curtailment of individual liberties no, being
practiced, and this ,ould amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of &(AB. his is certainly something one must gravely ponder upon. Ehen % consider,
ho,ever, that the President, the 6ice President, the members of both >ouses of Congress, not to
speak of all e8ecutive departments and bureaus under them as ,ell as all the lo,er courts, including
the Court of Appeals have already accepted the ?e, Constitution as an instrument of a meaningful
nation,ideCallClevel change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, % am led to ,onder ,hether or not ,e, as members of the -upreme Court are being true
to our duty to our people by refusing to follo, suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because ,e feel that by the
people$s o,n act of ratifying the Constitution of &(AB, they have so encased themselves ,ithin its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity there,ith. %
cannot believe that any people can be so stifled and enchained. %n any event, % consider it a 3odC
given attribute of the people to disengage themselves, if necessary, from any covenant that ,ould
obstruct their taking ,hat subse#uently appears to them to be the better road to the promotion and
protection of their ,elfare. And once they have made their decision in that respect, ,hether
sophisticatedly or crudely, ,hether in legal form or other,ise, certainly, there can be no court or
po,er on earth that can reverse them.
% ,ould not be human if % should be insensitive to the passionate and elo#uent appeals of Counsels
aLada and -alonga that these cases be decided on the basis of conscience. hat is e8actly ,hat %
am doing. But if counsel mean that only by granting their petitions can this Court be ,orthily the
bul,ark of the people$s faith in the government, % cannot agree, albeit my admiration and respect are
all theirs for their "eal and tenacity, their industry and ,isdom, their patriotism and devotion to
principle. 6erily, they have brought out everything in the 1ilipino that these cases demand.
%n times of national emergencies and crises, not arising from foreign invasion, ,e need not fear
playing opposite roles, as long as ,e are all animated by sincere love of country and aim e8clusively
at the attainment of the national destiny. 0ur heroes of the past, !i"al, Bonifacio, Aguinaldo, Antonio
+una, Mabini and so also ,ith our patriots of the recent generations, Pue"on, 0smeLa, !o8as, +aurel
and !ecto, to mention only some of them, had their differences of vie,s K and they did not hesitate
to take diametrically opposing sides K that even reached tragic proportions, but all of them are
admired and venerated.
%t is my faith that to act ,ith absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to ,hatever course of action % feel sincerely is demanded by the ,elfare
and best interests of the people.
%n this momentous juncture of our history, ,hat is imperative is national unity. May 3od grant that the
controversies the events leading to these cases have entail ,ill heal after the decision herein is
promulgated, so that all us 1ilipinos may forever join hands in the pursuit of our national destiny.
%? 6%/E 01 A++ >/ 10!/30%?3, % vote to dismiss these petitions for (an!a(us and prohibition
,ithout costs.
MA6ASIAR, J., concurring7
Assuming, ,ithout conceding, that Article D6 of the &(AB Constitution prescribes a procedure for the
ratification of constitutional amendments or of a ne, Constitution and that such procedure ,as no
complied ,ith, the validity of Presidential Proclamation ?o. &&9* is a political, not a justiciable, issue:
for it is inseparably or ine8tricably link ,ith and strikes at, because it is decisive of, the validity of
ratification and adoption of, as ,ell as ac#uiescence of people in, the &('A Constitution and the
legitimacy of the government organi"ed and operating thereunder. And being political, it is beyond the
ambit of judicial in#uiry, tested by the definition of a political #uestion enunciated in TaAa!a, et. al. vs.
Cuenco, et al. ;&9A Phil. &9B&<, aside from the fact the this vie, ,ill not do violence to rights vested
under the ne, Constitution, to international commitments forged pursuant thereto and to decisions
rendered by the judicial as ,ell as #uasiCjudicial tribunals organi"ed and functioning or ,hose
jurisdiction has been altered by the &('A Constitution and the government established thereunder,
and ,ill dissipate any confusion in the minds of the citi"enry, ,ho have been obeying the mandates of
the ne, Constitution, as ,ell as e8ercising the rights and performing the obligations defined by the
ne, Constitution, and decrees and orders issued in implementation of the same and cooperating ,ith
the administration in the renovation of our social, economic and political system as reCstructured by
the &('A Constitution and by the implementing decrees and orders ;see Miller vs. .ohnson, &) -E
B**, B**CB*2, &)(*<.
%n &(B', Mr. Chief .ustice !oberto Concepcion, then Associate .ustice, in behalf of the Court, defined
a political #uestion as one ,hich, under the Constitution, is 4to be decided by the people in their
sovereign capacity, or in regard to ,hich full discretionary authority had been delegated to the
+egislature or /8ecutive branch of the government.4 ;aLada, et al. vs. Cuenco, et al., supra<.
Article D6 of the &(AB Constitution provides7 4-uch amendments shall be valid as part of this
Constitution ,hen approved by a majority of the votes cast at an election at ,hich the amendments
are submitted to the people for ratification.4 =nder Article D6 of the &(AB Constitution, the po,er to
propose constitutional amendments is vested in Congress or in a constitutional convention: ,hile the
po,er to ratify or reject such proposed amendments or ne, Constitution is reserved by the sovereign
people. he nullification of Proclamation ?o. &&9* ,ould inevitably render inoperative the &('A
Constitution, ,hich is in fact the e8press prayer of the petitioners in 3.!. ?o. +CA2&2J. !egardless of
the modality of submission or ratification or adoption K even if it deviates from or violates the
procedure delineated therefore by the old Constitution K once the ne, Constitution is ratified,
adopted andFor ac#uiesced in by the people or ratified even by a body or agency not duly authori"ed
therefor but is subse#uently adopted or recogni"ed by the people and by the other official organs and
functionaries of the government established under such a ne, Constitution, this Court is precluded
from in#uiring into the validity of such ratification, adoption or ac#uiescence and of the conse#uent
effectivity of the ne, Constitution. his is as it should be in a democracy, for the people are the
repository of all sovereign po,ers as ,ell as the source of all governmental authority ;Pole vs. 3ray,
&9J -0 *nd )J& G&(B)H<. his basic democratic concept is e8pressly restated in -ection & of Article %%
of the Declaration of Principles of the &(AB and &('A Constitutions, thus7 4-overeignty resides in the
people and all government authority emanates from them.4
he legality of the submission is no longer relevant: because the ratification, adoption andFor
ac#uiescence by the people cures any infirmity in its submission or any other irregularities therein
,hich are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or ac#uiescence by the people. As Mr. .ustice Bre,er, then of the Nansas
-tate -upreme Court and later Associate .ustice of the 1ederal -upreme Court, stated in re
Prohibitory Amendment Cases ;*J Nansas '99 M '&9 !eprint J((, B92<7 4T*e t)o i(portant, vital
ele(ents o, t*e 0e+islature an! a (a5orit o, t*e popular vote. "eon! t*ese, ot*er provisions are
(ere (ac*ineries an! ,or(s. T*e (a not #e !isre+ar!e!, #ecause # t*e( certaint as to t*e
essentials is secure!. "ut t*e are not t*e(selves t*e essentials.4 ;Cited in +arken vs. 3ronna, *)B
?E B(, 2&C2J, &(A(<.
his ,as the ruling by the American -upreme Court in the &(A( case of Cole(an vs. 'iller ;A9' =.-.
JAA, )A +.ed. &A)B<, ,here Chief .ustice >ughes, speaking for the majority, stated that7
... hus the political departments of the government dealt ,ith the effect of both previous rejection and
attempted ,ithdra,al and determined that both ,ere ineffectual in the presence of an actual ratification ...
. his decision by the political departments of the 3overnment as to the validity of the adoption of the
1ourteenth amendment has been accepted.
Ee think that in accordance ,ith this historic precedent the #uestion of the efficacy of ratifications by state
legislatures, in the light of previous rejection or attempted ,ithdra,al, should be regarded as a political
#uestion pertaining to the political departments, ,ith the ultimate authority in the Congress in the e8ercise
of its control over the promulgation of the adoption of the amendment.
his vie, ,as like,ise emphasi"ed by Mr. .ustice Black in his concurring opinion, in ,hich Mr.
.ustices !oberts, 1rankfurter, and Douglas join, thus7
he Constitution grants Congress e8clusive po,er to control submission of constitutional amendments.
1inal determination by Congress that ratification by threeCfourths of the -tates has taken place 4is
conclusive upon the courts.4 %n the e8ercise of that po,er, Congress, of course, is governed by the
Constitution. >o,ever, ,hether submission, intervening procedure or Congressional determination of
ratification conforms to the commands of the Constitution, calls for decisions by a 4political department4 of
#uestions of a type ,hich this Court has fre#uently designated 4political.4 And decision of a 4political
#uestion4 by the 4political department4 to ,hich the Constitution has committed it 4conclusively binds the
judges, as ,ell as all other officers, citi"ens and subjects of...government.4 Proclamation under authority
amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority
of interpretation. o the e8tent that the Court$s opinion in the present case even impliedly assumes a
and ratification of amendments, ,e are unable to agree... ;American Constitutional %ssues, by Pritchett,
&(2* /d., p. JJ<.
he doctrine in the aforesaid case of Coleman vs. Miller ,as adopted by 0ur -upreme Court in toto
in 'a#ana+ vs. 0opez @ito ;') Phil. &<.
he ruling in the cases of Gonzales vs. Co(elec, et al. ;+C*)**J, ?ov. *(, &(2', *& -C!A ''J< and
Tolentino vs. Co(elec, et al. ;+CAJ&B9, 0ct. &2, &('&, J& -C!A '9*< on ,hich petitioners place great
reliance K that the courts may revie, the propriety of a submission of a proposed constitutional
amendment #e,ore t*e rati,ication or a!option o, suc* propose! a(en!(ent # t*e soverei+n people,
hardly applies to the cases at bar: because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to the people for ratification,
unlike the present petitions, ,hich challenge inevitably the validity of the &('A Constitution after its
ratification or adoption thru ac#uiescence by the sovereign people. As heretofore stated, it is specious
and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of
the &('A Constitution and the government operating thereunder.
%t should be stressed that even in the 3on"ales case, supra, Ee held that7
general grant of legislative po,ers to Congress. %t is part of the inherent po,ers of the people K as the
repository of sovereignty in a republican state, such as ours K to make, and hence, to amend their o,n
1undamental +a,. Congress may propose amendments to the same e8plicitly grants such po,er. >ence,
,hen e8ercising the same, it is said that -enators and Members of the >ouse of !epresentatives act, not
as members, but as component elements of a constituent asse(#l. Ehen acting as such, the members
of Con+ress derive their authority from the Constitution, unli-e t*e people, ,hen performing the same
function, for their authority does not emanate from the Constitution K they are t*e ver source o, all
po,ers of government, inclu!in+ t*e Constitution itself. ;*& -C!A ')'<
Ee did not categorically and entirely overturn the doctrine in 'a#ana+ vs. 0opez @ito ;') Phil. &< that
both the proposal to amend and the ratification of such a constitutional amendment are political in
nature forming as they do the essential parts of one political scheme K the amending process. E/
merely stated therein that the force of the ruling in the said case of 'a#ana+ vs. 0opez @ito has been
,eakened by subse#uent cases. hus, Ee pronounced therein7
%t is true that in Mabanag vs. +ope" 6ito, this Court characteri"ing the issue submitted thereto as a
political one, declined to pass upon the #uestion ,hether or not a given number of votes cast in Congress
ratification K satisfied the three fourths vote re#uirement of the fundamental la,. he force of this
precedent has been ,eakened, ho,ever, by -uanes vs. Chief Accountant of the -enate, Avelino vs.
Cuenco, aLada vs. Cuenco and Macias vs. Commission on /lections. %n the first, ,e held the officers
and employees of the -enate /lectoral ribunal are supervision and control, not of that of the -enate
President, claimed by the latter: in the second, this Court proceeded to determine the number of -enators
necessary for a ;uorum in the -enate: in the third ,e nullified the election, by -enators 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 t,o ;*< -enators belonging to the first party, as members,
for the second party, of the -enate /lectoral ribunal: and in the fourth, ,e declared unconstitutional an
act of Congress purporting to apportion the representative districts for the >ouse of !epresentatives,
upon the ground that the apportionment had not been made as may be possible according to the number
of inhabitants of each province. hus ,e rejected the theory advanced in these four ;J< cases, that the
issues therein raised ,ere political #uestions the determination of ,hich is beyond judicial revie,. ;*&
-C!A pp. ')BC')2<:
for ,hich reason Ee concluded
%n short, the issue ,hether or not a resolution of Congress before acting as a constituent assembly K
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial revie,, and
to t*e e6tent t*at t*is vie) (a #e inconsistent )it* t*e stan! ta-en in 'a#ana+ vs. 0opez @ito, t*e latter
s*oul! #e !ee(e! (o!i,ie! accor!in+l. ;p. ')', emphasis supplied.<
%n the olentino case, supra, Ee reiterated the foregoing statements ;J& -C!A '9AC'&J<.
he inevitable conse#uence therefore is that the validity of the ratification or adoption of or
ac#uiescence by the people in the &('A Constitution, remains a political issue removed from the
jurisdiction of this Court to revie,.
0ne more ,ord about the 3on"ales and olentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal ,ith propriety or
,isdom or absence of either of an official act or of a la,. .udicial po,er concerns only ,ith the
legality or illegality, constitutionality or unconstitutionality of an act7 it in#uires into the e8istence of
po,er or lack of it. .udicial ,isdom is not to be pitted against the ,isdom of the political department of
the government.
he classic e8ample of an illegal submission that did not impair the validity of the ratification or
adoption of a ne, Constitution is the case of the 1ederal Constitution of the =nited -tates. %t should
be recalled that the thirteen ;&A< original states of the American =nion K ,hich succeeded in
liberating themselves from /ngland after the revolution ,hich began on April &(, &''B ,ith the
skirmish at +e8ington, Massachusetts and ended ,ith the surrender of 3eneral Corn,allis at
@orkto,n, 6irginia, on 0ctober &(, &')&;/ncyclopedia Brit., 6ol. %, &(AA /d., p. ''2< K adopted their
Articles of Confederation and Perpetual =nion, that ,as ,ritten from &''2 to &''' and ratified on
March &, &')& ;/ncyclopedia Brit., 6ol. %%, &(22 /d., p. B*B<. About si8 thereafter, the Congress of the
Confederation passed a resolution on 1ebruary *&, &')' calling for a 1ederal Constitutional
Convention 1,or t*e sole an! e6press purpose o, revisin+ t*e articles o, con,e!eration ... .4 ;Appendi8
%, 1ederalist, Modern +ibrary ed., p. B'', emphasis supplied<.
he Convention convened at Philadelphia on May &J, &')'. Article D%%% of the Articles of
Confederation and Perpetual =nion stated specifically7
he articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual: nor s*all an alterations at an ti(e *erea,ter #e (a!e in an o, t*e(9 unless suc* alteration
#e a+ree! to in a con+ress o, t*e unite! states, an! #e a,ter)ar!s con,ir(e! # t*e le+islatures o, ever
state. ;-ee the 1ederalist, Appendi8 %%, Modern +ibrary /d., &(A', p. B)J: emphasis supplied.<
But the foregoing re#uirements prescribed by the Articles of Confederation and Perpetual =nion for
the alteration for the ratification of the 1ederal Constitution as drafted by the Philadelphia Convention
,ere not follo,ed. 1earful the said 1ederal Constitution ,ould not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution re#uesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine ;(< states, not necessarily in all thirteen
;&A< states, the said Constitution shall take effect.
hus, history Professor /d,ard /arle Mead of Princeton =niversity recorded that7
%t ,ould have been a counsel of perfection to consign the ne, constitution to the tender mercies of the
legislatures of each and all of the &A states. /8perience clearly indicated that ratification then ,ould have
had the same chance as the scriptural camel passing through the eye of a needle. It )as t*ere,ore
!eter(ine! to reco((en! to Con+ress t*at t*e ne) Constitution #e su#(itte! to conventions in t*e
several states especiall electe! to pass upon it an! t*at, ,urt*er(ore, t*e ne) +overn(ent s*oul! +o
into e,,ect i, an! )*en it s*oul! #e rati,ie! # nine o, t*e t*irteen states ... . ;he 1ederalist, Modern
+ibrary /d., &(A', %ntroduction by /d,ard /arle Mead, pp. viiiCi8: emphasis supplied<
>istorian -amuel /liot Morison similarly recounted7
he Convention, anticipating that the influence of many state politicians ,ould be Antifederalist, provided
for ratification of the Constitution by popularly elected conventions in each state. -uspecting that !hode
%sland, at least, ,ould prove recalcitrant, it declared that the Constitution ,ould go into effect as soon as
nine states ratified. he convention method had the further advantage that judges, ministers, and others
ineligible to state legislatures, could be elected to a convention. he nineCstate provision ,as, of course,
mildly revolutionary. But the Congress of the Confederation, still sitting in ?e, @ork to carry on federal
government until relieved, formally submitted the ne, constitution to the states and politely faded out
before the first presidential inauguration. ;he 08ford >istory of the Am. People, by -amuel /liot Morison,
&(2B ed., p. A&*<.
And so the American Constitution ,as ratified by nine ;(< states on .une *&, &')) and by the last four
states on May *(, &'(9 ;&* C... p. 2'( footnote, &2 C...-., *'. K by the state conventions and not
by all thirteen ;&A< state legislatures as re#uired by Article D%%% of the Articles of Confederation and
Perpetual =nion afore#uoted H and in spite of the fact that the 1ederal Constitution as originally
adopted suffers from t,o basic infirmities, namely, t*e a#sence o, a #ill o, >i+*ts an! o, a provision
a,,ir(in+ t*e po)er o, 5u!icial revie).
he liberties of the American people ,ere guaranteed by subse#uent amendments to the 1ederal
Constitution. he doctrine of judicial revie, has become part of American constitutional la, only by
virtue of a judicial pronouncement by Chief .ustice Marshall in the case of 'ar#ur vs. 'a!ison
;&)9A, & Cranch &A'<.
=ntil this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organi"ed and functioning thereunder.
%n the &(J2 case of K*eeler vs. "oar! o, Trustees ;A' -/ *nd A**, A*2CAA9<, ,hich enunciated the
principle that the validity of a ne, or revised Constitution does not depend on the method of its
submission or ratification by the people, but on t*e ,act or ,iat or approval or a!option or
ac;uiescence # t*e people )*ic* ,act o, rati,ication or a!option or ac;uiescence is all t*at is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the 1ederal Constitution, thus7
?o case identical in its facts ,ith the case no, under consideration has been called to our attention, and
,e have found none. Ke t*in- t*at t*e principle )*ic* )e appl in t*e instant case )as ver clearl
applie! in t*e creation o, t*e constitution o, t*e Enite! States. T*e convention create! # a resolution o,
Con+ress *a! aut*orit to !o one t*in+, an! one onl, to )it, a(en! t*e articles o, con,e!eration. T*is
t*e !i! not !o, #ut su#(itte! to t*e soverei+n po)er, t*e people, a ne) constitution. In t*is (anner )as
t*e constitution o, t*e Enite! States su#(itte! to t*e people an! it #eca(e operative as t*e or+anic la)
o, t*is nation )*en it *a! #een properl a!opte! # t*e people.
Pomeroy$s Constitutional +a,, p. BB, discussing the convention that formulated the constitution of the
=nited -tates, has this to say7 4T*e convention procee!e! to !o, an! !i! acco(plis*, )*at t*e )ere not
aut*orize! to !o # a resolution o, Con+ress t*at calle! t*e( to+et*er. T*at resolution plainl
conte(plate! a(en!(ents to t*e articles o, con,e!eration, to #e su#(itte! to an! passe! # t*e
Con+ress, an! a,ter)ar!s rati,ie! # all t*e State le+islatures, in t*e (anner pointe! out # t*e e6istin+
or+anic la). "ut t*e convention soon #eca(e convince! t*at an a(en!(ents )ere po)erless to e,,ect
a cure9 t*at t*e !isease )as too !eepl seate! to #e reac*e! suc* tentative (eans. T*e sa) t*at t*e
sste( t*e )ere calle! to i(prove (ust #e totall a#an!one!, an! t*at t*e national i!ea (ust #e re4
esta#lis*e! at t*e center o, t*eir political societ. %t ,as objected by some members, that they had no
po,er, no authority, to construct a ne, government. hey had no authority, if their decisions ,ere to be
final: and no authority ,hatsoever, under the articles of confederation, to adopt the course they did. But
they kne, that their labors ,ere only to be suggestions: and that they as ,ell as any private individuals,
and any private individuals as ,ell as they, had a right to propose a plan of government to the people for
their adoption. hey ,ere, in fact, a mere assemblage of private citi"ens, and their ,ork had no more
binding sanction than a constitution drafted by Mr. >amilton in his office ,ould have had. he people, by
their e8pressed ,ill, transformed this suggestion, this proposal, into an organic la,, and the people might
have done the same ,ith a constitution submitted to them by a single citi"en.4
888 888 888
... K*en t*e people a!opt a co(pletel revise! or ne) constitution, t*e ,ra(in+ or su#(ission o, t*e
instru(ent is not )*at +ives it #in!in+ ,orce an! e,,ect. T*e ,iat o, t*e people an! onl t*e ,iat o, t*e
people, can #reat*e li,e into a constitution.
888 888 888
... Ke !o not *esitate to sa t*at a court is never 5usti,ie! in placin+ # i(plication a li(itation upon t*e
soverei+n. T*is )oul! #e an aut*orize! e6ercise o, soverei+n po)er # t*e court. %n State v. S)i,t, 2( %nd.
B9B, B&(, the %ndiana -upreme Court said7 4he people of a -tate may form an original constitution, or
abrogate an old one and form a ne, one, at any time, ,ithout any political restriction e8cept the
constitution of the =nited -tates: ... .4 ;A' -/ A*'CA*), A*(, emphasis supplied.<
%n the &(9A case of Keston vs. >an, the Court held7
%t remains to be said that if ,e felt at liberty to pass upon this #uestion, and ,ere compelled to hold that
the act of 1ebruary *A, &))', is unconstitutional and void, it ,ould not, in our opinion, by any means
follo, that the amendment is not a part of our state Constitution. %n the recent case of Talor vs.
Co((on)ealt* ;6a.< JJ -./. 'BJ, t*e Supre(e Court o, @ir+inia *ol! t*at t*eir state Constitution o,
$%F2, *avin+ #een ac-no)le!+e! an! accepte! # t*e o,,icers a!(inisterin+ t*e state +overn(ent, an!
# t*e people, an! #ein+ in ,orce )it*out opposition, (ust #e re+ar!e! as an e6istin+ Constitution
irrespective o, t*e ;uestion as to )*et*er or not t*e convention )*ic* pro(ul+ate! it *a! aut*orit so to
!o )it*out su#(ittin+ it to a vote o, t*e people. %n "rittle v. People, * ?eb. &(), is a similar holding as to
certain provisions of the ?ebraska Constitution of &))2, ,hich ,ere added by the +egislature at the
re#uirement of Congress, though never submitted to the people for their approval.4 ;(' ?E AJ(CAB9:
emphasis supplied<.
Against the decision in the Eheeler case, supra, confirming the validity of the ratification and adoption
of the American Constitution, in spite of the fact that such ratification ,as in clear violation of the
prescription on alteration and ratification of the Articles of Confederation and Perpetual =nion,
petitioners in 3.!. ?o. +CA2&2B dismissed this most significant historical fact by calling the 1ederal
Constitution of the =nited -tates as a revolutionary one, invoking the opinion e8pressed in 6ol. &2,
Corpus .uris -ecundum, p. *', that it ,as a revolutionary constitution because it did not obey the
re#uirement that the Articles of Confederation and Perpetual =nion can be amended only ,ith the
consent of all thirteen ;&A< state legislatures. his opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the =nited -tates Constitution on p. 2'( of 6ol.
&*, C.-. Petitioners, on p. &) of their main ?otes, refer =- to pp. *'9CA&2 of the O6,or! Cistor o,
t*e 3(erican People, &(2B /d. by -amuel /liot Morison, ,ho discusses the Articles of Confederation
and Perpetual =nion in Chapter D6%%% captioned 4!evolutionary Constitution Making, &''B &')&4 ;pp.
*'9C*)&<. %n Chapter DD on 4he Creative Period in Politics, &')BC&')),4 Professor Morison
delineates the genesis of the 1ederal Constitution, but does not refer to it even implicitly as
revolutionary constitution ;pp. *('CA&2<. >o,ever, the 1ederal Constitution may be considered
revolutionary from the vie, point of Mc%ver if the term revolution is understood in 4its ,ider sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthro, of an established order, ... .4 ;!.M. Mac%ver, he Eeb of 3overnment, &(2B ed., p.
*9A<.
%t is rather ridiculous to refer to the American Constitution as a revolutionary constitution. he Articles
of Confederation and Perpetual =nion that ,as in force from .uly &*, &''2 to &')), forged as it ,as
during the ,ar of independence ,as a revolutionary constitution of the thirteen ;&A< states. %n the
e8isting 1ederal Constitution of the =nited -tates ,hich ,as adopted seven ;'< or nine ;(< years after
the thirteen ;&A< states ,on their independence and long after popular support for the government of
the Confederation had stabili"ed ,as not a product of a revolution. he 1ederal Constitution ,as a
4creation of the brain and purpose of man4 in an era of peace. %t can only be considered revolutionary
in the sense that it is a radical departure from its predecessor, the Articles of Confederation and
Perpetual =nion.
%t is e#ually absurd to affirm that the present 1ederal Constitution of the =nited -tates is not the
successor to the Articles of Confederation and Perpetual =nion. he fallacy of the statement is so
obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation ?o. &&9* strikes at the validity and
enforceability of the &('A Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the &('A Constitution is inoperative ;+CA2&2J<. %f Proclamation
?o. &&9* is nullified, then there is no valid ratification of the &('A Constitution and the inevitable
conclusion is that the government organi"ed and functioning thereunder is not a legitimate
government.
hat the issue of the legitimacy of a government is like,ise political and not justiciable, had long been
decided as early as the &)J( case of 0ut*er vs. "or!en ;' >o,. &, &* +.ed., B)&<, affirmed in the
&(99 case of Talor vs. "ec-*a( ;&') =.-. BJ), JJ +.ed. &&)'< and reCenunciated in &(&* in the
case of Paci,ic States Telep*one an! Tele+rap* Co(pan vs. Ore+on ;**A =.-. &&), &AAC&B&, B2
+.ed. A''CA)2<. Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to #uote the decision in Pacific -tates elephone and elegraph Co., supra, penned
by Mr. Chief .ustice Ehite, ,ho reCstated7
%n vie, of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous doctrine,
,e do not content ourselves ,ith a mere citation of the cases, but state (ore at len+t* t*an )e ot*er)ise
)oul! t*e issues an! t*e !octrine e6poun!e! in t*e lea!in+ an! a#solutel controllin+ case K 0ut*er v.
"or!en, 7 Co). $, $2 0.e!. 8&$.
888 888 888
... 0n this subject it ,as said ;p. A)<7
4For i, t*is court is aut*orize! to enter upon this in#uiry, proposed by the plaintiff, and it should be decided
that the character government had no legal e8istence during the period of time above mentioned, K if it
had been annulled by the adoption of the opposing government, K t*en t*e la)s passe! # its le+islature
!urin+ t*at ti(e )ere nullities9 its ta6es )ron+,ull collecte!, its salaries an! co(pensations to its o,,icers
ille+all pai! 9 its pu#lic accounts i(properl settle! an! t*e 5u!+(ents an! sentences o, its courts in civil
an! cri(inal cases null an! voi!, an! t*e o,,icers )*o carrie! t*eir !ecisions into operation ans)era#le
as trespassers, i, not in so(e cases as cri(inals.4
888 888 888
4he fourth section of the fourth article of the Constitution of the =nited -tates shall guarantee to every
state in the =nion a republican form of government, and shall protect each of them against invasion: and
on the application of the +egislature or of the /8ecutive ;,hen the legislature cannot be convened<
against domestic violence.
4=nder this article of the Constitution it rests ,ith Congress to decide ,hat government is established one
in a state. 1or, as the =nited -tate guarantee to each state a republican government, Con+ress (ust
necessaril !eci!e )*at +overn(ent is esta#lis*e! in t*e state #e,ore it can !eter(ine )*et*er it is
repu#lican or not. 3n! )*en t*e senators an! representatives o, a state are a!(itte! into t*e Councils o,
t*e Enion, t*e aut*orit o, t*e +overn(ent un!er )*ic* t*e )ere appointe!, as )ell as its repu#lican
c*aracter, is reco+nize! # t*e proper constitutional aut*orit. 3n! its !ecision is #in!in+ on ever ot*er
!epart(ent o, t*e +overn(ent, an! coul! not #e ;uestione! in a 5u!icial tri#unal. %t is true that the contest
in this case did not last long enough to bring the matter to this issue: and as no senators or
representatives ,ere elected under the authority of the government of ,hich Mr. Dorr ,as the head,
Congress ,as not called upon to decide the controversy. Yet t*e ri+*t to !eci!e is place! t*ere an! not in
t*e courts.4
888 888 888
... Ee do not stop to cite other cases ,hich indirectly or incidentally refer to the subject, but conclude by
directing attention to the statement by the court, speaking through Mr. Chief .ustice 1uller, in aylor vs.
Beckham, &') =.-. BJ), JJ +.ed. &&)', *9 -up. Ct. !ep. )(9, &99(, ,here, after disposing of a
contention made concerning the &Jth Amendment, and coming to consider a proposition ,hich ,as
necessary to be decided concerning the nature and effect of the guaranty of - J of article J, it ,as said
;p. B')<7
4But it is said that the &Jth Amendment must be read ,ith - J of article J, of the Constitution, providing
that the =nited -tates shall guarantee to every state in this =nion a republican form of government, and
shall protect each of them against invasion: and on application of the legislature, or the /8ecutive ;,hen
the legislature cannot be convened<, against domestic violence.4
888 888 888
4It )as lon+ a+o settle! t*at t*e en,orce(ent o, t*is +uarant #elon+e! to t*e political !epart(ent. 0ut*er
v. "or!en, ' >o,. &, &* +.ed. B)&. %n that case it ,as held that the #uestion, ,hich of the t,o opposing
governments of !hode %sland, namely, the charter government or the government established by a
voluntary convention, ,as the legitimate one, ,as a #uestion for the determination of the political
department: and ,hen that department had decided, the courts ,ere bound to take notice of the decision
and follo, it.4
888 888 888
3s t*e issues presented, in their very essence, are, and *ave lon+ since # t*is Court #een, !e,initel
!eter(ine! to #e political an! +overn(ental, and embraced ,ithin the scope of the scope of the po,ers
conferred upon Congress, and not, t*ere,ore )it*in t*e reac* o, 5u!icial po)er, it ,ollo)s t*at t*e case
presente! is not )it*in our 5uris!iction, and the ,rit of error must therefore be, and it is, dismissed for
,ant of jurisdiction. ;**A =.-. pp. &J*C&B&: emphasis supplied<.
/ven a constitutional amendment that is only promulgated by the Constitutional Convention ,ithout
authority therefor and ,ithout submitting the same to the people for ratification, becomes valid, ,hen
recogni"ed, accepted and acted upon the by Chief of -tate and other government functionaries, as
,ell as by the people. %n the &(9A case of Talor vs. Co((on)ealt* ;JJ -/ 'BJC'BB<, the Court
ruled7
he sole ground urged in support of the contention that Constitution proclaimed in &(9* is invalid is that it
,as ordained and promulgated by the convention ,ithout being submitted for ratification or rejection by
the people of the common,ealth.
he Constitution of &(9* ,as ordained and proclaimed by convention duly called by direct vote of the
people of the state to revise and amend the Constitution of &)2(. he result of the ,ork that the
convention has been recogni"ed, accepted, and acted upon as the only valid Constitution of the state by
the 3overnor in s,earing fidelity to it and proclaiming it, as directed thereby: by the +egislature in its
formal official act adopting a joint resolution, .uly &B, &(9*, recogni"ing the Constitution ordained by the
convention ,hich assembled in the city of !ichmond on the &*th day of .une &(9&, as the Constitution of
6irginia: by the individual oaths of members to support it, and by its having been engaged for nearly a
year in legislating under it and putting its provisions into operation but the judiciary in taking the oath
prescribed thereby to support and by enforcing its provisions: and by the people in their primary capacity
by peacefully accepting it and ac#uiescing in it, registering as voters under it to the e8tent of thousands
through the state, and by voting, under its provisions, at a general election for their representatives in the
Congress of the =nited -tates. ;p. 'BB<.
he Court in the aylor case aboveCmentioned further said7
Ehile constitutional procedure for adoption or proposal to amend the constitution must be duly follo,ed,
,ithout omitting any re#uisite steps, courts should uphold amendment, unless satisfied that the
Constitution ,as violated in submitting the proposal. ... Su#stance (ore t*an ,or( (ust #e re+ar!e! in
consi!erin+ )*et*er t*e co(plete constitutional sste( ,or su#(ittin+ t*e proposal to a(en! t*e
constitution )as o#serve!.
%n the &(*B case of Talor vs. Gin+ ;&A9 A J9', J9) J&9<, the Court stated7
here may be technical error in the manner in ,hich a proposed amendment is adopted, or in its
advertisement, yet, if follo,ed, unobjected to, by approval of the electors, it becomes part of the
Constitution. +egal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or collaterally,
because of any mistake antecedent thereto. /ven though it be submitted at an improper time, it is
effective for all purposes ,hen accepted by the majority. 3r(stron+ v. Gin+, *)& Pa. *9', &*2 A. *2A.
;&A9 A J9(<.
/ven if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or ac#uiescence by the people. hus, in the &(9B case of E6 parte
Birmingham and A.!. Company ;J* -0 pp. &&) M &*A<, the Alabama -upreme Court upheld this
principle and stated that7 4he authorities are almost uniform that this ratification of an unauthori"ed
act by the people ;and the people are the principal in this instance< renders the act valid and binding.4
%t has like,ise been held that it is not necessar t*at voters rati,in+ t*e ne) Constitution are
re+istere! in t*e #oo- o, voters9 it is enou+* t*at t*e are electors votin+ on t*e ne) Constitution.
;Bott vs. Eurts, J9 A 'J9 G&)((H: JB +!A *B&, emphasis supplied<.
%n the &(B2 case of T*o(son vs. Peoples State "an- ;'B ?E *nd A'9, A'B<, the -upreme Court of
Eisconsin ruled that 4irregularity in the procedure for the submission of the proposed constitutional
amendment ,ill not defeat the ratification by the people.4
Again, in the &(B) case of S)ai( vs. Tuscaloosa Count ;&9A -0 *nd '2(<, the Alabama -upreme
Court pronounced that 4the irregularity in failing to publish the proposed constitutional amendment
once in each of the J calendar ,eeks ne8t preceding the calendar ,eek in ,hich the election ,as
held or once in each of the 'Cday periods immediately preceding the day of the election as re#uired
by the Constitution, did not invalidate the amendment ,hich ,as ratified by the people.4
he same principle ,as reiterated in &(2& by the 'ississippi Supre(e Court in "arnes, et al. v.
0a!ner ;&A&< -0 *nd JB J2*<, ,here they admitted irregularities or illegalities committed in the
procedure for submission of the proposed constitutional amendment to the people for ratification
consisted of7 4;a< the alleged failure of the county election commissioners of the several counties to
provide a sufficient number of ballot bo8es $secured by good and substantial locks,$ as provided by
-ection A*J(, Code of &(J*, !ec., to be used in the holding of the special election on the
constitutional amendment, and ;b< the alleged failure of the -tate /lection Commissioners to comply
,ith the re#uirements of Code -ections A*9J and A*9B in the appointment of election commissioners
in each of the )* counties. T*e irre+ularities co(plaine! o,, even i, prove!, )ere not suc*
irre+ularities )oul! *ave invali!ate! t*e election.4 ;/mphasis supplied: see also -ylvester vs. indall,
) -0 *nd )(*: &BJ 1la. 22A<.
/ven prior to the election in ?ovember, &('9 of delegates of the Constitutional Convention and during
the deliberations of the Constitutional Convention from .une &, &('& until martial la, ,as proclaimed
on -ept. *&, &('*, the salient reforms contained in the &('A Constitution ,hich have long been
desired by the people, had been thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
Many of the decrees promulgated by the Chief /8ecutive from -ept. **, &('* to .an. &', &('A
implement some of the reforms and had been ratified in -ec. A;*< of Article D6%% of the &('A
Constitution.
Petitioners cannot safely state that during martial la, the majority of the people cannot freely vote for
these reforms and are not complying ,ith the implementing decrees promulgated by the President.
1ree election is not inevitably incompatible ,ith martial la,. Ee had free elections in &(B& and &('&
,hen the opposition ,on si8 out of eight senatorial seats despite the suspension of the privileges of
the ,rit of *a#eas corpus ;see +ansang vs. 3arcia, et al., Dec. &J, &('&, J* -C!A JJ)<, ,hich
suspension implies constraint on individual freedom as the proclamation of martial la,. %n both
situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by ?acionalistas or +iberals, as ,ell as officials of the
+egislative and /8ecutive branches of the government elected andFor appointed under the &(AB
Constitution have either recogni"ed or are no, functioning under the &('A Constitution, aside from
the fact of its ratification by the sovereign people through the Citi"ens Assemblies. ?inetyCfive ;(B< of
a total of one hundred ten ;&&9< members of the >ouse of !epresentatives including the -peaker and
the -peaker Pro empore as ,ell as about eleven ;&&< Congressmen ,ho belong to the +iberal Party
and fifteen ;&B< of a total of t,entyCfour ;*J< senators including +iberal senators /dgar =. %larde and
.ohn 0smeLa opted to serve in the %nterim Assembly, according to the certification of the
Commission on /lections dated 1ebruary &(, &('A ;Anne8 !ejoinderCA to Consolidated !ejoinder of
petitioners in +CA2&2B<. 0nly the five ;B< petitioners in +CA2&2B close their eyes to a ,ait acco(pli. All
the other functionaries recogni"e the ne, government and are performing their duties and e8ercising
their po,ers under the &('A Constitution, including the lo,er courts. he civil courts, military tribunals
and #uasiCjudicial bodies created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. he foreign ambassadors ,ho ,ere accredited to the
!epublic of the Philippines before martial la, continue to serve as such in our country: ,hile t,o ne,
ambassadors have been accepted by the Philippines after the ratification of the &('A Constitution on
.anuary &', &('A. Copies of the &('A Constitution had been furnished the =nited ?ations
0rgani"ation and practically all the other countries ,ith ,hich the Philippines has diplomatic relations.
?o adverse reaction from the =nited ?ations or from the foreign states has been manifested. 0n the
contrary, our permanent delegate to the =nited ?ations 0rgani"ation and our diplomatic
representatives abroad appointed before martial la, continue to remain in their posts and are
performing their functions as such under the &('A Constitution.
/ven the Commission on /lections is no, implementing the provisions of the &('A Constitution by
re#uiring all election registrars to register &)Cyear olds and above ,hether literates or not, ,ho are
#ualified electors under the &('A Constitution ;see pars. &CA;c<, ;d<, M ;e< of Anne8 A to ?otes of
respondents Puyat and !oy in +CA2&2B<.
%n brief, it cannot be said that the people are ignoring the &('A Constitution and the government
,hich is enforcing the same for over &9 ,eeks no, Eith the petitioners herein, secessionists, rebels
and subversives as the only possible e8ceptions, the rest of the citi"enry are complying ,ith decrees,
orders and circulars issued by the incumbent President implementing the &('A Constitution.
0f happy relevance on this point is the holding in 'iller vs. Jo*nson &) -E B**7
%f a set of men, not selected by the people according to the forms of la,, ,ere to formulate an instrument
and declare it the constitution, it ,ould undoubtedly be the duty of the courts declare its ,ork a nullity.
his ,ould be revolution, and this the courts of the e8isting government must resist until they are
overturned by po,er, and a ne, government established. T*e convention, *o)ever, )as t*e o,,sprin+ o,
la). T*e instru(ent )*ic* )e are as-e! to !eclare invali! as a constitution *as #een (a!e an!
pro(ul+ate! accor!in+ to t*e ,or(s o, la). It is a (atter o, current *istor t*at #ot* t*e e6ecutive an!
le+islative #ranc*es o, t*e +overn(ent *ave reco+nize! its vali!it as a constitution, and are no, daily
doing so. %s the #uestion, t*ere,ore, one o, a 5u!icial c*aracter2 %t is our undoubted duty, if a statute be
unconstitutional to so declare it: also, if a provision of the state constitution be in conflict ,ith the federal
constitution, to hold the former invalid. But this is a very different case. It (a #e sai!, *o)ever, t*at, ,or
ever violation o, or non4co(pliance )it* t*e la), t*ere s*oul! #e a re(e! in t*e courts. T*is is not,
*o)ever, al)as t*e case. For instance, t*e po)er o, a court as to t*e acts o, t*e ot*er !epart(ents o,
t*e +overn(ent is not an a#solute one, #ut (erel to !eter(ine )*et*er t*e *ave -ept )it*in
constitutional li(its, it is a !ut rat*er t*an a po)er, T*e 5u!iciar cannot co(pel a co4e;ual !epart(ent
to per,or( a !ut. %t is responsible to the people: but if it does act, then, ,hen the #uestion is properly
presented, it is the duty of the court to say ,hether it has conformed to the organic la,. K*ile t*e
5u!iciar s*oul! protect t*e ri+*ts o, t*e people )it* +reat care an! 5ealous, #ecause t*is is its !ut, an!
also #ecause, in ti(es o, +reat popular e6cite(ent, it is usuall t*eir last resort, et it s*oul! at t*e sa(e
ti(e #e care,ul to overstep t*e proper #oun!s o, its po)er, as #ein+ per*aps e;uall !an+erous9 an!
especiall )*ere suc* (o(entous results (i+*t ,ollo) as )oul! #e li-el in t*is instance, i, t*e po)er o,
t*e 5u!iciar per(itte!, an! its !ut re;uire!, t*e overt*ro) o, t*e )or- o, t*e convention.
After the American !evolution the state of !hode %sland retained its colonial character as its constitution,
and no la, e8isted providing for the making of a ne, one. %n &)J& public meetings ,ere held, resulting in
the election of a convention to form a ne, one, K to be submitted to a popular vote. he convention
framed one, submitted it to a vote, and declared it adopted. /lections ,ere held for state officers, ,ho
proceeded to organi"e a ne, government. he charter government did not ac#uiesce in these
proceedings, and finally declared the state under martial la,. %t called another convention, ,hich in &)JA
formed a ne, constitution. K*et*er t*e c*arter +overn(ent, or t*e one esta#lis*e! # t*e voluntar
convention, )as t*e le+iti(ate one, )as uni,or(l *el! # t*e courts o, t*e state not to #e a 5u!icial, #ut a
political ;uestion9 an! t*e political !epart(ent *avin+ reco+nize! t*e one, it )as *el! to #e t*e !ut o, t*e
5u!iciar to ,ollo) its !ecision. T*e supre(e court o, t*e Enite! States, in 0ut*er v. "or!en, 7 Co). $,
)*ile not e6pressl !eci!in+ t*e principle, as it *el! t*e ,e!eral court, et in t*e ar+u(ent approves it, an!
in su#stance sas t*at )*ere t*e political !epart(ent *as !eci!e! suc* a (atter t*e 5u!iciar s*oul!
a#i!e # it.
+et us illustrate the difficulty of a court deciding the #uestion7 -uppose this court ,ere to hold that the
convention, ,hen it reassembled, had no po,er to make any material amendment, and that such as ,ere
made are void by reason of the people having theretofore approved the instrument. hen, ne8t, this court
must determine ,hat amendments ,ere material: and ,e find the court, in effect, making a constitution.
his ,ould be arrogating sovereignty to itself. Perhaps the members of the court might differ as to ,hat
amendments are material, and the result ,ould be confusion and anarchy. 0ne judge might say that all
the amendments, material and immaterial, ,ere void: another, that the convention had then the implied
po,er to correct palpable errors, and then the court might differ as to ,hat amendments are material. %f
the instrument as ratified by the people could not be corrected or altered at all, or if the court must
determine ,hat changes ,ere material, then the instrument, as passed upon by the people or as fi8ed by
the court ,ould be lacking a promulgation by the convention: and, if this be essential, then the #uestion
,ould arise, ,hat constitution are ,e no, living under, and ,hat is the organic la, of the stateI A
suggestion of these matters sho,s ,hat endless confusion and harm to the state might and likely ,ould
arise. I,, t*rou+* error o, opinion, t*e convention e6cee!e! its po)er, an! t*e people are !issatis,ie!,
t*e *ave a(ple re(e!, )it*out t*e 5u!iciar #ein+ as-e! to overstep t*e proper li(its o, its po)er. T*e
instru(ent provi!es ,or a(en!(ent an! c*an+e. I, a )ron+ *as #een !one, it can, in t*e proper )a in
)*ic* it s*oul! #e re(e!ie!, is # t*e people actin+ as a #o! politic. %t is not a #uestion of ,hether
merely an amendment to a constitution, made ,ithout calling a convention, has been adopted, as
re#uired by that constitution. %f it provides ho, it is to be done, then, unless the manner be follo,ed, the
judiciary, as the interpreter of that constitution, ,ill declare the amendment invalid. Goe*ler v. Cill, 29
%o,a, BJA, &J ?.E. !ep. 'A), and &B ?.E. !ep. 29(: State v. Tu,,, & ?ev. A(&, &* Pac. !ep. )AB. "ut it
is a case )*ere a ne) constitution *as #een ,or(e! an! pro(ul+ate! accor!in+ to t*e ,or(s o, la).
Great interests *ave alrea! arisen un!er it9 i(portant ri+*ts e6ist # virtue o, it9 persons *ave #een
convicte! o, t*e *i+*est cri(e -no)n to t*e la), accor!in+ to its provisions9 t*e political po)er o, t*e
+overn(ent *as in (an )as reco+nize! it9 an!, un!er suc* circu(stances, it is our !ut to treat an!
re+ar! it as a vali! constitution, an! no) t*e or+anic la) o, our co((on)ealt*.
Ee need not consider the validity of the amendments made after the convention reassembled. %f the
making of them ,as in e8cess of its po,ers, yet, as the entire instrument has been recogni"ed as valid in
the manner suggested, it ,ould be e#ually an abuse of po,er by the judiciary and violative of the rights of
the people, K ,ho can and properly should remedy the matter, if not to their liking, K if it ,ere to declare
the instrument of a portion invalid, and bring confusion and anarchy upon the state. ;emphasis supplied<.
%f this Court in#uires into the validity of Proclamation ?o. &&9* and conse#uently of the adoption of
the &('A Constitution it ,ould be e8ercising a veto po,er on the act of the sovereign people, of ,hom
this Court is merely an agent, ,hich to say the least, ,ould be anomalous. his Court cannot dictate
to our principal, the sovereign people, as to ho, the approval of the ne, Constitution should be
manifested or e8pressed. he sovereign people have spoken and ,e must abide by their decision,
regardless of our notion as to ,hat is the proper method of giving assent to the ne, Charter. %n this
respect, E/ cannot presume to kno, better than the incumbent Chief /8ecutive, ,ho, unlike the
members of this Court, only last .anuary ), &('A, Ee affirmed in Os(eAa vs. 'arcos ;Pres. /lection
Contest ?o. A, .an. ), &('A<, ,as reCelected by the vote of over B million electors in &(2( for another
term of four years until noon of December A9, &('A under the &(AB Constitution. his Court, not
having a similar mandate by direct ,iat from the sovereign people, to e8ecute the la, and administer
the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action
e8pressly and e8clusively reserved by the sovereign people themselves.
he people in Article D6 of the &(AB Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic la,. hat ,ould be incompatible ,ith their sovereign
character of ,hich Ee are reminded by -ection &, of Article %% of both the &(AB and the &('A
Constitutions.
he opinion of .udge homas Mc%ntire Cooley that the sovereign people cannot violate the procedure
for ratification ,hich they themselves define in their Constitution, cannot apply to a unitary state like
the !epublic of the Philippines. >is opinion e8pressed in &)2) may apply to a 1ederal -tate like the
=nited -tates, in order to secure and preserve the e8istence of the 1ederal !epublic of the =nited
-tates against any radical innovation initiated by the citi"ens of the fifty ;B9< different states of the
American =nion, ,hich states may be jealous of the po,ers of the 1ederal government presently
granted by the American Constitution. his dangerous possibility does not obtain in the case of our
!epublic.
hen again, .udge Cooley advanced the aforesaid opinion in &)2) ,hen he ,rote his opus
4Constitutional +imitations.4 > ;6ol. 2, /ncyclopedia Brit., &(2( ed. pp. JJB JJ2<. %t is possible that,
,ere he live today, in a milieu vastly different from &)2) to &)(), he might have altered his vie,s on
the matter.
/ven if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation
?o. &&9* that the people through their Citi"ens$ Assemblies had over,helmingly approved the ne,
Constitution due regard to a separate, coordinate and coCe#ual branch of the government demands
adherence to the presumption of correctness of the President$s declaration. -uch presumption is
accorded under the la, and jurisprudence to officials in the lo,er levels of the /8ecutive branch,
there is no overCriding reason to deny the same to the Chief of -tate as head of the /8ecutive
Branch. E/ cannot reverse the rule on presumptions, ,ithout being presumptuous, in the face of the
certifications by the 0ffice the -ecretary of the Department of +ocal 3overnment and Community
Development. ;Anne8es &, to &C/, Anne8es * to *C0 to the compliance ,ith manifestation filed by the
-olicitor 3eneral on behalf of the respondents public officers dated March ', &('A<. here is nothing
in the records that contradicts, much less overthro, the results of the referendum as certified. Much
less are Ee justified in reversing the burden of proof K by shifting it from the petitioners to the
respondents. =nder the rules on pleadings, the petitioners have the duty to demonstrate by clear and
convincing evidence their claim that the people did not ratify through the Citi"ens$ Assemblies nor
adopt by ac#uiescence the &('A Constitution. And have failed to do so.
?o member of this ribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources ,hich could be biased and hearsay, aside from the fact
that such reports are not contained in the record. Proclamation ?o. &&9* is not just an ordinary act of
the Chief /8ecutive. %t is a ,ellCnigh solemn declaration ,hich announces the highest act of the
sovereign people K their i(pri(atur to the basic Charter that shall govern their lives hereafter K may
be for decades, if not for generations.
Petitioners decry that even &BCyear olds, e8 convicts and illiterates ,ere allo,ed to vote in the
Citi"ens$ Assemblies, despite their admission that the term 4Filipino people4 in the preamble as ,ell
as 1people1 in -ections & and B of Article %% of the &(AB Constitution and in -ection &;A< of Article %%% of
the Bill of !ights includes all 1ilipino citi"ens of all ages, of both se8es, ,hether literate or illiterate,
,hether peaceful citi"ens, rebels, secessionists, convicts or e8Cconvicts. Eithout admitting that e8C
convicts voted in the referendum, about ,hich no proof ,as even offered, these sectors of our
citi"enry, ,hom petitioners seem to regard ,ith contempt or decision and ,hom petitioners ,ould
deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of
their progenies, are entitled as much as the educated, the la, abiding, and those ,ho are *& years of
age or above to e8press their conformity or non conformity to the proposed Constitution, because
their stake under the ne, Charter is not any less than the stake of the more fortunate among us. As a
matter of fact, these citi"ens, ,hose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the -tate than the rest of the citi"enry. %n the
ultimate analysis, the inclusion of those from &B years up to belo, *& years old, the e8Cconvicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the e8press affirmation in -ection & of Article %% of the Declaration of Principles that 4sovereignty
resides in the people and all government authority emanates from them.4
Moreover, e8Cconvicts granted absolute pardon are #ualified to vote. ?ot all e8Cconvicts are banned
from voting. 0nly those ,ho had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon e8piration of ten years after service of
sentence ;-ec. &9*, &('& !ev. /lec. Code<. 1urthermore, e8Cconvicts and imbeciles constitute a very
negligible number in any locality or barrio, including the localities of petitioners.
%ncluded like,ise in the delegated authority of the President, is the prerogative to proclaim the results
of the plebiscite or the voting the Citi"ens$ Assemblies. Petitioners deny the accuracy or correctness
of Proclamation ?o. &&9* that the &('A Constitution ,as ratified by the over,helming vote of close to
&B million citi"ens because there ,as no official certification to the results of the same from the
Department of +ocal 3overnments. But there ,as such certification as per Anne8 & to &CA to the
?otes submitted by the -olicitor 3eneral counsel for respondents public officers. his should suffice
to dispose of this point. /ven in the absence of such certification, in much the same ,ay that in
passing la,, Congress or the legislative body is presumed to be in possession of the facts upon
,hich such la,s are predicated ;.ustice 1ernando, he Po,er of .udicial !evie,, &(2' /d., pp. &&*C
&& citing +oren"o vs. Dir., etc., G&(*'H B9 Phil. B(B and 0$3onmore, et al7 vs. >artford, etc., G&(A&H
*)* =.-. *B&<, it should like,ise be presumed that the President ,as in possession of the fact upon
,hich Proclamation ?o. &&9* ,as based. his presumption is further strengthened by the fact that
the Department of +ocal 3overnments, the Department ?ational Defense and the Philippine
Constabulary as ,ell the Bureau of Posts are all under the President, ,hich offices as his alter ego,
are presumptively acting for and in behalf of the President and their acts are valid until disapproved or
reprobated by the President ;Planas vs. 3il, 2' Phil. 2*: 6illen vs. -ecretary of %nterior, 2' Phil. JB&<.
o deny the truth or the proclamation of the President as to the over,helming majority vote in the
Citi"ens$ Assemblies in favor of the ne, Constitution, is to charge the President ,ith falsification,
,hich is a most grievous accusation. =nder the, rules of pleadings and evidence, the petitioners have
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable
doubt in criminal prosecutions, ,here the accused is al,ays presumed to be innocent. Must this
constitutional right be reversed simply because the petitioner all assert the contraryI %s the rule of la,
they pretend invoke only valid as long as it favors themI
he presumption of regularity in the performance of official functions is accorded by the la, and
jurisprudence to acts of public officers ,hose category in the official hierarchy is very much lo,er
than that of the Chief of -tate. Ehat reason is there to ,ithhold such a presumption in favor of the
PresidentI Does the fact that the President belong to the party in po,er and that four ;J< of the five
;B< senators ,ho are petitioners in +CA2&2B belong to the opposition party, justify a discrimination
against the President in matters of this natureI =nsupported as their ,ord is by any credible and
competent evidence under the rules of evidence, must the ,ord of the petitioners prevail over that of
the Chief /8ecutive, because they happen to be former senators and delegates to the Constitutional
ConventionI More than any of the petitioners herein in all these cases, the incumbent President
reali"es that he risks the ,rath of his people being visited upon him and the adverse or hostile verdict
of history: because of the restrictions on the civil liberties of his people, inevitable concomitants of
martial la,, ,hich necessarily entail some degree of sacrifice on the part of the citi"enry. =ntil the
contrary is established or demonstrated, herein petitioners should grant that the Chief /8ecutive is
motivated by ,hat is good for the security and stability of the country, for the progress and happiness
of the people. All the petitioners herein cannot stand on the proposition that the rights under the &(AB
Constitution are absolute and invulnerable to limitations that may be needed for the purpose of
bringing about the reforms for ,hich the petitioners pretend to be clamoring for and in behalf of the
people. he five ;B< petitioners in +CA2&2B and four ;J< of the seven ;'< petitioners in +CA2&2J ,ere all
participants in the political drama of this country since &(J2. hey are ,itness to the frustrations of
,ellCmeaning Presidents ,ho ,anted to effect the reforms, especially for the benefit of the landless
and the laboring class H ho, politics and political bargaining had stymied the effectuation of such
reforms thru legislation. he eight ;)< petitioners in +CA2&2J and +CA2&2B may not have participated in
the systematic blocking of the desired reforms in Congress or outside of it: but the #uestion may be
asked as to ,hat e8actly they did to support such reforms. 1or the last seven ;'< decades since the
turn of the century, for the last thirtyCfive ;AB< years since the establishment of the Common,ealth
government in &(AB and for the last t,enty seven ;*'< years since the inauguration of the !epublic
on .uly J, &(J2, no tangible substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from &(J2 to &(B*, and the violent demonstrations of
recent memory. Congress and the oligarchs acted like ostriches, 4burying their heads in timeless
sand. 4?o, the hopes for the longCa,aited reforms to be ,ithin a year or to are brighter. %t ,ould
seem therefore to the duty of everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided for in the ne, or &('A
Constitution and thru the means prescribed in that same Constitution.
As stated in Eheeler vs. Board of rustees, 4a court is never justified in placing by implication a
limitation upon the sovereign.4
his Court in the 3on"ales and olentino cases transcended its proper sphere and encroached upon
the province e8clusively reserved to and by the sovereign people. his Court did not heed to the
principle that the courts are not the fountain of all remedies for all ,rongs. E/ cannot presume that
,e alone can speak ,ith ,isdom as against the judgment of the people on the basic instrument ,hich
affects their very lives. E/ cannot determine ,hat is good for the people or ought to be their
fundamental la,. E/ can only e8ercise the po,er delegated to =s by the sovereign people, to apply
and interpret the Constitution and the la,s for the benefit of the people, not against them nor to
prejudice them. E/ cannot perform an act inimical to the interest of 0ur principal, ,ho at any time
may directly e8ercise their sovereign po,er ratifying a ne, Constitution in the manner convenient to
them.
%t is pertinent to ask ,hether the present -upreme Court can function under the &(AB Constitution
,ithout being a part of the government established pursuant thereto. =nlike in the Borden case,
supra, ,here there ,as at least another government claiming to be the legitimate organ of the state of
!hode %sland ;although only on paper as it had no established organ e8cept Dorr ,ho represented
himself to be its head: in the cases at bar there is no other government distinct from and maintaining
a position against the e8isting government headed by the incumbent Chief /8ecutive. ;-ee aylor vs.
Common,ealth, supra<. here is not even a rebel government duly organi"ed as such even only for
domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore
stated, both the e8ecutive branch and the legislative branch established under the &(AB Constitution
had been supplanted by the government functioning under the &('A Constitution as of .anuary &',
&('A. he vice president elected under the &(AB Constitution does not asset any claim to the
leadership of the !epublic of the Philippines. Can this -upreme Court legally e8ist ,ithout being part
of any governmentI
Brilliant counsel for petitioners in +CA2&2B has been #uite e8travagant in his appraisal of Chief .ustice
!oger Brooke aney ,hom he calls the 4hero of the American Bar,4 because during the American
civil ,ar he apparently had the courage to nullify the proclamation of President +incoln suspending
the privileges of the ,rit of *a#eas corpus in E6 parte Merryman ;1ederal Case ?o. (J)' G&)2&H<. But
,ho e8actly ,as Chief .ustice !oger Brooke aneyI he /ditorial Board of 6ol. *& of the
/ncyclopedia Brit., &(22 ed. ;pp. '')C''(, &(2( ed., pp. 2BJC2B'<, briefly recounts that he ,as born
in &''' in Calvert County, Maryland, of parents ,ho ,ere landed aristocrats as ,ell as slave o,ners.
%nheriting the traditional conservatism of his parents ,ho belonged to the landed aristocracy, aney
became a la,yer in &'((, practiced la, and ,as later appointed Attorney 3eneral of Maryland. >e
also ,as a member of the Maryland state legislature for several terms. >e ,as a leader of the
1ederalist Party, ,hich disintegrated after the ,ar of &)&*, compelling him to join the Democratic
Party of Andre, .ackson, also a slave o,ner and landed aristocrat, ,ho later appointed him first as
Attorney 3eneral of the =nited -tates, then -ecretary of the reasury and in &)A2 Chief .ustice of the
=nited -tates -upreme Court to succeed Chief .ustice .ohn Marshall, in ,hich position he continued
for *) years until he died on 0ctober *&, &)2J. >is death 4,ent largely unnoticed and unregretted.4
Because he himself ,as a slave o,ner and a landed aristocrat, Chief .ustice aney sympathi"ed ,ith
the -outhern -tates and, even ,hile Chief .ustice, hoped that the -outhern -tates ,ould be allo,ed
to secede peacefully from the =nion. hat he had no sympathy for the ?egroes ,as revealed by his
decision in .re! Scott vs. San!,or! ;&( >o,. A() G&)B'H< ,here he pronounced that the American
?egro is not entitled to the rights of an American citi"en and that his status as a slave is determined
by his returning to a slave state. 0ne can therefore discern his hostility to,ards President +incoln
,hen he decided /8 parte Merryman, ,hich animosity to say the least does no befit a judicial mind.
-uch a man could hardly be spoken of as a hero of the American Bar, least of all of the American
nation. he choice of heroes should not be e8pressed indiscriminately just to embellish one$s rhetoric.
Distinguished counsel in +CA2&2B appears to have committed another historical error, ,hich may be
due to his rhetorical in the /ncyclopedia Britannica ;6ol. (, &(2( ed., pp. B9)CB9(< to this effect. 0n
the contrary, /ncyclopedia Britannica ;6ol. &' /ncyclopedia Brit., &(22 M &(2( eds., 'A*C'AA<, refers
to Marshal >enri Philippe Petain as the genuine hero or 4-avior of 6erdun4: because he held 6erdun
against the &(&2 offensive of the 3erman army at the cost of AB9,999 of his 1rench soldiers, ,ho
,ere then demorali"ed and plotting mutiny. Certainly, the surviving members of the family of Marshal
Petain ,ould not relish the error. And neither ,ould the members of the clan of Marshal 1och
ackno,ledge the undeserved accolade, although Marshal 1och has a distinct place in history on his
o,n merits. he foregoing clarification is offered in the interest of true scholarship and historical
accuracy, so that the historians, researchers and students may not be led astray or be confused by
esteemed counsel$s elo#uence and mastery of the spoken and ,ritten ,ord as ,ell as by his
eminence as la, professor, author of la, books, political leader, and member of the ne,ly integrated
Philippine Bar.
%t is #uite intriguing ,hy the eminent counsel and coCpetitioner in +CA2&2J did not address like,ise his
challenge to the five ;B< senators ,ho are petitioners in +CA2&2B to also act as 4heroes and idealists,4
to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can
muster a #uorum or by causing the arrest of other senators to secure a #uorum and thereafter
remove respondents Puyat and !oy ;Avelino, et al. vs. Cuenco, et al. G&(J(H )A Phil. &'<, if they
believe most vehemently in the justice and correctness of their position that the &('A Constitution has
not been validly ratified, adopted or ac#uiesced in by the people since .anuary &), &('A until the
present. he proclaimed conviction of petitioners in +CA2&2B on this issue ,ould have a ring of
credibility, if they proceeded first to hold a rump session outside the legislative building: because it is
not unreasonable to demand or to e8act that he ,ho e8horts others to be brave must first
demonstrate his o,n courage. -urely, they ,ill not affirm that the mere filing of their petition in +C
A2&2B already made them 4heroes and idealists.4 he challenge like,ise seems to insinuate that the
members of this Court ,ho disagree ,ith petitioners$ vie,s are materialistic co,ards or mercenary
fenceCsitters. he Court need not be reminded of its solemn duty and ho, to perform it. E/ refuse to
believe that petitioners and their learned as ,ell as illustrious counsels, scholars and liberal thinkers
that they are, do not recogni"e the sincerity of those ,ho entertain opinions that clash ,ith their o,n.
-uch an attitude does not sit ,ell ,ith the dictum that 4Ee can differ ,ithout being difficult: ,e can
disagree ,ithout being disagreeable,4 ,hich distinguished counsel in +CA2&2B is ,ont to #uote.
E/ reserve the right to prepare an e8tensive discussion of the other points raised by petitioners,
,hich Ee do not find no, necessary to deal ,ith in vie, of 0ur opinion on the main issue.
%? 6%/E 01 >/ 10!/30%?3, A++ >/ P/%%0?- %? >/-/ 1%6/ CA-/- SCOE0. "E
.IS'ISSE..
Pursuant to 0ur reservation, Ee no, discuss the other issues raised by the petitioners.
II
/6/? %1 %--=/ %- .=-%C%AB+/, P/0P+/$- !A%1%CA%0?, AD0P%0? 0! ACP=%/-C/?C/
C!/A/- -!0?3 P!/-=MP%0? 01 6A+%D%@ 01 &('A C0?-%=%0?.
As intimated in the aforecited cases, even the courts, ,hich affirm the proposition that the #uestion as
to ,hether a constitutional amendment or the revised or ne, Constitution has been validly submitted
to the people for ratification in accordance ,ith the procedure prescribed by the e8isting Constitution,
is a justiciable #uestion, accor! all presu(ption o, vali!it to t*e constitutional a(en!(ent or t*e
revise! or ne) Constitution a,ter t*e +overn(ent o,,icials or t*e people *ave a!opte! or rati,ie! or
ac;uiesce! in t*e ne) Constitution or a(en!(ent, alt*ou+* t*ere )as an ille+al or irre+ular or no
su#(ission at all to t*e people. ;Collier vs. 3ray, Jth Dec. Dig. (AB G&(AJH, >ammond vs. Clark, '&
-/ J)*CJ)A: People vs. -ours, A& Colo. A2(, 'J Pac. &2', &9* Am. -t. !ep. AJ: hompson vs.
Einneth, ') ?eb. A'(, &&9 ?E &&&A, &9 +.!.A. G?.-.H &J(: -tate vs. +aylin, 2( 0hio -t. !ep. &, 2)
?/ B'J: Eeston vs. !yan, '9 ?eb. *&&, (' ?E AJ': Combs vs. -tate, )& 3a. ')9, ) -/ A&):
Eood,ard vs. -tate, &9A 3a. J(2, A9 -/ B**: Corre vs. Cooney, '9 Mont. ABB, **B P &99', &99(<.
As late as &('&, the courts stressed that the constitutional amendment or the ne, Constitution should
not be condemned 4unless our judgment its nullity is manifest beyond reasonable doubt4 ;&('& case
of Moore vs. -hanahan, J)2 Pac. *d B92, *9' Nan. &, 2JB: and the &(B2 case of ipton vs. -mith, et
al., supra<.
Mr. .ustice /nri#ue M. 1ernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthro, such
presumption ;/rmitaCMalate >otel, etc. vs. City Mayor, +C*J2(), .uly A&, &(2', *9 -C!A )J(<.
III
C0?-%=%0?A+ C0?6/?%0? K C0C/P=A+ E%> A?D %?D/P/?D/? 01 C0?3!/--,
/D/C=%6/ A?D .=D%C%A!@.
he Constitutional Convention is coCordinate and coCe#ual ,ith, as ,ell as independent of, the three
grand departments of the 3overnment, namely, the legislative, the e8ecutive and the judicial. As a
fourth separate and distinct branch, to emphasi"e its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as ,ell as the form of the
Charter that it proposes. %t enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the 3overnment in its proceedings, including the printing of its o,n journals
;aLada and 1ernando, Constitution of the Philippines, &(B* ed., 6ol. %, pp. ) (: Malcolm and +aurel,
Phil. Const. +a,, p. **: 1rant" vs. Autry, (& Pac. &(A<. %mplicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its ,ork ,ill not be frustrated, the Convention
has the po,er to fi8 the date for the plebiscite and to provide funds therefor. o deny the Convention
such prerogative, ,ould leave it at the tender mercy of both legislative and e8ecutive branches of the
3overnment. An unsympathetic Congress ,ould not be disposed to submit the proposed Constitution
drafted by the Constitutional Convention to the people for ratification, much less appropriate the
necessary funds therefor. hat could have been the fate of the &('A Constitution, because the same
abolished the -enate by creating a unicameral ?ational Assembly to be presided by a Prime Minister
,ho ,ields both legislative and e8ecutive po,ers and is the actual Chief /8ecutive, for the President
contemplated in the ne, Constitution e8ercises primarily ceremonial prerogatives. he ne,
Constitution like,ise shortened abruptly the terms of the members of the present Congress ;,hose
terms end on December A&, &('A, &('B and &(''< ,hich provides that the ne, Constitution shall
take effect immediately upon its ratification ;-ec. &2, Article D6%%, &('A Constitution<. he fact that
-ection * of the same Article D6%%% secures to the members of Congress membership in the interim
?ational Assembly as long as they opt to serve therein ,ithin thirty ;A9< days after the ratification of
the proposed Constitution, affords them little comfort: because the convening of the interim ?ational
Assembly depends upon the incumbent President ;under -ec. AG&H, Art. D6%%, &('A Constitution<.
=nder the foregoing circumstances, the members of Congress, ,ho ,ere elected under the &(AB
Constitution, ,ould not be disposed to call a plebiscite and appropriate funds therefor to enable the
people to pass upon the &('A Constitution, ratification of ,hich means their elimination from the
political scene. hey ,ill not provide the means for their o,n li#uidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the po,er to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the po,er to delegate the same to the President, ,ho, in
estimation of the Convention can better determine appropriate time for such a referendum as ,ell as
the amount necessary to effect the same: for ,hich reason the Convention thru !esolution ?o. *(
approved on ?ovember **, &('*, ,hich superseded !esolution ?o. B)JA adopted on ?ovember &2,
&('*, proposed to the President 4that a !ecree be issued calling a plebiscite for the ratification of the
proposed ne, Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...,4 after stating in 4,hereas4 clauses that the &('& Constitutional
Convention e8pected to complete its ,ork by the end of ?ovember, &('* that the urgency of
instituting reforms rendered imperative the early approval of the ne, Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the ne, Constitution.
%f Congress can legally delegate to the Chief /8ecutive or his subaltern the po,er to promulgate
subordinate rules and regulations to implement the la,, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a coCe#ual body.
Apart from the delegation to the Chief /8ecutive of the po,er to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its !esolution ?o. *(, the organi"ation of the
Citi"ens$ Assemblies for consultation on national issues, is comprehended ,ithin the ordinanceC
making po,er of the President under -ection 2A of the !evised Administrative Code, ,hich e8pressly
confers on the Chief /8ecutive the po)er to pro(ul+ate a!(inistrative acts an! co((an!s touc*in+
on t*e or+anization or (o!e o, operation o, t*e +overn(ent or reCarranging or reCadjusting any
district, division or part of the Philippines 4or !isposin+ o, issues o, +eneral concern ... .4 ;/mphasis
supplied<. >ence, as consultative bodies representing the localities including the barrios, their
creation by the President thru Presidential Decree ?o. )2 of December A&, &('*, cannot be
successfully challenged.
he employment by the President of these Citi"ens$ Assemblies for consultation on the &('A
Constitution or on ,hether there ,as further need of a plebiscite thereon, K both issues of national
concern K is still ,ithin the delegated authority reposed in him by the Constitutional Convention as
aforesaid.
%t should be noted that !esolution ?o. *(, ,hich superseded !esolution ?o. B)JA, does not prescribe
that the plebiscite must be conducted by the Commission on /lections in accordance ,ith the
provisions of the &('& !evised /lection Code. %f that ,ere the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like 4to call a plebiscite to be supervised by the Commission on /lections
in accordance ,ith the provisions of the &('& !evised /lection Code ;or ,ith e8isting la,s<.4 hat the
Constitutional Convention omitted such phrase, can only mean that it left to the President the
determination of the manner by ,hich the plebiscite should be conducted, ,ho shall supervise the
plebiscite, and ,ho can participate in the plebiscite. he fact that said !esolution ?o. *( e8pressly
states 4that copies of this resolution as approved in plenary session be transmitted to the President of
the Philippines and the Commission on /lections for implementation,4 did not in effect designate the
Commission on /lections as supervisor of the plebiscite. he copies of said resolution that ,ere
transmitted to the Commission on /lections at best serve merely to notify the Commission on
/lections about said resolution, but not to direct said body to supervise the plebiscite. he calling as
,ell as conduct of the plebiscite ,as left to the discretion of the President, ,ho, because he is in
possession of all the facts funnelled to him by his intelligence services, ,as in the superior position to
decide ,hen the plebiscite shall be held, ho, it shall be conducted and ,ho shall oversee it.
%t should be noted that in approving said !esolution ?o. *(, the Constitutional Convention itself
recogni"ed the validity of, or validated Presidential Proclamation ?o. &9)& placing the entire country
under martial la, by resolving to 4propose to President 1erdinand /. Marcos that a !ecree be issued
calling a plebiscite ... .4 he use of the term 4decree4 is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial la,. Conse#uently, the issuance by the President of
Presidential Decree ?o. 'A on December &, &('* setting the plebiscite on .anuary &B, &('A and
appropriating funds therefor pursuant to said !esolution ?o. *(, is a valid e8ercise of such delegated
authority.
-uch delegation, unlike the delegation by Congress of the ruleCmaking po,er to the Chief /8ecutive
or to any of his subalterns, does not need sufficient standards to circumscribe the e8ercise of the
po,er delegated, and is beyond the competence of this Court to nullify. But even if ade#uate criteria
should be re#uired, the same are contained in the 4Ehereas4 clauses of the Constitutional
Convention !esolution ?o. *(, thus7
E>/!/A-, the &('& Constitutional Convention is e8pected to complete its ,ork of drafting a proposed
ne, Constitution for the !epublic by the end of ?ovember, &('*:
E>/!/A-, in vie, of the urgency of instituting reforms, the early approval of the ?e, Constitution has
become imperative:
E>/!/A-, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the ?e, Constitution:4 ;Anne8 4&4 of Ans,er, !es. ?o. *(, Constitutional
Convention<.
As Mr. .ustice 1ernando, ,ith ,hom Messrs. .ustices Barredo, Antonio and the ,riter concurred in
the Plebiscite Cases, stated7
... 0nce this ,ork of drafting has been completed, it could itself direct the submission to the people for
ratification as contemplated in Article D6 of the Constitution. >ere it did not do so. Eith Congress not
being in session, could the President, by the decree under #uestion, call for such a plebisciteI =nder
such circumstances, a ne+ative ans)er certainl coul! result in t*e )or- o, t*e Convention #ein+
ren!ere! nu+ator. he vie, has been repeatedly e8pressed in many American state court decisions that
to avoid such undesirable conse#uence the task of submission becomes ministerial, ,ith the political
branches devoid of any discretion as to the holding of an election for that purpose. ?or is the
appropriation by him of the amount necessary to be considered as offensive to the Constitution. I, it )ere
!one # *i( in *is capacit as Presi!ent, suc* an o#5ection )oul! in!ee! *ave #een ,or(i!a#le, not to
sa insur(ounta#le. I, t*e appropriation )ere (a!e in *is capacit as a+ent o, t*e Convention to assure
t*at t*ere #e su#(ission to t*e people, t*en suc* an ar+u(ent loses ,orce. T*e Convention itsel, coul!
*ave !one so. %t is understandable ,hy it should be thus. I, it )ere ot*er)ise, t*en a le+islative #o!, t*e
appropriatin+ ar( o, t*e +overn(ent, coul! conceiva#l (a-e use o, suc* aut*orit to co(pel t*e
Convention to su#(it to its )is*es, on pain o, #ein+ ren!ere! ,inanciall !istrau+*t. T*e Presi!ent t*en, i,
per,or(in+ *is role as its a+ent, coul! #e *el! as not !evoi! o, suc* co(petence. ;pp. *CA, concurring
opinion of .. 1ernando in +CAB(*B, etc., emphasis supplied<.
I@
6A3=/?/-- 0! AMB%3=%@ D0/- ?0 %?6A+%DA/ >/
&('A C0?-%=%0?
;&< Petitions challenge the &('A draft as vague and incomplete, and alluded to their arguments during
the hearings on December &) and &(, &('* on the Plebiscite Cases. But the inclusion of #uestionable
or ambiguous provisions does not affect the validity of the ratification or adoption of the &('A
Constitution itself ;Pope vs. 3ray, &9J -0, *d )J&: 'th Dec. pp. *&*C*&(, &(B2C&(22<.
Ale8ander >amilton, one of the leading founders and defenders of the American Constitution,
ans,ering the critics of the 1ederal Constitution, stated that7 4% never e8pect to see a perfect ,ork
from imperfect man. he result of the deliberations of all collective bodies must necessarily be a
compound, as ,ell of the errors and prejudices as of the good sense and ,isdom, of the individuals
of ,hom they are composed. he compacts ,hich are to embrace thirteen distinct -tates in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. >o, can perfection spring from such materialsI4 ;he 1ederalist, Modern +ibrary
/d., pp. 88C88i<.
;*< he &('A Constitution is like,ise impugned on the ground that it contains provisions ,hich are
ultra vires or beyond the po,er of the Constitutional Convention to propose.
his objection relates to the ,isdom of changing the form of government from Presidential to
Parliamentary and including such provisions as -ection A of Article %6, -ection &B of Article D%6 and
-ections A;*< and &* of Article D6%% in the &('A Constitution.
Article %6 K
-ec. A. he right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and sei"ures of ,hatever nature and for any purpose shall not be violated, and no
search ,arrant or ,arrant of arrest shall issue e6cept upon pro#a#le cause to #e !eter(ine! # t*e
5u!+e, or suc* ot*er responsi#le o,,icer as (a #e aut*orize! # la), after e8amination under oath or
affirmation of the complainant and the ,itnesses may produce, and particularly describing the place to be
searched, and the persons or things to be sei"ed.
Article D%6 K
-ec. &B. Any provision of paragraph one, -ection fourteen, Article /ight and of this Article
not,ithstanding, the Prime Minister may enter into international treaties or agreements as the national
,elfare and interest may re#uire.4 ;Eithout the consent of the ?ational Assembly.<
Article D6%% K
-ec. A;*< All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the la, of the land, and shall remain valid, legal, binding and
effective even after lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or
superseded by subse#uent proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.
888 888 888
-ec. &*. All treaties, e8ecutive agreements, and contracts entered into by the 3overnment, or any
subdivision, agency, or instrumentality thereof, including governmentCo,ned or controlled corporations,
are hereby recogni"ed as legal, valid and binding. Ehen the national interest so re#uires, the incumbent
President of the Philippines or the interim Prime Minister may revie, all contracts, concessions, permits,
or other forms of privileges for the e8ploration, development, e8ploitation, or utili"ation of natural
resources entered into, granted, issued or ac#uired before the ratification of this Constitution.
%n the Plebiscite Cases ;+CAB(*B, +CAB(*(, +CAB(J9, +CAB(J*, +CAB(J), +CAB(BA, +CAB(2&, +CAB(2B,
M +CAB('(<, Chief .ustice !oberto Concepcion, concurred in by .ustices 1ernando, Barredo, Antonio
and the ,riter, overruled this objection, thus7
... !egardless of the ,isdom and moral aspects of the contested provisions of the
proposed Constitution, it is my considered vie, that the Convention ,as legally deemed
fit to propose K save perhaps ,hat is or may be insistent ,ith ,hat is no, kno,n,
particularly in international la,, as Jus Co+ens K not only because the Convention
e8ercised sovereign po,ers delegated thereto by the people K although insofar only as
the determination of the proposals to be made and formulated by said body is concerned
K but also, because said proposals cannot be valid as part of our 1undamental +a,
unless and until 4approved by the majority of the votes cast at an election ,hich4 said
proposals 4are submitted to the people for their ratification,4 as provided in -ection & of
Article D6 of the &(AB Constitution. ;Pp. &'C&), Decision in +CAB(*B, etc.<.
his Court like,ise enunciated in .el >osario vs. Co(elec ;+CA*J'2, 0ct. *9, &('9, AB -C!A A2'<
that the Constitutional Convention has the authority to 4entirely overhaul the present Constitution and
propose an entirely ne, Constitution based on an ideology foreign to the democratic system ...:
because the same ,ill be submitted to the people for ratification. 0nce ratified by the sovereign
people, there can be no debate about the validity of the ne, Constitution.4
Mr. .ustice 1ernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in
the Del !osario case, supra, and added7 4... it seems to me a sufficient ans,er that once convened,
the area open for deliberation to a constitutional convention ..., is practically limitless4 ;citing Cf.
Noehler vs. >ill, &J ?E 'A), 29 %o,a BJA G&))AH: >atch -toneman, 2 P 'AJ, 22 Cal. 2A* G&))BH:
MacMillan v. Blattner, *B ?E *JB, 2' %o,a *)' G&)(BH: -tate v. Po,ell, *' -0 *(', '' Miss. BJA
G&(99H: >ammond v. Clark, '& -/ J'(, &A2 3a. A&A G&(&&H: >amilton v. 6aughan, &'( ?E BAA, *&*
Mich. A& G&(*9H: -tate v. -mith, &A) ?/ ))&, &9B 0hio -t. B'9 G&(**H: +ooney vs. +eeper, *(* P A2B,
&JB 0kl. *9* G&(A9H: -chool District vs. City of Pontiac, *J' ?E J'J, *2* Mich. AA) G&(AAH<.
Mr. .ustice Barredo, in his concurring opinion in said Plebiscite Cases, e8pressed the vie, 4that ,hen
the people elected the delegates to the Convention and ,hen the delegates themselves ,ere
campaigning, such limitation of the scope of their function and objective ,as not in their minds.4
@
&('A C0?-%=%0? D=+@ AD0P/D A?D
P!0M=+3A/D.
Petitioners ne8t claim that the &('& Constitutional Convention adjourned on ?ovember A9, &('*
,ithout officially promulgating the said Constitution in 1ilipino as re#uired by -ections A;&< of Article
D6 on 3eneral Provisions of the &('A Constitution. his claim is ,ithout merit because their Anne8
4M4 is the 1ilipino version of the &('A Constitution, like the /nglish version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its -ecretary,
that the proposed Constitution, approved on second reading on the *'th day of ?ovember, &('* and
on third reading in the Convention$s *(&st plenary session on ?ovember *(, &('* and accordingly
signed on ?ovember &('* by the delegates ,hose signatures are thereunder affi8ed. %t should be
recalled that Constitutional Convention President Diosdado Macapagal ,as, as President of the
!epublic &(2* to &(2B, then the titular head of the +iberal Party to ,hich four ;J< of the petitioners in
+CA2&2B including their counsel, former -enator .ovito -alonga, belong. Are they repudiating and
diso,ning their former party leader and benefactorI
@I
A!%C+/ D6 01 &(AB C0?-%=%0? D0/- ?0
P!/-C!%B/ A?@ P!0C/D=!/ 10! !A%1%CA%0? 01
&('A C0?-%=%0?.
;&< Article D6 of the &(AB Constitution simply provides that 4such amendments shall be valid as part
of this Constitution ,hen approved by a majority of the votes cast at an election at ,hich the
amendments are submitted to the people for ratification.4
But petitioners construe the aforesaid provision to read7 4-uch amendments shall be valid as part of
this Constitution ,hen approved by a majority of the votes cast at an election calle! # Con+ress at
,hich the amendments are submitted for ratification by the ;uali,ie! electors !e,ine! in 3rticle @
*ereo,, supervise! # t*e Co((ission on Elections in accor!ance )it* t*e e6istin+ election la) an!
a,ter suc* a(en!(ents s*all *ave #een pu#lis*e! in all t*e ne)spapers o, +eneral circulation ,or at
least ,our (ont*s prior to suc* election.4
his position certainly imposes limitation on the sovereign people, ,ho have the sole po,er of
ratification, ,hich imposition by the Court is never justified ;Eheeler vs. Board of rustees, supra<.
%n effect, petitioners and their counsels are amending by a strained and tortured construction Article
D6 of the &(AB Constitution. his is a clear case of usurpation of sovereign po,er they do not
possess K through some kind of escamotage. his Court should not commit such a grave error in the
guise of judicial interpretation.
%n all the cases ,here the court held that illegal or irregular submission, due to absence of substantial
compliance ,ith the procedure prescribed by the Constitution andFor the la,, nullifies the proposed
amendment or the ne, Constitution, the procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or special election, or at the election for
members of the -tate legislature only or of all state officials only or of local officials only, or of both
state and local officials: fi8es the date of the election or plebiscite limits the submission to only
electors or #ualified electors: prescribes the publication of the proposed amendment or a ne,
Constitution for a specific period prior to the election or plebiscite: and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot ,hich
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authori"es e8pressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. -ee the -tate Constitutions of Alabama G&(9&H:
Ari"ona G&(&*H: Arkansas G&)'JH: Colorado G&('2H: Connecticut G&)&)H: 1lorida G&))'H: 3eorgia G&(JBH:
%llinois G&('9H: %ndiana G&)B&H: %o,a G&)B'H: Nansas G&)2&H: Nentucky G&)(&H: +ouisiana G&(*&H:
Maryland G&)2'H: Massachusetts G&'(9H: Michigan G&(9(H: Minnesota G&)B'H: Mississippi G&)(9H: and
Missouri G&(JBH<.
As typical e8amples7
Constitution of Alabama ;&(9&<7
Article D6%%%. Mode of Amending the Constitution
-ec. *)J. +egislative Proposals. Amendments may be proposed to this Constitution by the legislature in
the manner follo,ing7 he proposed amendments shall be read in the house in ,hich they originate on
three several days, and, if upon the third reading, threeCfifths of all the members elected to that house
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in ,hich they shall
like,ise be read on three several days, and if upon the third reading, threeCfifths of all the members
elected that house shall vote in favor of the proposed amendments, the le+islature s*all or!er an election
# t*e ;uali,ie! electors o, t*e state upon suc* propose! a(en!(ents, to #e *el! eit*er at t*e +eneral
election ne6t succee!in+ t*e session of the legislature at ,hich the amendments are proposed or upon
anot*er !a appointe! # t*e le+islature, not less t*an t*ree (ont*s a,ter t*e ,inal a!5ourn(ent of the
session of the legislature at ,hich the amendments ,ere proposed. Notice o, suc* election, together ,ith
the proposed amendments, shall be given by proclamation of the governor, )*ic* s*all #e pu#lis*e! in
ever count in such manner as the legislature shall direct, ,or at least ei+*t successive )ee-s ne6t
prece!in+ t*e !a appointe! ,or suc* election. 0n the day so appointed an election shall be held for the
vote of the #ualified electors of the state upon the proposed amendments. %f such election be held on the
day of the general election, the officers of such general election shall open a poll for the vote of the
#ualified electors upon the proposed amendments: if it be held on a day other than that of a general
election, officers for such election shall be appointed: and the election shall be held in all things in
accordance ,ith the la, governing general elections. %n all elections upon such proposed amendments,
t*e votes cast t*ereat s*all #e canvasse!, ta#ulate!, an! returns t*ereo, #e (a!e to t*e secretar o,
state, and counted, in the same manner as in elections for representatives to the legislature: and if it shall
thereupon appear that a majority of the #ualified electors ,ho voted at such election upon the proposed
amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as
parts of this Constitution. he result of such election shall be made kno,n by proclamation of the
governor. !epresentation in the legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
-ec. *)B. 1orm of ballot for amendment. =pon the ballots used at all elections provided for in section *)J
of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. 1ollo,ing each proposed amendment on the ballot shall be
printed the ,ord 4@es4 and immediately under that shall be printed the ,ord 4?o4. he choice of the
elector shall be indicated by a cross mark made by him or under his direction, opposite the ,ord
e8pressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a
majority of all the #ualified electors ,ho vote at such election.
Constitution of Arkansas ;&)'J<7
Article D%D. Miscellaneous Provisions.
-ec. **. Constitutional amendments. /ither branch of the 3eneral Assembly at a regular session thereof
may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments s*all #e entere! on t*e 5ournal )it* t*e
eas an! nas, an! pu#lis*e! in at least one ne)spaper in eac* count, )*ere a ne)spaper is
pu#lis*e!, ,or si6 (ont*s i((e!iatel prece!in+ t*e ne6t +eneral election ,or Senators an!
>epresentatives, at )*ic* ti(e t*e sa(e s*all #e su#(itte! to t*e electors o, t*e State ,or approval or
re5ection, and if a majority of the electors voting at such election adopt such amendments, the same shall
become a part of this Constitution: #ut no (ore t*an t*ree a(en!(ents s*all #e propose! or su#(itte! at
t*e sa(e ti(e. T*e s*all #e so su#(itte! as to ena#le t*e electors to vote on eac* a(en!(ent
separatel.
Constitution of Nansas ;&)2&<7
Article D%6. Amendments.
-ec. &. Proposal of amendments: publications: elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature: and if t,o thirds of all the members elected
to each house shall concur therein, such proposed amendments, together ,ith the yeas and nays, shall
be entered on the journal: and the secretary of state shall cause the same to be published in at least one
ne,spaper in each county of the state ,here a ne,spaper is published, for three months preceding the
ne8t election for representatives, at ,hich time, the same shall be submitted to the electors, for their
approval or rejection: and if a majority of the electors voting on said amendments, at said election, shall
adopt the amendments, the same shall become a part of the constitution. Ehen more than one
amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to
vote on each amendments separately: and not more than three propositions to amend shall be submitted
at the same election.
Constitution of Maryland ;&)2'<7
Article D%6. Amendments to the Constitution.
-ec. &. Proposal in general assembly: publication: submission to voters: governor$s proclamation. he
3eneral Assembly may propose Amendments to this Constitution: provided that each Amendment shall
be embraced in a separate bill, embodying the Article or -ection, as the same ,ill stand ,hen amended
and passed by three fifths of all the members elected to each of the t,o >ouses, by yeas and nays, to be
entered on the .ournals ,ith the proposed Amendment. he bill or bills proposing amendment or
amendments shall be published by order of the 3overnor, in at least t,o ne,spapers, in each County,
,here so many may be published, and ,here not more than one may be published, then in the
ne,spaper, and in three ne,spapers published in the City of Baltimore, once a ,eek for four ,eeks
immediately preceding the ne8t ensuing general election, at ,hich the proposed amendment or
amendments shall be submitted, in a form to be prescribed by the 3eneral Assembly, to the #ualified
voters of the -tate for adoption or rejection. he votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the 3overnor, in the manner prescribed in other cases, and if
it shall appear to the 3overnor that a majority of the votes cast at said election on said amendment or
amendments, severally, ,ere cast in favor thereof, the 3overnor shall, by his proclamation, declare the
said amendment or amendments having received said majority of votes, to have been adopted by the
people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. Ehen t,o or more amendments shall be submitted in the manner
aforesaid, to the voters of this -tate at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri ;&(JB<7
Article D%%. Amending the Constitution.
-ec. *;b<. -ubmission of amendments proposed by general assembly or by the initiative. All amendments
proposed by the general assembly or by the initiative shall be submitted to the electors for their approval
or rejection by official ballot title as may be provided by la,, on a separate ballot ,ithout party
designation, at the ne8t general election, or at a special election called by the governor prior thereto, at
,hich he may submit any of the amendments. ?o such proposed amendment shall contain more than
one amended and revised article of this constitution, or one ne, article ,hich shall not contain more than
one subject and matters properly connected there,ith. %f possible, each proposed amendment shall be
published once a ,eek for t,o consecutive ,eeks in t,o ne,spapers of different political faith in each
county, the last publication to be not more than thirty nor less than fifteen days ne8t preceding the
election. %f there be but one ne,spaper in any county, publication of four consecutive ,eeks shall be
made. %f a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at
the end of thirty days after the election. More than one amendment at the same election shall be so
submitted as to enable the electors to vote on each amendment separately.
Article D6 of the &(AB Constitution does not re#uire a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify ,hat kind of election
at ,hich the ne, Constitution shall be submitted: nor does it designate the Commission on /lections
to supervise the plebiscite. ?either does it limit the ratification to the #ualified electors as defined in
Article 6 of the &(AB Constitution. Much less does it re#uire the publication of the proposed
Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite
should be supervised in accordance ,ith the e8isting election la,.
;*< As afore#uoted, Article D6 does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. %t does not make any reference to the Commission on
/lections as the body that shall supervise the plebiscite. And Article D6 could not make any reference
to the Commission on /lections because the original &(AB Constitution as ratified on May &J, &(AB by
the people did not contain Article D on the Commission on /lections, ,hich article ,as included
therein pursuant to an amendment by that ?ational Assembly proposed only about five ;B< years later
K on April &&, &(J9, ratified by the people on .une &), &(J9 as approved by the President of the
=nited -tates on December &(J9 ;see -umulong vs. Commission, '9 Phil. '9A, '&A, '&B: 3on"ales,
Phil. Const. +a,, &(22 ed., p. &A<. -o it cannot be said that the original framers of the &(AB
Constitution as ratified May &J, &(AB intended that a body kno,n as the Commission on /lections
should be the one to supervise the plebiscite, because the Commission on /lections ,as not in
e8istence then as ,as created only by Common,ealth Act ?o. 29' approved on August **, &(J9 and
amended by Common,ealth Act ?o. 2B' approved on .une *&, &(J& ;see aLada M Carreon,
Political +a, of the Philippines, 6ol. %, &(2& ed., pp. J'BCJ'2: -umulong vs. Commission, &'9 Phil.
'9A, '9)C'&B: 'A Phil. *)), *(9CA99: aLada M 1ernando, Constitution of the Philippines, &(BA ed.,
6ol. %, p. B, 6ol. %%,
pp. &&C&(<.
Because before August, &(J9 the Commission on /lection ,as not yet in e8istence, the former
Department of %nterior ;no, Department of +ocal 3overnments and Community Development<
supervised the plebiscites on the &(A' amendment on ,oman$s suffrage, the &(A( amendment to the
0rdinance appended to the &(AB Constitution ;ydingsCNocialko,ski Act of the =.-. Congress< and
the three &(J9 amendments on the establishment of a bicameral Congress, the reCelection of the
President and the 6iceCPresident, and the creation of the Commission on /lections ;ratified on .une
&), &(J9<. he supervision of said plebiscites by the then Department of %nterior ,as not automatic,
but by virtue of an e8press authori"ation in Common,ealth Act ?os. AJ, J( and B&'.
%f the ?ational Assembly then intended that the Commission on /lections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have like,ise proposed
the corresponding amendment to Article D6 by providing therein that the plebiscite on amendments
shall be supervised by the Commission on /lections.
A< %f the framers of the &(AB Constitution and the people in ratifying the same on May &J, &(AB
,anted that only the #ualified voters under Article 6 of the &(AB Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in &(AB or in
the &(J9 amendment by just adding a fe, ,ords to Article D6 by changing the last phrase to
4submitted for ratification to the #ualified electors as defined in Article 6 hereof,4 or some such similar
phrases.
hen again, the term 4people4 in Article D6 cannot be understood to e8clusively refer to the #ualified
electors under Article 6 of the &(AB Constitution because the said term 4people4 as used in several
provisions of the &(AB Constitution, does not have a uniform meaning. hus in the preamble, the term
41ilipino people4 refer, to all 1ilipino citi"ens of all ages of both se8es. %n -ection & of Article %% on the
Declaration of Principles, the term 4people4 in ,hom sovereignty resides and from ,hom all
government authority emanates, can only refer also to 1ilipino citi"ens of all ages and of both se8es.
But in -ection B of the same Article %% on social justice, the term 4people4 comprehends not only
1ilipino citi"ens but also all aliens residing in the country of all ages and of both se8es. +ike,ise, that
is the same connotation of the term 4people4 employed in -ection &;A< of Article %%% on the Bill of
!ights concerning searches and sei"ures.
Ehen the &(AB Constitution ,ants to limit action or the e8ercise of a right to the electorate, it does so
e8pressly as the case of the election of senators and congressmen. -ection * Article 6% e8pressly
provides that the senators 4shall be chosen at large by the #ualified electors of the Philippines as may
provided by la,.4 -ection B of the same Article 6% specifically provides that congressmen shall 4be
elected by the #ualified electors.4 he only provision that seems to sustain the theory of petitioners
that the term 4people4 in Article D6 should refer to the #ualified electors as defined in Article 6 of the
&(AB Constitution is the provision that the President and 6iceCPresident shall be elected 4by direct
vote of the people.4 ;-ec. * of Art. 6%% of the &(AB Constitution<. But this alone cannot be conclusive
as to such construction, because of e8plicit provisions of -ections * and B of Article 6%, ,hich
specifically prescribes that the senators and congressmen shall be elected by the #ualified electors.
As aforesaid, most of the constitutions of the various states of the =nited -tates, specifically delineate
in detail procedure of ratification of amendments to or revision of said Constitutions and e8pressly
re#uire ratification by #ualified electors, not by the generic term 4people4.
he proposal submitted to the 0"amis Committee on the Amending Process of the &(AJCAB
Constitutional Convention satis,ie! t*at t*e a(en!(ent s*all #e su#(itte! to ;uali,ie! election ,or
rati,ication. T*is proposal )as not accepte! in!icatin+ t*at t*e $%7J478 Constitutional Convention !i!
inten! to li(it t*e ter( 1people1 in 3rticle I@ o, t*e $%78 Constitution to ;uali,ie! electors onl. As
above demonstrated, the &(AJCAB Constitutional Convention limits the use of the term 4#ualified
electors4 to elections of public officials. %t did not ,ant to tie the hands of succeeding future
constitutional conventions as to ,ho should ratify the proposed amendment or revision.
;J< %t is not e8actly correct to opine that Article D6 of &(AB Constitution on constitutional amendment
contemplates the automatic applicability of election la,s to plebiscites on proposed constitutional
amendments or revision.
he very phraseology of the specific la,s enacted by the ?ational Assembly and later by Congress,
indicates that there is need of a statute e8pressly authori"ing the application of the election la,s to
plebiscites of this nature. hus, Com. Act ?o. AJ on the ,oman$s suffrage amendment enacted on
-eptember A9, &(A2, consists of &* sections and, aside from providing that 4there shall be held a
ple#iscite on Fri!a, 3pril 7F, $%77, on the #uestion of ,oman$s suffrage ... and that said amendment
s*all #e pu#lis*e! in the 0fficial 3a"ette in /nglish and -panish for three consecutive issues at least
,i,teen :$8< !as prior to sai! election, ... an! s*all #e poste! in a conspicuous place in its (unicipal
an! provincial o,,ice #uil!in+ an! in its pollin+ place not later t*an 3pril 22, $%774 ;-ec. &*, Com. Act
?o. AJ<, specifies that the provisions of the /lection +a, regarding, the holding of a special election,
insofar as said provisions are not in conflict ,ith it, should apply to the said plebiscite ;-ec. A, Com.
Act ?o. AJ<&: and, that the votes cast according to the returns of the board of inspectors s*all #e
counte! # t*e National 3sse(#l ;-ec. &9, Com. Act ?o. AJ<.
he election la,s then in force before &(A) ,ere found in -ections A(*CJ)A of the !evised
Administrative Code.
-ec. & of Com. Act ?o. AB', the previous /lection Code enacted on August **, &(A), makes it
e8pressly applicable to plebiscites. @et the subse#uent la,s, namely, Com. Act ?os. J(* and B&'
and !ep. Act ?o. 'A calling for the plebiscite on the constitutional amendments in &(A(, &(J9 and
&(J2, including the amendment creating the Commission on /lections, specifically provided that the
provisions of the e8isting election la, shall apply to such plebiscites insofar as they are not
inconsistent ,ith the aforesaid Com. Act ?os. J(* and B&', as ,ell as !ep. Act ?o. 'A. hus K
Common,ealth Act ?o. J(*, enacted on -eptember &(, &(A(, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the ?ational Assembly on -eptember &B, &(A(, consists
of ) sections and provides that the proposed amendments to the Constitution adopted in !esolution
?o. A( on -eptember &B, &(A( 4shall be submitted to the 1ilipino people for approval or disapproval
at a +eneral election to be held throughout the Philippines on uesday, 0ctober *J, &(A(4: that the
amendments to said Constitution proposed in 4!es. ?o. A), adopted on the same date, shall be
submitted at follo,ing election of local officials,4 ;-ec. &, Com. Act ?o. J(*< that the said
amendments shall be published in /nglish and -panish in three consecutive issues of the 0fficial
3a"ette at least ten :$F< !as prior to t*e elections: that copies thereof shall be posted not later than
0ctober *9, &(A( ;-ec. *, Com. Act J(*<: that the election shall be conducted accor!in+ to provisions
o, t*e Election Co!e inso,ar as t*e sa(e (a #e applica#le: that ,ithin thirty ;A9< days after the
election, Spea-er o, t*e National 3sse(#l s*all re;uest t*e Presi!ent to call a special session o, t*e
3sse(#l for the purpose of canvassing the returns and certify the results thereof ;-ec. 2, Com. Act
?o. J(*<.
Common,ealth Act ?o. B&', consisting of && sections, ,as approved on April *B, &(J9 and provided,
among others7 that the plebiscite on the constitutional amendments providing bicameral Congress, reC
election of the President and 6iceCPresident, and the creation of a Commission on /lections shall be
held at a general election on .une &), &(J9 ;-ec. &<: that said amendments shall be published in
three consecutive issues of the 0fficial 3a"ette in /nglish and -panish at least *9 days prior to the
election and posted in every local government office building and polling place not later than May &),
&(J9 ;-ec. *<: that the election shall be conducted in conformity ,ith the /lection Code insofar as the
same may be applicable ;-ec. A< that copies of the returns shall be for,arded to the -ecretary of
?ational Assembly and the -ecretary of %nterior ;-ec. '<: that the ?ational Assembly shall canvass
the returns to certify the results at a special session to be called by President ;-ec. )<.
!epublic Act ?o. 'A approved on 0ctober *&, &(J2 calling for a plebiscite on the parity amendment
consists of ) sections provides that the Amendment 4shall be submitted to the people, for approval or
disapproval, at a +eneral election ,hich shall be held on 'arc* $$, $%J7, in accordance ,ith the
provisions of this Act4 ;-ec. &, !.A. ?o. 'A<: that the said amendment shall be pu#lis*e! in /nglish
and -panish in three consecutive issues of the 0fficial 3a"ette at least 2F !as prior to t*e election:
that copies of the same shall be poste! in a conspicuous place and in every polling place not later
t*an Fe#ruar $$, $%J7 ;-ection *, !.A. ?o. 'A<: t*at t*e provisions o, Co(. 3ct No. 787 :Election
Co!e< and Com. Act ?o. 2B' creating the Commission on /lections, s*all appl to t*e election
inso,ar as t*e are not inconsistent )it* t*is 3ct ;-ec. A, !.A. ?o. 'A<: and that ,ithin A9 days after
the election, the -enate and >ouse of !epresentatives shall hold a joint session to canvass the
returns and certify the results thereof ;-ection 2, !.A. ?o. 'A<.
1rom the foregoing provisions, it is patent that Article D6 of the &(AB Constitution does not
contemplate nor envision the automatic application of the election la,: and even at that, not all the
provisions of the election la, ,ere made applicable because the various la,s aforecited contain
several provisions ,hich are inconsistent ,ith the provisions of the !evised /lection Code ;Com. Act
?o. AB'<. Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments ,as about &9 days, &B days or *9 days, and for posting at least J days, )
days or A9 days.
!epublic Acts ?os. &)9 and 2A)) like,ise e8pressly provide that the /lection Code shall apply to
plebiscites ;-ee. *, !.A. ?o. &)9, as amended, and -ection *, !ep. Act ?o. 2A))<.
%f the /lection Code ipso ,acto applies to plebiscites under Article D6 of the &(AB Constitution, there
,ould be no need for Congress to e8pressly provide therefor in the election la,s enacted after the
inauguration of the Common,ealth government under the &(AB Constitution.
;B< Article D6 of the &(AB Constitution does not specify ,ho can vote and ho, they shall vote. =nlike
the various -tate Constitutions of the American =nion ;,ith fe, e8ceptions<, Article D6 does not state
that only #ualified electors can vote in the plebiscite. As aboveCintimated, most of the Constitutions of
the various states of the =nited -tates provide for very detailed amending process and specify that
only #ualified electors can vote at such plebiscite or election.
Congress itself, in enacting !epublic Act ?o. AB(9, other,ise kno,n as the Barrio Charter, ,hich ,as
approved on .une &', &(2' and superseded !epublic Act ?o. *A'9, e8panded the membership of
the barrio assembly to include citi"ens ,ho are at least &) years of age, ,hether literate or not,
provided they are also residents of the barrio for at least 2 months ;-ec. J, !.A. ?o. AB(9<.
-ec. J. he barrio assembly. K he barrio assembly shall consist of all persons ,ho are residents of the
barrio for at least si8 months, ei+*teen ears o, a+e or over, citi"ens of the !epublic of the Philippines and
,ho are !ul re+istere! in t*e list o, #arrio asse(#l (e(#ers kept by the Barrio -ecretary.
he #arrio asse(#l s*all (eet at least once a ear to *ear t*e annual report o, t*e #arrio council
concernin+ t*e activities an! ,inances o, t*e #arrio.
%t shall meet also at the case of the barrio council or upon ,ritten petition of at least 0neCenth of the
members of the barrio assembly.
?o meeting of the barrio assembly shall take place unless notice is given one ,eek prior to the meeting
e8cept in matters involving public safety or security in ,hich case notice ,ithin a reasonable time shall be
sufficient. he barrio captain, or in his absence, the councilman acting as barrio captain, or an asse(#l
(e(#er selecte! !urin+ t*e (eetin+, s*all act as presi!in+ o,,icer at all (eetin+s o, t*e #arrio asse(#l.
he barrio secretary or in his absence, an (e(#er !esi+nate! # t*e presi!in+ o,,icer to act as
secretar s*all !isc*ar+e t*e !uties o, secretar o, t*e #arrio asse(#l.
1or the purpose of conducting business and taking any official action in the barrio assembly, it is
necessary that at least one4,i,t* o, t*e (e(#ers o, t*e #arrio asse(#l #e present to constitute a ;uoru(.
3ll actions s*all re;uire a (a5orit vote o, t*ese present at t*e (eetin+ t*ere #ein+ a ;uoru(.
-ec. B. Po,ers of the barrio assembly. K he po,ers of the barrio assembly shall be as follo,s7
a. o recommend to the barrio council the adoption of measures for the ,elfare of the
barrio:
b. o decide on the holding of a plebiscite as provided for in -ection 2 of this Act:
c. o act on budgetary and supplemental appropriations and special ta8 ordinances
submitted for its approval by the barrio council: and
d. o hear the annual report council concerning the activities and finances of the
assembly.
-ec. 2. Plebiscite. K A plebiscite may be held in the barrio ,hen authori"ed by a majority vote of the
members present in the barrio assembly, there being a #uorum, or ,hen called by at least four members
of the barrio council: Provided, ho,ever, hat no plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been given the ,idest publicity in the barrio, stating the
date, time, and place thereof, the #uestions or issues to be decided, action to be taken by the voters, and
such other information relevant to the holding of the plebiscite.
3ll !ul re+istere! #arrio asse(#l (e(#ers ;uali,ie! to vote (a vote in t*e ple#iscite. @otin+
proce!ures (a #e (a!e eit*er in )ritin+ as in re+ular election, an!Lor !eclaration # t*e voters to the
board of election tellers. he board of election tellers shall be the same board envisioned by section ),
paragraph * of this Act, in case of vacancies in this body, the barrio council may fill the same.
3 ple#iscite (a #e calle! to !eci!e on t*e recall o, an (e(#er o, t*e #arrio council. A plebiscite shall
be called to approve an #u!+etar, supple(ental appropriations or special ta6 or!inances.
For ta-in+ action on an o, t*e a#ove enu(erate! (easures, (a5orit vote o, all t*e #arrio asse(#l
(e(#ers re+istere! in t*e list o, #arrio secretar is necessar.
888 888 888
-ec &9. Pualifications of voters and candidates. K /very citi"en of the Philippines, t,entyCone years of
age or over, able to read and ,rite, ,ho has been a resident of the barrio during the si8 months
immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, ,ho is
not other,ise dis#ualified, (a vote or #e a can!i!ate in t*e #arrio elections.
he follo,ing persons shall not be #ualified to vote7
a. Any person ,ho has been sentenced by final judgment to suffer one year or more of
imprisonment, ,ithin t,o years after service of his sentence:
b. Any person ,ho has violated his allegiance to the !epublic of the Philippines: and
c. %nsane or feebleCminded persons.
All these barrio assembly members, ,ho are at least &) years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on ,hich re#uires 4a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary4 ;par. B, -ec. 2, !.A. ?o. AB(9<.
-uch plebiscite may be authori"ed by a majority vote of the members present in the barrio assembly,
there being a #uorum ;par. &, -ec. 2<.
>o,ever, in the case of election of barrio officials, only 1ilipino citi"ens, ,ho are at least *& years of
age, able to read and ,rite, residents of the barrio during the 2 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not other,ise
dis#ualified, may vote ;-ec. &9, !.A. ?o. AB(9<.
Paragraph * of -ection 2 like,ise authori"es open voting as it provides that 4voting procedures may
be made ... either in ,riting as in regular elections, andFor !eclaration # t*e voters to the board of
election tellers.4
hat said paragraph * of -ection 2 provides that 4all duly registered barrio assembly members
#ualified to vote may vote in the plebiscite,4 cannot sustain the position of petitioners in 3.!. ?o. +C
A2&2B that only those ,ho are *& years of age and above and ,ho possess all other #ualifications of
a voter under -ection &9 of !.A. ?o. AB(9, can vote on the plebiscites referred to in -ection 2:
because paragraph A of -ection 2 does not e8pressly limit the voting to those ,ith the #ualifications
under -ection &9 as said -ection 2 does not distinguish bet,een those ,ho are *& or above on the
one hand and those &) or above but belo, *& on the other, and ,hether literate or not, to constitute a
#uorum of the barrio assembly.
Conse#uently, on #uestions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are &) years of age or above: and that only those ,ho are *&
years of age or over and can read and ,rite, can vote in the elections of barrio officials.
0ther,ise there ,as no sense in e8tending membership in the barrio assembly to those ,ho are at
least &) years of age, ,hether literate or not. !epublic Act ?o. AB(9 could simply have restated
-ection J of !epublic Act ?o. *A'9, the old Barrio Charter, ,hich provided that only those ,ho are *&
and above can be members of the barrio assembly.
Counsels -alonga and aLada as ,ell as all the petitioners in +CA2&2B and t,o of the petitioners in +C
A2&2J participated in the enactment of !epublic Act ?o. AB(9 and should have kno,n the intendment
of Congress in e8panding the membership of the barrio assembly to include all those &) years of age
and above, ,hether literate or not.
%f Congress in the e8ercise of its ordinary legislative po,er, not as a constituent assembly, can
include &)Cyear olds as #ualified electors for barrio plebiscites, this prerogative can also be e8ercised
by the Chief /8ecutive as delegate of the Constitutional Convention in regard to the plebiscite on the
&('A Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation ?o. &&9* that the
&('A Constitution ,as over,helmingly ratified by the people through the Citi"ens$ Assemblies in a
referendum conducted from .anuary &9 to &B, &('A, should be accorded the presumption of
correctness: because the same ,as based on the certification by the -ecretary of the Department of
+ocal 3overnment and Community Development ,ho tabulated the results of the referendum all over
the country. he accuracy of such tabulation and certification by the said Department -ecretary
should like,ise be presumed: because it ,as done in the regular performance of his official functions
aside from the fact that the act of the Department -ecretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter disapproves or reprobates the same
;6illena vs. -ecretary of %nterior, 2' Phil. JB& <. he truth of the certification by the Department
-ecretary and the Chief /8ecutive on the results of the referendum, is further strengthened by the
affidavits and certifications of 3overnor %sidro !odrigue" of !i"al, Mayor ?orberto -. Amoranto of
Pue"on City and Councilor /duardo . Parades of Pue"on City.
he procedure for the ratification of the &(A' amendment on ,oman suffrage, the &(A( amendment
to the ordinance appended to the &(AB Constitution, the &(J9 amendments establishing the
bicameral Congress, creating the Commission on /lections and providing for t,o consecutive terms
for the President, and the &(J' parity amendment, cannot be invoked: because those amendments
,ere proposed by the ?ational Assembly as e8pressly authori"ed by Article 6 of the &(AB
Constitution respecting ,oman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for
the submission of the proposed amendments to the &(AB Constitution.
%n the cases at bar, the &('A Constitution ,as proposed by an independent Constitutional
Convention, ,hich as heretofore discussed, has the e#ual po,er to prescribe the modality for the
submission of the &('A Constitution to the people for ratification or delegate the same to the
President of the !epublic.
he certification of 3overnor %sidro !odrigue" of !i"al and Mayor ?orberto Amoranto could be
utili"ed as the basis for the e8trapolation of the Citi"ens$ Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citi"ens$ Assemblies resulting from such e8trapolation ,ould still constitute a majority of the total
votes cast in favor of the &('A Constitution.
As claimed by petitioners in +CA2&2B, against the certification of the Department of +ocal 3overnment
and Community Development that in !i"al there ,ere &,&*2,999 @es votes and &99,A&9 ?o votes,
the certification of 3overnor %sidro !odrigue" of !i"al, sho,s only 2&J,&B' @es votes against *(*,BA9
?o votes. %n Cavite province, there ,ere *J(,))* @es votes against &*,*2( ?o votes as disclosed in
Anne8 &CA of respondents$ Compliance ;the certification by the Department of +ocal 3overnment and
Community Development<, ,hile the alleged certification of 3overnor +ino Bocalan of Cavite sho,s
only &*2,&2A @es votes and B,B'' ?o votes. %f such a ratio is e8tended by ,ay of e8trapolation to the
other provinces, cities and to,ns of the country, the result ,ould still be an over,helming vote in
favor of the &('A Constitution.
he alleged certification by 3overnor +ino Bocalan of Cavite, is not true: because in his duly
ackno,ledged certification dated March &2, &('A, he states that since the declaration of martial la,
and up to the present time, he has been under house arrest in his residence in =rdaneta 6illage,
Makati, !i"al: that he never participated in the conduct of the Citi"ens$ Assemblies on .anuary &9 &B,
&('A in the province of Cavite: that the acting chairman and coordinator of the Citi"ens$ Assemblies at
that time ,as 6iceC3overnor Dominador Camerino: and that he ,as sho,n a letter for his signature
during the conduct of the Citi"ens$ Assemblies, ,hich he did not sign but ,hich he referred to 6iceC
3overnor Camerino ;Anne8 &C!ejoinder of the -ol. 3en. dated March *9, &('A<.
Mayor Pablo Cuneta like,ise e8ecuted an affidavit dated March &2, &('A stating that on .anuary &B,
&('A, he caused the preparation of a letter addressed to -ecretary .ose !oLo of the Department of
+ocal 3overnment and Community Development sho,ing the results of the referendum in Pasay
City: that on the same day, there ,ere still in any Citi"ens$ Assemblies holding referendum in Pasay
City, for ,hich reason he did not send the aforesaid letter pending submittal of the other results from
the said Citi"ens$ Assemblies: and that in the afternoon of .anuary &B, &('A, he indorsed the
complete certificate of results on the referendum in Pasay City to the 0ffice of the President ;Anne8
BC!ejoinder of -ol. 3en. dated March *9, &('A<.
Pablo 1. -amonte, Assistant City reasurer and 0fficer in Charge of Pasay City also issued an
affidavit dated March &B, &('A stating that a certain Atty. Delia -utton of the -alonga +a, 0ffice
asked him for the results of the referendum: that he informed her that he had in his possession
unsigned copies of such results ,hich may not be considered official as they had then no kno,ledge
,hether the original thereof had been signed by the mayor: and that in spite of his advice that said
unsigned copies ,ere not official, she re#uested him if she could give her the unofficial copies
thereof, ,hich he gave in good faith ;Anne8 CC!ejoinder to the -ol. 3en.<.
here ,ere &&),9&9 @es votes as against B,B)) ?o votes in the Citi"ens$ Assemblies of Pue"on city
;Anne8 6 to Petitioners$ ?otes in +CA2&2B<. he fact that a certain Mrs. !emedio 3utierre", ,ife of
alleged barrio treasurer 1austino 3utierre", of barrio -outh riangle, Pue"on City, states that 4as far
as ,e kno,, there has been no Citi"ens$ Assembly meeting in our Area, particularly in .anuary of this
year,4 does not necessarily mean that there ,as no such meeting in said barrio: for she may not have
been notified thereof and as a result she ,as not able to attend said meeting. Much less can it be a
basis for the claim that there ,as no meeting at all in the other barrios of Pue"on City. he barrio
captain or the secretary of the barrio assembly could have been a credible ,itness.
Councilor /duardo . Paredes, chairman of the -ecretariat of Pue"on City !atification and
Coordinating Council, certified on March &*, &('A that as such chairman he ,as in charge of the
compilation and tabulation of the results of the referendum among the Citi"ens$ Assemblies in
Pue"on City based on the results submitted to the -ecretariat by the different Citi"ens$ Assemblies:
but many results of the referendum ,ere submitted direct to the national agencies having to do ,ith
such activity and all of ,hich he has no kno,ledge, participation and control ;Anne8 J !ejoinder of
the -ol. 3en.<.
3overnor %sidro !odrigue" of !i"al issued a certification dated March &2, &('A that he prepared a
letter to the President dated .anuary &B, &('A informing him of the results of the referendum in !i"al,
in compliance ,ith the instruction of the ?ational -ecretariat to submit such letter * or A days from
.anuary &9 to sho, the trend of voting in the Citi"ens$ Assemblies: that the figures 2&J,&B' and
*(*,BA9 mentioned in said letter ,ere based on the certificates of results in his possession as of
.anuary &J, &('A, ,hich results ,ere made the basis of the computation of the percenta+e o, votin+
tren! in t*e province9 t*at *is letter )as never inten!e! to s*o) t*e ,inal or co(plete result in t*e
re,eren!u( in t*e province as sai! re,eren!u( )as t*en still +oin+ on ,ro( Januar $J4$7, $%77, ,or
)*ic* reason t*e sai! letter (erel state! t*at it )as onl a 1su((ar result19 and that after .anuary
&B, &('A, he sent to the ?ational -ecretariat all the certificates of results in *2 municipalities of !i"al
for final tabulation ;Anne8 AC!ejoinder of the -ol. 3en.: emphasis supplied<.
+ydia M. /ncarnacion, acting chief of the !ecords -ection, Department of +ocal 3overnment and
Community Development, issued a certificate dated March &2, &('A that she ,as sho,n 8ero8
copies of unsigned letters allegedly coming from 3overnor +ino Bocalan dated .anuary &B, &('A and
marked 4!ejoinder Anne8 Cavite4 addressed to the President of the Philippines through the -ecretary
of the Department of +ocal 3overnment and Community Development and another unsigned letter
reportedly from Mayor Pablo Cuneta dated .anuary &B, &('A and marked 4!ejoinder Anne8 Pasay
City4 addressed to the -ecretary of the Department of +ocal 3overnment and Community
Development: that both 8ero8 copies of the unsigned letters contain figures sho,ing the results of the
referendum of the Citi"ens$ Assemblies in those areas: and that the said letters ,ere not received by
her office and that her records do not sho, any such documents received by her office ;Anne8 *C
!ejoinder of the -ol. 3en.<.
hus it ,ould seem that petitioners in +CA2&2B have attempted to deceive this Court by representing
said unsigned letters andFor certificates as duly signed andFor containing the complete returns of the
voting in the Citi"ens$ Assemblies.
he observation Ee made ,ith respect to the discrepancy bet,een the number of @es votes and ?o
votes contained in the summary report of 3overnor !odrigue" of !i"al as ,ell as those contained in
the alleged report of 3overnor +ino Bocalan of Cavite ,ho repudiated the same as not having been
signed by him for he ,as then under house arrest, on the one hand, and the number of votes certified
by the Department of +ocal 3overnment and Community Development, on the other, to the effect that
even assuming the correctness of the figures insisted on by counsel for petitioners in +CA2&2B, if they
,ere e8trapolated and applied to the other provinces and cities of the country, the @es votes ,ould
still be over,helmingly greater than the ?o votes, applies e#ually to the alleged discrepancy bet,een
the figures contained in the certification of the -ecretary of the Department of +ocal 3overnment and
Community Development and the figures furnished to counsel for petitioners in +CA2&2B concerning
the referendum in Camarines -ur, Bataan and ?egros 0ccidental.
he fact that the referendum in the municipality of Pasacao, Camarines -ur, sho,s that there ,ere
more votes in ,avor o, t*e ple#iscite to #e *el! later than those against, only serve to emphasi"e that
there ,as freedom of voting among the members of the Citi"ens$ Assemblies all over the country
during the referendum from .anuary &9 to &B, &('A ;Anne8C2 Camarines -ur to !ejoinder of
Petitioners in +CA2&2B<. %f there ,as no such freedom of choice, those ,ho ,anted a plebiscite ,ould
not outnumber those against holding such plebiscite.
he letter of 3overnor 1eli8 0. Alfelor, -r. dated .anuary &('A confirms the 4strong manifestation of
approval of the ne, Constitution by almost ('S by the members of the Citi"ens$ Assemblies in
Camarines -ur4 ;Anne8CCamarines -ur to !ejoinder of Petitioners in +CA2&2B<.
he report of 3overnor /fren B. Pascual of Bataan sho,s that the members of the Citi"ens$
Assemblies voted over,helmingly in favor of the ne, Constitution despite the fact that the second set
of #uestions including the #uestion 4Do you approve of the ne, ConstitutionI4 ,as received only on
.anuary &9. Provincial 3overnor Pascual stated that 4orderly conduct and favorable results of the
referendum4 ,ere due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, sho,ing
4their preference and readiness to accept this ne, method of government to people consultation in
shaping up government policies.4 ;Anne8CBataan to !ejoinder of Petitioners in +CA2&2B<.
As heretofore stated, it is not necessary that voters ratifying the ne, Constitution are registered in the
book of voters: it is enough that they are electors voting on the ne, Constitution ;Bott vs. Eurts, J9 A
'J9 G&)()H: JA A 'JJ, ))& G&)((H: JB +!A *B&<. he fact that the number of actual voters in the
referendum in certain localities may e8ceed the number of voters actually registered for the &('&
elections, can only mean that the e8cess represents the #ualified voters ,ho are not yet registered
including those ,ho are at least &B years of age and the illiterates. Although e8Cconvicts may have
voted also in the referendum, some of them might have been granted absolute pardon or ,ere
sentenced to less than one year imprisonment to #ualify them to vote ;-ec. *9&, &('& !ev. /lection
Code<. At any rate, the e8Cconvicts constitute a negligible number, discounting ,hich ,ould not tilt the
scale in favor of the negative votes.
-imilarly, the fact that Mayor Marcial 1. -amson of Caloocan City, ,ho belongs to the +iberal Party,
stated in his letter dated March &A, &('A that he does not 4feel authori"ed by the proper authorities to
confirm or deny the data4 concerning the number of participants, the @es votes and ?o votes in the
referendum on the ne, Constitution among the members of the Citi"ens$ Assemblies in Caloocan
City, does not necessarily give rise to the inference that Mayor -amson of Caloocan City is being
intimidated, having been recently released from detention: because in the same letter of Mayor
-amson, he suggested to counsel for petitioners in +CA2&2B that he can secure 4the true and
legitimate results of the referendum4 from the 0ffice of the President ;Anne8 CaloocanCB to !ejoinder
of Petitioners in +CA2&2B<. Ehy did not learned and eminent counsel heed such suggestionI
Counsel for petitioners in +CA2&2B, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citi"ens$ Assemblies referendum on .anuary &9 to &B, &('A by a certain
Professor Benjamin !. -alonga, of the Mapua %nstitute of echnology, ostensibly a close relative of
former -enator .ovito !. -alonga, eminent counsel for petitioners in +CA2&2B ;Anne8 MCas amended,
to Consolidated !ejoinder of petitioners in +CA2&2B to the ?otes of Arguments and Memorandum of
respondents<. Professor -alonga is not a #ualified statistician, ,hich all the more impairs his
credibility. Director ito A. Mijares of the Bureau of Census and -tatistics, in his letter dated March
&2, &('A address to the -ecretary of the Department of +ocal 3overnment and Community
Development, refutes the said computation of Professor Benjamin !. -alonga, thus7
&< % do not #uite understand ,hy ;Problem &< all #ualified registered voters and the &BC*9CyearCold youths
;&('*< ,ill have to be estimated in order to give a &9&.(S estimate of the percentage participation of the
4&BC*9 year old plus total number of #ualified voters4 ,hich does not deem to ans,er the problem. his
computation apparently fails to account for some B.2 million persons 4*& years old and over4 ,ho ,ere
not registered voters ;C0M/+/C<, but ,ho might be #ualified to participate at the Citi"en$s Assembly.
*< he official population projection of this office ;medium assumption< for 4&B year olds and over4 as of
.anuary &, &('A is **.B92 million. %f total number of participants at the Citi"ens$ Assembly !eferendum
held on .anuary &9C&B, &('A ,as &2.'9* million, participation rate ,ill therefore be the ratio of the latter
figure to the former ,hich gives 'J.*S.
A< & cannot also understand cC* 4-olution to Problem &&.4 he 4difference or implied number of &BC*9
year olds4 of B,9A(,(92 ,ould represent really not only all &BCyear olds and over ,ho participated at the
Citi"ens$ Assembly but might not have been registered voters at the time, assuming that all the
&&,22&,(9( registered voted at Citi"ens$ Assembly. >ence, the 4estimate percentage participation of &BC
*9 years olds4 of &9B.2S does not seem to provide any meaningful information.
o obtain the participation rate of 4&BC*9 years old4 one must divide the number in this age group, ,hich
,as estimated to be J.'*& million as of .anuary &, &('A by the population of 4&B years old and over4 for
the same period ,hich ,as estimated to be **.B92 million, giving *&.9S.
%n Problem %%%, it should be observed that registered voters also include names of voters ,ho are already
dead. %t cannot therefore be assumed that all of them participated at the Citi"ens$ Assembly. %t can
therefore be inferred that 4a total number of persons &B and over un#ualifiedFdis#ualified to vote4 ,ill be
more than &9,BJ),&(' and hence the 4difference or implied number of registered voters that participated4
,ill be less than 2,&BA,2&).
% have reservations on ,hether an 4appropriate number of #ualified voters that supposedly voted4 could
be meaningfully estimated.
B< he last remark ,ill therefore make the ratio ;a< G-olution to ProblemH more than &.'& and that for ;b<,
accordingly, ,ill also be less than A2.)S.4 ;Anne8 1 !ejoinder<.
1rom the foregoing analysis of the Director of Census and -tatistics as of .anuary *&, &('A, the
official population projection for &BCyear olds and over is **,B92,999. %f &2,'9*,999 voted in the
referendum, the participation ratio ,ould be 'J.*S of **,B92,999.
%f the registered electors as of the election of ?ovember ), &('& numbered &&,22&,(9(, the difference
bet,een &2,'9*,999 ,ho participated in the referendum and the registered electors of &&,22&,(9( for
the ?ovember ), &('& elections, is B,9J9,9(&, ,hich may include not only the &BCyear olds and
above but belo, *& but also the #ualified electors ,ho ,ere not registered before the ?ovember ),
&('& elections as ,ell as illiterates ,ho are &B years old and above but belo, *&.
Moreover, in the last Presidential election in ?ovember, &(2(, Ee found that the incumbent President
obtained over B,999,999 votes as against about A,999,999 votes for his rival +P -enator -ergio
0smeLa, .r., garnering a majority of from about )(2,J() to &,JA2,&&) ;0smeLa, .r. vs. Marcos,
Presidential /lection Contest ?o. A, .an. ), &('A<.
he petitioners in all the cases at bar cannot state ,ith justification that those ,ho voted for the
incumbent President in &(2( did not vote in favor of the &('A Constitution during the referendum from
.anuary &9 to &B, &('A. %t should also be stressed that many of the partisans of the President in the
&(2( Presidential elections, have several members in their families and relatives ,ho are #ualified to
participate in the referendum because they are &B years or above including illiterates, ,hich fact
should necessarily augment the number of votes ,ho voted for the &('A Constitution.
;2< %t is also urged that martial la, being the rule of force, is necessarily inconsistent ,ith freedom of
choice, because the people fear to disagree ,ith the President and CommanderCinCChief of the
Armed 1orces of the Philippines and therefore cannot voice vie,s opposite to or critical of the
position of the President on the &('A Constitution and on the mode of its ratification.
%t is also claimed or urged that there can be no free choice during martial la, ,hich inevitably
generates fear in the individual. /ven ,ithout martial la,, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual ,hich persuades the individual
to comply ,ith or obey the la,. But before martial la, ,as proclaimed, many individuals fear such
sanctions of the la, because of lack of effective e#ual enforcement or implementation thereof K in
brief, compartmentali"ed justice and e8traneous pressures and influences frustrated the firm and just
enforcement of the la,s. he fear that is generated by martial la, is merely the fear of immediate
e8ecution and s,ift enforcement of the la, and therefore immediate infliction of the punishment or
sanction prescribed by the la, ,henever it is transgressed during the period of martial la,. his is not
the fear that affects the voters$ freedom of choice or freedom to vote for or against the &('A
Constitution. hose ,ho cringe in fear are the criminals or the la, violators. -urely, petitioners do not
come under such category.
;'< Petitioners like,ise claim that open voting by viva voce or raising of hands violates the secrecy of
the ballot as by the election la,s. But the &(AB Constitution does not re#uire secret voting. Ee search
in vain for such guarantee or prescription in said organic la,. he Commission on /lections under the
&(J9 Amendment, embodied as Article D is merely mandated to insure 4free, orderly and honest
election.4 Congress, under its plenary la,Cmaking authority, could have validly prescribed in the
election la, open voting in the election of public officers, ,ithout trenching upon the Constitution. Any
objection to such a statute concerns its ,isdom or propriety, not its legality or constitutionality. -ecret
balloting ,as demanded by partisan strife in elections for elective officials. Partisanship based on
party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional
amendments or on a ne, Constitution. Ee have seen even before and during martial la, that voting
in meetings of government agencies or private organi"ations is usually done openly. his is specially
true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils
,hen voting on national or local issues, not on personalities.
hen again, open voting ,as not a universal phenomenon in the Citi"ens$ Assemblies. %t might have
been true in certain areas, but that does not necessarily mean that it ,as done throughout the
country.
he recent e8ample of an open voting is the last election on March A, &('A of the ?ational Press Club
officers ,ho ,ere elected by acclamation presided over by its former president, petitioner /duardo
Monteclaro in +CA2*A2 ;see Bulletin oday, p. ), March A, &('A issue<. here can be no more
hardboiled group of persons than ne,spapermen, ,ho cannot say that voting among them by
acclamation ,as characteri"ed by fear among the members of the ?ational Press Club.
Moreover, petitioners ,ould not be ,illing to affirm that all the members of the citi"enry of this country
are against the ne, Constitution. hey ,ill not deny that there are those ,ho favor the same, even
among the J99,999 teachers among ,hom officers of the Department of /ducation campaigned for
the ratification of the ne, Constitution.
?ot one of the petitioners can say that the common man K farmer, laborer, fisherman, lo,ly
employee, jeepney driver, ta8i driver, bus driver, pedestrian, salesman, or salesgirl K does not ,ant
the ne, Constitution, or the reforms provided for therein.
;)< Petitioners like,ise claim that there ,as no sufficient publicity given to the ne, Constitution. his
is #uite inaccurate: because even before the election in ?ovember, &('9 of delegates to the
Constitutional Convention, the proposed reforms ,ere already discussed in various forums and
through the press as ,ell as other media of information. hen after the Constitutional Convention
convened in .une, &('&, specific reforms advanced by the delegates ,ere discussed both in
committee hearings as ,ell as in the triCmedia K the press, radio and television. Printed materials on
the proposed reforms ,ere circulated by their proponents. 1rom .une, &('& to ?ovember *(, &('*,
reforms ,ere openly discussed and debated e8cept for a fe, days after the proclamation of martial
la, on -eptember *&, &('*. 1rom the time the Constitutional Convention reconvened in 0ctober,
&('* until .anuary ', &('A, the provisions of the ne, Constitution ,ere debated and discussed in
forums sponsored by private organi"ations universities and debated over the radio and on television.
he Philippines is a literate country, second only to .apan in the 1ar /ast, and more literate perhaps
than many of midC,estern and southern states of the American =nion and -pain. Many residents in
about &,B99 to,ns and AA,999 barrios of the country have radios. /ven the illiterates listened to radio
broadcasts on and discussed the provisions of the &('A Constitution.
As reported by the eminent and ,idely read columnist, eodoro 6alencia in his column in Bulletin
oday, March J, &('A issue, 40tto +ang, >olly,ood producer director ;ora, ora, ora< ,ent around
the country doing a A9Cminute documentary on the Philippines for American television stated that
,hat impressed him most in his travel throughout the country ,as the general acceptance of the ?e,
-ociety by the people ,hich he sa, in his 2C,eek travel from Aparri to .olo.4
he report of 1rank 6aleo ;Bulletin oday, March A and J, &('A and Daily /8press, March A, and
-unday /8press, March J<, -ecretary of the =nited -tates -enate, ,ho conducted a personal survey
of the country as delegate of -enator Mike Mansfield, Chairman, Committee on =-CPhilippine
relations, states7
'artial la) *as pave! t*e )a ,or a re4or!erin+ o, t*e #asic social structure o, t*e P*ilippines. President
Marcos has been prompt and sureCfooted in using the po,er of presidential decree under martial la, for
this purpose. Ce *as zeroe! in on areas )*ic* *ave #een )i!el reco+nize! as pri(e sources o, t*e
nationDs !i,,iculties K lan! tenanc, o,,icial corruption, ta6 evasion an! a#use o, oli+arc*ic econo(ic
po)er. Clearly, he kno,s the targets. Ehat is not yet certain is ho, accurate have been his shots.
Nevert*eless, t*ere is (ar-e! pu#lic support ,or *is lea!ers*ip an! tan+i#le alternatives *ave not #een
,ort*co(in+. T*at )oul! su++est t*at *e (a not #e stri-in+ too ,ar ,ro( t*e (ar-.
he =nited -tates business community in Manila seems to have been reCassured by recent
developments ... . ;/mphasis supplied.<
Petitioners cannot safely assume that all the peaceful citi"ens of the country, ,ho constitute the
majority of the population, do not like the reforms stipulated in the ne, Constitution, as ,ell as the
decrees, orders and circulars issued to implement the same. %t should be recalled, as hereinbefore
stated, that all these reforms ,ere the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as ,ell as in public forums sponsored by concerned
citi"ens or civic organi"ations at ,hich ConCCon delegates as ,ell as other kno,ledgeable
personages e8pounded their vie,s thereon and in all the media of information before the
proclamation of martial la, on -eptember *&, &('*. his is the reason ,hy the Constitutional
Convention, after spending close to PA9 million during the period from .une &, &('& to ?ovember *(,
&('*, found it e8pedient to accelerate their proceedings in ?ovember, &('* because all vie,s that
could possibly be said on the proposed provisions of the &('A Constitution ,ere already e8pressed
and circulated. he &('A Constitution may contain some un,ise provisions. But this objection to such
un,ise or vague provisions, as heretofore stated, refers to the ,isdom of the aforesaid provisions,
,hich issue is not for this Court to decide: other,ise Ee ,ill be substituting 0ur judgment for the
judgment of the Constitutional Convention and in effect acting as a constituent assembly.
6%
P!/-%D/? A- C0MMA?D/! %? C>%/1 /D/!C%-/-
+/3%-+A%6/ P0E/!- D=!%?3 MA!%A+ +AE.
he position of the respondent public officers that undermartial la,, the President as CommanderCinC
Chief is vested ,ith legislative po,ers, is sustained by the ruling in the &(J( case of Guro!a vs.
Jalan!oni, et al. ;)A Phil. &'&, &''C&')< ,hich reiterates the &(JB case of Ya(as*ita vs. Ster ;'B
Phil. B2A, B'&C'*<. he trial of 3eneral Nuroda ,as after the surrender of .apan on 0ctober *, &(JB
;*A /ncyc. Brit. &(2( ed., p. '((< and hence no more martial la, in the Philippines.
... Conse#uently, in the promulgation and enforcement of /8ecutive 0rder ?o. 2), the President of the
Philippines has acted in conformity ,ith the generally accepted principles and policies of international la,
,hich are part of our Constitution.
T*e pro(ul+ation o, sai! e6ecutive or!er is an e6ercise # t*e Presi!ent o, *is po)ers as Co((an!er in
C*ie, o, all our ar(e! ,orces, as upheld by this Court in the case of Ya(as*ita vs. Stver ;+C&*(, J* 0ff.
3a"., 22J< ,hen ,e said K
4Ear is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incidents of ,ar may remain pending ,hich should be disposed of as in time of
,ar. 43n i(portant inci!ent to a con!uct o, )ar is t*e a!option (easures # t*e (ilitar
co((an! not onl to repel an! !e,eat t*e ene(ies #ut to seize an! su#5ect to
!isciplinar (easures t*ose ene(ies )*o in t*eir atte(pt to t*)art or i(pe!e our (ilitar
e,,ort *ave violate! t*e la) o, )ar.4 ;/8 parte Puirin, A&' =.-., &: 2A -up. Ct., *.< %ndeed,
the po,er to create a military commission for the trial and punishment of ,ar criminals is
an aspect of ,aging ,ar. And, in the language of a ,riter, a military commission 4has
jurisdiction so long as the technical state of ,ar continues. his includes the period of an
armistice, or military occupation, up to the effective date of treaty of peace, and may
e8tend beyond, by treaty agreement.4 ;Co,les, rial of Ear Criminals by Military
ribunals, American Bar Association .ournal, .une, &(JJ<.
Conse;uentl, t*e Presi!ent as Co((an!er4in4C*ie, is ,ull e(po)ere! to consu((ate t*is un,inis*e!
aspect o, )ar, namely the trial and punishment of ,ar criminals, through the issuance and enforcement of
/8ecutive 0rder ?o. 2). ;)A Phil. &''C&'): emphasis supplied<.
Chief .ustice -tone of the =nited -tates -upreme Court like,ise appears to subscribe to this vie,,
,hen, in his concurring opinion in Duncan vs. Nahanamoku ;A*' =.-. A9J G&(J2H<, he defined martial
la, as 4t*e e6ercise o, t*e po)er )*ic* resi!es in t*e e6ecutive #ranc* o, t*e +overn(ent to
preserve or!er an! insure t*e pu#lic sa,et in ti(es o, e(er+enc, )*en ot*er #ranc*es o, t*e
+overn(ent are una#le to ,unction, or t*eir ,unctionin+ )oul! itsel, t*reaten t*e pu#lic sa,et.4
;/mphasis supplied<. here is an implied recognition in the aforesaid definition of martial la, that
even in places ,here the courts can function, such operation of the courts may be affected by martial
la, s*oul! t*eir 1,unctionin+ ... t*reaten t*e pu#lic sa,et.1 %t is possible that the courts, in asserting
their authority to pass upon #uestions ,hich may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as ,ell as subversives, martial la, may restrict
such judicial function until the danger to the security of the state and of the people shall have been
decimated.
he foregoing vie, appears to be shared by !ossiter ,hen he stated7
1inally, t*is stron+ +overn(ent, )*ic* in so(e instances (i+*t #eco(e an outri+*t !ictators*ip, can *ave
no ot*er purposes t*an t*e preservation o, t*e in!epen!ence o, t*e state, t*e (aintenance o, t*e e6istin+
constitutional or!er, an! t*e !e,ense o, t*e political an! social li#erties o, t*e people. %t is important to
recogni"e the true and limited ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this ,ay7 the government of a free state is
proceeding on its ,ay and meeting the usual problems of peace and normal times ,ithin the limiting
frame,ork of its established constitutional order. he functions of government are parceled out among a
number of mutually independent offices and institutions: the po,er to e8ercise those functions is
circumscribed by ,ellCestablished la,s, customs, and constitutional prescriptions: and the people for
,hom this government ,as instituted are in possession of a lengthy catalogue of economic, political, and
social rights ,hich their leaders recogni"e as inherent and inalienable. 3 severe crisis arises K t*e
countr is inva!e! # a *ostile po)er, or a !issi!ent se+(ent o, t*e citizenr revolts, or t*e i(pact o, a
)orl!4)i!e !epression t*reatens to #rin+ t*e nationDs econo( in ruins. T*e +overn(ent (eets t*e crisis
# assu(in+ (ore po)ers an! respectin+ ,e)er ri+*ts. T*e result is a re+i(e )*ic* can act ar#itraril
an! even !ictatoriall in t*e s)i,t a!aption o, (easures !esi+ne! to save t*e state an! its people ,ro( t*e
!estructive e,,ects o, t*e particular crisis. And the narro, duty to be pursued by this strong government,
this constitutional dictatorshipI -imply this and nothing more7 to en! t*e crisis an! restore nor(al ti(es.
T*e +overn(ent assu(es no po)er an! a#ri!+es no ri+*t unless plainl in!ispensa#le to t*at en!: it
e8tends no further in time than the attainment of that end: and it makes no alteration in the political, social
and economic structure of the nation ,hich cannot be eradicated ,ith the restoration of normal times. %n
short, the aim of constitutional dictatorship is the complete restoration of the status ;uo ante #ellu(. his
historical fact does not comport ,ith philosophical theory, t*at t*ere never *as #een a per,ect
constitutional !ictators*ip, is an assertion t*at can #e (a!e )it*out ,ear o, contra!iction. "ut t*is is true
o, all institutions o, +overn(ent, an! t*e principle o, constitutional !ictators*ip re(ains eternall vali! no
(atter *o) o,ten an! seriousl it (a *ave #een violate! in practice. ;Constitutional Dictatorship, &(J)
ed., by Clinton +. !ossiter, p. ': emphasis supplied.<
1inally, !ossiter e8pressly recogni"es that during martial la,, the Chief /8ecutive e8ercises
legislative po,er, ,hether of temporary or permanent character, thus7
T*e (easures a!opte! in t*e prosecution o, a constitutional !ictators*ip s*oul! never #e per(anent in
c*aracter or e,,ect. /mergency po,ers are strictly conditioned by their purpose and this purpose is the
restoration of normal conditions. he actions !irecte! to t*is en! s*oul! t*ere,ore #e provisional. 1or
e8ample, (easures o, a le+islative nature )*ic* )or- a lastin+ c*an+e in t*e structure of the state or
constitute permanent derogations from e8isting la, s*oul! not #e a!opte! under an emergency enabling
act, at least not )it*out t*e positivel re+istere! approval o, t*e le+islature. Permanent la,s, ,hether
adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and
sentences of e8traordinary courts should be revie,ed by the regular courts after the termination of the
crisis.
"ut )*at i, a ra!ical act o, per(anent c*aracter, one )or-in+ lastin+ c*an+es in t*e political an! social
,a#ric, is in!ispensa#le to the successful prosecution of the particular constitutional dictatorshipI T*e onl
ans)er can #e= it (ust #e resolutel ta-en an! openl ac-no)le!+e!. Presi!ent 0incoln ,oun! it
necessar to procee! to t*e revolutionar step o, e(ancipation in ai! o, *is conservative purpose o,
preservin+ t*e Enion: as a constitutional dictator he had a moral right to take this radical action.
Nevert*eless, it is i(perative t*at an action )it* suc* lastin+ e,,ects s*oul! eventuall receive t*e
positive approval o, t*e people or o, t*eir representatives in t*e le+islature. ;P. A9A, emphasis supplied<.
1rom the foregoing citations, under martial la, occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government e8ercises more po,ers and
respects fe,er rights in order 4to end the crisis and restore normal times.4 he government can
assume additional po,ers indispensable to the attainment of that end K the complete restoration of
peace. %n our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the sine ;ua non to the complete restoration of normalcy. /8ercise of legislative po,er
by the President as Commander in Chief, upon his proclamation of martial la,, is justified because,
as he professes, it is directed to,ards the institution of radical reforms essential to the elimination of
the causes of rebellious, insurgent or subversive conspiracies and the conse#uent dismantling of the
rebellious, insurgent or subversive apparatus.
>ence, the issuance of Presidential Decree ?os. )2 and )2CA as ,ell as Proclamation ?o. &&9* is
indispensable to the effectuation of the reforms ,ithin the shortest possible time to hasten the
restoration of normalcy.
4Must the government be too strong for the liberties of the people: or must it be too ,eak to maintain
its e8istenceI4 hat ,as the dilemma that ve8ed President +incoln during the American Civil Ear,
,hen ,ithout e8press authority in the Constitution and the la,s of the =nited -tates, he suspended
one basic human freedom K the privilege of the ,rit of *a#eas corpus K in order to preserve ,ith
permanence the American =nion, the 1ederal Constitution of the =nited -tates and all the civil
liberties of the American people. his is the same dilemma that presently confronts the Chief
/8ecutive of the !epublic of the Philippines, ,ho, more than the Courts and Congress, must, by
e8press constitutional mandate, secure the safety of our !epublic and the rights as ,ell as lives of
the people against open rebellion, insidious subversion secession. he Chief /8ecutive announced
repeatedly that in choosing to proclaim martial la,, the po,er e8pressly vested in him by the &(AB
Constitution ;-ec. &9G*H, Art. 6%%, &(AB Constitution< to insure our national and individual survival in
peace and freedom, he is in effect ,aging a peaceful, democratic revolution from the center against
the violent revolution and subversion being mounted by the economic oligarchs of the e8treme right,
,ho resist reforms to maintain their economic hegemony, and the communist rebels a Maoist
oriented secessionists of the e8treme left ,ho demand s,ift institution of reforms. %n the e8ercise of
his constitutional and statutory po,ers, to save the state and to protect the citi"enry against actual
and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter ho, revered they may be by jurisprudence and time, should not be regarded as
peremptory commands: other,ise the dead hand of the past ,ill regulate and control the security and
happiness of the living present. A contrary vie, ,ould be to deny the selfCevident proposition that
constitutions and la,s are mere instruments for the ,ellCbeing, peace, security and prosperity of the
country and its citi"enry. he la, as a means of social control is not static but dynamic. Paraphrasing
Mr. .ustice 1rankfurter, the Constitution is neither a printed finality nor the imprisonment of the past,
but the enfolding of the future. %n the vein of Mr. .ustice >olmes, the meaning of the ,ords of the
Constitution is not to be determined by merely opening a dictionary. %ts terms must be construed in
the conte8t of the realities in the life of a nation it is intended to serve. Because e8perience may teach
one generation to doubt the validity and efficacy of the concepts embodied in the e8isting Constitution
and persuade another generation to abandon them entirely, heed should be paid to the ,ise counsel
of some learned jurists that in the resolution of constitutional #uestions K like those posed before =s
K the blending of idealism and practical ,isdom or progressive legal realism should be applied ;see
Ale8ander M. Bickel, the -upreme Court and the %dea of Progress, &('9 ed., pp. &(C*&<. o .ustice
1rankfurter, la) is 1a vital a+enc ,or *u(an #etter(ent1 an! constitutional la) 1is applie! politics
usin+ t*e )or! in its no#le sense.4 ;1rankfurter, +a, and Politics, &(A( ed., pp. A M 2: emphasis
supplied<. .ustice Brandeis gave utterance to the truth that 4Our Constitution is not a strai+*t 5ac-et. It
is a livin+ or+anis(. As such, it is capa#le o, +ro)t* K or e8pansion an! a!aptation to ne)
con!itions. 3ro,th implies changes, political, economic and social.4 ;Brandeis Papers, >arvard +a,
-chool: emphasis supplied<. >arvard Professor homas !eed Po,ell emphasi"es 4practical ,isdom,4
for 4t*e lo+ic o, constitutional la) is t*e co((on sense o, t*e Supre(e Court.4 ;Po,ell, the 6alidity of
-tate +egislation, under the EebbCNenyon +a,, * -outhern +a, Puarterly, pp. &&*, &A)C&A(, cited in
Bickel$s 0pus, supra: emphasis supplied<.
he eternal parado8 in this finite ,orld of mortal and fallible men is that nothing is permanent e8cept
change. +iving organisms as ,ell as manCmade institutions are not immutable. Civili"ed men organi"e
themselves into a -tate only for the purpose of serving their supreme interest K their ,elfare. o
achieve such end, they created an agency kno,n as the government. 1rom the savage era thru
ancient times, the Middle Ages, the Dark Ages and the !enaissance to this era of sophisticated
electronics and nuclear ,eaponry, states and governments have mutated in their search for the
magic instrument for their ,ellCbeing. %t ,as trial and error then as it is still no,. Political philosophies
and constitutional concepts, forms and kinds of government, had been adopted, overturned,
discarded, reCadopted or modified to suit the needs of a given society at a particular given epoch.
his is true of constitutions and la,s because they are not 4the infallible instruments of a manifest
destiny.4 ?o matter ho, ,e ,ant the la, to be stable, it cannot stand still. As Mr. .ustice >olmes
aptly observed, every 4constitution is an e8periment as all life is an e8periment,4 ;Abrahms vs. =.-.,
*B9 =- 2&2, 2A&< for 4the life of the la, is not logic, but e8perience.4 %n the pontifical tones of Mr.
.ustice Benjamin ?athan Cardo"o, 4so long as society is inconstant, there can be no constancy in
la,,4 and 4there ,ill be change ,hether ,e ,ill it or not.4 As .ustice .ose P. +aurel ,as ,ont to say,
4Ee cannot, CanuteClike, command the ,aves of progress to halt.4
hus, political scientists and jurists no longer e8alt ,ith vehemence a 4government that governs
least.4 Adherents there are to the poetic dictum of Ale8ander Pope7 41or forms of government let fools
contest: ,hatever is best administered is best.4 ;Poems of Pope, &(A& Cambridge ed., p. 'B9<. %n
bet,een, the shades vary from direct democracy, representative democracy, ,elfare states, socialist
democracy, mitigated socialism, to outright communism ,hich degenerated in some countries into
totalitarianism or authoritarianism.
>ence, even the scholar, ,ho advances academic opinions unrelated to factual situations in the
seclusion of his ivory to,er, must perforce submit to the ine8orable la, of change in his vie,s,
concepts, methods and techni#ues ,hen brought into the actual arena of conflict as a public
functionary K face to face ,ith the practical problems of state, government and public administration.
And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect
the lives, liberties and fortunes of the citi"ens and the nation, recommend the blending of idealism
,ith practical ,isdom ,hich legal thinkers prefer to identify as progressive legal realism. he national
leader, ,ho ,ields the po,ers of government, must and has to innovate if he must govern effectively
to serve the supreme interests of the people. his is especially true in times of great crises ,here the
need for a leader ,ith vision, imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their ,ellCbeing, and to insure the safety and stability of the
!epublic. Ehen the methods of rebellion and subversion have become covert, subtle and insidious,
there should be a recognition of the corresponding authority on the part of the CommanderCinCChief of
the Armed 1orces to utili"e all the available techni#ues to suppress the peril to the security of the
government and the -tate.
0ver a century and a half ago, homas .efferson, one of the founding fathers of the American
Constitution and former President of the =nited -tates, ,ho personifies the progressive liberal, spoke
the truth ,hen he said that some men 4ascribe men of the preceding age a ,isdom more than
human, and suppose ,hat they did to be beyond amendment. ... But % kno, also, that la,s and
institutions must go hand in hand ,ith the progress of the human mind. As that becomes more
developed, more enlightened, as ne, discoveries are made, ne, truths disclosed and manners and
opinions change, ,ith the change of circumstances, institutions must also advance, and keep pace
,ith the times.4 ;6ol. &*, /ncyclopedia Britanica, &(2( ed., p. ()(<.
he ,isdom of the decision of the Chief /8ecutive can only be judged in the perspective of history. %t
cannot be ade#uately and fairly appraised ,ithin the present ambience, charged as it is ,ith so much
tension and emotion, if not partisan passion. he analytical, objective historians ,ill ,rite the final
verdict in the same ,ay that they pronounced judgment on President Abraham +incoln ,ho
suspended the privilege of the ,rit of *a#eas corpus ,ithout any constitutional or statutory authority
therefor and of President 1ranklin Delano !oosevelt ,ho approved the proclamation of martial la, in
&(J& by the governor of >a,aii throughout the >a,aiian territory. President +incoln not only
emancipated the ?egro slaves in America, but also saved the 1ederal !epublic of the =nited -tates
from disintegration by his suspension of the privilege of the ,rit of *a#eas corpus, ,hich po,er the
American Constitution and Congress did not then e8pressly vest in him. ?o one can deny that the
successful defense and preservation of the territorial integrity of the =nited -tates ,as due in part, if
not to a great e8tent, to the proclamation of martial la, over the territory of >a,aii K main bastion of
the outer periphery or the outpost of the American defense perimeter in the Pacific K ,hich protected
the =nited -tates mainland not only from actual invasion but also from aerial or naval bombardment
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American
-upreme Court acted ,ith courage in its decision in the cases of E6 parte 'illi+an an! .uncan vs.
Ga*ana(o-u ;filed on May &9, &)2B argued on March B to &A, &)22, decided on April A, &)22, and
opinion delivered on December &', &)22< after the lifting of the proclamation suspending the privilege
of the ,rit of *a#eas corpus, long after the Civil Ear and the -econd Eorld ended respectively on
April ( or *2, &)C2B ;6ol. &, /ncyclopedia Britannica, &(2( ed., pp. 'A9, 'J*< and on -eptember *,
&(JB ;6ol. *A, /ncyclopedia Britannica, &(2( ed., p. '((<. Eas the delay on the part of the American
-upreme Court in deciding these cases against the position of the =nited -tates President K in
suspending the privilege of the ,rit of *a#eas corpus in one case and approving the proclamation of
martial la, in the other K deliberate as an act of judicial statesmanship and recognition on their part
that an adverse court ruling during the period of such a grave crisis might jeopardi"e the survival of
the 1ederal !epublic of the =nited -tates in its lifeCandCdeath struggle against an organi"ed and ,ell
armed rebellion ,ithin its o,n borders and against a formidable enemy from ,ithout its territorial
confines during the last global armageddonI
6%%%
D0C!%?/ 01 -/PA!A%0? 01 P0E/!- P!/C+=D/-
'3N.3'ES A3A%?- -/?A0!-.
%n 3.!. ?o. +CA2&2B, (an!a(us ,ill not lie to compel respondents 3il Puyat and .ose !oy to
convene the -enate of the Philippines even on the assumption that the &(AB Constitution still
subsists: because pursuant to the doctrine of separation of po,ers under the &(AB Constitution, the
processes of this Court cannot legally reach a coordinate branch of the government or its head. his
is a problem that is addressed to the -enate itself for resolution: for it is purely an internal problem of
the -enate. %f a majority of the senators can convene, they can elect a ne, -enate President and a
ne, -enate President Pro empore. But if they have no #uorum, those present can order the arrest
of the absent members ;-ec. &9G*H, Art. 6%, &(AB Constitution<. %f this fails, then there is no remedy
e8cept an appeal to the people. he dictum u#i 5us, u#i re(e!iu(, is not absolute and certainly does
not justify the invocation of the po,er of this Court to compel action on the part of a coCe#ual body or
its leadership. his ,as emphasi"ed ,ith sufficient clarity by this Court in the &(J( case of Avelino vs.
Cuenco ;)A Phil. &', **,*J<, ,ith ,hich the distinguished counsels for the petitioners in +CA2&2J and
+CA2&2B are familiar. Ee stress that the doctrine of separation of po,ers and the political nature of
the controversy such as this, preclude the interposition of the .udiciary to nullify an act of a coordinate
body or to command performance by the head of such a coCordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political #uestion doctrine
K almost in mockery K as a magic formula ,hich should be disregarded by this Court, forgetting that
this magic formula constitutes an essential skein in the constitutional fabric of our government, ,hich,
together ,ith other basic constitutional precepts, conserves the unity of our people, strengthens the
structure of the government and assures the continued stability of the country against the forces of
division, if not of anarchy.
Moreover, if they have a ;uorum, the senators can meet any,here. 6alidity of the acts of the -enate
does not depend on the place of session: for the Constitution does not designate the place of such a
meeting. -ection ( of Article 6% imposes upon Congress to convene in regular session every year on
the Jth Monday of .anuary, unless a different date is fi8ed by la,, or on special session called by the
President. As former -enator Arturo olentino, counsel for respondents Puyat and !oy in +CA2&2B,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. he fact that the doors of Congress are padlocked, ,ill not prevent the senators K especially
the petitioners in +CA2&2B K if they are minded to do so, from meeting else,here K at the -unken
3ardens, at the +uneta %ndependence 3randstand, in any of the big hotels or theaters, in their o,n
houses, or at the Araneta Coliseum, ,hich is o,ned by the fatherCinCla, of petitioner 3erardo !o8as
in +CA2&2B.
>o,ever, a session by the -enate alone ,ould be purely an e8ercise in futility, for it cannot validly
meet ,ithout the lo,er >ouse ;-ec. &9GBH, Art. 6%, &(AB Constitution<. >ence, this petition by five
former senators for (an!a(us in +CA2&2B is useless.
And as pointed out by former -enator Arturo olentino, counsel for respondents Puyat and !oy,
(an!a(us ,ill lie only if there is a la, imposing on the respondents the duty to convene the body.
he rule imposing such a duty invoked by petitioners in +CA2&2B is purely an internal rule of the
-enate: it is not a la, because it is not enacted by both >ouses and approved by the President.
he Constitutional provision on the convening of Congress, is addressed to the individual members of
the legislative body ;-ec. (, Art. 6% of &(AB Constitution<.
%D
0 ?=++%1@ P!0C+AMA%0? ?0. &&9* A?D &('A
C0?-%=%0? !/P=%!/- /%3> 0! /? 60/- 01
-=P!/M/ C0=!.
he petitioners in +CA2&2J and +CA2*A2 specifically pray for a declaration that the alleged ratification
of the &('A Constitution is null and void and that the said &('A Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation ?o. &&9* is an enactment of the President as CommanderCinC
Chief during martial la, as directly delegated to him by -ection &9;*< of Article 6%% of the &(AB
Constitution.
A declaration that the &('A Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. he proposed Constitution is an act of the Constitutional Convention,
,hich is coCe#ual and coordinate ,ith as ,ell as independent of either Congress or the Chief
/8ecutive. >ence, its final act, the &('A Constitution, must have the same category at the very least
as the act of Congress itself.
Conse#uently, the re#uired vote to nullify Proclamation ?o. &&9* and the &('A Constitution should be
eight ;)< under -ection &9 of Article 6%%% of the &(AB Constitution in relation to -ection ( of the
.udiciary Act or !epublic Act ?o. *(2, as amended, or should be ten ;&9< under -ection *;*< of
Article D of the &('A Constitution. -hould the re#uired vote of eight ;)< or ten ;&9<, as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the &('A Constitution must
be deemed to be valid, in force and operative.
D
A!%C+/ 01 1A%>
E/ yield to no man as devotees of human rights and civil liberties. +ike homas .efferson, Ee s,ear
4eternal hostility to,ards any form of tyranny over the mind of man4 as ,ell as to,ards bigotry and
intolerance, ,hich are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common ,eal. A civili"ed society cannot long endure ,ithout peace and order, the maintenance of
,hich is the primary function of the government. ?either can civili"ed society survive ,ithout the
natural right to defend itself against all dangers that may destroy its life, ,hether in the form of
invasion from ,ithout or rebellion and subversion from ,ithin. his is the first la, of nature and ranks
second to none in the hierarchy of all values, ,hether human or governmental. /very citi"en, ,ho
prides himself in being a member or a civili"ed society under an established government, impliedly
submits to certain constraints on his freedom for the general ,elfare and the preservation of the -tate
itself, even as he reserves to himself certain rights ,hich constitute limitations on the po,ers of
government. But ,hen there is an inevitable clash bet,een an e8ertion of governmental authority and
the assertion of individual freedom, the e8ercise of ,hich freedom imperils the -tate and the civili"ed
society to ,hich the individual belongs, there can be no alternative but to submit to the superior right
of the government to defend and preserve the -tate. %n the language of Mr. .ustice >olmes K often
invoked by herein petitioners K 4,hen it comes to a decision involving its ;state life, the ordinary
rights of individuals must yield to ,hat he ;the President< deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. ;-ee Neely vs.
-anders, (( =.-. JJ&, JJ2, *B + ed. A*', A*)<. his ,as admitted ,ith regard to killing men in the
actual clash of arms. And ,e think it is obvious, although it ,as disputed, that the same is true of
temporary detention to prevent apprehended harm.4 ;Moyer vs. Peabody, *&* =.-. '', )B, BA + ed.,
J&&, J&'<.
he rhetoric of freedom alone is not enough. %t must be the rhetoric of freedom ,ith order and
security for all, that should be the shibboleth: for freedom cannot be enjoyed in an environment of
disorder and anarchy.
he incumbent Chief /8ecutive ,ho ,as trying to gain the support for his reform program long before
-eptember *&, &('*, reali"ed almost too late that he ,as being deceived by his partymates as ,ell
as by the opposition, ,ho promised him cooperation, ,hich promises ,ere either offered as a
bargaining leverage to secure concessions from him or to delay the institution of the needed reforms.
he people have been victimi"ed by such bargaining and dillyCdallying. o vert a terrifying blood bath
and the breakdo,n of the !epublic, the incumbent President proclaimed martial la, to save the
!epublic from being overrun by communists, secessionists and rebels by effecting the desired
reforms in order to eradicate the evils that plague our society, ,hich evils have been employed by the
communists, the rebels and secessionists to e8hort the citi"enry to rise against the government. By
eliminating the evils, the enemies of the !epublic ,ill be decimated. >o, many of the petitioners and
their counsels have been utili"ing the rebels, secessionists and communists for their o,n personal or
political purposes and ho, many of them are being used in turn by the aforesaid enemies of the -tate
for their o,n purposesI
%f the petitioners are sincere in their e8pression of concern for the greater mass of the populace, more
than for their o,n selves, they should be ,illing to give the incumbent Chief /8ecutive a chance to
implement the desired reforms. he incumbent President assured the nation that he ,ill govern ,ithin
the frame,ork of the Constitution and if at any time, before normalcy is restored, the people thru their
Citi"ens$ Assemblies, cease to believe in his leadership, he ,ill step do,n voluntarily from the
Presidency. But if, as apprehended by the petitioners, he abuses and brutali"es the people, then to
the battlements ,e must go to man the ramparts against tyranny. his, it is believed, he kno,s only
too ,ell: because he is a,are that he ,ho rides the tiger ,ill eventually end inside the tiger$s
stomach. >e ,ho toys ,ith revolution ,ill be s,allo,ed by that same revolution. >istory is replete
,ith e8amples of libertarians ,ho turned tyrants and ,ere burned at stake or beheaded or hanged or
guillotined by the very people ,hom they at first championed and later deceived. he most bloody of
such mass e8ecutions by the ,rath of a ,ronged people, ,as the decapitation by guillotine of about
&B,999 1renchmen including the leaders of the 1rench revolution, like !obespierre, Danton,
Desmoulins and Marat. >e is fully cogni"ant of the lessons of history.
>/?C/, >/ D%-M%--A+ 01 >/-/ 1%6/ CA-/- %- .=-%1%/D.
ESG"ERRA, J., concurring7
hese petitions seek to stop and prohibit the respondents /8ecutive 0fficers from implementing the
Constitution signed on ?ovember A9, &('*: in +CA2&2B, to compel respondents 3il Puyat and .ose ..
!oy, President and President ProCempore, respectively, of the -enate under the &(AB Constitution,
to convene the -enate in regular session ,hich should have started on .anuary **, &('A: to nullify
Proclamation ?o. &&9* of the President, issued on .anuary &', &('A, ,hich declared the ratification
of the Constitution on ?ovember A9, &('*, by the 1ilipino people, through the barangays or Citi"ens
Assemblies established under Presidential Decree ?o. )2 issued on December A&, &('*, ,hich ,ere
empo,ered under Presidential Decree ?o. )2CA, issued on .anuary B, &('A, to act in connection ,ith
the ratification of said Constitution.
3rounds for the petitions are as follo,s7
&. hat the Constitutional Convention ,as not a free forum for the making of a Constitution after the
declaration of Martial +a, on -eptember *&, &('*.
*. he Convention ,as not empo,ered to incorporate certain provisions in the &('* Constitution
because they are highly un,ise and objectionable and the people ,ere not sufficiently informed about
them.
A. he President had no authority to create and empo,er the Citi"ens$ Assemblies to ratify the ne,
Constitution at the referendum conducted in connection there,ith, as said assemblies ,ere merely
for consultative purposes, and
J. he provisions of Article D6 of the &(AB Constitution prescribing the manner of amending the same
,ere not duly observed.
he petitions ,ere not given due course immediately but ,ere referred to the -olicitor 3eneral as
counsel for the respondents for comment, ,ith three members of the Court, including the
undersigned, voting to dismiss them outright. he comments ,ere considered motions to dismiss
,hich ,ere set for hearing and e8tensively argued. hereafter both parties submitted their notes and
memoranda on their oral arguments.
%.
he issues raised for determination, on ,hich the resolution of the Motion to Dismiss hinges, are as
follo,s7
&. %s the #uestion presented political and, hence, beyond the competence of this Court to decide, or is
it justiciable and fit for judicial determinationI
*. Eas the ne, Constitution of ?ovember A9, &('*, ratified in accordance ,ith the amending process
prescribed by Article D6 of the &(AB ConstitutionI
A. >as the ne, Constitution been accepted and ac#uiesced in by the 1ilipino peopleI
J. %s the ne, Constitution actually in force and effectI
B. %f the ans,ers to #uestions ?os. A and J be in the affirmative, are petitioners entitled to the reliefs
prayed forI
%%.
he pivotal #uestion in these cases is ,hether the issue raised is highly political and, therefore, not
justiciable. % maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act
of judicial statesmanship, should dismiss the petitions. %n resolving ,hether or not the #uestion
presented is political, joint discussion of issues ?os. &, A and J is necessary so as to arrive at a
logical conclusion. 1or after the acceptance of a ne, Constitution and ac#uiescence therein by the
people by putting it into practical operation, any #uestion regarding its validity should be foreclosed
and all debates on ,hether it ,as duly or la,fully ushered into e8istence as the organic la, of the
state become political and not judicial in character.
he undisputed facts that led to the issuance of Proclamation ?o. &&9* and Presidential Decrees
?os. )2 and )2CA are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on .anuary **, &('A, and need not be repeated here.
Petitioners seek to set at naught Proclamation ?o. &&9* and Presidential Decrees ?os. )2 and )2CA,
claiming that the ratification of the ne, Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree ?o. )2 organi"ed the barangays or Citi"ens Assemblies composed of all
citi"ens at least fifteen years of age, and through these assemblies the proposed &('* Constitution
,as submitted to the people for ratification. Proclamation ?o. &&9* of the President announced or
declared the result of the referendum or plebiscite conducted through the Citi"ens Assemblies, and
that &J,('2,B2& members thereof voted for the ratification of the ne, Constitution and 'JA,)2( voted
against it. Petitioners assail these t,o acts of the President as unauthori"ed and devoid of legal
effect.
But looking through the veneer of judicial conformity ,ith ,hich the petitions have been adroitly
contrived, ,hat is sought to be invalidated is the ne, Constitution itself K the very frame,ork of the
present 3overnment since .anuary &', &('A. he reason is obvious. he Presidential decrees set up
the means for the ratification and acceptance of the ne, Constitution and Proclamation ?o. &&9*
simply announced the result of the referendum or plebiscite by the people through the Citi"ens
Assemblies. he 3overnment under the ne, Constitution has been running on its tracks normally and
apparently ,ithout obstruction in the form of organi"ed resistance capable of jeopardi"ing its
e8istence and disrupting its operation. =ltimately the issue is ,hether the ne, Constitution may be
set aside by this Court. But has it the po,er and authority to assume such a stupendous task ,hen
the result of such invalidation ,ould be to subject this nation to divisive controversies that may totally
destroy the social order ,hich the 3overnment under the ne, Constitution has been admirably
protecting and promoting under Martial +a,I hat the ne, Constitution has taken deep root and the
people are happy and contended ,ith it is a living reality ,hich the most articulate critics of the ne,
order cannot deny. (B out of &9) members of the >ouse of !epresentatives have opted to serve in
the interim ?ational Assembly provided for under the ne, Constitution. &B out of *J -enators have
done like,ise. he members of the Congress did not meet anymore last .anuary **, &('A, not
because they ,ere really prevented from so doing but because of no serious effort on their parts to
assert their offices under the &(AB Constitution. %n brief, the +egislative Department under the &(AB
Constitution is a thing of the past. he /8ecutive Department has been fully reorgani"ed: the
appointments of key e8ecutive officers including those of the Armed 1orces ,ere e8tended and they
took an oath to support and defend the ne, Constitution. he courts, e8cept the -upreme Court by
reason of these cases, have administered justice under the ne, constitution. All government offices
have dealt ,ith the public and performed their functions according to the ne, Constitution and la,s
promulgated thereunder.
%f the real purpose of the petitions is to set aside the ne, Constitution, ho, can this Court justify its
assumption of jurisdiction ,hen no po,er has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and voidI %t is the height of absurdity and impudence for a court
to ,age open ,ar against the organic act to ,hich it o,es its e8istence. he situation in ,hich this
Court finds itself does not permit it to pass upon the #uestion ,hether or not the ne, Constitution has
entered into force and has superseded the &(AB Constitution. %f it declares that the present
Constitution has not been validly ratified, it has to uphold the &(AB Constitution as still the prevailing
organic la,. he result ,ould be too anomalous to describe, for then this Court ,ould have to declare
that it is governed by one Constitution or the &(AB Constitution, and the legislative and e8ecutive
branches by another or the &('* Constitution.
%f it declares that the &('* Constitution is no, operative, ho, can it e8ercise judicial discretion in
these cases ,hen it ,ould have no other choice but to uphold the ne, Constitution as against any
other oneI %n the circumstances it ,ould be bereft of judicial attributes as the matter ,ould then be
not meet for judicial determination, but one addressed to the sovereign po,er of the people ,ho have
already spoken and delivered their mandate by accepting the fundamental la, on ,hich the
government of this !epublic is no, functioning. o deny that the ne, Constitution has been accepted
and actually is in operation ,ould be flying in the face of reason and pounding one$s bare head
against a veritable stone ,all or a heavily reinforced concrete, or simply 4kicking the deadly pricks4
,ith one$s bare foot in an effort to eliminate the lethal points.
Ehen a Constitution has been in operation for sometime, even ,ithout popular ratification at that,
submission of the people thereto by the organi"ation of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slo, in nullifying a Constitution claimed to have been adopted not in accordance ,ith
constitutional or statutory directives GMiller vs. .ohnson, (* Ny. B)(: &)( -.E. B**: aylor vs
Common,ealth, &9&: 6a. )*(: JJ -./. 'BJ: -mith vs. 3ood, AJ 1 *9J, *9': Eiston vs. !yan, '9 ?eb.
*&&: (' ?.E. AJ'H.
%n 'iller vs. Jo*nson, supra, the Court said7
... But it is a case ,here a ne, constitution has been formed and promulgated according to the forms of
la,. 3reat interests have already arisen under it: important rights e8ist by virtue of it: persons have been
convicted of the highest crimes kno,n to the la,, according to its provisions: the political po,er of the
government has in many ,ays recogni"ed it: an!, un!er suc* circu(stances, it is our !ut to treat an!
re+ar! it as a vali! constitution, an! no) t*e or+anic la) o, our state. Ee need not consider the validity of
the amendments made after the convention reassembled. I, t*e (a-in+ o, t*e( )as in e6cess o, its
po)er, et as t*e entire instru(ent *as #een reco+nize! as vali! in t*e (anner su++este!, it )oul! #e
e;uall an a#use o, po)er # t*e 5u!iciar, an! violative o, t*e ri+*ts o, t*e people, H )*o can an!
properl s*oul! re(e! t*e (atter, i, not to t*eir li-in+, H i, it )ere to !eclare t*e instru(ent or a portion
invali!, an! #rin+ con,usion an! anarc* upon t*e state. ;/mphasis supplied<
%n S(it* vs. Goo!, supra, the Court said7
%t is said that a state court is forbidden from entering upon such an in#uiry )*en applie! to a ne)
constitution, an! not an a(en!(ent, because the judicial po,er presupposes an established government,
and if the authority of that government is annulled and overthro,n, the po,er of its courts is annulled ,ith
it: therefore, if a state court should enter upon such an in#uiry, come to the conclusion that the
government under ,hich it acted had been displaced by an opposing government, it ,ould cease to be a
court, and it ,ould be incapable of pronouncing a judicial decision upon the #uestion before it: but, if it
decides at all, it must necessarily affirm the e8istence of the government under ,hich it e8ercises its
judicial po,ers. ;/mphasis supplied<
hese rules are all traceable to 0ut*er vs. "or!en, J) =.- ;' >o,.<, &* +. /d. B)&, B() ;&)J(< ,here
it ,as held7
.udicial po,er presupposes an established government capable of enacting la,s and enforcing their
e8ecution, and appointing judges to e8pound and administer them. he acceptance of the judicial office is
a recognition of the authority of government from ,hich it is derived. And if the authority of the
government is annulled and overthro,n, the po,er of its courts and other officers is annulled ,ith it. And
if a -tate court should enter upon the in#uiry proposed in this case, and should come to conclusion that
the government under ,hich it acted had been put aside and displaced by an opposing government it
,ould cease to be a court, and be incapable of pronouncing a judicial decision upon the #uestion it
undertook to try. %f it decides at all as a court, it necessarily affirms the e8istence and authority of the
government under ,hich it is e8ercising judicial po,er.
he foreign relations of the !epublic of the Philippines have been normally conducted on the basis of
the ne, Constitution and no state ,ith ,hich ,e maintain diplomatic relations has ,ithdra,n its
recognition of our government. ;1or particulars about e8ecutive acts done under the ne, Constitution,
see pages **C*B of the Comments of the -olicitor 3eneral, dated 1ebruary A, &('A.<
Certainly the invalidation of Proclamation ?o. &&9* and Presidential Decrees ?os. )2 and )2CA by
this Court ,ould smack of plain political meddling ,hich is described by the =nited -tates -upreme
Court as 4entering a political thicket4 in Colegrove vs. 3reen, A*) =.-. p. BJ(. At this juncture it ,ould
be the part of ,isdom for this Court to adopt the proper attitude to,ards political upheavals and
reali"e that the #uestion before =s is political and not fit for judicial determination. 1or a political
#uestion is one entrusted to the people for judgment in their sovereign capacity ;aLada vs. Cuenco,
3.!. ?o. +C&9B*9, 1eb. *),&(2': &99 Phil. &&9&<, or to a coCe#ual and coordinate branch of the
3overnment ;6era vs. Arellano, '' Phil. &(*: Mabanag vs. +ope" 6ito, ') Phil. &: Alejandrino vs.
Pue"on, J2 Phil. AB: Cabili vs. 1rancisco, 3.!. ?o. J2A), May ), &(A&<. A case involves a political
#uestion ,hen there ,ould be 4the impossibility of undertaking independent resolutions ,ithout
e8pressing a lack of respect due to coordinate branches of government4, or ,hen there is 4the
potentiality of embarrassment from multifarious pronouncements by various departments on one
#uestion.4
o preserve the prestige and eminence that this Court has long enjoyed as the 4ultimate organ of the
4-upreme +a, of the +and4 in that vast range of legal problems often strongly entangled in popular
feeling on ,hich this Court must pronounce4, let us harken to the follo,ing admonition of .ustice
1rankfurter in his dissent in "a-er vs. Carr, A2( =.-. &)2: )* -. Ct. 2(&: ' +. /d. *d. 22A7
he Court$s authority K possessed neither of the purse nor the s,ord K ulti(atel rests on sustaine!
pu#lic con,i!ence in its (oral sanction. Suc* ,eelin+ (ust #e nouris*e! # t*e CourtDs co(plete
!etac*(ent, in ,act an! appearance, ,ro( political entan+le(ents an! a#stention ,ro( in5ectin+ itsel, into
t*e clas* o, political ,orces in political settle(ent. ...4 ;/mphasis supplied<
he people have accepted and submitted to a Constitution to replace the &(AB Constitution. he ne,
organic la, is no, in the plenitude of its efficacy and vigor. Ee are no, living under its aegis and
protection and only the cynics ,ill deny this. his Court should not in the least attempt to act as a
superClegislature or a superCboard of canvassers and so, confusion and discord among our people
by pontificating there ,as no valid ratification of the ne, Constitution. he sober reali"ation of its
proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping ,ith the preservation of our democratic tradition
than the blatant declamations of those ,ho ,ish the Court to engage in their brand of activism and
,ould not mind plunging it into the ,hirlpool of passion and emotion in an effort to capture the
into8icating applause of the multitude.
1or all the foregoing, % vote to dismiss all petitions.
5A+D%6A!, .., concurring and dissenting7
%n these five cases, the main issue to be resolved by Court is ,hether or not the Constitution
proposed by the Constitutional Convention of &('& had been ratified in accordance ,ith the
provisions of Article D6 of the &(AB Constitution. %n the plebiscite cases, ,hich ,ere decided by this
Court on .anuary **, &('A
1
, % held the vie, that this issue could be properly resolved by this Court,
and that it ,as in the public interest that this Court should declare then ,hether or not the proposed
Constitution had been validly ratified. he majority of this Court, ho,ever, ,as of the vie, that the
issue ,as not s#uarely raised in those cases, and so the Court, as a body, did make any categorical
pronouncement on the #uestion of ,hether or not the Constitution proposed by the &('& Convention
,as validly ratified. % ,as the only one ,ho e8pressed the opinion that the proposed Constitution ,as
not validly ratified and therefore 4it should not be given force and effect.4
he Court is no, called upon to declare, and to inform the people of this country, ,hether or not that
proposed Constitution had been validly ratified and had come into effect.
he -olicitor 3eneral, ho,ever, contends that this Court has no jurisdiction to resolve the issue that
,e have mentioned because that issue is a political #uestion that cannot be decided by this Court.
his contention by the -olicitor 3eneral is untenable. A political #uestion relates to 4those #uestions
,hich under the Constitution are to be decided by the people in their sovereign capacity or in regard
to ,hich full discretionary authority has been delegated to the legislative, or to the e8ecutive, branch
of the government.
4
he courts have the po,er to determine ,hether the acts of the e8ecutive are
authori"ed by the Constitution and the la,s ,henever they are brought before the court in a judicial
proceeding. he judicial department of the government e8ercises a sort of controlling, or rather
restraining, po,er over the t,o other departments of the government. /ach of the three departments,
,ithin its proper constitutional sphere, acts independently of the other, and restraint is only placed on
one department ,hen that sphere is actually transcended. Ehile a court may not restrain the
e8ecutive from committing an unla,ful act, it may, ,hen the legality of such an act is brought before it
in a judicial proceeding, declare it to be void, the same as it may declare a la, enacted by the
legislature to be unconstitutional.
3
%t is a settled doctrine that every officer under a constitutional
government must act according to la, and subject to its restrictions, and every departure therefrom,
or disregard thereof, must subject him to the restraining and controlling po,er of the people, acting
through the agency of the judiciary. %t must be remembered that the people act through the courts, as
,ell as through the e8ecutive or the legislature. 0ne department is just as representative as the other,
and judiciary is the department ,hich is charged ,ith the special duty of determining the limitations
,hich the la, places upon all official actions
5
. %n the case of Gonzales v. Co((ission on Elections
5
,
this Court ruled that the issue as to ,hether or not a resolution of Congress acting as a constituent
assembly violates the Constitution is not a political #uestion and is therefore subject to judicial revie,.
%n the case of 3velino v. Cuenco
:
, this Court held that the e8ception to the rule that courts ,ill not
interfere ,ith a political #uestion affecting another department is ,hen such political #uestion involves
an issue as to the construction and interpretation of the provision of the constitution. And so, it has
been held that the #uestion of ,hether a constitution shall be amended or not is a political #uestion
,hich is not in the po,er of the court to decide, but ,hether or not the constitution has been legally
amended is a justiciable #uestion.
7

My study on the subject of ,hether a #uestion before the court is political or judicial, based on
decisions of the courts in the =nited -tates K ,here, after all, our constitutional system has been
patterned to a large e8tent K made me arrive at the considered vie, that it is in the po,er of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. !atification or nonCratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and % believe
that the Court can in#uire into, and decide on, the #uestion of ,hether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance ,ith the re#uirements
prescribed in the Constitution that ,as amended. And so, in the cases no, before =s, % believe that
the #uestion of ,hether or not the Constitution proposed by the &('& Constitutional Convention had
been validly ratified or not is a justiciable #uestion.
he Chief .ustice, in his opinion, has discussed lengthily the subject on ,hether or not, the cases,
before =s involve a political, or a judicial, #uestion. % fully concur ,ith his conclusion that the #uestion
involved in these cases is justiciable.
0n the #uestion no, of ,hether or not the Constitution proposed by the &('& Constitutional
Convention has been validly ratified, % am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases7
he ratification of the Constitution proposed by the &('& Constitutional Convention must be done in
accordance ,ith the provisions of -ection &, Article D6 of the &(AB Constitution of the Philippines, ,hich
reads7
4-ection &. he Congress in joint session assembled by a vote of three fourths of all the
Members of the -enate and of the >ouse of !epresentatives voting separately, may
propose amendments to the Constitution or call a convention for that purpose. -uch
amendments shall be valid as part of this Constitution ,hen approved by a majority of the
votes cast at an election at ,hich the amendments are submitted to the people for their
ratification.4
%t is in consonance ,ith the above#uoted provision of the &(AB Constitution that on March &2, &(2', the
Congress of the Philippines !esolution ?o. * calling a convention to propose amendments to the
Constitution of the Philippines. -ec. ' of said !esolution ?o. * reads as follo,s7
4-ection '. he amendments proposed by the Convention shall be valid and considered
part of the Constitution ,hen approved by a majority of the votes cast in an election at
,hich they are submitted to the people for their ratification pursuant to Article D6 of the
Constitution.
%t follo,s that from the very resolution of the Congress of the Philippines ,hich called for the &('&
Constitutional Convention, there ,as a clear mandate that the amendments proposed by the &('&
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 ,hich they are submitted to the people for the ratification as provided in
the Constitution.
his Court, in the case of Tolentino vs. Co((ission Elections, +CAB&J9, 0ctober &2, &('& ;J& -C!A
'&B<, speaking through Mr. .ustice Barredo, said7
4he Constitutional Convention of &('&, as any other convention of the same nature,
o)es its e6istence an! all its aut*orit an! po)er ,ro( t*e e6istin+ Constitution o, t*e
P*ilippines. his Convention has not been called by the people directly as in the case of
a revolutionary convention ,hich drafts the first Constitution of an entirely ne,
government born of either a ,ar of liberation from a mother country or of revolution
against an e8isting government or of a bloodless sei"ure of po,er a la coup !Detat. As to
such kind of conventions, it is absolutely true that the convention is completely ,ithout
restraint and omnipotent all ,ise, and it as to such conventions that the remarks of
Delegate Manuel !o8as of the Constitutional Convention of &(AJ #uoted by -enator
Pelae" refer. ?o amount of rationali"ation can belie the fact that the current convention
came into being only because it ,as called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of -ection &, Article D6 of the present
Constitution ... .4
888 888 888
4As 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 su#5ect to all t*e provisions o, t*e e6istin+ Constitution. ?o, ,e hold
that even as to its latter tas- o, proposin+ a(en!(ents to t*e Constitution, it is su#5ect to
t*e provisions o, Section $ o, 3rticle I@.4
%n Proclamation ?o. &&9*, issued on .anuary &', &('A, the President of the Philippines certified that as a
result of the voting before the barangays ;Citi"ens Assemblies< &J,('2,B2& members of the barangays
voted for the adoption of the proposed Constitution, as against 'JA,)2( ,ho voted for its rejection, and on
the basis of the over,helming majority of the votes cast by the members of all the barangays throughout
the Philippines, the President proclaimed that the Constitution proposed by the &('& Convention has
been ratified and has thereby come into effect.
%t is very plain from the very ,ordings of Proclamation ?o. &&9* that the provisions of -ection & of Article
D6 of the Constitution of &(AB ,ere not complied ,ith. %t is not necessary that evidence be produced
before this Court to sho, that no elections ,ere held in accordance ,ith the provisions of the /lection
Code. Proclamation ?o. &&9* une#uivocally states that the proposed Constitution of &('* ,as voted
upon by the barangays. %t is very clear, therefore, that the voting held in these barangays is not the
election contemplated in the provisions of -ection &, Article D6, of the &(AB Constitution. he election
contemplated in said constitutional provision is an election held in accordance ,ith the provisions of the
election la,, ,here only the #ualified and registered voters of the country ,ould cast their votes, ,here
official ballots prepared for the purpose are used, ,here the voters ,ould prepare their ballots in secret
inside the voting booths in the polling places established in the different election precincts throughout the
country, ,here the election is conducted by election inspectors duly appointed in accordance ,ith the
election la,, ,here the votes are canvassed and reported in a manner provided for in the election la,. %t
,as this kind of election that ,as held on May &J, &(AB, ,hen the Constitution of &(AB ,as ratified: on
April A9, &(A', ,hen the amendment to the Constitution providing for Eomen$s -uffrage ,as ratified: on
.une &), &(J9, ,hen the &(J9 Amendments to the Constitution ,ere ratified: on March &&, &(J' ,hen
the Parity Amendment to the Constitution ,as ratified: and on ?ovember &J, &(2' ,hen the amendments
to the Constitution to increase the number of Members of the >ouse of !epresentatives and to allo, the
Members of Congress to run in the elections for Delegates to the Constitutional Convention of &('& ,ere
rejected.
% cannot see any valid reason ,hy the practice or procedure in the past, in implementing the constitutional
provision re#uiring the holding, of an election to ratify or reject an amendment to the Constitution, has not
been follo,ed in the case of the Constitution proposed by the &('& Constitutional Convention.
%t is my vie, that the President of the Philippines cannot by decree order the ratification of the proposed
&('* Constitution thru a voting in the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. %t is very clear, to me, that Proclamation ?o. &&9* ,as issued in
complete disregard or in violation, of the provisions of -ection & of Article D of the &(AB Constitution.
Proclamation ?o. &&9* mentions, furthermore, that on the #uestion as to ,hether or not the people ,ould
still like a plebiscite to be called to ratify the ne, Constitution, &J,*(),)&J members of the barangays
ans,ered that there ,as no need for a plebiscite but that the vote of the barangays should be considered
a vote in a plebiscite. %t ,ould thus appear that the barangays assumed the po,er to determine ,hether a
plebiscite as ordained in the Constitution be held or not. %ndeed, the provision of -ection &, Article D6 of
the Constitution ,as completely disregarded.
he affirmative votes cast in the barangays are not the votes contemplated in -ection & of Article D6 of
the &(AB Constitution. he votes contemplated in said constitutional provision are votes obtained through
the election processes as provided by la,.
4An election is the embodiment of the popular ,ill, the e8pression of the sovereign po,er
of the people. %n common parlance, an election is the act of casting and receiving the
ballots, counting them, and making the return.4 ;>ontiveros vs. Altavas, *J Phil. 2A*,
2A'<.
4/lection4 implies a choice by an electoral body at the time and substantially in the
manner and ,ith the safeguards provided by la, ,ith respect to some #uestion or issue.
;+effel v. Bro,n, Com. P&., &B( ?./. *d )9', )9) cited in *( C...-. &A at footnote 2.B<.
4... the statutory method ,hereby ;uali,ie! voters or electors pass on various public
matters submitted to them K the election of officers, national, state, county, to,nship K
the passing on various other #uestions submitted for their determination.4 ;*( C...-. &A,
citing %o,aC%llinois 3as M /lec. Co. v. City of Bettendorf, J& ?.E. *d &, B, *J& %o,a AB)<.
4/lection4 is e8pression of choice by voters of body politic. ;3insburg v. 3iles, '* -.E. *d
JA), *BJ Ny. '*9, in Eords and Phrases, Permanent /dition, p. *AJ<.
4he right to vote may be e8ercised only on compliance ,ith such statutory re#uirements
as have been set by the legislature.4 ;People e8 rel. !ago v. +ipsky, 2A ?./. *d 2J*, A*'
%%%. App. 2A: !othfels v. -outh,orth, AB2 P. *d 2&*, && =tah *d &2( in *( C...-. A)<.
;/mphasis supplied<.
%n this connection % herein #uote the pertinent provisions of the /lection Code of &('&7
4-ec. *. 3pplica#ilit o, t*is 3ct. K All elections of public officers e8cept barrio officials and plebiscites
shall be conducted in the manner provided by this Code.4
4-ec ((. Necessit o, re+istration to #e entitle! to vote. K %n order that a #ualified 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 ,hich he resides7 Provided, that no person shall register more
than once ,ithout first applying for cancellation of his previous registration.4 ;/mphasis supplied<. ;Please
see also -ections &99C&9*, /lection Code of &('&, !.A. ?o. 2A))<
%t is stated in Proclamation ?o. &&9* that the voting ,as done by the members of citi"ens assemblies ,ho
are &B years of age or over. =nder the provision of -ection % of Article 6 of the &(AB Constitution, the age
re#uirement to be a #ualified voter is *& years or over.
But ,hat is more note,orthy is the fact that the voting in the barangays, e8cept in very fe, instances, ,as
done by the raising of hands by the persons indiscriminately gathered to participate in the voting, ,here
even children belo, &B years of age ,ere included. his is a matter of common observation, or of
common kno,ledge, ,hich the Court may take judicial notice of. o consider the votes in the barangays
as e8pressive of the popular ,ill and use them as the basis in declaring ,hether a Constitution is ratified
or rejected is to resort to a voting by demonstrations, ,hich is ,ould mean the rule of the cro,d, ,hich is
only one degree higher than the rule by the mob. Certainly, so important a #uestion as to ,hether the
Constitution, ,hich is the supreme la, of the land, should be ratified or not, must not be decided by
simply gathering people and asking them to raise their hands in ans,er to the #uestion of ,hether the
vote for or against a proposed Constitution. he election as provided by la, should be strictly observed in
determining the ,ill of the sovereign people in a democracy. %n our !epublic, the ,ill of the people must
be e8pressed through the ballot in a manner that is provided by la,.
%t is said that in a democracy, the ,ill of the people is the supreme la,. %ndeed, the people are sovereign,
but the ,ill of the people must be e8pressed in a manner as the la, and the demands a ,ellCordered
society re#uire. he rule of la, must prevail even over the apparent ,ill of the majority of the people, if
that ,ill had not been e8pressed, or obtained, in accordance ,ith the la,. =nder the rule of la,, public
#uestions must be decided in accordance ,ith the Constitution and the la,. his is specially true in the
case of adoption of a constitution or in the ratification of an amendment to the Constitution.
he follo,ing citations are, to me, very relevant in the effort to determine ,hether the proposed
Constitution of &('* had been validly ratified, or not7
4Ehen it is said that 4the people4 have the right to alter or amend the constitution, it must
not be understood that term necessarily includes all the inhabitants of the state. -ince the
#uestion of the adoption or rejection of a proposed ne, constitution or constitutional
amendment must be ans,ered a vote, the determination of it rests ,ith those ,ho, by
e8isting constitution, are accorded the right of suffrage. But the #ualified electors must be
understood in this, as in many other cases, as representing those ,ho have not the right
to participate in the ballot. %f a constitution should be abrogated and a ne, one adopted,
by the ,hole mass of people in a state acting through representatives not chosen by the
4people4 in political sense of the term, but by the general body of the populace, the
movement ,ould be e8traClegal.4 ;B%ack$s Constitutional +a,, -econd /dition, pp. J'CJ)<.
4he theory of our political system is that the ultimate sovereignty is in the people, from
,hom springs all legitimate authority. he people of the =nion created a national
constitution, and conferred upon it po,ers of sovereignty on certain subjects, and the
people of each -tate created a -tate government, to e8ercise the remaining po,ers of
sovereignty so far as they ,ere disposed to allo, them to be e8ercised at all. By the
constitution ,hich they establish, they not only tie up the hands of their official agencies,
but their o,n hands as ,ell: and neither the officers of the -tate, nor the ,hole people as
an aggregate body, are at liberty to take action in opposition to this fundamental la,.4
;Cooley$s Constitutional +imitations, )th /dition, 6ol. %, p. )& cited in 3raham v. .ones, A
-o. *d. '2&, ')*<.
4he theory that a favorable vote by the electorate, ho,ever unanimous, on a proposal to
amend a constitution, may cure, render innocuous, 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, ,here the doctrine of the
stated theory ,as denied, in obvious effect, by the pronouncement 29 years ago of
broad, ,holesome constitutional principles in Collier v. Frierson, supra, as #uoted in the
original opinion, ante. he people themselves are bound by the Constitution: and, being
so bound, are po,erless, ,hatever their numbers, to change or th,art its mandates,
e8cept through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the e8ertion of the original right of
revolution. 4he Constitution may be set aside by revolution, but it can only be amended
in the ,ay it provides,4 said >obson, C..., in McCreary v. -peer, &B2 Ny. ')A, '(&, &2*
-.E. ((, &9A. ;.ohnson vs. Craft, et al., )' -o. A'B, A)B, A)', 0n !ehearing<.
4he fact that a majority voted for the amendment, unless the vote ,as taken as provided
by the Constitution, is not sufficient to make a change in that instrument. Ehether a
proposed amendment has been legally adopted is a judicial #uestion, for the court must
uphold and enforce the Constitution as ,ritten until it is amended in the ,ay ,hich it
provides for.4 Koo! v. Too-er, &B Mont. ), A' Pac )J9, *B +.!.A. B29: 'cConau+*t v.
State, &92 Minn. J9(, &&( ?.E. J9): Oa-lan! Pavin+ Co(pan v. Cilton, 2( Cal. J((, &&
Pac. A: Etter v. 'osel, &2 %daho *'J, &99 Pac. &(B), &AA Am. -t. !ep. (J, &) Ann. Cas.
'*A. ;McCreary v. -peer, &2* -.E. ((, &9J<.
4Provisions of a constitution regulating its o,n amendment, ... are not merely directory,
but are mandatory: and a strict observance of every substantial mandatory: and a strict
observance of every substantial re#uirement is essential to the validity of the proposed
amendment. hese provisions are as binding on the people as on the legislature, and the
former are po,erless by vote of acceptance to give legal sanction to an amendment the
submission of ,hich ,as made in disregard of the limitations contained in the
constitution.4 ;&2 C...-. ABCA2. cited in 3raham v. .ones, A -o. *d '2&, ')*<.
4%t is said that chaos and confusion in the government affairs of the -tate ,ill result from
the Court$s action in declaring the proposed constitutional amendment void. his
statement is grossly and manifestly inaccurate. %f confusion and chaos should ensue, it
,ill not be due to the action of the Court but ,ill be the result of the failure of the drafters
joint resolution to observe, follo, and obey the plain essential provisions of the
Constitution. 1urthermore, to say that, the Court disregards its s,orn duty to enforce the
Constitution, chaos and confusion ,ill result, is an inherently ,eak argument in favor of
the alleged constitutionality of the proposed amendment. %t is obvious that, if the Court
,ere to countenance the violations of the sacramental provisions Constitution, those ,ho
,ould thereafter desire to violate it disregard its clear mandatory provisions ,ould resort
to the scheme of involving and confusing the affairs of the -tate then simply tell the Court
that it ,as po,erless to e8ercise one of its primary functions by rendering the proper
decree to make the Constitution effective.4 ;3raham v. .ones, A -o. *d. '2&, '(AC'(J<.
%n our jurisprudence % find an instance ,here this Court did not allo, the ,ill of the majority to prevail,
because the re#uirements of the la, ,ere not complied ,ith. %n the case of 'onsale v. Nico, )A Phil. 'B),
Monsale and ?ico ,ere both candidates for the office of Municipal Mayor of Miagao, %loilo, in the elections
of ?ovember &&, &(J'. Monsale had duly filed his certificate of candidacy before the e8piration of the
period for the filing of the same. >o,ever, on 0ctober &9, &(J', after the period for the filing of the
certificate of candidacy, Monsale ,ithdre, his certificate of candidacy. But on ?ovember ', &(J' Monsale
attempted to revive his certificate of candidacy by ,ithdra,ing the ,ithdra,al of certificate of candidacy.
he Commission on /lections, ?ovember ), &(J', ruled that Monsale could no longer be a candidate.
Monsale nevertheless proceeded ,ith his candidacy. he boards of inspectors in Miagao, ho,ever, did
not count the votes cast for Monsale upon the ground that the votes cast for him ,ere stray votes,
because he ,as considered as having no certificate of candidacy. 0n the other hand, the boards of
inspectors credited ?ico ,ith *,*(& votes, and ?ico ,as proclaimed elected. Monsale filed a protest
against the election of ?ico in the Court of 1irst %nstance of %loilo. %n the count of the ballots during the
proceedings in the trial court, it appeared that Monsale had obtained *,)'' votes ,hile ?ico obtained
*,*'2 votes, or a margin of 29& votes in favor of Monsale. he Court of 1irst %nstance of %loilo decided the
election protest in favor of Monsale. =pon appeal by ?ico, this Court reversed the decision of the lo,er
court. his Court declared that because Monsale ,ithdre, his certificate of candidacy, his attempt to
revive it by ,ithdra,ing his ,ithdra,al of his certificate of candidacy did not restore the effectiveness of
his certificate of candidacy, and this Court declared ?ico the ,inner in spite of the fact that Monsale had
obtained more votes than he.
Ee have cited this Monsale case to sho, that the ,ill of the majority of the voters ,ould not be given
effect, as declared by this Court, if certain legal re#uirements have not been complied ,ith in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases no, before this Court, the fact that the voting in the citi"ens assemblies ;barangays<
is not the election that is provided for in the &(AB 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 &('* Constitution, in spite of the fact that it ,as reported that &J,('2,B2&
members of the citi"ens assemblies voted for the adoption as against 'JA,)2( for the rejection, because
the votes thus obtained ,ere not in accordance ,ith the provisions of -ection & of Article D6 of the &(AB
Constitution of the Philippines. he rule of la, mast be upheld.
My last observation7 0ne of the valid grounds against the holding of the plebiscite on .anuary &B, &('A,
as provided in Presidential Decree ?o. 'A, is that there is no freedom on the part of the people to e8ercise
their right of choice because of the e8istence of martial la, in our country. he same ground holds true as
regards to the voting of the barangays on .anuary &9 to &B, &('A. More so, because by 3eneral 0rder
?o. *9, issued on .anuary ', &('A, the President of the Philippines ordered 4that the provisions of -ection
A of Presidential Decree ?o. 'A in so far as they allo, free public discussion of the proposed constitution,
as ,ell as my order of December &', &('* temporarily suspending the effects of Proclamation ?o. &9)&
for the purpose of free and open debate on the proposed constitution, be suspended in the meantime.4 %t
is, therefore, my vie, that voting in the barangays on .anuary &9, &('A ,as not free, and so this is one
added reason ,hy the results of the voting in the barangays should not be made the basis for
proclamation of the ratification of the proposed Constitution.
%t is my vie,, therefore, that Proclamation ?o. &&9* repugnant to the &(AB Constitution, and so it is
invalid, and should not be given effect. he Constitution of &('* proposed by the &('& Constitutional
Convention should be considered as not yet ratified by the people of this !epublic, and so it should not be
given force and effect.
%t is urged by the -olicitor 3eneral, ho,ever, that the voting in the citi"ens assemblies ,as a
substantial compliance ,ith the provisions of Article D6 of the &(AB Constitution. he -olicitor
3eneral maintains that the primary thrust of the provision of Article D6 of the &(AB Constitution is that
4to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people.4 %t is not disputed that in a democratic sovereignty
resides in the people. But the term 1people1 must be understood in its constitutional meaning, and
they are 4those persons ,ho are permitted by the Constitution to e8ercise the elective franchise.4
8

hus, in -ection * of Article 6%% of the &(AB Constitution, it is provided that 4the President shall hold
his office during a term of four years and, together ,ith the 6iceCPresident chosen for the same term,
shall be elected by direct vote of the people...4 Certainly under that constitutional provision, the
1people1 ,ho elect directly the President and the 6iceCPresident are no other than the persons ,ho,
under the provisions of the same Constitution, are granted the right to vote. %n like manner the
provision in -ection & of Article %% of the &(AB Constitution ,hich says 4-overeignty resides in the
people and all government authority emanates from them4, the 4people4 ,ho e8ercise the sovereign
po,er are no other than the persons ,ho have the right to vote under the Constitution. %n the case of
Garc*itorena vs. Crescini
9
, this Court, speaking through Mr. .ustice .ohnson, said, 4%n democracies,
the people, combined, represent the sovereign po,er of the -tate. heir sovereign authority is
e8pressed through the ballot, of the #ualified voters, in duly appointed elections held from time to
time, by means of ,hich they choose their officials for definite fi8ed periods, and to ,hom they
entrust, for the time being, as their representatives, the e8ercise of the po,ers of government.4 %n the
case of 'oa v. .el Fierro,
10
this Court, speaking through Mr. .ustice +aurel, said, 4As long as
popular government is an end to be achieved and safeguarded, suffrage, ,hatever may be the
modality and form devised, must continue to be the means by ,hich the great reservoir of po,er
must be emptied into the receptacular agencies ,rought by the people through their Constitution in
the interest of good government and the common ,eal. !epublicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to the en,ranc*ise! citizen as a
particle o, popular soverei+nt an! as t*e ulti(ate source o, t*e esta#lis*e! aut*orit.4 And in the
case of 3#anil v. Justice o, t*e Peace o, "acolo!,
11
this Court said7 4%n the scheme of our present
republican government, the people are allo)e! to *ave a voice t*erein t*rou+* t*e instru(entalit o,
su,,ra+e to be availed of by those possessing certain prescribed #ualifications. he people, in clothing
a citi"en ,ith the elective franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him ,ith the performance of a duty in the nature
of a public trust, and in that respect constitute *i( a representative o, t*e )*ole people. his duty
re#uires that the privilege thus besto,ed e8clusively for the benefit of the citi"en or class of citi"ens
professing it, but in good faith and ,ith an intelligent "eal for the general benefit and ,elfare of the
state. ;=.-. v. Cruikshauk, (* =.-. B))<...4 here is no #uestion, therefore, that ,hen ,e talk of
sovereign people, ,hat is meant are the people ,ho act through the duly #ualified and registered
voters ,ho vote during an election that is held as provided in the Constitution or in the la,.
he term 4election4 as used in -ection & of Article D6 of the &(AB Constitution should be construed
along ,ith the term 4election4 as used in the Provisions of -ection J of the Philippine %ndependence
Act of the Congress of the =nited -tates, popularly kno,n as the ydingsCMcDuffie +a, ;Public Act
?o. &*'<. -aid -ection J of the ydingsCMcDuffie +a, provides as follo,s7
Section J. After the President of the =nited -tates certified that the constitution conforms ,ith the
provisions of this act, it shall be submitted to the people of the Philippine %slands for their ratification or
rejection at an election to he held ,ithin months after the date of such certification, on a date to be fi8ed
by the Philippine +egislature at )*ic* election, t*e ;uali,ie! voters o, t*e P*ilippine Islan!s s*all *ave an
opportunit to vote !irectl or a+ainst t*e propose! constitution and ordinances append thereto. -uch
election shall be held in such manner as may prescribed by the Philippine +egislature to ,hich the return
of the election shall be made. he Philippine +egislature shall certify the result to the 3overnorC3eneral of
the Philippine %slands, together ,ith a statement of the votes cast, and a copy of said constitution
ordinances. %f a majority of the votes cast shall be for the constitution, such vote shall be deemed an
e8pression of the ,ill of the people of the Philippine %ndependence, and the 3overnorC3eneral shall,
,ithin thirty days after receipt of the certification from the Philippine +egislature, issue a proclamation for
the election of officers of the government of the Common,ealth of the Philippine %slands provided for in
the Constitution...
%t can safely be said, therefore, that ,hen the framers of the &(AB Constitution used, the ,ord
4election4 in -ection % Article D6 of the &(AB Constitution they had no other idea in mind e8cept the
elections that ,ere periodically held in the Philippines for the choice of public officials prior to the
drafting of the &(AB Constitution, and also the 4election4 mentioned in the %ndependence Act at ,hich
4the #ualified voters of the Philippine %slands shall have an opportunity to vote directly for or against
the proposed constitution...4 %t is but logical to e8pect that the framers of the &(AB Constitution ,ould
provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the
original Constitution itself.
%t is clear therefore, that the ratification or any amendment to the &(AB Constitution could only be
done by holding an election, as the term 4election4 ,as understood, and practiced, ,hen the &(AB
Constitution as drafted. he alleged referendum in the citi"ens assemblies K participated in by
persons aged &B years or more, regardless of ,hether they ,ere #ualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ,ard captain, to the
municipal mayor, ,ho in turn submitted the report to the provincial 3overnor, and the latter for,arding
the reports to the Department of +ocal 3overnments, all ,ithout the intervention of the Commission
on /lections ,hich is the constitutional body ,hich has e8clusive charge of the enforcement and
administration of all la,s, relative to the conduct of elections K ,as not only a nonCsubstantial
compliance ,ith the provisions of -ection & of Article D6 of the &(AB Constitution but a do,nright
violation of said constitutional provision. %t ,ould be indulging in sophistry to maintain that the voting
in the citi"ens assemblies amounted to a substantial compliance ,ith the re#uirements prescribed in
-ection & of Article D6 of the &(AB Constitution.
%t is further contended by the -olicitor 3eneral, that even if the Constitution proposed by the &('&
Constitutional Convention ,as not ratified in accordance ,ith the provisions of -ection & of Article D6
of the &(AB Constitution, the fact is that after the President of the Philippines had issued Proclamation
?o. &&9* declaring that the said proposed Constitution 4has been ratified by over,helming majority of
all the votes cast by the members of all the barangays ;citi"ens assemblies< throughout the
Philippines and had thereby come into effect4 the people have accepted the ne, Constitution. Ehat
appears to me, ho,ever, is that practically it is only the officials and employees under the e8ecutive
department of the 3overnment ,ho have been performing their duties apparently in observance of
the provisions of the ne, Constitution. %t could not be other,ise, because the President of the
Philippines, ,ho is the head of the e8ecutive department, had proclaimed that the ne, Constitution
had come into effect, and his office had taken the steps to implement the provisions of the ne,
Constitution. rue it is, that some (* members of the >ouse of !epresentatives and &B members of
the -enate, of the Congress of the Philippines had e8pressed their option to serve in the interim
?ational Assembly that is provided for in -ection * of Article D6%% of the proposed Constitution. %t must
be noted, ho,ever, that of the &B senators ,ho e8pressed their option to serve in the interim ?ational
Assembly only one them took his oath of office: and of the (* members of the >ouse of
!epresentatives ,ho opted to serve in the interim ?ational Assembly, only ** took their oath of office.
he fact that only one -enator out of *J, and only ** !epresentative out of &&9, took their oath of
office, is an indication that only a small portion of the members of Congress had manifested the
acceptance of the ne, Constitution. %t is in the taking of the oath of office ,here the affiant says that
he s,ears to 4support and defend the Constitution4 that the acceptance of the Constitution is made
manifest. % agree ,ith counsel petitioners in +CA2&2B ;3erardo !o8as, et al. v. Alejandro Melchor, et
al.< ,hen he said that the members of Congress ,ho opted to serve in the interim ?ational Assembly
did only e6 a#un!ante cautela, or by ,ay of a precaution, making sure, that in the event the ne,
Constitution becomes definitely effective and the interim ?ational Assembly convened, they can
participate in legislative ,ork in the capacity as duly elected representatives of the people, ,hich
other,ise they could not do if they did not manifest their option to serve, and that option had to be
made ,ithin A9 day from .anuary &', &('A, the date ,hen Proclamation ?o. &&9 ,as issued. 0f
course, if the proposed Constitution does not become effective, they continue to be members of
Congress under the &(AB Constitution. +et it be considered that the members of the >ouse of
!epresentatives ,ere elected in &(2( to serve a term ,hich ,ill yet e8pire on December A&, &('A.
Ehereas, of the -enators ,ho opted to serve in the interim ?ational Assembly, the term of some of
them ,ill yet e8pire on December A&, &('A, some on December A&, &('B, and the rest on December
A&, &(''. +et if be noted that ( -enators did not opt to serve in the interim ?ational Assembly, and &)
members of the >ouse of !epresentatives also did not opt to serve in the interim ?ational Assembly.
?either can it be said that the people have accepted the ne, Constitution. % cannot, in conscience,
accept the reported affirmative votes in the citi"ens assemblies as a true and correct e8pression by
the people of their approval, or acceptance, of the proposed Constitution. % have my serious doubts
regarding the freedom of the people to e8press their vie,s regarding the proposed Constitution
during the voting in the citi"ens assemblies, and % have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citi"ens assemblies. his doubt has been
engendered in my mind after a careful e8amination and study of the records of these cases,
particularly ,ith respect to the reports of the voting in the citi"ens assemblies. Perhaps, it may be said
that the people, or the inhabitants of this country, have ac#uiesced to the ne, Constitution, in the
sense that they have continued to live peacefully and orderly under the government that has been
e8isting since .anuary &', &('A ,hen it ,as proclaimed that the ne, Constitution came into effect.
But ,hat could the people doI %n the same ,ay that the people have lived under martial la, since
-eptember *A, &('*, they also have to live under the government as it no, e8ists, and as it has
e8isted since the declaration of martial la, on -eptember *&, &('*, regardless of ,hat Constitution is
operative K ,hether it is the &(AB Constitution or the ne, Constitution. %ndeed, there is nothing that
the people can do under the circumstances actually prevailing in our country today K circumstances,
kno,n to all, and ,hich % do not consider necessary to state in this opinion. % cannot agree, therefore,
,ith my ,orthy colleagues in the Court ,ho hold the vie, that the people have accepted the ne,
Constitution, and that because the people have accepted it, the ne, Constitution should be
considered as in force, regardless of the fact that it ,as not ratified in accordance ,ith the provisions
of -ection & of Article D6 of the &(AB Constitution.
%t is my honest vie, that the Constitution proposed by the &('& Constitutional Convention has not
come into effect. % do not say, ho,ever, that the proposed Constitution is invalid. o me, the validity of
the proposed Constitution is not in issue in the cases before =s. Ehat the petitioners assail is not the
validity of the proposed Constitution but the validity of Presidential Proclamation ?o. &&9* ,hich
declares the proposed Constitution as having been ratified and has come into effect. %t being my
considered vie, that the ratification of the proposed Constitution, as proclaimed in Proclamation ?o.
&&9*, is not in accordance ,ith the provisions of -ection & of Article D6, of the &(AB Constitution, %
hold that Proclamation ?o. &&9* is invalid and should not be given force and effect. heir proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. he
proposed Constitution may still be submitted to a plebiscite in conformity ,ith -ection & of Article D6
of the &(AB Constitution. %ncidentally, % must state that the Constitution is still in force, and this Court
is still functioning under the &(AB Constitution.
% sincerely believe that the proposed Constitution may still be submitted to the people in an election or
plebiscite held in accordance ,ith the provisions of -ection & of Article D6 of the &(AB Constitution. %n
fact, as ,e have adverted to in this opinion, this ,as the mandate of Congress ,hen, on March &2,
&(2', it passed !esolution ?o. * calling a convention to propose amendments to the &(AB
Constitution. he Court may take judicial notice of the fact that the President of the Philippines has
reassured the nation that the government of our !epublic since the declaration of martial la, is not a
revolutionary government, and that he has been acting all the ,ay in consonance ,ith his po,ers
under the Constitution. he people of this !epublic has reason to be happy because, according to the
President, ,e still have a constitutional government. %t being my vie, that the &(AB Constitution is still
in force, % believe Congress may still convene and pass a la, calling for an election at ,hich the
Constitution proposed by the &('& Constitutional Convention ,ill be submitted to the people their
ratification or rejection. A plebiscite called pursuant to -ection & of Article D6 of the &(AB Constitution
is an assurance to our people that ,e still have in our country the !ule of +a, and that the
democratic system of government that has been implanted in our country by the Americans, and
,hich has become part of our social and political fabric, is still a reality.
he vie,s that % have e8pressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. % feel that if this Court ,ould give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation ?o. &&9*, it
being very clear that the provisions of -ection & of Article D6 of the &(AB Constitution had not been
complied ,ith, Ee ,ill be opening the gates for a similar disregard of the Constitution in the future.
Ehat % mean is that if this Court no, declares that a ne, Constitution is no, in force because the
members of the citi"ens assemblies had approved the said ne, Constitution, although that approval
,as not in accordance ,ith the procedure and the re#uirements prescribed in the &(AB 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 e8isting Constitution and the la,, and then said proposed
amendment is submitted to the people in any manner and ,hat ,ill matter is that a basis is claimed
that there ,as approval by the people. here ,ill not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court % only ,ish to contribute my
humble efforts to prevent the happening of such a situation in the future.
%t appearing to me that the announced ratification of the proposed Constitution through the voting in
the citi"ens assemblies is a clear violation of the &(AB Constitution, ,hat % say in this opinion is simply
an endeavor on my part to be true to my oath of office to defend and support the &(AB Constitution. %
am inspired by ,hat the great jurist and statesman, .ose P. +aurel, said7
+et our judges be as it ,ere the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights ,ill be safe and secure in their reverential guardianship.
% only ,ish to help prevent, if % can, democracy and the liberties of our people from vanishing in our
land, because, as .ustice 3eorge -utherland of the =. -. -upreme Court said7
;t<he saddest epitaph ,hich can be carved in memory of a vanished liberty is that it ,as lost because its
possessors failed to stretch forth a saving hand ,hile yet there ,as time.
% concur fully ,ith the personal vie,s e8pressed by the Chief .ustice in the opinion that he has ,ritten
in these cases. Along ,ith him, % vote to deny the motion to dismiss and give due course to the
petitions in these cases.
FERNANDO, J., dissenting7
?o #uestion more momentous, none impressed ,ith such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. 1or ,hile the specific
substantive issue is the validity of Presidential Proclamation ?o. &&9*, an adverse judgment may be
fraught ,ith conse#uences that, to say the least, are farCreaching in its implications. As stressed by
respondents, 4,hat petitioners really seek to invalidate is the ne, Constitution.4
1
-trict accuracy
,ould of course #ualify such statement that ,hat is in dispute, as noted in the opinion of the Chief
.ustice, goes only as far as the validity of its ratification. %t could very ,ell be though that the ultimate
outcome is not confined ,ithin such limit, and this is not to deny that under its aegis, there have been
marked gains in the social and economic sphere, but given the premise of continuity in a regime
under a fundamental la,, ,hich itself e8plicitly recogni"es the need for change and the process for
bringing it about,
4
it seems to me that the more appropriate course is this Court to give heed to the
plea of petitioners that the most serious attention be paid to their submission that the challenged
e8ecutive act fails to meet the test of constitutionality. =nder the circumstances, ,ith regret and ,ith
due respect for the opinion of my brethren, % must perforce dissent. %t ,ould follo, therefore that the
legal position taken by the Chief .ustice as set forth ,ith his usual lucidity and thoroughness has, on
the ,hole, my concurrence, subject, of course, to reservations insofar as it contains vie,s and
nuances to ,hich % have in the past e8pressed doubts. ?onetheless, % feel that a brief e8pression of
the reasons for the stand % take ,ould not be amiss.
%n coping ,ith its responsibility arising from the function of judicial revie,, this Court is not e8pected to
be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. %t is, by virtue of its role under the separation of po,ers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. /ven then, there is realism in ,hat +erner did say about the American -upreme
Court as 4the focal point of a set of dynamic forces ,hich Gcould playH havoc ,ith the landmarks of the
American state and determine the po,er configuration of the day.4
3
hat is ,hy there is this caveat.
%n the =nited -tates as here, the e8ercise of the po,er of judicial revie, is conditioned on the
necessity that the decision of a case or controversy before it so re#uires. o repeat, the .ustices of
the highest tribunal are not, as .ustice 1rankfurter made clear, 4architects of policy. hey can nullify
the policy of others, they are incapable of fashioning their o,n solutions for social problems.4
5

?onetheless, as ,as stressed by Professors Black
5
and Murphy,
:
a -upreme Court by the conclusion
it reaches and the decision it renders does not merely check the coordinate branches, but also by its
approval stamps ,ith legitimacy the action taken. hus in affirming constitutional supremacy, the
political departments could seek the aid of the judiciary. 1or the assent it gives to ,hat has been done
conduces to its support in a regime ,here the rule of la, holds s,ay. %n discharging such a role, this
Court must necessarily take in account not only ,hat the e8igent needs of the present demand but
,hat may lie ahead in the une8plored and unkno,n vistas of the future. %t must guard against the
pitfall of lack of understanding of the dominant forces at ,ork to seek a better life for all, especially
those suffering from the pangs of poverty and disease, by a blind determination to adhere to the
status ;uo. %t ,ould be tragic, and a clear case of its being recreant to its trust, if the suspicion can
,ith reason be entertained that its approach amounts merely to a militant vigilantism that is violently
opposed to any form of social change. %t follo,s then that it does not suffice that recourse be had only
to ,hat passes for scholarship in the la, that could be marred by inapplicable erudition and narro,
legalism. /ven ,ith due recognition, such factors, ho,ever, % cannot, for reasons to be set more
lengthily and in the light of the opinion of the Chief .ustice, reach the same result as the majority of
my brethren. 1or, in the last analysis, it is my firm conviction that the institution of judicial revie,
speaks too clearly for the point to be missed that official action, even ,ith due allo,ance made for the
good faith that invariably inspires the step taken, has to face the gauntlet of a court suit ,henever
there is a proper case ,ith the appropriate parties.
&. !espondents are acting in the soundest constitutional tradition ,hen, at the outset, they ,ould
seek a dismissal of these petitions. 1or them, the #uestion raised is political and thus beyond the
jurisdiction of this Court. -uch an approach cannot be indicted for unorthodo8y. %t is implicit in the
concept of the rule of la, that rights belong to the people and the government possesses po,ers
only. /ssentially then, unless such an authority may either be predicated on e8press or implied grant
in the Constitution or the statutes, an e8ercise thereof cannot survive an in#uiry as to its validity.
!espondents through -olicitorC3eneral Mendo"a ,ould deny our competence to proceed further. %t is
their vie,, vigorously pressed and plausibly asserted, that since ,hat is involved is not merely the
effectivity of an amendment but the actual coming into effect of a ne, constitution, the matter is not
justiciable. he immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of po,ers that it is not only the function but the solemn duty of the
judiciary to determine ,hat the la, is and to apply it in cases and controversies that call for decision.
7

-ince the Constitution preCeminently occupies the highest rung in the hierarchy of legal norms, it is in
the judiciary, ultimately this ribunal, that such a responsibility is vested. Eith the &(AB Constitution
containing, as above noted, an e8plicit article on the subject of amendments, it ,ould follo, that the
presumption to be indulged in is that the #uestion of ,hether there has been deference to its terms is
for this Court to pass upon. Ehat is more, the 3on"ales,
8
olentino
9
and Planas
10
cases speak
une#uivocally to that effect. ?or is it a valid objection to this conclusion that ,hat ,as involved in
those cases ,as the legality of the submission and not ratification, for from the very language of the
controlling article, the t,o vital steps are proposal and ratification, ,hich as pointed out in .illon v.
Gloss,
11
4cannot be treated as unrelated acts, but as succeeding steps in a single endeavor.4
14
0nce
an aspect thereof is vie,ed as judicial, there ,ould be no justification for considering the rest as
devoid of that character. %t ,ould be for me then an indefensible retreat, deriving no justification from
circumstances of ,eight and gravity, if this Court ,ere to accede to ,hat is sought by respondents
and rule that the #uestion before us is political.
0n this point, it may not be inappropriate to refer to a separate opinion of mine in 0ansan+ v. Garcia.
13
hus7 4he term has been made applicable to controversies clearly nonCjudicial and therefore
beyond its jurisdiction or to an issue involved in a case appropriately subject to its cogni"ance, as to
,hich there has been a prior legislative or e8ecutive determination to ,hich deference must be paid.
%t has like,ise been employed loosely to characteri"e a suit ,here the party proceeded against is the
President or Congress, or any branch thereof. %f to be delimited ,ith accuracy, 4political #uestions4
should refer to such as ,ould under the Constitution be decided by the people in their sovereign
capacity or in regard to full discretionary authority is vested either in the President or Congress. %t is
thus beyond the competence of the judiciary to pass upon. =nless clearly falling ,ithin the
formulation, the decision reached by the political branches ,hether in the form of a congressional act
or an e8ecutive order could be tested in court. Ehere private rights are affected, the judiciary has no
choice but to look into its validity. %t is not to be lost sight of that such a po,er comes into play if there
be an appropriate proceeding that may be filed only after each coordinate branch has acted. /ven
,hen the Presidency or Congress possesses plenary po,ers, its improvident e8ercise or the abuse
thereof, if sho,n, may give rise to a justiciable controversy. 1or the constitutional grant of authority is
usually unrestricted. here are limits to ,hat may be done and ho, it is to be accomplished.
?ecessarily then, the courts in the proper e8ercise of judicial revie, could in#uire into the #uestion of
,hether or not either of the t,o coordinate branches has adhered to ,hat is laid do,n by the
Constitution. he #uestion thus posed is judicial rather than political.4
15
he vie, entertained by
Professor Dodd is not too dissimilar. 1or him such a term 4is employed to designate certain types of
functions committed to the political organs of government ;the legislative and e8ecutive departments,
or either of them< and not subject to judicial investigation.4
15
After a thorough study of American
judicial decisions, both federal and state, he could conclude7 4he field of judicial nonenforceability is
important, but is not large ,hen contrasted ,ith the ,hole body of ,ritten constitutional te8ts. he
e8ceptions from judicial enforceability fall primarily ,ithin the field of public or governmental interests.4
1:
?or ,as Professor Eeston$s formulation any different. As ,as e8pressed by him7 4.udicial
#uestions, in ,hat may be thought the more useful sense, are those ,hich the sovereign has set to
be decided in the courts. Political #uestions, similarly, are those ,hich the sovereign has entrusted to
the soCcalled political departments of government or has reserved to be settled by its o,n e8traC
governmental action.4
17
Ehat appears undeniable then both from the standpoint of Philippine as ,ell
as American decisions is the care and circumspection re#uired before the conclusion is ,arranted
that the matter at issue is beyond judicial cogni"ance, a political #uestion being raised.
*. he submission of respondents on this subject of political #uestion, admittedly one of comple8ity
and importance, deserves to be pursued further. hey ,ould derive much aid and comfort from the
,ritings of both Professor Bickel
18
of @ale and Professor 1reund
19
of >arvard, both of ,hom in turn
are unabashed admirers of .ustice Brandeis. Ehatever be the merit inherent in their lack of
enthusiasm for a more active and positive role that must be played by the =nited -tates -upreme
Court in constitutional litigation, it must be judged in the light of our o,n history. %t cannot be denied
that from the ,ell nigh four decades of constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of American sovereignty, there has sprung a
tradition of ,hat has been aptly termed as judicial activism. -uch an approach could be traced to the
valedictory address before the &(AB Constitutional Convention of Claro M. !ecto. >e spoke of the
trust reposed in the judiciary in these ,ords7 4%t is one of the parado8es of democracy that the people
at times place more confidence in instrumentalities of the -tate other than those directly chosen by
them for the e8ercise of their sovereignty.4 *9 %t ,ould thus appear that even then this Court ,as
e8pected not to assume an attitude of timidity and hesitancy ,hen a constitutional #uestion is posed.
here ,as the assumption of course that it ,ould face up to such a task, ,ithout regard to political
considerations and ,ith no thought e8cept that of discharging its trust. Eitness these ,ords .ustice
+aurel in an early landmark case, People v. @era,
41
decided in &(A'7 4%f it is ever necessary for us to
make vehement affirmance during this formative period of political history, it is that ,e are
independent of the /8ecutive no less than of the +egislative department of our government K
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our s,orn duty as ,e see it
and as ,e understand it.4
44
he hope of course ,as that such assertion of independence impartiality
,as not mere rhetoric. hat is a matter more appropriately left to others to determine. %t suffices to
stake that ,hat elicits approval on the part of our people of a judiciary ever alert to in#uire into alleged
breaches of the fundamental la, is the reali"ation that to do so is merely to do ,hat is e8pected of it
and that thereby there is no invasion of spheres appropriately belonging to the political branches. 1or
it needs to be kept in kind al,ays that it can act only ,hen there is a suit ,ith proper parties before it,
,herein rights appropriate for judicial enforcement are sought to be vindicated. hen, too, it does not
approach constitutional #uestions ,ith dogmatism or apodictic certainty nor vie, them from the
shining cliffs of perfection. his is not to say though that it is satisfied ,ith an empiricism untroubled
by the search for jural consistency and rational coherence. A balance has to be struck. -o juridical
realism re#uires. 0nce allo,ance made that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public
acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to
understand. %t has not in the past shirked its responsibility to ascertain ,hether there has been
compliance ,ith and fidelity to constitutional re#uirements. -uch is the teaching of a host of cases
from 3n+ara v. Electoral
Co((ission
43
to Planas v. Co((ission on Elections.
45
%t should continue to e8ercise its jurisdiction,
even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is
political.
?or am % persuaded that the reading of the current drift in American legal scholarship by the -olicitorC
3eneral and his e#ually able associates presents the ,hole picture. 0n the #uestion of judicial
revie,, it is not a case of black and ,hite: there are shaded areas. %t goes too far, in my vie,, if the
perspective is one of dissatisfaction, ,ith its overtones of distrust. his e8pression of disapproval has
not escaped Dean !osto, of @ale, ,ho began one of his most celebrated legal essays. he
Democratic Character of .udicial !evie,, thus7 4A theme of uneasiness, and even of guilt, colors the
literature about judicial revie,. Many of those ,ho have talked, lectured, and ,ritten about the
Constitution have been troubled by a sense that judicial revie, is undemocratic.4
45
>e ,ent on to
state7 4.udicial revie,, they have urged, is an undemocratic shoot on an other,ise respectable tree. %t
should be cut off, or at least kept pruned and
inconspicuous.4
4:
>is vie, ,as precisely the opposite. hus7 4he po,er of constitutional revie,, to
be e8ercised by some part of the government, is implicit in the conception of a ,ritten constitution
delegating limited po,ers. A ,ritten constitution ,ould promote discord rather than order in society if
there ,ere no accepted authority to construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthori"ed governmental action against individuals.
he limitation and separation of po,ers, if they are to survive, re#uire a procedure for independent
mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional
po,er ,hich arise in the process of government.4
47
More than that, he took pains to emphasi"e7
4Ehether another method of enforcing the Constitution could have been devised, the short ans,er is
that no such method developed. he argument over the constitutionality of judicial revie, has long
since been settled by history. he po,er and duty of the -upreme Court to declare statutes or
e8ecutive action unconstitutional in appropriate cases is part of the living Constitution. $he course of
constitutional history,$ Mr. .ustice 1rankfurter recently remarked, $has cast responsibilities upon the
-upreme Court ,hich it ,ould be 4stultification4 for it to evade.$ 4
48
?or is it only Dean !osto, ,ho
could point 1rankfurter, reputed to belong to the same school of thought opposed to judicial activism,
if not its leading advocate during his long stay in the =nited -tates -upreme Court, as one fully
cogni"ant of the stigma that attaches to a tribunal ,hich neglects to meet the demands of judicial
revie,. here is a statement of similar importance from Professor Mason7 4%n Stein v. Ne) Yor-
1rankfurter remarked, some,hat selfCconsciously perhaps, that the $duty of deference cannot be
allo,ed imperceptibly to slide into abdication.$ 4
49
Professor Nonefsky, like Dean !osto,, could not
accept characteri"ation of judicial revie, as undemocratic. hus his study of >olmes and Brandeis,
the follo,ing appears7 4Ehen it is said that judicial revie, is an undemocratic feature of our political
system, it ought also to be remembered that architects of that system did not e#uate constitutional
government ,ith unbridled majority rule. 0ut of their concern for political stability and security for
private rights, ..., they designed a structure ,hose keystone ,as to consist of barriers to the
untrammeled e8ercise of po,er by any group. hey perceived no contradiction bet,een effective
government and constitutional checks. o .ames Madison, ,ho may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints ,as the best ans,er to ,hat he
vie,ed as the chief problem in erecting a system of free representative government7 $%n framing a
government ,hich is to be administered by men over men, the great difficulty lies in this7 you must
first enable the government to control the governed: and in the ne8t place oblige it to control itself.$ 4
30
here is thus an inevitability to the flo,ering of judicial revie,. Could it be that the tone of discontent
apparent in the ,ritings of eminent authorities on the subject evince at the most fears that the
American -upreme Court might overstep the bounds allotted to the judiciaryI %t cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust ,henever appropriate to the decision of a case before them. hat is ,hy it has been correctly
maintained that not,ithstanding the absence of any e8plicit provision in the fundamental la, of the
=nited -tates Constitution, that distinguished American constitutional historian, Professor Cor,in,
could rightfully state that judicial revie, 4is simply incidental to the po,er of courts to interpret the la,,
of ,hich the Constitution is part, in connection ,ith the decision of cases.4
31
his is not to deny that
there are those ,ho ,ould place the blame or the credit, depending upon one$s predilection, on
Marshall$s epochal opinion in 'ar#ur v. 'a!ison.
34
Curtis belonged to that persuasion. As he put it7
4he problem ,as given no ans,er by the Constitution. A hole ,as left ,here the Court might drive in
the peg of judicial supremacy, if it could. And that is ,hat .ohn Marshall did.4
33
At any rate there ,as
something in the soil of American juristic thought resulting in this tree of judicial po,er so precariously
planted by Marshall striking deep roots and sho,ing ,onderful vitality and hardiness. %t no,
dominates the American legal scene. hrough it, Chief .ustice >ughes, before occupying that e8alted
position, could state in a lecture7 4Ee are under a Constitution, but the Constitution is ,hat the judges
say it is ... .4
35
he above statement is more than just an aphorism that lends itself to inclusion in
judicial anthologies or bar association speeches. %t could and did provoke from .ustice .ackson, an
e8ponent of the judicial restraint school of thought, this meaningful #uery7 4he Constitution no,here
provides that it shall be ,hat the judges say it is. >o,, did it come about that the statement not only
could be but could become current as the most understandable comprehensive summary of
American Constitutional la,I4
35
%t is no ,onder that Professor >aines could pithily and succinctly sum
up the place of the highest American tribunal in the scheme of things in this ,ise7 4he -upreme
Court of the =nited -tates has come to be regarded as the uni#ue feature of the American
governmental system.4
3:
+et me not be misunderstood. here is here no attempt to close one$s eyes
to a discernible tendency on the part of some distinguished faculty minds to look askance at ,hat for
them may be inadvisable e8tension of judicial authority. 1or such indeed is the case as reflected in
t,o leading cases of recent vintage, "a-er v. Carr,
37
decided in &(2* and Po)ell v. 'acCor(ac-,
38
in
&(2(, both noted in the opinion of the Chief .ustice. he former disregarded the ,arning of .ustice
1rankfurter in Colegrove v. 3reen A( about the American -upreme Court declining jurisdiction on the
#uestion of apportionment as to do so ,ould cut very deep into the very being of Congress.4
50
1or
him, the judiciary 4ought not to enter this political thicket.4 Baker has since then been follo,ed: it has
spa,ned a host of cases.
51
Po,ell, on the #uestion of the po,er of a legislative body to e8clude from
its ranks a person ,hose #ualifications are uncontested, for many the very staple of ,hat is
essentially political, certainly goes even further than the authoritative Philippine decision of @era v.
3velino,
54
%t does look then that even in the =nited -tates, the plea for judicial selfCrestraint, even if
given voice by those competent in the field of constitutional la,, has fallen on deaf ears. here is in
the comments of respondents an e8cerpt from Professor 1reund #uoting from one of his essays
appearing in a volume published in &(2). %t is not ,ithout interest to note that in another paper, also
included therein, he ,as less than assertive about the necessity for selfCrestraint and apparently
mindful of the claims of judicial activism. hus7 41irst of all, the Court has a responsibility to maintain
the constitutional order, the distribution of public po,er, and the limitations on that po,er.4
53
As for
Professor Bickel, it has been said that as counsel for the ?e, @ork imes in the famous 6ietnam
papers case,
55
he ,as less than insistent on the American -upreme Court e8ercising judicial selfC
restraint. here are signs that the contending forces on such #uestion, for some an une#ual contest,
are no, #uiescent. he fervor that characteri"ed the e8pression of their respective points of vie,
appears to have been minimi"ed. ?ot that it is to be e8pected that it ,ill entirely disappear,
considering ho, dearly cherished are, for each group, the convictions, prejudices one might even
say, entertained. At least ,hat once ,as fitly characteri"ed as the booming guns of rhetoric, coming
from both directions, have been muted. 0f late, scholarly disputations have been centered on the
standards that should govern the e8ercise of the po,er of judicial revie,. %n his celebrated >olmes
lecture in &(B( at the >arvard +a, -chool, Professor Eechsler advocated as basis for decision ,hat
he termed neutral principles of constitutional la,.
55
%t has brought forth a plethora of la, revie,
articles, the reaction ranging from guarded conformity to caustic criticism.
5:
here ,as, to be sure, no
clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental
agencies ,ithin constitutional channels. he matter has been put in temperate terms by Professor
1rank thus7 4Ehen allo,ance has been made for all factors, it nevertheless seems to me that the
doctrine of political #uestions ought to be very sharply confined to ,here the functional reasons justify
it and that in a give involving its e8pansion there should be careful consideration also of the social
considerations ,hich may militate against it. he doctrine has a certain specious charm because of
its nice intellectualism and because of the fine deference it permits to e8pertise, to secret kno,ledge,
and to the prerogatives of others. %t should not be allo,ed to gro, as a merely intellectual plant.4
57

%t is difficult for me at least, not to be s,ayed by appraisal, coming from such impeccable sources of
the ,orth and significance of judicial revie, in the =nited -tates. % cannot resist the conclusion then
that the vie,s advanced on this subject by distinguished counsel for petitioners, ,ith -enators
+oren"o M. aLada and .ovito -alonga at the van, rather than the advocacy of the -olicitorC3eneral,
possess the greater ,eight and carry persuasion. -o much then for the invocation of the political
#uestion principle as a bar to the e8ercise of our jurisdiction.
A. hat brings me to the issue of the validity of the ratification. he crucial point that had to be met is
,hether Proclamation ?o. &&9* manifests fidelity to the e8plicit terms of Article D6. here is, of
course, the vie, not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the te8t to allo, deference to its spirit to control. Eith due recognition of
its force in constitutional litigation,
58
if my reading of the events and the process that led to such
proclamation, so clearly set forth in the opinion of the Chief .ustice, is not inaccurate, then it cannot
be confidently asserted that there ,as such compliance. %t ,ould be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any other conclusion ,ould, for me,
re#uire an interpretation that borders on the strained. -o it has to be if one does not lose sight of ho,
the article on amendments is phrased. A ,ord, to paraphrase .ustice >olmes may not be a crystal,
transparent and unchanged, but it is not, to borro, from +earned >and, that eminent jurist, a rubber
band either. %t ,ould be un,arranted in my vie, then to assert that the re#uirements of the &(AB
Constitution have been met. here are American decisions,
59
and they are not fe, in number, ,hich
re#uire that there be obedience to the literal terms of the applicable provision. %t is understandable
,hy it should be thus. %f the Constitution is the supreme la,, then its mandate must be fulfilled. ?o
evasion is tolerated. -ubmission to its commands can be sho,n only if each and every ,ord is given
meaning rather than ignored or disregarded. his is not to deny that a recognition conclusive effect
attached to the electorate manifesting its ,ill to vote affirmatively on the amendments proposed
poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial
compliance is enough. A great many American -tate decisions may be cited in support of such a
doctrine.
50

/ven if the assumption be indulged in that Article D6 is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to ,hat could be considered ,ords
of vague generality, pregnant ,ith uncertainty, still ,hatever obscurity it possesses is illumined ,hen
the light of the previous legislation is thro,n on it. %n the first Common,ealth Act,
51
submitting to the
1ilipino people for approval or disapproval certain amendments to the original ordinance appended to
the &(AB Constitution, it ,as made that the election for such purpose ,as to 4be conducted in
conformity ,ith the provisions of the /lection Code insofar as the same may be applicable.4
54
hen
came the statute,
53
calling for the plebiscite on the three &(J9 amendments providing for the
plebiscite on the three &(A9 amendments providing for a bicameral Congress or a -enate and a
>ouse of !epresentatives to take the place of a unicameral ?ational Assembly,
55
reducing the term
of the President to four years but allo,ing his reCelection ,ith the limitation that he cannot serve more
than eight consecutive years,
55
and creating an independent Commission on /lections.
5:
Again, it
,as e8pressly provided that the election 4shall be conducted in conformity ,ith the provisions of the
/lection Code in so far as the same may be applicable.4
57
he approval of the present parity
amendment ,as by virtue of a !epublic Act
58
,hich specifically made applicable the then /lection
Code.
59
here is a similar provision in the
legislation,
:0
,hich in cotemplation of the &('& Constitutional Convention, sa, to it that there be an
increase in the membership of the >ouse of !epresentatives a ma8imum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
,ithout forfeiting their seats, as proposed amendments to be voted on in the &(2' elections.
:1
hat is
the consistent course of interpretation follo,ed by the legislative branch. %t is most persuasive, if not
controlling. he restraints thus imposed ,ould set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under his martial la,
prerogatives, he ,as not devoid of po,er to specify the mode of ratification. 0n t,o vital points, ,ho
can vote and ho, they register their ,ill, Article D6 had been given a definitive construction. hat is
,hy % fail to see sufficient justification for this Court affi8ing the imprimatur of its approval on the mode
employed for the ratification of the revised Constitution as reflected in Proclamation ?o. &&9*.
J. ?or is the matter before us solely to be determined by the failure to comply ,ith the re#uirements
of Article D6. %ndependently of the lack of validity of the ratification of the ne, Constitution, if it be
accepted by the people, in ,hom sovereignty resides according to the Constitution,
:4
then this Court
cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect.
-uch a fundamental principle is meaningless if it does not imply, to follo, +aski, that the nation as a
,hole constitutes the 4single center of ultimate reference,4 necessarily the possessor of that 4po,er
that is able to resolve disputes by saying the last ,ord.4
:3
%f the origins of the democratic polity
enshrined in the &(AB Constitution ,ith the declaration that the Philippines is a republican state could
be traced back to Athens and to !ome, it is no doubt true, as Mc%ver pointed out, that only ,ith the
recognition of the nation as the separate political unit in public la, is there the juridical recognition of
the people composing it 4as the source of political authority.4
:5
1rom them, as Cor,in did stress,
emanate 4the highest possible embodiment of human ,ill,4
:5
,hich is supreme and must be obeyed.
o avoid any confusion and in the interest of clarity, it should be e8pressed in the manner ordained by
la,. /ven if such is not the case, ho,ever, once it is manifested, it is to be accepted as final and
authoritative. he government ,hich is merely an agency to register its commands has no choice but
to submit. %ts officials must act accordingly. ?o agency is e8empt such a duty, not even this Court. %n
that sense, the lack of regularity in the method employed to register its ,ishes is fatal in its
conse#uences. 0nce the fact of acceptance by people of a ne, fundamental la, is made evident, the
judiciary is left ,ith no choice but to accord it recognition. he obligation to render it obeisance falls
on the courts as ,ell.
here are American -tate decisions that enunciate such a doctrine. Ehile certainly not controlling,
they are not entirely bereft of persuasive significance. %n 'iller v. Jo*nson,
::
decided in &)(*, it ,as
set forth in the opinion of Chief .ustice >olt that on May A, &)(9, an act ,as passed in Nentucky,
providing for the calling of a convention for the purpose of framing a ne, constitution and the election
of delegates. %t provided that before any form of constitution made by them should become operative,
it should be submitted to the vote of the state and ratified by a majority of those voting. he
constitution then in force authori"ed the legislature, the preliminary steps having been taken, to call a
convention 4for the purpose of readopting, amending, or changing4 it contained no provision giving
the legislature the po,er to re#uire a submission of its ,ork to a vote of the people. he convention
met in -eptember, &)(9. By April, &)(&, it completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until -eptember follo,ing. Ehen the convention reassembled, the
delegates made numerous changes in instrument. As thus amended, it ,as promulgated by the
convention of -eptember *), &)(&, as the ne, constitution. An action ,as brought to challenge its
validity. %t failed in the lo,er court. %n affirming such judgment dismissing the action, Chief .ustice >olt
stated7 4%f a set of men, not selected by the people according to the forms of la,, ,ere to formulate an
instrument and declare it the constitution, it ,ould undoubtedly be the duty of the courts to declare its
,ork a nullity. his ,ould be revolution, and this the courts of the e8isting government must resist
until they are overturned by po,er, and a ne, government established. he convention, ho,ever,
,as the offspring of la,. he instrument ,hich ,e are asked to declare invalid as a constitution has
been made and promulgated according to the forms of la,. %t is a matter of current history that both
the e8ecutive and legislative branches of the government have recogni"ed its validity as a
constitution, and are no, daily doing so. ... Ehile the judiciary should protect the rights of the people
,ith great care and jealousy, because this is its duty, and also because: in times of great popular
e8citement, it is usually their last resort, yet it should at the same time be careful not to overstep the
proper bounds of its po,er, as being perhaps e#ually dangerous: and especially ,here such
momentous results might follo, as ,ould be likely in this instance, if the po,er of the judiciary
permitted, and its duty re#uires, the overthro, of the ,ork of the convention.4
:7
%n Talor v.
Co((on)ealt*,
:8
a &(9A decision, it ,as contended that the 6irginia Constitution reclaimed in &(9*
is invalid as it ,as ordained and promulgated by the convention ,ithout being submitted for
ratification or rejection by the people. he Court rejected such a vie,. As stated in the opinion of
.ustice >arrison7 4he Constitution of &(9* ,as ordained and proclaimed by a convention duly called
by direct vote of the people of the state to revise and amend the Constitution of &)2(. he result of
the ,ork of the convention has been recogni"ed, accepted, and acted upon as the only valid
Constitution of the state by the 3overnor in s,earing fidelity to it and proclaiming it, as directed
thereby: by the +egislature in its formal official act adopting a joint resolution, .uly &B, &(9*,
recogni"ing the Constitution ordained by the convention ,hich assembled in the city of !ichmond on
the &*th day of .une, &(9&, as the Constitution of 6irginia: by the individual oaths of members to
support it, and by enforcing its provisions: and the people in their primary capacity by peacefully
accepting it and ac#uiescing in it, by registering as voters under it to the e8tent of thousands
throughout the state, and by voting, under its provisions, at a general election for their representatives
in the Congress of the =nited -tates. he Constitution having been thus ackno,ledged and accepted
by the office administering the government and by the people of the state, and there being no
government in e8istence under the Constitution of &)2( opposing or denying its validity, ,e have no
difficulty in holding that the Constitution in #uestion, ,hich ,ent into effect at noon on the &9th day of
.uly, &(9*, is the only rightful, valid, and e8isting Constitution of this state, and that to it all the citi"ens
of 6irginia o,e their obedience and loyal allegiance.4
:9

%t cannot be plausibly asserted then that premises valid in la, are lacking for the claim that the
revised Constitution has been accepted by the 1ilipino people. Ehat is more, so it has been argued, it
is not merely a case of its being implied. hrough the Citi"ens Assemblies, there ,as a plebiscite ,ith
the result as indicated in Proclamation ?o. &&9*. 1rom the standpoint of respondents then, they could
allege that there ,as more than just mere ac#uiescence by the sovereign people. %ts ,ill ,as thus
e8pressed formally and unmistakably. %t may be added that there ,as nothing inherently
objectionable in the informal method follo,ed in ascertaining its preference. ?or is the fact that
1ilipinos of both se8es above the age of fifteen ,ere given the opportunity to vote to be deplored. he
greater the base of mass participation, the more there is fealty to the democratic concept. %t does
logically follo, like,ise that such circumstances being conceded, then no justifiable #uestion may be
raised. his Court is to respect ,hat had thus received the people$s sanction. hat is not for me
though ,hole of it. 1urther scrutiny even then is not entirely foreclosed. here is still an aspect that is
judicial, an in#uiry may be had as to ,hether such indeed ,as the result. his is no more than ,hat
the courts do in election cases. here are other factors to bear in mind. he fact that the President so
certified is ,ellCnigh conclusive. here is in addition the evidence flo,ing from the conditions of peace
and stability. here thus appears to be conformity to the e8isting order of things. he daily course of
events yields such a conclusion. Ehat is more, the officials under the &(AB Constitution, including
practically all !epresentatives and a majority of the -enators, have signified their assent to it. he
thought persists, ho,ever, that as yet sufficient time has not elapsed to be really certain.
?or is this all. here is for me an obstacle to the petitions being dismissed for such ascertainment of
popular ,ill did take place during a period of martial la,. %t ,ould have been different had there been
that freedom of debate ,ith the least interference, thus allo,ing a free market of ideas. %f it ,ere thus,
it could be truly said that there ,as no barrier to liberty of choice. %t ,ould be a clearCcut decision
either ,ay. 0ne could be certain as to the fact of the acceptance of the ne, or of adherence to the
old. his is not to deny that votes are cast by individuals ,ith their personal concerns uppermost in
mind, ,orried about their immediate needs and captive to their e8isting moods. hat is inherent in any
human institution, much more so in a democratic polity. ?or is it open to any valid objection because
in the final analysis the state e8ists for the individuals ,ho in their collectivity compose it. Ehatever
be their vie,s, they are entitled to respect. %t is difficult for me, ho,ever, at this stage to feel secure in
the conviction that they did utili"e the occasion afforded to give e8pression to ,hat ,as really in their
hearts. his is not to imply that such doubt could not be dispelled by evidence to the contrary. %f the
petitions be dismissed ho,ever, then such opportunity is forever lost.
B. Eith the foregoing legal principles in mind, % find myself unable to join the ranks of my esteemed
brethren ,ho vote for the dismissal of these petitions. % cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. %t is
not an easy decision to reach. %t has occasioned deep thought and considerable soulCsearching. 1or
there are countervailing considerations that e8ert a compulsion not easy to resist. %t can be asserted
,ith truth, especially in the field of social and economic rights, that ,ith the revised Constitution, there
is an auspicious beginning for further progress. hen too it could resolve ,hat appeared to be the
deepening contradictions of political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. %t is not too much to say therefore
that there had indeed been the revision of a fundamental la, to vitali"e the very values out of ,hich
democracy gro,s. %t is one ,hich has all the earmarks of being responsive to the dominant needs of
the times. %t represents an outlook cogni"ant of the tensions of a turbulent era that is the present.
hat is ,hy for some ,hat ,as done represented an act of courage and faith, coupled ,ith the hope
that the solution arrived at is a harbinger of a bright and rosy future.
%t is such a comfort then that even if my appraisal of the situation had commanded a majority, there is
not, ,hile these la,suits are being further considered, the least interference, ,ith the e8ecutive
department. he President in the discharge of all his functions is entitled to obedience. >e remains
commanderCinCchief ,ith all the constitutional po,ers it implies. Public officials can go about their
accustomed tasks in accordance ,ith the revised Constitution. hey can pursue even the tenor of
their ,ays. hey are free to act according to its tenets. hat ,as so these past fe, ,eeks, even
petitions ,ere filed. here ,as not at any time any thought of any restraining order. -o it ,as before.
hat is ho, things are e8pected to remain even if the motions to dismiss ,ere not granted. %t might be
asked though, suppose the petitions should prevailI Ehat thenI /ven so, the decision of this Court
need not be e8ecutory right a,ay. -uch a disposition of a case before this Court is not novel. hat
,as ho, it ,as done in the /mergency Po,ers Act controversy.
70
0nce compliance is had ,ith the
re#uirements of Article D6 of the &(AB Constitution, to assure that the coming force of the revised
charter is free from any taint of infirmity, then all doubts are set at rest.
1or some, to so vie, the #uestion before us is to be caught in a ,eb of unreality, to cherish illusions
that cannot stand the test of actuality. Ehat is more, it may give the impression of reliance on ,hat
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. hat may be so, but % find it impossible to transcend ,hat for me are the
implications of traditional constitutionalism. his is not to assert that an occupant of the bench is
bound to apply ,ith undeviating rigidity doctrines ,hich may have served their day. >e could at times
even look upon them as mere scribblings in the sands to be ,ashed a,ay by the advancing tides of
the present. he introduction of novel concepts may be carried only so far though. As Cardo"o put
the matter7 4he judge, even ,hen he is free, is still not ,holly free. >e is not to innovate at pleasure.
>e is not a knightCerrant, roaming at ,ill in pursuit of his o,n ideal of beauty or of goodness. >e is to
dra, his inspiration from consecrated principles. >e is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. >e is to e8ercise a discretion informed by tradition, methodi"ed by
analogy, disciplined by system, and subordinated to 4the primordial necessity of order in the social
life.4 Eide enough in all conscience is the field of discretion that remains.4
71
Moreover ,hat made it
difficult for this Court to apply settled principles, ,hich for me have not lost their validity, is traceable
to the fact that the revised Constitution ,as made to take effect immediately upon ratification. %f a
period of time ,ere allo,ed to elapse precisely to enable the judicial po,er to be e8ercised, no
complication ,ould have arisen. +ike,ise, had there been only one or t,o amendments, no such
problem ,ould be before us. hat is ,hy % do not see sufficient justification for the orthodo8ies of
constitutional la, not to operate.
/ven ,ith full reali"ation then that the approach pursued is not all that it ought to have been and the
process of reasoning not ,ithout its shortcomings, the basic premises of a constitutional democracy,
as % understand them and as set forth in the preceding pages, compel me to vote the ,ay % did.
he masterly opinion of the Chief .ustice ,herein he painstakingly deals ,ith the momentous issues
of the cases at bar in all their comple8ity commands my concurrence.
% ,ould herein make an e8position of the fundamental reasons and considerations for my stand.
he unprecedented and precedentCsetting issue submitted by petitioners for the Court$s resolution is
the validity and constitutionality of Presidential Proclamation ?o. &&9* issued on .anuary &', &('A,
certifying and proclaiming that the Constitution proposed by the &('& Constitutional Convention 4has
been ratified by an over,helming majority of all the votes cast by the members of all the Barangays
;Citi"ens Assemblies< throughout the Philippines, and has thereby come into effect.4
More specifically, the issue submitted is ,hether the purported ratification of the proposed
Constitution by means of the Citi"ens Assemblies has substantially complied ,ith the mandate of
Article D6 of the e8isting Constitution of &(AB that duly proposed amendments thereto, in toto or parts
thereof, 4shall be valid as part of this Constitution ,hen approved by a (a5orit of the votes cast at an
election at ,hich the amendments are su#(itte! to the people for their rati,ication.4
1

A necessary corollary issue is ,hether the purported ratification of the proposed Constitution as
signed on ?ovember A9, &('* by the &('& Constitutional Convention may be said also to have
substantially complied ,ith its o,n mandate that 4;<his Constitution shall take immediately upon its
rati,ication by a (a5orit of the votes cast in a ple#iscite calle! ,or t*e purpose and e8cept as herein
provided, shall supersede the Constitution of ?ineteen hundred and thirtyCfive and all amendments
thereto.4
4

!espondents contend that 4;A<lthough apparently ,hat is sought to be annulled is Proclamation ?o.
&&9*, ,hat petitioners really seek to invalidate is the ne, Constitution4, and their actions must be
dismissed, #ecause7
K 4the Court may not in#uire into the vali!it of the proce!ure ,or rati,ication4 ,hich is 1political in
character4 and that 4,hat is sought to be invalidated is not an act of the President but of the people:
K 4;<he ,act o, approval of the ne, Constitution by an over,helming majority of the votes cast as
!eclare! an! certi,ie! in Proclamation ?o. &&9* is conclusive on the courts:
K 4Proclamation ?o. &&9* ,as issued by the President in the e8ercise of legislative po,er under martial
la,. ... Alternatively, or contemporaneously, he did so as 4agent4 of the Constitutional Convention:4
K 4alleged !e,ects, such as absence of secret votin+, enfranchisement of persons less than *& years,
non supervision ;by< the Co(elec are matters not re;uire! by Article D6 of the &(AB Constitution4: ;sic<
K 4a,ter rati,ication, ,hatever defects there might have been in the procedure are overcome and (oote!
;and (ute!< by the ,act o, rati,ication4: and
K 4;A<ssuming finally that Article D6 of the &(AB Constitution ,as not strictly follo,ed, the ratification of
the ne, Constitution must nonetheless be respected. 1or the procedure outlined in Article D6 ,as not
intended to be e8clusive of other procedures, especially one ,hich contemplates popular and direct
participation of the citi"enry ... .4
3

o test the validity of respondents$ submittal that the Court, in annulling Proclamation ?o. &&9* ,ould
really be 4invalidating the ne, Constitution4, the terms and premises of the issues have to be defined.
K !espondents themselves assert that 4Proclamation ?o. &&9* ... is plainly merely !eclarator of the fact
that the &('A Constitution has been rati,ie! and has come into force.
5

K he measure of the fact of ratification is Article D6 of the &(AB Constitution. his has been consistently
held by the Court in the Gonzales7
5
and Tolentino
:
cases.
K %n the Tolentino case, this Court emphasi"ed 4that the provisions of -ection & of Article D6 of the
Constitution, dealing ,ith the proce!ure or (anner o, a(en!in+ the fundamental la, are binding upon the
Convention and the other departments of the government. %t must be added that ... they are no less
#in!in+ upon the people.4
7

K %n the same Tolentino case, this Court further proclaimed that 4as long as any amendment is
formulated and submitted under the aegis of the present Charter, any proposal for such amendment
,hich is not in conformity ,ith the letter, spirit and intent of the C*arter for effecting amendments, cannot
receive the sanction of this Court.4
8

K As continues to be held by a majority of this Court, proposed amendments to the Constitution 4should
be ratified in only one ,ay, that is, in an election or plebiscite held in accordance ,ith la, and participated
in only by #ualified and duly registered voters4
9
and under the supervision of the Commission on
/lections.
10

K >ence, if the Court declares Proclamation &&9* null and void because on its ,ace, the purported
ratification of the proposed Constitution has not faithfully nor substantially observed nor complied ,ith the
mandatory re#uirements of Article D6 of the ;&(AB< Constitution, it ,ould not be 4invalidating4 the
proposed ne, Constitution but ,ould be simply declaring that the announced fact of ratification thereof by
means of the Citi"ens Assemblies referendums does not pass the constitutional test and that the
proposed ne, Constitution has not constitutionally come into e8istence.
K -ince Proclamation &&9* is ackno,ledged by respondent to be 4plainly merely declaratory4 of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing
the selfCsame declaration as proof of the purported ratification therein declared.
Ehat complicates the cases at bar is the fact that the proposed &('* Constitution ,as enforced as
having immediately taken effect upon the issuance on .anuary &', &('A of Proclamation &&9* and
the #uestion of ,hether 4confusion and disorder in government affairs ,ould ;not< result4 from a
judicial declaration of nullity of the purported ratification is raised by the -olicitorC3eneral on behalf of
respondents.
A comparable precedent of great crisis proportions is found in the /mergency Po,ers cases,
11

,herein the Court in its !esolution of -eptember &2, &(J( after judgment ,as initially not obtained on
August *2, &(J( for lack of the re#uired si8 ;2< votes, finally declared in effect that the preC,ar
emergency po,ers delegated by Congress to the President, under Common,ealth Act 2'& in
pursuance of Article 6%, section *2 of the Constitution, had ceased and became inoperative at the
latest in May, &(J2 ,hen Congress met in its first regular session on May *B, &(J2.
hen Chief .ustice Manuel 6. Moran recited the great interests and important rights that had arisen
under e8ecutive orders 4issued in good faith and ,ith the best of intentions by three successive
Presidents, and some of them may have already produced e8tensive effects on the life of the nation4
K in the same manner as may have arisen under the bona fide acts of the President no, in the
honest belief that the &('* Constitution had been validly ratified by means of the Citi"ens Assemblies
referendums K and indicated the proper course and solution therefor, ,hich ,ere duly abided by and
confusion and disorder as ,ell as harm to public interest and innocent parties thereby avoided as
follo,s7
=pon the other hand, ,hile % believe that the emergency po,ers had ceased in .une &(JB, % am not
prepared to hold that all e8ecutive orders issued thereafter under Common,ealth Act ?o. 2'&, are per se
null and void. %t must be borne in mind that these e8ecutive orders had been issued in good faith and ,ith
the best of intentions by three successive Presidents, and some of them may have already produced
e8tensive effects in the life of the nation. Ee have, for instance, /8ecutive 0rder ?o. 'A, issued on
?ovember &*, &(JB, appropriating the sum of P2,'B9,999 for public ,orks: /8ecutive 0rder ?o. )2,
issued on .anuary ', &(J2, a(en!in+ a previous or!er re+ar!in+ t*e or+anization o, t*e Supre(e Court:
/8ecutive 0rder ?o. )(, issued on .anuary &, &(J2, reorgani"ing Courts of 1irst %nstance: /8ecutive
0rder ?o. &)J, issued on ?ovember &(, &(J), controlling rice and palay to combat hunger: and other
e8ecutive orders appropriating funds for other purposes. he conse#uences of a #lan-et nulli,ication of all
these e8ecutive orders ,ill be un#uestionably serious an! *ar(,ul. And % hold that before nullifying them,
ot*er i(portant circu(stances should be in;uire! into, as for instance, ,hether or not they have been
ratified by Congress e8pressly or impliedly, ,hether their purposes have already been accomplished
entirely or partially, and in the last instance, to ,hat e8tent: ac#uiescence of litigants: !e ,acto officers:
acts and contracts of parties acting in good faith: etc. %t is my opinion that each e8ecutive order must be
vie,ed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it, precautionary
measures should be taken to avoi! *ar( to public interest and innocent parties.
14

%nitially, then Chief .ustice Moran voted ,ith a majority of the Court to grant the Araneta and 3uerrero
petitions holding null and void the e8ecutive orders on rentals and e8port control but to defer
judgment on the !odrigue" and Barredo petitions for judicial declarations of nullity of the e8ecutive
orders appropriating the &(J(C&(B9 fiscal year budget for the government and P2 million for the
holding of the &(J( national elections. After rehearsing, he further voted to also declare null and void
the last t,o e8ecutive orders appropriating funds for the &(J( budget and elections, completing the
4sufficient majority4 of si8 against four dissenting justices 4to pronounce a valid judgment on that
matter.4
13

hen Chief .ustice Moran, ,ho penned the Court$s majority resolution, e8plained his vote for
annulment despite the great difficulties and possible 4harmful conse#uences4 in the follo,ing
passage, ,hich bears reCreading7
>o,ever, no, that the holding of a special session of Congress for the purpose of remedying the nullity of
the e8ecutive orders in #uestion appears remote and uncertain, % am compelled to, and do hereby, give
my un#ualified concurrence in the decision penned by Mr. .ustice uason declaring that these t,o
e8ecutive orders ,ere issued ,ithout authority of la,.
Ehile in voting for a temporary deferment of the judgment % ,as moved by the belief that positive
compliance ,ith the Constitution by the other branches of the 3overnment, ,hich is our prime concern in
all these cases, ,ould be effected, and indefinite deferment ,ill produce the opposite result because it
,ould legitimi"e a prolonged or permanent evasion of our organic la,. /8ecutive orders ,hich are, in our
opinion, repugnant to the Constitution, ,ould be given permanent life, opening the ,ay or practices ,hich
may undermine our constitutional structure.
he harmful conse#uences ,hich, as % envisioned in my concurring opinion, ,ould come to pass should
the said e8ecutive orders be immediately declared null and void are still real. hey have not disappeared
by reason of the fact that a special session of Congress is not no, forthcoming. >o,ever, the remedy
no, lies in the hands of the Chief /8ecutive and of Congress, for the Constitution vests in the former the
po,er to call a special session should the need for one arise, and in the latter, the po,er to pass a valid
appropriations act.
hat Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully reali"es its great responsibility of saving the nation from breaking do,n: and
furthermore, the President in the e8ercise of his constitutional po,ers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.
Democracy is on trial in the Philippines, and surely it ,ill emerge victorious as a permanent ,ay of life in
this country, if each of the great branches of the 3overnment, ,ithin its o,n allocated sphere, complies
,ith its o,n constitutional duty, uncompromisingly and regardless of difficulties.
0ur !epublic is still young, and the vital principles underlying its organic structure should be maintained
firm and strong, hard as the best of steel, so as to insure its gro,th and development along solid lines of a
stable and vigorous democracy.
15

he late .ustice Pedro uason ,ho penned the initial majority judgment ;declaring null and void the
rental and e8port control e8ecutive orders< like,ise observed that 4;<he truth is that under our
concept of constitutional government, in times of e8treme perils more than in normal circumstances
$the various branches, e8ecutive, legislative, and judicial,$ given the ability to act, are called upon $to
perform the duties discharge the responsibilities committed to respectively.$ 4
15

%t should be duly ackno,ledged that the Court$s task of discharging its duty and responsibility has
been considerably lightened by the President$s public manifestation of adherence to constitutional
processes and of ,orking ,ithin the proper constitutional frame,ork as per his press conference of
.anuary *9,&('A, ,herein he stated that 4;<he -upreme Court is the final arbiter of the Constitution.
%t can and ,ill probably determine the validity of this Constitution. % did not ,ant to talk about this
because actually there is a case pending before the -upreme Court. But suffice it to say that %
recogni"e the po,er of the -upreme Court. Eith respect to appointments, the matter falls under a
general provision ,hich authori"es the Prime Minister to appoint additional members to the -upreme
Court. =ntil the matter of the ne, Constitution is decided, % have no intention of utili"ing that po,er.4
1:
hus, it is that as in an analogous situation ,herein the state -upreme Court of Mississippi held that
the #uestions of ,hether the submission of the proposed constitutional amendment of the -tate
Constitution providing for an elective, instead of an appointive, judiciary and ,hether the proposition
,as in fact adopted, ,ere justifiable and not political #uestions, ,e may echo the ,ords therein of
Chief .ustice Ehitfield that 4;E<e do not seek a jurisdiction not imposed upon us by the Constitution.
Ee could not, if ,e ,ould, escape the e8ercise of that jurisdiction ,hich the Constitution has imposed
upon us. %n the particular instance in ,hich ,e are no, acting, our duty to kno, ,hat the Constitution
of the state is, and in accordance ,ith our oaths to support and maintain it in its integrity, imposed on
us a most difficult and embarrassing duty, one ,hich ,e have not sought, but one ,hich, like all
others, must be discharged.4
17

%n confronting the issues at bar, then, ,ith due regard for my colleagues$ contrary vie,s, ,e are faced
,ith the hard choice of maintaining a firm and strict K perhaps, even rigid K stand that the
Constitution is a 4superior para(ount la), unc*an+ea#le # or!inar (eans4 save in the particular
mode and manner prescribed therein by the people, ,ho, in Cooley$s ,ords, so 4tied up ;not only< the
hands of their official agencies, but their o,n hands as ,ell4
18
in the e8ercise of their sovereign ,ill or
a liberal and fle8ible stand that ,ould consider compliance ,ith the constitutional article on the
amending process as merely directory rather than mandatory.
he first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended in toto or other,ise e6clusivel 4by approval by a majority of the votes cast an election at
,hich the amendments are submitted to the people for their ratification4,
19
participated in onl by
;uali,ie! and duly re+istere! voters t)ent4one ears of age or over
40
and duly supervise! by the
Commission on /lections,
41
in accordance ,ith the cited mandatory constitutional re#uirements.
he alternative choice of a liberal stand ,ould permit a !isre+ar! of said re#uirements on the theory
urged by respondents that 4the procedure outlined in Article D6 ,as not intended to be e6clusive of
other procedures especially one ,hich contemplates popular and direct participation of the citi"enry4,
44
that the constitutional age and literacy re#uirements and other statutory safeguards for ascertaining
the ,ill of the majority of the people may like,ise be changed as 4suggested, if not prescribed, by the
people ;through the Citi"ens Assemblies< themselves4,
43
and that the Comelec is constitutionally
4mandated to oversee ... elections ;of public officers< and not plebiscites.4
45

o paraphrase =.-. Chief .ustice .ohn Marshall ,ho first declared in the historic &)9A case of
'ar#ur vs. 'a!ison
45
the =.-. -upreme Court$s po,er of judicial revie, and to declare void la,s
repugnant to the Constitution, there is no middle ground bet,een these t,o alternatives. As Marshall
e8pounded it7 4;<he Constitution is either a superior paramount la,, unchangeable by ordinary
means, or it is on a level ,ith ordinary legislative acts, and, like other acts, alterable ,hen the
legislature shall please to alter it. %f the former part of the alternative be true, then a legislative act,
contrary to the Constitution, is not la,: if the latter part be true, then ,ritten constitutions are absurd
attempts on the part of a people, to limit a po,er, in its o,n nature, illimitable.4
As ,as to be restated by .ustice .ose P. +aurel a century and a third later in the &(A2 landmark case
of 3n+ara vs. Electoral Co((ission,
4:
4;<he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental po,ers and agencies. %f these restrictions and
limitations are transcended it ,ould be inconceivable if the Constitution had not provided for a
mechanism by ,hich to direct the course of government along constitutional channels, for then the
distribution of po,ers ,ould be mere verbiage, the bill of rights mere e8pressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution are real as they should be in any living
Constitution.4
.ustice +aurel pointed out that in contrast to the =nited -tates Constitution, the Philippine Constitution
as 4a definition of the po,ers of government4 placed upon the judiciary the great burden of
4determining the nature, scope and e8tent of such po,ers4 and stressed that 4,hen the judiciary
departments ... but only asserts the solemn and sacred obligation 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 ,hich the instrument secures and guarantees to them.4
%%
Marshall ,as to utter much later in the e#ually historic &)&( case of 'cCulloc* vs. 'arlan!
47
the
4climactic phrase,4
48
4,e must never forget that it is a constitution ,e are e8pounding,4 K termed by
.ustice 1rankfurter as 4the single most important utterance in the literature of constitutional la, K
most important because most comprehensive and comprehending.4
49
his enduring concept to my
mind permeated to this Court$s e8position and rationale in the hallmark case of olentino, ,herein ,e
rejected the contentions on the Convention$s behalf 4that the issue ... is a political #uestion and that
the Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts.4
30

his Court therein made its une;uivocal choice of strictly re#uiring ,ait*,ul ;,hich really includes
substantial< compliance ,ith the (an!ator re#uirements of the a(en!in+ process.
&. %n denying reconsideration of our judgment of 0ctober &2, &('& prohibiting the submittal in an
advance election of &('& Constitutional Convention$s 0rganic !esolution ?o. & proposing to amend
Article 6, section & of the Constitution by lo,ering the voting age to &) years ;vice *& years< A9a
4,ithout prejudice to other amendments that ,ill be proposed in the future ... on other portions of the
amended section4, this Court stated that 4the constitutional provision in #uestion ;as proposed<
presents no doubt ,hich may be resolved in favor of respondents and intervenors. Ee do not believe
such doubt can e8ist only because it is urged that the en! sought to be achieved is to be !esire!.
Paraphrasing no less than the President of Constitutional Convention of &(AJ, Claro M. !ecto, let
la, purportedly in order to attain some laudable objective bear in mind that someday someho, others
31

*. his Court held in olentino that7
... 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 e8isting Constitution. ?o, Ee hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of -ection & of 3rticle I@. his must be so,
because it is plain to =s that the framers of the Constitution took care that the process of amending the
same should not be undertaken ,ith the same ease and ,acilit in changing an ordinary legislation.
succeeding generations generally cherish. And because the Constitution affects the lives, ,ortunes, ,uture
and ever ot*er conceiva#le aspect of the lives of all t*e people ,ithin the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A constitution ,orthy of the people
for deliberation and study. %t is obvious that correspondingly, an a(en!(ent of the Constitution is of no
less importance than the ,hole Constitution itself, and perforce must be conceived and prepared ,ith as
much care and deliberation. 1rom the very nature of things, the drafters of an original constitution, as
already observed earlier, operate ,ithout any limitations, restraints or inhibitions save those that they may
impose upon themselves. his is not necessarily true of subse#uent conventions called to amend the
original constitution. 3enerally, the framers of the latter see to it that their handi,ork is not lightly treated
and as easily mutilated or changed, not only for reasons purely personal but more importantly, because
,ritten 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 e8igencies of the people, hence, they must be
insulate! against precipitate and hasty actions motivated by more or less passing political moods or
fancies. hus, as a rule, the original constitutions carry ,ith them limitations and conditions, more or less
stringent, (a!e so # t*e people t*e(selves, in regard to the process of their a(en!(ent. And ,hen
such limitations or conditions are so incorporated in the original constitution, it does not lie in the
delegates of any subse#uent convention to claim that they may ignore and disregard such conditions
because they are po,erful and omnipotent as their original counterparts.
34

A. his Court in Tolentino like,ise formally adopted the doctrine of proper su#(ission first advanced
in Gonzales vs. Co(elec
33
, thus7
Ee 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 su,,icient ti(e but a(ple #asis for an
intelli+ent appraisal of the nature of amendment per se as ,ell as its relation to the other parts of the
Constitution ,ith ,hich it has to form a harmonious ,hole. %n the conte8t of the present state of things,
,here the Convention hardly started considering the merits of hundreds, if not thousands, proposals to
amend the e8isting Constitution, to present to people any single proposal or a fe, of them cannot comply
,ith this re#uirement. Ee are of the opinion that the present Constitution does not contemplate in -ection
& of Article D6 a plebiscite or 4election4 ,herein the people are in the dark as to frame of reference they
can base their judgment on. Ee reject the rationali"ation that the present Constitution is a possible frame
of reference, for the simple reason that intervenors themselves are stating 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. %n brief, under the proposed plebiscite, there can be, in
the language of .ustice -anche", speaking for the si8 members of the Court in 3on"ales, supra, $no
proper su#(ission.$ 4
35

J. 1our other members of the Court
35
in a separate concurrence in Tolentino, e8pressed their
4essential agreement4 ,ith .ustice -anche"$ separate opinion in Gonzales on the need for 4,air
su#(ission ;and< intelli+ent re5ection4 as 4(ini(u( re#uirements that must be met in order that there
can be a proper su#(ission to the people of a proposed constitutional amendment4 thus7
capabilities, should strain every effort to inform every citi"en of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. By this, ,e are not to be understood
as saying that, if one citi"en or &99 citi"ens or &,999 citi"ens cannot be reached, then there is no
submission ,ithin the meaning of the ,ord as intended by the framers of the Constitution. Ehat the
Constitution in effect directs is that the government, in submitting an amendment for ratification, should
put every instrumentality or agency ,ithin its structural frame,ork to enlighten the people, educate them
,ith respect to their act of ratification or rejection. 1or as ,e have earlier stated, one thing is submission
and another is ratification. here (ust be ,air su#(ission, intelli+ent consent or re5ection.
3:

hey stressed further the need for un!ivi!e! attention, su,,icient in,or(ation and ,ull !e#ate,
conformably to the intendment of Article D6, section & of the Constitution, in this ,ise7
A number of doubts or misgivings could conceivably and logically assail the average voter. Ehy should
the voting age be lo,ered at all, in the first placeI Ehy should the ne, voting age be precisely &) years,
and not &( or *9I And ,hy not &'I 0r even &2 or &BI %s the &)Cyear old as mature as the *&Cyear old, so
that there is no need of an educational #ualification to entitle him to voteI %n this age of permissiveness
and dissent, can the &)Cyear old be relied upon to vote ,ith judiciousness ,hen the *&Cyear old, in the
past elections, has not performed so ,ellI %f the proposed amendment is voted do,n by the people, ,ill
the Constitutional Convention insist on the said amendmentI Ehy is there an unseemly haste on the part
of the Constitutional Convention in having this particular proposed amendment ratified at this particular
timeI Do some of the members of the Convention have future political plans ,hich they ,ant to begin to
subserve by the approval this year of this amendmentI %f this amendment is approved, does it thereby
mean that the &)Cyear old should not also shoulder the moral and legal responsibilities of the *&Cyear oldI
Eill he be re#uired to compulsory military service under the colorsI Eill the contractual consent be
reduced to &) yearsI %f % vote against the amendment, ,ill % not be unfair to my o,n child ,ho ,ill be &)
years old, come &('AI
he above are just samplings from here, there and every,here K from a domain ;of searching #uestions<
the bounds of ,hich are not immediately ascertainable. -urely, many more #uestions can be added to the
already long litany. And the ans,ers cannot e8cept as the #uestions are !e#ate! ,ull, pon!ere! upon
purpose,ull, an! accor!e! un!ivi!e! attention.
su,,icientl in,or(e! of the (eanin+, nature an! e,,ects of the proposed constitutional amendment. hey
have not been afforded a(ple ti(e to deliberate thereon conscientiously. hey have been and are
effectively distracted from a ,ull an! !ispassionate consi!eration o, t*e (erits an! !e(erits of the
cannot thus ,eigh in tran#uility the need for and the ,isdom proposed
amendment.
37

B. his Court therein dismissed the plea of disregarding mandatory re#uirements of the amending
process 4in favor of allo,ing the sovereign people to e8press their decision on the proposed
amendments4 as 4anachronistic in the real constitutionalism and repugnant to the essence of the rule
of la,,4 in the follo,ing terms7
... he preamble of the Constitution says that the Constitution has been ordained by the $1ilipino people,
imploring the aid of Divine Providence.$ -ection & of Article D6 is nothing than a part of the Constitution
thus or!aine! # t*e people. >ence, in construing said section, Ee must read it as if the people had said,
$his Constitution may be a(en!e!, but it is our )ill that the amendment must be propose! and
su#(itte! to =s for ratification onl in t*e (anner *erein provi!e!.$ ... Accordingly, the real issue here
cannot be ,hether or not the amending process delineated by the present Constitution may be
disregarded in favor of allo,ing the sovereign people to e8press their decision on the proposed
amendments, if only because it is evident that the very idea of !epartin+ from the fundamental la, is
anac*ronistic in t*e real( o, constitutionalis( and repu+nant to t*e essence o, t*e rule o, la): rather, it is
,hether or not the provisional nature of the proposed amendment and the (anner o, its su#(ission to the
people for ratification or rejection con,or( ,ith the (an!ate o, t*e people themselves in such regard, as
e8pressed in, the Constitution itself.
38

2. his Court, in not heeding the popular clamor, thus stated its position7 4;%<t ,ould be tragic and
contrary to the plain compulsion of these perspectives, if the Court ,ere to allo, itself in deciding this
case to be carried astray by considerations other than the i(peratives of the rule of la) and of the
applicable provisions of the Constitution. ?eedless to say, in a larger measure than ,hen 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 ,ith the proper parties and by striking do,n any act violative thereof.
>ere, as in all other cases, Ee are resolved to !isc*ar+e that !ut.
39

'. he Chief .ustice, in his separate opinion in Tolentino concurring ,ith this Court$s denial of the
motion for reconsideration, succinctly restated this Court$s position on the fundamentals, as follo,s7
K 0n the premature submission of a partial amendment proposal, ,ith a 4temporary provisional or
tentative character47 K 4... a partial amendment ,ould deprive the voters of the conte8t ,hich is usually
necessary for them to make a reasona#l intelli+ent appraisal of the issue submitted for their ratification
or rejection. ... hen, too, the submission to a plebiscite of a partial amendment, ,ithout a !e,inite ,ra(e
o, re,erence, is fraught ,ith possibilities ,hich may jeopardi"e the social fabric. 1or one thing, it opens the
door to ,ild speculations. %t offers ample opportunities for over"ealous leaders and members of opposing
political camps to unduly e8aggerate the pros and cons of the partial amendment proposed. %n short, it is
apt to breed ,alse *opes and create )ron+ i(pressions. As a conse#uence, it is bound to unduly strain
the people$s faith in the soundness and validity of democratic processes and institutions.
K 0n the plea to allo, submission to the sovereign people of the 4fragmentary and incomplete4 proposal,
although inconsistent ,ith the letter and spirit of the Constitution7 4he vie,, has, also, advanced that the
foregoing considerations are not decisive on the issue before =s, inasmuch as the people are soverei+n,
and the partial amendment involved in this case is being submitted to them. he issue before =s is
,hether or not said partial amendment (a be vali!l su#(itte! to the people for ratification 4in a
plebiscite coincide ,ith the local elections in ?ovember &('&,4 and t*is particular issue ,ill not be
submitted to the people. Ehat is more, the Constitution does not permit its submission to the people. he
#uestion sought to be settled in the scheduled plebiscite is ,hether or not the people are in favor of the
reduction of the voting age.
K 0n a 4political4 rather than 4le+alistic4 approach7 4%s this approach to the problem too 4le+alisticI4 his
term has possible connotations. %t may mean strict a!*erence to t*e la), ,hich in the case at bar is the
Supre(e 0a) of the land. 0n point, suffice it to say that, in compliance ,ith the specific man of such
-upreme +a,, the members of the -upreme Court taken the re#uisite 4oath to support and defend the
Constitution.4 ... hen, again, the term 4le+alistic4 may be used to suggest inversely that the some,hat
strained interpretation of the Constitution being urged upon this Court be tolerate! or, at least,
overlooked, upon the theory that the partial amendment on voting age is badly needed and reflects the
,ill of the people, specially the youth. his course of action favors, in effect, adoption of a political
approac*, inasmuch as the advisability of the amendment and an appraisal of the people$s feeling
thereon political (atters. %n fact, apart from the obvious message of the mass media, and, at times, of the
pulpit, the Court has been literally bombarded ,ith scores of hand,ritten letters, almost all of ,hich bear
the penmanship and the signature of girls, as ,ell as letterhead of some sectarian educational
institutions, generally stating that the ,riter is &) years of age and urging that she or he be allo,ed to
vote. hus, the pressure of public opinion has brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, ho,ever, the )is!o( of the amendment and the popularit thereof are political
#uestions beyond our province. %n fact, respondents and the intervenors originally maintained that Ee
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a
political one. Aside from the absence of authority to pass upon political #uestion, it is obviously improper
and un,ise for the bench to develop into such #uestions o,ing to the danger of +ettin+ involve! in
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulness of courts
of justice as objective and impartial arbiters of justiciable controversies.
hen, too, the suggested course of action, if adopted, ,ould constitute a grievous disservice to the people
and the very Convention itself. %ndeed, the latter and the Constitution it is in the process of drafting stand
essentially for the !ule of +a,. >o,ever, as the -upreme +a, of the land, a Constitution ,ould not be
,orthy of its name, and the Convention called upon to draft it ,ould be engaged in a futile undertaking, if
,e did not e8act ,ait*,ul a!*erence to the ,un!a(ental tenets set forth in the Constitution and compliance
,ith its provisions ,ere not obligatory. %f ,e, in effect, approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of the good intention ,ith ,hich !esolution ?o. & is
animated, the Court ,ould thereby become the Ju!+e of the +oo! or #a! intentions of the Convention and
thus be involved in a #uestion essentially political in nature.
his is confirmed by the plea made in the motions for reconsideration in favor of the e8ercise of judicial
statesmanship in deciding the present case. %ndeed, 4politics4 is the ,ord commonly used to epitomi"e
compromise, even ,ith principles, for the sake of political e8pediency or the advancement of the bid for
po,er of a given political party. =pon the other hand, statesmanship is the e8pression usually availed of
to refer to high politics or politics on the highest level. %n any event, politics, political approach, political
e8pediency and statesmanship are generally associated, and often identified, ,ith the dictum that 4t*e
en! 5usti,ies t*e (eans.4 % earnestly hope that the administration of justice in this country and the
-upreme Court, in particular, ,ill adhere to or approve or indorse such dictum.4
50

Tolentino, he pointed out that although 4;M<ovants$ submittal that 4;<he primary purpose for the
submission of the proposed amendment lo,ering the voting age to the plebiscite on ?ovember ),
&('& is to enable the youth &) to *9 years ,ho comprise more than three ;A< million of our population
to participate in the ratification of the ne, Constitution in so far as 4to allo, young people ,ho ,ould
be governed by the Constitution to be given a say on ,hat kind of Constitution they ,ill have4 is a
laudable end, ... those urging the vitality and importance of the proposed constitutional amendment
and its approval ahead of the complete and final draft of the Constitution must seek a valid solution to
achieve it in a manner sanctioned by the amendatory process ordained by our people in the present
Constitution4
51
K so that there may be 4submitted, not pieceCmeal, but by ,ay of complete and final
amendments as an integrated ,hole ;integrated either ,ith the subsisting Constitution or ,ith the ne,
proposed Constitution<...4
(. he universal validity of the vital constitutional precepts and principles aboveCenunciated can
hardly be gainsaid. % fail to see the attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to soCcalled entirely ne,
Constitutions. Amendments to an e8isting Constitution presumably may be only of certain parts or in
toto, and in the latter case ,ould rise to an entirely ne, Constitution. Ehere this Court held in
Tolentino that 4an amendment of the Constitution is of no less importance than the ,hole
Constitution itself and perforce must be conceived and prepared ,ith as much care and deliberation4,
it ,ould appeal that the reverse ,ould e#ually be true: ,hich is to say, that the adoption of a ,hole
ne, Constitution ,ould be of no less importance than any particular amendment and therefore the
necessary care and deliberation as ,ell as the mandatory restrictions and safeguards in the
amending process ordained by the people themselves so that 4they ;may< be insulate! against
precipitate and hasty actions motivated by more or less passing political moods or fancies4 must
necessarily e#ually apply thereto.
%%%
&. o restate the basic premises, the people provided in Article D6 of the Constitution for the
amending process onl 4by approval by a majority of the votes cast at an election at ,hich the ;duly
proposed< amendments are submitted to the people for their ratification.4
he people ordained in Article 6, section & that only those thereby enfranchised and granted the right
of suffrage may speak the 4)ill o, t*e #o! politic1, viz, ;uali,ie! literate voters t)ent one ears of
age or over ,ith one year$s residence in the municipality ,here they have registered.
he people, not as yet satisfied, further provided by amendment duly approved in &(J9 in accordance
,ith Article D6, for the creation of an in!epen!ent Commission on /lections ,ith 4e6clusive c*ar+e4
for the purpose of 4insuring free, orderly and honest elections4 and ascertaining the true ,ill of the
electorate K and more, as ruled by this Court in Tolentino, in the case of proposed constitutional
amendments, insuring proper su#(ission to the electorate of such proposals.
54

*. A Massachussets case
53
,ith a constitutional system and provisions analogous to ours, best
defined the uses of the term 1people1 as a #o! politic and 1people1 in t*e political sense ,ho are
synonymous ,ith the #ualified voters granted the right to vote by the e8isting Constitution and ,ho
therefore are 4the sole organs through ,hich the ,ill of the body politic can be e8pressed.4
%t ,as pointed out therein that 4;<he ,ord $people$ may have some,hat varying significations
dependent upon the connection in ,hich it is used. %n some connections in the Constitution it is
confined to citi"ens and means the same as citi"ens. %t e8cludes aliens. %t includes men, ,omen and
children. %t comprehends not only the sane, competent, la,Cabiding and educated, but also those ,ho
are ,holly or in part dependents and charges upon society by reason of immaturity, mental or moral
deficiency or lack of the common essentials of education. All these persons are secured fundamental
guarantees of the Constitution in life, liberty and property and the pursuit of happiness, e8cept as
these may be limited for the protection of society.4
%n the sense of 4body politic ;as< formed by voluntary association of individuals4 governed by a
constitution and common la,s in a 4social compact ... for the common good4 and in another sense of
4people4 in a 4practical sense4 for 4political purposes4 it ,as therein fittingly stated that in this sense,
4people4 comprises many ,ho, by reason of ,ant of years, of capacity or of the educational
re#uirements of Article *9 of the amendments of the Constitution, can have no voice in any
government and ,ho yet are entitled to all the immunities and protection established by the
Constitution. $People$ in t*is aspect is coe6tensive ,ith the #o! politic. But it is obvious that $people$
cannot be used ,ith this broad meaning of political signification. he $people$ in this connection
means that part of the entire body of inhabitants ,ho under the Constitution are intrusted ,ith the
e8ercise of the sovereign po,er and the conduct of government. he DpeopleD in t*e Constitution in a
practical sense means those ,ho under the e8isting Constitution possess the right to e8ercise the
elective franchise and ,ho, ,hile that instrument remains in force unchanged, ,ill be the sole or+ans
through ,hich the )ill of the #o! politic can be e6presse!. $PeopleD for political purposes must be
considered snon(ous ,ith ;uali,ie! voters.$ 4
As ,as also ruled by the =.-. -upreme Court, 4... Ehile the people are thus the source of political
po,er, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their o,n po,er, as against the sudden impulse of mere
majorities.4
55

1rom the te8t of Article D6 of our Constitution, re#uiring approval of amendment proposals 4by a
majority of the votes cast at an election at ,hich the amendments are submitted to the people for
their ratification4, it seems obvious as aboveCstated that 4people4 as therein used must be considered
synonymous ,ith 4;uali,ie! voters4 as enfranchised under Article 6, section & of the Constitution H
since only 4people4 ,ho are #ualified voters can e8ercise the right of suffrage and cast their votes.
A. -ound constitutional policy and the sheer necessity of ade#uate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the ,ill of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional re#uirements laid do,n for the process of amending in toto or in part the supreme
la, of the land.
/ven at barrio level JB the !evised Barrio Charter fi8es certain safeguards for the holding of barrio
plebiscites thus7 4-/C. 2. Ple#iscite. H A plebiscite may be held in the barrio ,hen authori"ed by a
majority vote of the members present in the barrio assembly, there being a ;uoru(, or ,hen called by
at least four members of the barrio council7 Provi!e!, *o)ever, hat no plebiscite shall be held until
after thirty days from its approval by either body, and such plebiscite has been given the ,idest
publicity in the barrio, stating the date, time and place thereof, the #uestions or issues to be decided,
action to be taken by the voters, and such other information relevant to the holding of the plebiscite.4
5:

As to voting at such barrio plebiscites, the Charter further re#uires that 4;A<ll !ul re+istere! barrio
assembly members ;uali,ie! to vote may vote in the plebiscite. 6oting procedures may be made
either in )ritin+ as in regular elections, andFor !eclaration by the voters to t*e #oar! o, election
tellers.4
57

he subjects of the barrio plebiscites are like,ise delimited thus7 4A plebiscite may be called to decide
on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special ta8 ordinances4 and the re#uired majority vote is
specified7 4;1<or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members re+istere! in t*e list o, t*e #arrio secretar is necessary.4
58

he ;uali,ications ,or voters in such barrio plebiscites and elections of barrio officials
59
comply ,ith
the suffrage #ualifications of Article 6, section & of the Constitution and provide that 4;-</C. &9.
?uali,ications o, @oters an! Can!i!ates. H /very citi"en of the Philippines, t)ent one ears of age
or over, a#le to rea! an! )rite, ,ho has been a resident of the barrio during the si8 months
immediately preceding the election, !ul re+istere! in t*e list o, voters # t*e #arrio secretar, ,ho is
not other,ise dis#ualified, may vote or be a candidate in the barrio elections.4
50

%6
&. -ince it appears on the face of Proclamation &&9* that the mandatory re#uirements under the
aboveCcited constitutional articles have not been complied ,ith and that no election or plebiscite for
ratification as therein provided as ,ell as in section &2 of Article D6%% of the proposed Constitution
itself
51
has been called or held, there cannot be said to have been a valid ratification.
*. Petitioners raised serious #uestions as to the veracity and genuineness of the reports or
certificates of results purportedly sho,ing unaccountable discrepancies in seven figures in just five
provinces
54
bet,een the reports as certified by the Department of +ocal 3overnments and the reports
as directly submitted by the provincial and city e8ecutives, ,hich latter reports respondents
disclaimed inter alia as not final and complete or as not signed:
53
,hether the reported votes of
approval of the proposed Constitution conditioned upon the nonCconvening of the interim ?ational
Assembly provided in Article D6%%, section & thereof,
55
may be considered as valid: the allegedly huge
and uniform votes reported: and many others.
A. hese #uestions only serve to justify and sho, the basic validity of the universal principle
governing ,ritten constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. =nder Article D6,
section & of our Constitution, amendments thereto may be ratified only in the one ,ay therein
provided, i.e. in an election or plebiscite held in accordance ,ith la, and duly supervised by the
Commission on /lections, and ,hich is participated in only by #ualified and duly registered voters. %n
this manner, the safeguards provided by the election code generally assure the true ascertainment of
the results of the vote and interested parties ,ould have an opportunity to thresh out properly before
the Comelec all such #uestions in preCproclamation proceedings.
J. At any rate, unless respondents seriously intend to #uestion the very statements and
pronouncements in Proclamation &&9* itself ,hich sho,s on its face, as already stated, that the
mandatory amending process re#uired by the ;&(AB< Constitution ,as not observed, the cases at bar
need not reach the stage of ans,ering the host of #uestions, raised by petitioners against the
procedure observed by the Citi"ens Assemblies and the reported referendum results H since the
purported ratification is rendered nugatory by virtue of such nonCobservance.
B. 1inally, as to respondents$ argument that the President issued Proclamation &&9* 4as 4agent4 of
the Constitutional Convention4
55
under !esolution ?o. B)JJ approved on ?ovember **, &('A, and
4as agent of the Convention the President could devise other forms of plebiscite to determine the ,ill
of the majority visCaCvis the ratification of the proposed Constitution.4
5:

he minutes of ?ovember **, &('*, of the Convention, ho,ever, do not at all support this contention.
0n the contrary, the said minutes fully sho, that the Convention$s proposal and 4agency4 ,as that the
President issue a decree precisely calling a ple#iscite for the ratification of the proposed ne,
Constitution on an appropriate date, under the charge of the Co(elec, and ,ith a reasonable period
for an information campaign, as follo,s7
&*. =pon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of ,hich read as follo,s7
4!/-0+6/D, A- % %- >/!/B@ !/-0+6/D, that the &('& Constitutional Convention
propose to President 1erdinand /. Marcos that a decree be issued calling a plebiscite for
the ratification of the proposed ?e, Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that copies of this
resolution as approved in plenary session be transmitted to the President of the
Philippines and the Commission on /lections for implementation.4
>e suggested that in vie, of the e8pected approval of the final draft of the ne, Constitution by the end of
?ovember &('* according to the Convention$s timetable, it ,ould be necessary to lay the ground,ork for
the appropriate agencies of the government to undertake the necessary preparation for the plebiscite.
888 888 888
&*.* %nterpellating, Delegate Pimentel ;6.< contended that the resolution ,as unnecessary because
section &B, Article D6%% on the ransitory Provision, ,hich had already been approved on second and
third readings, provided that the ne, constitution should be ratified in a plebiscite called for the purpose
by the incumbent President. Delegate Duavit replied that the provision referred to did not include the
appropriation o, ,un!s ,or t*e ple#iscite and that, moreover, the resolution ,as intended to serve formal
notice to the Presi!ent an! t*e Co((ission on Elections to initiate t*e necessar preparations.
888 888 888
&*.J %nterpellating, Delegate Madarang suggested that a reasona#le perio! ,or an in,or(ation ca(pai+n
,as necessary in order to properly apprise the people of the implications and significance of the ne,
charter. Delegate Duavit agreed, adding that this ,as precisely ,hy the resolution ,as modified to give
the President the discretion to choose the most appropriate date for the plebiscite.
&*.B Delegate +aggui asked ,hether a formal communication to the President informing him of the
adoption of the ne, Constitution ,ould not suffice considering that under -ection &B of the ransitory
Provisions, the President ,ould be dutyCbound to call a plebiscite for its ratification. Delegate Duavit
replied in the negative, adding that the resolution ,as necessary to serve notice to the proper authorities
to prepare evert*in+ necessar ,or t*e ple#iscite.
&*.2 %n reply to Delegate Britanico, Delegate Duavit stated that the (ec*anics for the holding of the
ple#iscite ,ould be lai! !o)n # t*e Co((ission on Elections in coordination ,ith the President.
&*.' Delegate Catan in#uired if such mechanics for the plebiscite could inclu!e a partial li,tin+ o, (artial
la) in order to allo, the people to assemble peaceably to discuss the ne, Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and !atification could coordinate ,ith the C0M/+/C on the
matter.
&*.) Delegate 3u"man moved for the previous #uestion. he Chair declared that there ,as one more
interpellant and that a prior reservation had been made for the presentation of such a motion.
&.)a Delegate 3u"man ,ithdre, his motion.
&*.( Delegate Astilla suggested in his interpellation that there ,as actually no need for such a resolution
in vie, of the provision of section &B, Article D6%% on the ransitory Provisions. Delegate Duavit
disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose.
&A. Delegate 0"ami" then moved to close the debate and proceed to the period of amendment.
&A.& 1loor +eader Montejo stated that there ,ere no reservations to amend the resolution.
&A.* Delegate 0"ami" then moved for the previous #uestion. -ubmitted to a vote, the motion ,as
approved.
=pon re#uest of the Chair, Delegate Duavit restated the resolution for voting.
&J.&. Delegate 0rdoLe" moved for nominal voting. -ubmitted to a vote, the motion ,as lost.
&J.*. hereupon, the Chair submitted the resolution to a vote. %t ,as approved by a sho, of hands.
57

%, therefore, vote to deny respondents$ motion to dismiss and to give due course to the petitions.
Promulgated7 .une
J, &('A >
%n conformity ,ith my reservation, % shall discuss the grounds for my concurrence.
%
%t is my vie, that to preserve the independence of the -tate, the maintenance of the e8isting
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, ,hen the legislative branch of the government is unable to function or its
functioning ,ould itself threaten the public safety, the Chief /8ecutive may promulgate measures
legislative in character, for the successful prosecution of such objectives. 1or the 4President$s po,er
as CommanderC inCchief has been transformed from a simple po,er of military command to a vast
reservoir of indeterminate po,ers in time of emergency. ... %n other ,ords, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national po,er
and the capacity of the President to gather unto himself all constitutionally available po,ers in order
the more effectively to focus them upon the task of the hour.4 ;Cor,in, he President7 0ffice M
Po,ers, pp. A&', A&), G&(J)H<.
&. he proclamation of martial rule, ushered the commencement of a crisis government in this
country. %n terms of po,er, crisis government in a constitutional democracy entails the concentration
of governmental po,er. 4he more complete the separation of po,ers in a constitutional system, the
more difficult, and yet the more necessary4 according to !ossiter, 4,ill be their fusion in time of
crisis... he po,er of the state in crisis must not only be concentrated and e8panded, it must be freed
from the normal system of constitutional and legal limitations. 0ne of the basic features of emergency
po,ers is the release of the government from the paralysis of constitutional restraints4 ;!ossiter,
Constitutional Dictatorship, p. *(9<.
%t is clearly recogni"ed that in moments of peril the effective action of the government is channeled
through the person of the Chief /8ecutive. 4/nergy in the e8ecutive,4 according to >amilton, 4is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and highChanded combinations ,hich sometimes interrupt the ordinary course
of justice: to the security of liberty against the enterprises and assaults of ambition, of faction, and of
anarchy.4 ;he 1ederalist, ?umber '9<. 4he entire strength of the nation4, said .ustice Bre,er in the
Debs case ;&B) =.-. B2J: A( +. ed. &9(*<, 4may be used to enforce in any part of the land the full and
free e8ercise of all national po,ers and the security of all rights entrusted by the constitution to its
care.4 he marshalling and employment of the 4strength of the nation4 are matters for the discretion of
the Chief /8ecutive. he President$s po,ers in time of emergency defy precise definition since t*eir
e6tent an! li(itations are lar+el !epen!ent upon con!itions an! circu(stances.
*. he po,er of the President to act decisively in a crisis has been grounded on the broad conferment
upon the Presidency of the /8ecutive po,er, ,ith the added specific grant of po,er under the
4CommanderCinCChief4 clause of the constitution. he contours of such po,ers have been shaped
more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial
interpretation. +incoln ,edded his po,ers under the 4commanderCinCchief4 clause ,ith his duty 4to
take care that the la,s be faithfully e8ecuted,4 to justify the series of e8traordinary measures ,hich he
took H the calling of volunteers for military service, the augmentation of the regular army and navy,
the payment of t,o million dollars from unappropriated funds in the reasury to persons unauthori"ed
to receive it, the closing of the Post 0ffice to 4treasonable correspondence4, the blockade of southern
ports, the suspension of the ,rit of *a#eas corpus, the arrest and detention of persons 4,ho ,ere
represented to him4 as being engaged in or contemplating 4treasonable practices4 H all this for the
most part )it*out t*e least statutor aut*orization. hose actions ,ere justified by the imperatives of
his logic, that the President may, in an emergency thought by him to re#uire it, partially suspend the
constitution. hus his famous #uestion7 4Are all la,s but one to be une8ecuted, and the 3overnment
itself go to pieces lest that one be violatedI4 he actions of +incoln 4assert for the President4,
according to Cor,in, 4an initiative of indefinite scope and legislative in effect in meeting the domestic
aspects of a ,ar emergency.4 ;Cor,in, he President7 0ffice M Po,ers, p. *)9 G&(J)H<. he facts of
the civil ,ar have sho,n conclusively that in meeting the domestic problems as a conse#uence of a
great ,ar, an indefinite po,er must be attributed to the President to take emergency measures. he
concept of 4emergency4 under ,hich the Chief /8ecutive e8ercised e8traordinary po,ers under,ent
correlative enlargement during the first and second Eorld Ears. 1rom its narro, concept as an
4emergency4 in time of ,ar during the Civil Ear and Eorld Ear %, the concept has been e8panded in
Eorld Ear %% to include the 4emergency4 preceding the ,ar and even after it. 4he -econd Eorld
Ear4 observed Cor,in and Noenig, ,as the 1irst Eorld Ear ,rit large, and the #uasiClegislative
po,ers of 1ranklin !oosevelt as 4CommanderCinCChief in ,artime4... burgeoned correspondingly. he
precedents ,ere there to be sure, most of them from the 1irst Eorld Ear, but they proliferated
ama"ingly. Ehat is more, !oosevelt took his first step to,ard ,ar some fifteen months before our
entrance into s*ootin+ )ar. his step occurred in -eptember, &(J9, ,hen he handed over fifty soC
called overage destroyers to 3reat Britain. he truth is, they ,ere not overage, but had been recently
reconditioned and recommissioned. ... Actually, ,hat President !oosevelt did ,as to ta-e over ,or t*e
nonce Con+ressDs po)er to !ispose o, propert o, t*e Enite! States ;Article %6, -ection A< and to
repeal at least t)o statutes.4 ;Cor,in M Noenig, he Presidency oday, ?e, @ork =niversity Press,
&(B2: sf Cor,in, he President7 0ffice and Po,ers, &(J).<
he creation of public offices is a po,er confided by the constitution to Congress. And yet President
Eilson, during Eorld Ear % on the basis of his po,ers under the 4CommanderCinCChief4 clause
created 4offices4 ,hich ,ere copied in lavish scale by President !oosevelt in Eorld Ear %%. %n April
&(J*, thirtyCfive 4e8ecutive agencies4 ,ere purely of Presidential creation. 0n .une ', &(J& on the
basis of his po,ers as 4CommanderCinCChief4, he issued an e8ecutive order sei"ing the ?orth
American Aviation plant of %ngle,ood, California, ,here production stopped as a conse#uence of a
strike. his ,as justified by the government as the e8ercise of presidential po,er gro,ing out of the
4duty constitutionally and inherently resting upon the President to e8ert his civil and military as ,ell as
his moral authority to keep the defense efforts of the =nited -tates a going concern4 as ,ell as 4to
obtain supplies for ,hich Congress has appropriated money, and ,hich it has directed the President
to obtain.4 0n a similar justification, other plants and industries ,ere taken over by the government. %t
is true that in @oungsto,n -heet M ube vs. -a,yer ;AJA =.-. B'(: '* -. Ct. )2A: (2 +. /d. &&BA,
G&(B*H<, the -upreme Court of the =nited -tates did not sustain the claims that the President could,
as the ?ation$s Chief /8ecutive and CommanderCinCChief of the armed forces, validly order the
sei"ure of most of the country$s steel mills. he Court ho,ever did not face the naked #uestion of the
President$s po,er to sei"e steel plants in the absence of any congressional enactment or e8pressions
of policy. he majority of the Court found that this legislative occupation of the field made untenable
the President$s claim of authority to sei"e the plants as an e8ercise of inherent e8ecutive po,er or as
CommanderCinCChief. .ustice Clark, in his concurrence to the main opinion of the Court, e8plicitly
asserted that the President does possess, in the absence of restrictive legislation, a resi!ual or
resultant po)er a#ove or in conse;uence o, *is +rante! po)ers, to deal ,ith emergencies that he
regards as threatening the national security. he same vie, ,as shared ,ith vague #ualification by
.ustices 1rankfurter and .ackson, t,o of the concurring .ustices. he three dissenting .ustices,
speaking through Chief .ustice 6inson, apparently ,ent further by #uoting ,ith approval a passage
e8tracted from the brief of the government in the case of Enite! States vs. 'i!)est Oil Co., ;*A2 =.-.
JB( B( +. /d. 2'A, AB -. Ct. A9(< ,here the court sustained the po,er of the President to order
,ithdra,als from the public domain not only ,ithout Congressional sanction but even contrary to
Congressional statutes.
%t is evident therefore that the -teel -ei"ure Case, cannot be invoked as an authority to support the
vie, that the President in times of a grave crisis does not possess a residual po,er above or in
conse#uence of his granted po,ers, to deal ,ith emergencies that he regards as threatening the
national security. he lesson of the -teel -ei"ure case, according to Cor,in and Noenig,
4=n#uestionably ... tends to supplement presidential emergency po,er to adopt temporary remedial
legislation ,hen Congress has been, in the judgment of the President, unduly remiss in taking
cogni"ance of and acting on a given situation.4 ;Cor,in and Noenig, he Presidency oday, ?e,
@ork =niversity Press, &(B2<.
he accumulation of precedents has thus built up the presidential po,er under emergency conditions
to 4dimensions of e8ecutive prerogative as described by .ohn +ocke, of a po,er to ,it, to fill needed
gaps in the la,, or even to supersede it so far as may be re#uisite to reali"e t*e ,un!a(ental la) o,
nature an! +overn(ent, na(el, t*at as (uc* as (a #e all t*e (e(#ers o, societ are to #e
preserve!.4 ;Cor,in and Noenig, he Presidency oday<.
%n the light of the accumulated precedents, ho, could it be reasonably argued therefore, that the
President had no po,er to issue Presidential Decree ?os. )2 and )2CA as ,ell as Proclamation ?o.
&&9*, since these measures ,ere considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcyI %t is unavailing for petitioners to
contend that ,e are not faced by an actual 4shooting ,ar4 for today$s concept of the emergency ,hich
justified the e8ercise of those po,ers has of necessity been e8panded to meet the e8igencies of ne,
dangers and crisis that directly threaten the nation$s continued and constitutional e8istence. 1or as
Cor,in observed7 4... today the concept of $,ar$ as a special type of emergency ,arranting the
reali"ation of constitutional limitations tends to spread, as it ,ere, in both directions, so that there is
not only 4the ,ar before the ,ar,4 but the $,ar after the ,ar.$ %ndeed, in the economic crisis from
,hich the ?e, Deal may be said to have issued, the nation ,as confronted in the opinion of the late
President ,ith an $emergency greater than ,ar$: and in sustaining certain of the ?e, Deal measures
the Court invoked the justification of $emergency.$ %n the final result constitutional practices of ,artime
have moulded the Constitution to greater or less e8tent for peacetime as ,ell, seem likely to do so
still more pronouncedly under fresh conditions of crisis.4 ;Cor,in, I#i!. p. A&).<
he same vie, ,as e8pressed by !ossiter thus7
he second crisis is re#ellion, ,hen the authority of a constitutional government is resisted openly by
large numbers of citi"ens ,ho are engaged in violent insurrection against enforcement of its la,s or are
bent on capturing it illegally or destroying it altogether. he third crisis, one recogni"ed particularly in
modern times as sanctioning emergency action by constitutional governments, is econo(ic !epression.
he economic troubles ,hich plagued all the countries of the ,orld in the early thirties involved
governmental methods of an un#uestionably dictatorial character in many democracies. %t ,as thereby
ackno,ledged that an economic e8istence as a ,ar or a rebellion. And these are not the only cases
,hich have justified e8traordinary governmental action in nations like the =nited -tates. 1ire, flood,
drought, earth#uake, riots, great strikes have all been dealt ,ith by unusual and of dictatorial methods.
Ears are not ,on by debating societies, rebellions are not suppressed by judicial injunctions,
reemployment of t,elve million jobless citi"ens ,ill not be effected through a scrupulous regard for the
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature
take its course. he Civil Ear, the depression of &(AA and the recent global conflict ,ere not and could
not have been successfully resolved by governments similar to those of .ames Buchanan, Eilliam
>o,ard aft, or Calvin Coolidge. ;!ossiter, Constitutional Dictatorship H Crisis of 3overnment in the
Modern Democracies, p. 2 G&(J)<.
%%
Ee are ne8t confronted ,ith the insistence of Petitioners that the referendum in #uestion not having
been done inaccordance ,ith the provisions of e8isting election la,s, ,hich only #ualified voters ,ho
are allo,ed to participate, under the supervision of the Commission on /lections, the ne,
Constitution, should therefore be a nullity. -uch an argument is predicated upon an assumption, that
Article D6 of the &(AB Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed ne, Constitution the provisions of the
election la, and those of Article 6 and D of the old Constitution. Ee search in vain for any provision
in the old charter specifically providing for such procedure in the case of a total revision or a re,riting
of the )*ole constitution.
&. here is clearly a distinction bet,een revision and a(en!(ent of an e8isting constitution. !evision
may involve a re,riting of the )*ole constitution. he act of a(en!in+ a constitution, on the other
hand, envisages a change of only specific provisions. he intention of an act to amend is not the
change of the entire constitution but only the i(prove(ent of speci,ic parts of the e8isting constitution
of the addition of provisions deemed essential as a conse#uence of ne, constitutions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times.
1
he &('A
Constitution is not a mere a(en!(ent to the &(AB Constitution. %t is a completely ne, fundamental
charter embodying ne, political, social and economic concepts.
According to an eminent authority on Political +a,, 4he Constitution of the Philippines and that of the
=nited -tates e8pressly provide merely for methods of a(en!(ent. T*e are silent on t*e su#5ect o,
revision. But this is not a fatal omission. here is nothing that can legally prevent a convention from
actually revising the Constitution of the Philippines or of the =nited -tates even ,ere such
conventions called merely for the purpose of proposing and submitting amendments to the people.
1or in the final analysis, it is the approval o, t*e people that +ives vali!it to any proposal of
amendment or revision.4 ;-inco, Philippine Political +a,, p. J(<.
-ince the &(AB Constitution does not specifically provide for the method or procedure for the revision
or for the approval of a ne, constitution, should it no, be held, that the people have placed such
restrictions on themselves that they are not disabled from e8ercising their right as the ultimate source
of political po,er from changing the old constitution ,hich, in their vie,, ,as not responsive to their
needs and in adopting a ne, charter of government to enable them to rid themselves from the
shackles of traditional norms and to pursue ,ith ne, dynamism the reali"ation of their true longings
and aspirations, e8cept in the manner and form provided by Congress for previous plebiscitesI Eas
not the e8pansion of the base of political participation, by the inclusion of the youth in the process of
ratification ,ho after all constitute the preponderant majority more in accord ,ith the spirit and
philosophy of the constitution that political po,er is inherent in the people collectivelyI As clearly
e8pounded by .ustice Makasiar, in his opinion, in all the cases cited ,here the Courts held that the
submission of the proposed amendment ,as illegal due to the absence of substantial compliance
,ith the procedure prescribed by the constitution, the procedure prescribed by the state Constitution,
is so detailed, that specified the (anner in ,hich such submission shall be made, the persons
;uali,ie! to vote for the same, the !ate of election and other definite standards, from ,hich the court
could safely ascertain ,hether or not the submission ,as in accordance ,ith the Constitution. hus
the case of %n re McConaughy ;&&( ?./. J9)< relied upon in one of the dissenting opinions involved in
the application of the provisions of the state Constitution of Minnesota ,hich clearly prescribed in
detail the procedure under ,hich the Constitution may be amended or revised.
4
his is not true ,ith
our Constitution. %n the case of revision there are no 4standards meet for judicial judgment.4
3

he framers of our Constitution ,ere free to provide in the Constitution the method or procedure for
the revision or re,riting of the entire constitution, and if such ,as their intention, they could and
should have so provided. Precedents ,ere not ,anting. he constitutions of the various states of the
American =nion did provide for procedures for their a(en!(ent and methods for their revision.
5

Certainly Ee cannot, under the guise of interpretation, modify, revise, amend, remodel or re,rite the
&(AB Charter. o declare ,hat the la, is, or has been, is a judicial po,er, but to declare ,hat the la,
shall be is not ,ithin 0ur judicial competence and authority.
=pon the other hand, since our fundamental charter has not provided the method or procedure for the
revision or complete change of the Constitution, it is evident that the people have reserved such
po,er in themselves. hey decided to e8ercise it not through their legislature, but through a
Convention e8pressly chosen for that purpose. he Convention as an independent and sovereign
body has drafted not an amendment but a completely ne, Constitution, ,hich decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. %n vie, of the inability of Congress to act, it ,as ,ithin the constitutional po,ers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
la,, to promulgate the necessary measures for the ratification of the proposed ne, Constitution. he
adoption the ne, Charter ,as considered as a necessary basis for all the reforms set in motion under
the ne, society, to root out the causes of unrest. he imperatives of the emergency underscored the
urgency of its adoption. he people in accepting such procedure and in voting over,helmingly for the
approval of the ne, Constitution have, in effect, ratified the method and procedure taken. 4Ehen the
people adopt completely revised or ne, constitution,4 said the Court in Eheeler v. Board of rustees
;A' -/ *nd A**, A*2CAA9<, 4the framing or submission of the instrument is not ,hat gives it binding
force and effect. he fiat of the people, and only the fiat of the people, can breathe life into a
constitution.4
his has to be so because, in our political system, all political po,er is inherent in the people and free
governments are founded on their authority and instituted for their benefit. hus -ection & of Article %%
of the &(AB Constitution declares that7 4-overeignty resides in the people and all government
authority emanate from them.4 /vidently the term people refers to the entire citizenr and not merely
to the electorate, for the latter is only a fraction of the people and is only an organ of government for
the election of government officials.
%%%
he more compelling #uestion, ho,ever is7 >as this Court the authority to nullify an entire
Constitution that is already e,,ective as it has been accepted and ac#uiesced in by the people as
sho,n by their compliance ,ith the decree promulgated thereunder, their cooperation in its
implementation, and is no, maintained by the 3overnment that is in undisputed authority and
dominanceI
0f course it is argued that ac#uiescence by the people can be deduced from their acts of conformity,
because under a regime of martial la, the people are bound to obey and act in conformity ,ith the
orders of the President, and has absolutely no other choice. he fla, of this argument lies in its
application of a mere theoretical assumption based on the e8periences of other nations on an entirely
different factual setting. -uch an assumption flounders on the rock of reality. %t is true that as a
general rule martial la, is the use of military forces to perform the functions of civil government.
-ome courts have vie,ed it as a military regime ,hich can be imposed in emergency situations. %n
other ,ords, martial rule e8ists ,hen the military rises superior to the civil po,er in the e8ercise of
some or all the functions of government. -uch is not the case in this country. he government
functions thru its civilian officials. he supremacy of the civil over the military authority is manifest.
/8cept for the imposition of curfe, hours and other restrictions re#uired for the security of the -tate,
the people are free to pursue their ordinary concerns.
%n short, the e8isting regime in this Country, does not contain the oppressive features, generally
associated ,ith a regime of Martial la, in other countries. 4=pon the other hand the masses of our
people have accepted it, because of its manifold blessings. he once do,ntrodden rice tenant has at
long last been emancipated H a consummation devoutly ,ished by every Philippine President since
the &(A9$s. he laborer no, holds his head high because his rights are amply protected and
respected.4 > A ne, sense of discipline has s,iftly spread beyond the corridors of government into the
social order. !esponding to the challenges of the ?e, -ociety, the people have turned in half a
million loose firearms, paid their ta8es on undeclared goods and income in unprecedented numbers
and amount, lent their labors in massive cooperation H in land reform, in the repair of dikes, irrigation
ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make
ours a cleaner and greener land. 4he entire country is turning into one vast garden gro,ing food for
the body, for thought and for the soul.4 > More important the common man has at long last been freed
from the incubus of fear.
4Martial la, has paved the ,ay for a reCordering of the basic social structure of the Philippines4
reported 1rank 6aleo to the =nited -tates -enate. 4President Marcos has been prompt and sureC
footed in using the po,er of presidential decree under martial la, for this purpose. >e has "eroed in
on areas ,hich have been ,idely recogni"ed as prime sources of the nation$s difficulties H land
tenancy, official corruption, ta8 evasion and abuse of oligarchic economic po,er. Clearly he kno,s
his targets ... t*ere is (ar-e! pu#lic support for his leadership...4 ;Bulletin oday, March A and J,
&('A<..
%n a similar vein, C.+. -ul"berger, a foreign affairs columnist ,rote, in the April && issue of he ?e,
@ork imes7
During his first Presidential term ;&(2BC&(2(<, Mr. Marcos ,as discouraged by the failure of legislators to
approve urgently needed reforms. >e found his second term further frustrated by spread riots, a Maoist
uprising in +u"on and a much more serious Moslem insurrection in the southern islands from Mindanao
across the -ulu archipelago to the frontier regions of Malaysia and %ndonesia. Manila claims this ,ar is
MaoistCcoordinated.
Mr. Marcos has no, in effect taken all the reins of po,er and makes no promise as to ,hen he ,ill
relin#uish them. But, ,hile fettering a free press, terminating Congress and locking up some opponents
;many of ,hom ,ere later amnestied<, *e *as *aule! t*e P*ilippines out o, sta+nation.
-harecropping is being ended as more than three million acres of arable land are redistributed ,ith state
funds. ?e, roads have been started. he educational system is undergoing revision, a corruption is
diminished. %n nonCcommunist Asia it is virtually impossible to ,holly end it and this disagreeable
phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middleCclass to
replace the archaic sharecropperCabsentee landlord relationship. >e is even pushing for a birth control
program ,ith the tacit acceptance of the Catholic Church. >e has started labor reforms and increased
,ages. ;Daily /8press, April &B, &('A<
As e8plained in this ,riter$s opinion of April *J, &('A on the 4Constancia4 and 4Manifestation4 of
counsel for petitioners7
he ne, Constitution is considered e,,ective 4if the norms created in conformity ,ith it are by and
large applied and obeyed. As soon as the old Constitution loses its effectiveness and the ne,
Constitution has become effective, the acts that appear ,ith the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic norm, but by
presupposing the ne, one. he statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authori"ed by the old Constitution no longer competent.4
;Nelsen, Pure heory of +a,, G&(2'H.<
he essentially political nature of the #uestion is at once made manifest by understanding that in the
final analysis, ,hat is assailed is not merely the validity of Proclamation ?o. &&9* of the President,
,hich is merely declaratory of the fact of approval or ratification, but the legitimacy of the government.
%t is addressed more to the frame,ork and political character of this 3overnment ,hich no, functions
under the ne, Charter. %t seeks to nullify a Constitution that is already e,,ective.
%n such a situation, Ee do not see ho, the #uestion posed by petitioners could be judicially decided.
4.udicial po,er presupposes an established government capable of enacting la,s and enforcing their
e8ecution, and of appointing judges to e8pound and administer them. %f it decides at all as a court, it
po,er.4 ;+uther v. Borden, J) =.-. G' >o,.H &, &* +. /d. B().<
%n other ,ords, ,here a complete change in the fundamental la, has been effected through political
action, the Court ,hose e8istence is affected by such change is, in the ,ords of Mr. Melville 1uller
Eeston, 4precluded from passing upon the fact of change by a logical difficulty ,hich is not to be
surmounted.4
5
-uch change in the organic la, relates to the e8istence of a prior point in the Court$s
4chain of title4 to its authority and 4does not relate merely to a #uestion of the hori"ontal distribution of
po,ers.4
:
%t involves in essence a matter ,hich 4the sovereign has entrusted to the soCcalled political
departments of government or has reserved to be settled by its o,n e8tra governmental action.4
7

he nonCjudicial character of such a #uestion has been recogni"ed in American la,. 41rom its earliest
opinions this Court has consistently recogni"ed,4 said .ustice 1rankfurter, in his illuminating dissent in
Baker v. Carr, A2( =.-. &)2, ' +. /d. *d. 2AA, '**, '*2, '*'<, 4a class of controversies ,hich do not
lend themselves to judicial standards and judicial remedies. o classify the various instances as
4political #uestions4 is rather a form of stating this conclusion than revealing of analysis ... he cru8 of
the matter is that courts are not fit instruments of decision ,here ,hat is essentially at stake is the
composition of those large contests of policy traditionally fought out in nonCjudicial forums, by ,hich
governments and the actions of governments are made and unmade.4
he diversity of vie,s contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on 4right4 or 4,rong4 vie,s of the Constitution. %t is one of attitudes and values. 1or
there is scarcely any principle, authority or interpretation ,hich has not been countered by the
opposite. At bottom, it is the degree of one$s faith H in the nation$s leadership and in the maturity of
judgment of our people.
%? 6%/E 01 >/ 10!/30%?3, the dismissal of these five cases, and the conclusion of this Court in its
judgment of March #uestion becomes ,holly moot e8cept for this consideration, that, ,hen the judges as
individuals or as a body of individuals come to decide ,hich king or ,hich constitution they ,ill support
and assert to represent, it may often be good judgment for them to follo, the lead of the men ,ho as a
practical matter are likely to be looked to by the people as more representative of themselves and
conversely are likely to be more directly in touch ,ith popular sentiment. %f, ho,ever, the judges hold too
strong vie,s of their o,n to be able to take this course, they may follo, their o,n leads at their o,n
ha"ard. ?o #uestion of la, is involved. ;Political Puestions, A) >arvard +a, !evie, G&(*JC*BH, pp. A9BC
A9(.<
A&, &('A are fully justified.
"arre!o, 'a-asiar an! Es+uerra, JJ., concur.
APP/?D%D 0 0P%?%0?
;3.!. ?os. +CA2&J*, A2&2J, A2&2B, A2*A2 M A2*)A<
P!06%-%0?- 01 -A/ C0?-%=%0?- -P/C%1%CA++@
P!06%D%?3 10! AM/?DM/? A?D !/6%-%0? R
&. Alaska ;&(B(< H Art. D%%%. 3(en!(ent an! >evision.
-ec. &. 3(en!(ents. Amendments to this constitution may be proposed by a t,oCthirds vote of each
house of the legislature. he secretary of state shall prepare a ballot title and proposition
summari"ing each proposed amendment, and shall place them on the ballot for the ne8t state,ide
election. %f a majority of the votes cast on the proposition favor the a(en!(ent, it becomes effective
thirty days after the certification of the election returns by the secretary of state.
-ec. *. Convention. he legislature may call constitutional conventions at any time.
-ec. A. Call # re,eren!u(. %f during any tenCyear period a constitutional convention has not been
held, the secretary of state shall place on the ballot for the ne8t general election the #uestion7 4-hall
there be a Constitutional ConventionI4 %f a majority of the votes cast on the #uestion are in the
negative, the #uestion need not be placed on the ballot until the end of the ne8t tenCyear period. %f a
majority of the votes cast on the #uestion are in the affirmative, delegates to the convention shall be
chosen at the ne8t regular state,ide election, unless the legislature provides for the election of the
election delegates at a special election. he secretary of state shall issue the call for the convention.
=nless other provisions have been made by la,, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of &(BB, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification of revisions
and ordinances. ... .
-ec. J. Po)ers. Constitutional conventions shall have plenary po,er to amend or revise the
constitution, subject only to ratification by the people. ?o call for a constitutional convention shall limit
these po,ers of the convention.
*. California ;&)'(< H Art. D6%%%. 3(en!in+ an! >evisin+ t*e Constitution.
-ec. &. Constitutional a(en!(ents. Any amendment or amendments to this Constitution may be
proposed in the -enate or Assembly, and if t,oCthirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their .ournals, ,ith the yeas and nays taken thereon: and it shall be the duty of the +egislature to
submit such proposed amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed e8pedient. -hould more amendments than one be
submitted at the same election they shall be so prepared and distinguished, by numbers or other,ise,
that each can be voted on separately. %f the people shall approve and ratify such amendment or
amendments, or any of them, by a majority of the #ualified electors voting thereon such amendment
or amendments shall become a part of this constitution.
-ec. *. Constitutional convention. Ehenever t,oCthirds of the members elected to each branch of the
+egislature shall deem it necessary to revise this Constitution, they shall recommend to the electors
to vote at the ne8t general for or against a Convention for that purpose, and if a majority of the
electors voting at such election on the proposition for a Convention shall vote in favor thereof, the
+egislature shall, at its ne8t session, provide by la, for calling the same. he Convention shall consist
of a number of delegates not to e8ceed that of both branches of the +egislature, ,ho shall be chosen
in the same manner, and have the same #ualifications, as Members of the +egislature. he delegates
so elected shall meet ,ithin three months after their election at such place as the +egislature may
direct. At a special election to be provided for by la,, the Constitution that may be agreed upon by
such Convention s*all #e su#(itte! to t*e people ,or t*eir rati,ication or re5ection, in suc* (anner as
t*e Convention (a !eter(ine. he returns of such election shall, in such manner as the Convention
shall direct, be certified to the /8ecutive of the -tate, ,ho shall call to his assistance the Controller,
reasurer, and -ecretary of -tate, and compare the returns so certified to him: and it shall be the duty
of the /8ecutive to declare, by his proclamation, such Constitution, as may have been ratified by a
majority of all the votes cast at such special election, to be the Constitution of the -tate of California.
A. Colorado ;&)'2< H Art. D%D. 3(en!(ents.
-ec. &. Constitutional convention9 *o) calle!. he general assembly may at any time be a vote of
t,oCthirds of the members elected to each house, recommend to the electors of the state, to vote at
the ne8t general election for or against a convention to revise, alter and a(en! this constitution: and if
a majority of those voting on the #uestion shall declare in favor of such convention, the general
assembly shall, at the ne8t session, provide for the calling thereof. he number of members of the
convention shall be t,ice that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. he general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting: fi8 the pay of its members and officers, and provide
for the payment of the same, together ,ith the necessary e8penses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the =nited -tates, and of
the state of Colorado, and to faithfully discharge their duties as members of the convention. he
#ualifications of members shall be the same as of members of the senate: and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general assembly. -aid convention
shall meet ,ithin three months after such election and prepare such revisions, alterations or
amendments to the constitution as may be deemed necessary: ,hich shall be submitted to the
electors for their ratification or rejection at an election appointe! # t*e convention ,or t*at purpose,
not less than t,o nor more than si8 months after adjournment thereof: and unless so submitted and
approved by a majority of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
-ec. *. 3(en!(ents to constitution9 *o) a!opte!. Any amendment or amendments to this
constitution may be proposed in either house of the general assembly, and if the same shall be voted
for by t,oCthirds of all the members elected to each house, such proposed amendment or
amendments, together ,ith the ayes and noes of each house hereon, shall be entered in full on their
respective journals: the proposed amendment or amendments shall be published ,ith the la,s of that
session of the general assembly, and the secretary of state shall also cause the said amendment or
amendments to be published in full in not more than one ne,spaper of general circulation in each
county, for four successive ,eeks previous to the ne8t general election for members of the general
assembly: and at said election the said amendment or amendments shall be submitted to the
;uali,ie! electors of the state for their approval or rejection, and such as are approved by a majority of
those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment ,as submitted. But the general assembly shall have no po)er
to propose a(en!(ents to (ore t*an si6 articles o, t*is constitution at the same session.
J. Dela,are ;&)('< H Art. D6%. 3(en!(ents an! Conventions.
-ec. &. Proposal o, constitutional a(en!(ents in +eneral asse(#l9 proce!ure. Any amendment or
amendments to this Constitution may be proposed in the -enate or >ouse of !epresentatives: and if
the same shall be agreed to by t,oCthirds of all the members elected to each >ouse, such proposed
amendment or amendments shall be entered on their journals, ,ith the yeas and nays taken thereon,
and the -ecretary of -tate shall cause such proposed amendment or amendments to be published
three months before the ne8t general election in at least three ne,spapers in each County in ,hich
such ne,spaper shall be published: and if in the 3eneral Assembly ne8t after the said election such
proposed amendment or amendments shall upon yea and nay vote #e a+ree! to # t)o4t*ir!s o, all
t*e (e(#ers electe! to eac* Couse, t*e sa(e s*all t*ereupon #eco(e part o, t*e Constitution.
-ec. *. Constitutional conventions9 proce!ure9 co(pensation o, !ele+ates9 ;uoru(9 po)ers an!
!uties9 vacancies. he 3eneral Assembly by a t,oCthirds vote of all the members elected to each
>ouse may from time to time provide for the submission to the #ualified electors of the -tate at the
general election ne8t thereafter the #uestion, 4-hall there be a Convention to revise the Constitution
and amend the sameI:4 and upon such submission, if a majority of those voting on said #uestion
shall decide in favor of a Convention for such purpose, the 3eneral Assembly at its ne8t session shall
provide for the election of delegates to such convention at the ne8t general election. -uch Convention
shall be composed of fortyCone delegates, one of ,hom shall be chosen from each !epresentative
District by the #ualified electors thereof, and t,o of ,hom shall be chosen from ?e, Castle County,
t,o from Nent County and t,o from -usse8 County by the #ualified electors thereof respectively. he
delegates so chosen shall convene at the Capital of the -tate on the first uesday in -eptember ne8t
after their election. /very delegate shall receive for his services such compensation as shall be
provided by la,. A majority of the Convention shall constitute a #uorum for the transaction of
business. he Convention shall have the po,er to appoint such officers, employees and assistants as
it may be deem necessary, and fi8 their compensation, and provide for the printing of its documents,
journals, debates and proceedings. he Convention shall determine the rules of its proceedings, and
be the judge of the elections, returns and #ualifications of its members. Ehenever there shall be a
vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility,
death, resignation or other,ise, a ,rit of election to fill such vacancy shall be issued by the 3overnor,
and such vacancy shall be filled by the #ualified electors of such district or county.
B. 1lorida ;&))'< H Art. D6%%. 3(en!(ents.
-ec. &. 'et*o! o, a(en!in+ constitution. /ither branch of the +egislature, at any regular session, or
at any special or e8traCordinary session thereof called for such purpose either in the governor$s
original call or any amendment thereof, may propose the revision or amendment of any portion or
portions of this Constitution. Any such revision or amendment may relate to one subject or any
number of subjects, but no amendment shall consist of more than one revised article of the
Constitution.
%f the proposed revision or amendment is agreed to by threeCfifths of the members elected to each
house, it shall be entered upon their respective journals ,ith the yeas and nays and published in one
ne,spaper in each county ,here a ne,spaper is published for t,o times, one publication to be made
not earlier than ten ,eeks and the other not later than si8 ,eeks, immediately preceding the election
at ,hich the same is to be voted upon, and thereupon submitted to the electors of the -tate for
approval or rejection at the ne8t general election, provided, ho,ever, that such revision or
a(en!(ent may be submitted for approval or rejection in a special election under the conditions
described in and in the manner provided by -ection A of Article D6%% of the Constitution. %f a majority
of the electors voting upon the amendment adopt such amendment the same shall become a part of
this Constitution.
-ec. *. 'et*o! o, revisin+ constitution. %f at any time the +egislature, by a vote of t,oCthirds of all the
members of both >ouses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective .ournals, ,ith yea$s and nay$s thereon. ?otice of
said action shall be published ,eekly in one ne,spaper in every county in ,hich a ne,spaper is
published, for three months preceding the ne8t general election of !epresentatives, and in those
countries ,here no ne,spaper is published, notice shall be given by posting at the several polling
precincts in such counties for si8 ,eeks ne8t preceding said election. he electors at said election
may vote for or against the revision in #uestion. %f a majority of the electors so voting be in favor of
revision, the +egislature chosen at such election shall provide by la, for a Convention to revise the
Constitution, said Convention to be held ,ithin si8 months after the passage of such la,. he
Convention shall consist of a number e#ual to the membership of the >ouse of !epresentatives, and
shall be apportioned among the several counties in the same manner as members of said >ouse.
2. %daho ;&)(9< H Art. D%D. 3(en!(ents.
-ec. &. Co) a(en!(ents (a #e propose!. Any amendment or amendments to this Constitution
may be proposed in either branch of the legislature, and if the same shall be agreed to by t,oCthirds
of all the members of each of the t,o houses, voting separately, such proposed amendment or
amendments shall, ,ith the yeas and nays thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or amendments to the electors of the state at the
ne8t general election, and cause the same to be published ,ithout delay for at least si8 consecutive
,eeks, prior to said election, in not less than one ne,spaper of the general circulation published in
each county: and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this Constitution.
-ec. A. >evision or a(en!(ents # convention. Ehenever t,oCthirds of the members elected to each
branch of the legislature shall deem it necessary to call a convention to revise or a(en! this
Constitution, they shall recommend to the electors to vote at the ne8t general election, for or against a
convention, and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall at the ne8t session provide by la, for calling the same: and such
convention shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.
'. %o,a ;&)B'< H Art. D. 3(en!(ents to t*e Constitution.
-ec. A. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the 3eneral Assembly may, by
la,, provide, the #uestion, 4-hall there be a Convention to revise the Constitution, and a(en! the
sameI4 shall be decided by the electors #ualified to vote for members of the 3eneral Assembly: and
in case a majority of the electors so #ualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the 3eneral Assembly, at its ne8t
session, shall provide by la, for the election of delegates to such Convention.
). Michigan ;&(9(< H Art. D6%%. 3(en!(ents an! >evision.
-ec. &. 3(en!(ents to constitution9 proposal # le+islature9 su#(ission to electors. Any amendment
or amendments to this constitution may be proposed in the senate or house of representatives. %f the
same shall be agreed to by *FA of the members elected to each house, such a(en!(ent or
a(en!(ents shall be entered on the journals, respectively, ,ith the yeas and nays taken thereon:
and the same shall be submitted to the electors at the ne8t spring or autumn election thereafter, as
the legislature shall direct: and, if a majority of the electors ;uali,ie! to vote for members of the
legislature voting thereon shall ratify and approve such amendment or amendments, the same shall
become part of the constitution.
-ec. J. General revision9 convention9 proce!ure. At the Biennial -pring /lection to be held in the year
&(2&, in each si8teenth year thereafter and at such times as may be provided by la,, the #uestion of
a General >evision of the Constitution shall be submitted to the /lectors #ualified to vote for
members of the +egislature. %n case a majority of the /lectors voting on the #uestion shall decide in
favor of a Convention for such purpose, at an /lection to be held not later than four months after the
Proposal shall have been certified as approved, the /lectors of each >ouse of !epresentatives
District as then organi"ed shall /lect 0ne Delegate for each /lectors of each -enatorial District as
then organi"ed shall /lect 0ne Delegate for each -tate -enator to ,hich the District is entitled. he
Delegates so elected shall convene at the Capital City on the 1irst uesday in 0ctober ne8t
succeeding such election, and shall continue their sessions until the business of the convention shall
be completed. A majority of the delegates elected shall constitute a #uorum for the transaction of
business. ... ?o propose! constitution or a(en!(ent adopted by such convention shall be submitted
to the electors for approval as hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be submitted to the ;uali,ie! electors in
the manner provided by such convention on the first Monday in April follo,ing the final adjournment
of the convention: but, in case an interval of at least (9 days shall not intervene bet,een such final
adjournment and the date of such election. =pon the approval of such constitution or amendments by
a majority of the #ualified electors voting thereon such constitution or amendments shall take effect
on the first day of .anuary follo,ing the approval thereof.
(. Minnesota ;&)B'< H Art. D%6. 3(en!(ents to t*e Constitution.
-ec. &. 3(en!(ents to constitution9 (a5orit vote o, electors votin+ (a-es a(en!(ent vali!.
Ehenever a majority of both houses of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or a(en!(ents, ,hich proposed amendments shall
be published ,ith the la,s ,hich have been passed at the same session, and said amendments shall
be submitted to the people for their approval or rejection at any general election, and if it shall appear,
in a manner to be provided by la,, that a majority of all the electors voting at said election shall have
voted for and ratified such alterations or amendments, the same shall be valid to all intents and
purposes as a part of this Constitution. %f t,o or more alterations or a(en!(ents shall be submitted
at the same time, it shall be so regulated that the voters shall vote for or against each separately.
-ec. *. >evision o, constitution. Ehenever t,oCthirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the ne8t general election for members of the legislature, for or
against a convention: and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their ne8t session, provide by la, for calling the same. he
convention shall consist of as many members as the >ouse of !epresentatives, ,ho shall be chosen
in the same manner, and shall meet ,ithin three months after their election for the purpose aforesaid.
-ec. A. Su#(ission to people o, revise! constitution !ra,te! at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the -tate
of Minnesota for their approval or rejection at the ne8t general election held not less than (9 days
after the adoption of such revision, and, if it shall appear in the manner provi!e! # la) that threeC
fifths of all the electors voting on the #uestion shall have voted for and ratified such revision, the same
shall constitute a ne, constitution of the -tate of Minnesota. Eithout such submission and ratification,
said revision shall be of no force or effect. -ection ( of Article %6 of the Constitution shall not apply to
election to the convention.
&9. ?evada ;&)2J< H Art. &2. 3(en!(ents.
-ec. &. Constitutional a(en!(ents9 proce!ure. Any amendment or amendments to this Constitution
may be proposed in the -enate or Assembly: and if the same shall be agreed to by a Majority of all
the members elected to each of the t,o houses, such proposed amendment or amendments shall be
entered on their respective journals, ,ith the @eas and ?ays taken thereon, and referred to the
+egislature then ne8t to be chosen, and shall be published for three months ne8t preceding the time
of making such choice. And if in the +egislature ne8t chosen as aforesaid, such proposed amendment
or amendments shall be agreed to by a majority of all the members elected to each house, then it
shall be the duty of the +egislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the +egislature shall prescribe: and if the people shall
approve and ratify such amendment or amendments by a majority of the electors #ualified to vote for
members of the +egislature voting thereon, such amendment or amendments shall become a part of
the Constitution.
-ec. *. Convention ,or revision o, constitution9 proce!ure. %f at any time the +egislature by a vote of
t,oCthirds of the Members elected to each house, shall determine that it is necessary to cause a
revision of t*is entire Constitution they shall recommend to the electors at the ne8t election for
Members of the +egislature, to vote for or against a convention, and if it shall appear that a majority of
the electors voting at such election, shall have voted in favor of calling a Convention, the +egislature
shall, at its ne8t session provide by la, for calling a Convention to be holden ,ithin si8 months after
the passage of such la,, and such Convention shall consist of a number of Members not less that of
both branches of the legislature. %n determining ,hat is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election for the candidates of any
office or on any #uestion.
&&. ?e, >amspire ;&')J< K
Art. ((. >evision o, constitution provi!e! ,or. %t shall be the duty of the selectmen, and assessors, of
the several to,ns and places in this state, in ,arning the first annual meetings for the choice of
senators, after the e8piration of seven years from the adoption of this constitution, as amended, to
insert e8pressly in the ,arrant this purpose, among the others for the meeting, to ,it, to take the
sense of the #ualified voters on the subject of a revision o, t*e constitution: and, the meeting being
,arned accordingly, and not other,ise, the moderator shall take the sense of the #ualified voters
present as to the necessity of a revision: and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the general court at their then ne8t
session: and if, it shall appear to the general court by such return, that the sense of the people of the
state has taken, and that, in the opinion of the majority of the #ualified voters in the state, present and
voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, other,ise the general court shall direct the sense
of the people to be taken, and then proceed in the manner before mentioned. he delegates to be
chosen in the same manner, and proportioned, as the representatives to the general court: provided
that no alterations shall be made in this constitution, before the same shall be laid before the to,ns
and unincorporated places, and approved by t,o thirds of the #ualified voters present and voting on
the subject.
&*. 0klahoma ;&(9'< H Art. DD%6. Constitutional 3(en!(ents.
-ec. &. 3(en!(ents propose! # le+islature9 a su#(ission to vote. Any a(en!(ent or a(en!(ents
to this Constitution may be proposed in either branch of the +egislature, and if the same shall be
agreed to by a majority of all the members elected to each of the t,o houses, such proposed
amendment or amendments shall, ,ith yeas and nays thereon, be entered in their journals and
referred by the -ecretary of -tate to the people for their approval or rejection, at the ne8t regular
general election, e8cept ,hen the +egislature, by a t,oCthirds vote of each house, shall order a
special election for that purpose. %f a majority of all the electors voting at such election shall vote in
favor of any amendment thereto, it shall thereby become a part of this Constitution.
%f t,o or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.
?o proposal for the amendment or alteration of this Constitution ,hich is submitted to the voters shall
embrace more than one general subject and the voters shall vote separately for or against each
proposal submitted: provided, ho,ever, that in the submission of proposals for the a(en!(ent of this
Constitution by articles, ,hich embrace one general subject, each proposed article shall be deemed a
single proposals or proposition
-ec. *. Constitutional convention to propose a(en!(ents or ne) constitution. ?o convention shall be
called by the +egislature to propose alterations, revisions, or amendments to this Constitution, or to
propose a ne) Constitution, unless the la, providing for such convention shall first be approved by
the people on a referendum vote at a regular or special election, and any amendments, alterations,
revisions, or ne, Constitution, proposed by such convention, shall be submitted to the electors of the
-tate at a general or special election and be approved by a majority of the electors voting thereon,
before the same shall become effective Provided, hat the #uestion of such proposed convention
shall be submitted to the people at least once in every t,enty years.
&A. 0regon ;&)B(< H Art. D6%%. 3(en!(ents an! >evisions.
-ec. &. 'et*o! o, a(en!in+ constitution. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority
of all the members elected to each of the t,o houses, such proposed amendment or amendments
shall, ,ith the yeas and nays thereon, be entered in their journals and referred by the secretary of
state to the people for their approval or rejection, at the ne8t regular election, e8cept ,hen the
legislative assembly shall order a special election for that purpose. %f a majority of the electors voting
on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution.
he votes for and against such a(en!(ent, or a(en!(ents, severally, ,hether proposed by the
legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the
presence of the governor, and if it shall appear to the governor that the majority of the votes cast at
said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his
duty forth,ith after such canvass, by his proclamation, to declare the said amendment, or
amendments, severally, having received said majority of votes to have been adopted by the people of
0regon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. Ehen t,o or more amendments shall be submitted
in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that
each amendment shall be voted on separately. ?o convention shall be called to amend or propose
amendments to this Constitution, or to propose a ne) Constitution, unless the la, providing for such
convention shall first be approved by the people on a referendum vote at a regular general election.
his article shall not be construed to impair the right of the people to amend this Constitution by vote
upon an initiative petition therefor.
-ec. *. 'et*o! o, revisin+ constitution. ;&< %n addition to the po,er to amend this Constitution granted
by section &, Article %6, and section & of this Article, a revision o, all or part o, t*is Constitution may be
proposed in either house of the +egislative Assembly and, if the proposed revision is agreed to by at
least t,oCthirds of all the members of each house, the proposed revision shall, ,ith the yeas and nays
thereon, be entered in their journals and referred by the -ecretary of -tate to the people for their
approval or rejection, not,ithstanding section &, Article %6 of this Constitution, at the ne8t regular
stateC,ide primary election, e8cept ,hen the +egislative Assembly orders a special election for that
purpose. A proposed revision may deal ,ith more than one subject and shall be voted upon as one
#uestion. he votes for and against the proposed revision shall be canvassed by the -ecretary of
-tate in the presence of the 3overnor and, if it appears to the 3overnor that the majority of the votes
cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly
follo,ing the canvass, declare, by his proclamation, that the proposed revision has received a
majority of votes and has been adopted by the people as the Constitution of the -tate of 0regon, as
the case may be. he revision shall be in effect as the Constitution or as a part of this Constitution
from the date of such proclamation.
&J. =tah ;&)(2< H Art. *A. 3(en!(ents.
-ec. &. 3(en!(ents9 (et*o! o, proposal an! approval. Any amendments to his Constitution may be
proposed in either house of the +egislature, and if t,oCthirds of all the members elected of the t,o
houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on
their respective journals ,ith the yeas and nays taken thereon: and the +egislature shall cause the
same to be published in at least one ne,spaper in every county of the -tate, ,here a ne,spaper is
published, for t,o months immediately preceding the ne8t general election, at ,hich time the said
amendment or amendments shall be submitted to the electors of the -tate, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or
amendments shall become part of this Constitution. %f t,o or more amendments are proposed, they
shall be so submitted as to enable the electors to vote on each of them separately.
-ec. *. >evision o, t*e Constitution # convention. Ehenever t,oCthirds of the members, elected to
each branch of the +egislature, shall deem it necessary to call a convention to revise or a(en! this
convention, and, if a majority of all the electors, voting at such election, shall vote for a convention.
he +egislature, at its ne8t session, shall provide by la, for calling the same. he convention shall
consist of not less than the number of members in both branches of the +egislature.
&B. Eyoming ;&)(9< H Art. DD. 3(en!(ents.
-ec. &. Proce!ure ,or a(en!(ents. Any a(en!(ent or a(en!(ents to this Constitution may be
proposed in either branch of the legislature, and, if the same shall be agreed to by t,oCthirds of all the
members of the t,o houses, voting separately, such proposed amendment or amendments shall, ,ith
the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at the ne8t general election, in at
least one ne,spaper of general circulation, published in each county, and if a majority of the electors
shall ratify the same, such amendment or amendments shall become a part of this constitution.
-ec. *. Co) vote! ,or. %f t,o or more amendments are proposed, they shall be submitted in such
manner that the electors shall vote for or against each of them separately.
-ec. A. Constitutional convention9 provision ,or. Ehenever t,oCthirds of the members elected to each
constitution, they shall recommend to the electors to vote at the ne8t general election for or against a
convention, and if a majority of all the electors voting at such election shall have voted for a
convention, the legislature shall at the ne8t session provide by a la, for calling the same: and such
convention shall consist of a number of members, not less than double that of the most numerous
branch of the legislature.
-ec. J. Ne) constitution. Any constitution adopted by such convention shall have no validity until it
has been submitted to and adopted by the people.

S+(a,at+ O(%%os
MA6ALINTAL, J., concurring7
CASTRO, J., concurring7
he preliminary #uestion before this Court ,as ,hether or not the petitioners had made out a
sufficient pri(a ,acie case in their petitions to justify their being given due course. Considering on the
one hand the urgency of the matter and on the other hand its transcendental importance, ,hich
suggested the need for hearing the side of the respondents before that preliminary #uestion ,as
resolved, Ee re#uired them to submit their comments on the petitions. After the comments ,ere filed
Ee considered them as motions to dismiss so that they could be orally argued. As it turned out, the
hearing lasted five days, morning and afternoon, and could not have been more e8haustive if the
petitions had been given due course from the beginning.
he major thrust of the petitions is that the act of the Citi"ens Assemblies as certified and proclaimed
by the President on .anuary &', &('A ;Proclamation ?o. &&9*< ,as not an act of ratification, let alone
a valid one, of the proposed Constitution, because it ,as not in accordance ,ith the e8isting
Constitution ;of &(AB< and the /lection Code of &('&. 0ther grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely subordinate and
peripheral.
Article D6, -ection &, of the &(AB Constitution provides that amendments ;proposed either by
Congress in joint session or by a Convention called by it for the purpose< 4shall be valid part of this
Constitution ,hen approved by a majority of votes cast at an election at ,hich the amendments
submitted to the people for their ratification.4 At the time Constitution ,as approved by the
Constitutional Convention on 1ebruary ), &(AB, and ratified in a plebiscite held on follo,ing May &J,
the ,ord 4election4 had already a definite meaning in our la, and jurisprudence. %t ,as not a vague
and amorphous concept, but a procedure prescribed by statute ascertaining the people$s choices
among candidates for public offices, or their ,ill on important matters submitted to the pursuant to
la,, for approval. %t ,as in this sense that ,ord ,as used by the framers in Article D6 ;also in Articles
6% and 6%%<, and in accordance ,ith such procedure that plebiscites ,ere held to ratify the very same
Constitution in &(AB as ,ell as the subse#uent amendments thereto, thus7 in &(A( ;0rdinance
appended to the Constitution<: &(J9 ;establishment of a bicameral legislature: eligibility of the
President and the 6ice President for re election: creation of the Commission of /lections<: &(J'
;Parity Amendment<: and &(2' ;increase in membership of the >ouse of !epresentatives and
eligibility of members of Congress to run for the Constitutional Convention ,ithout forfeiture of their
offices<.
he /lection Code of &('&, in its -ection *, states that 4all elections of public officers e8cept barrio
officials and ple#iscites shall be conducted in the manner provided by this Code.4 his is a statutory
re#uirement designed, as ,ere the other election la,s previously in force, to carry out the
constitutional mandate relative to the e8ercise of the right suffrage, and ,ith specific reference to the
term 4plebiscites,4 the provision of Article D6 regarding ratification of constitutional amendments.
he manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. -ection (( re#uires that #ualified voters be registered in a permanent list, the
#ualifications being those set forth in Article 6, -ection &, of the &(AB Constitution on the basis of age
;*&<, literacy and residence. hese #ualifications are reiterated in -ection &9& of the /lection Code.
-ection &9* enumerates the classes of persons dis#ualified to vote. -ucceeding sections prescribe
the election paraphernalia to be used, the procedure for registering voters, the records, of registration
and the custody thereof, the description and printing of official ballots, the actual casting of votes and
their subse#uent counting by the boards of inspectors, the rules for appreciation of ballots, and then
the canvass and proclamation of the results.
Eith specific reference to the ratification of the &('* draft Constitution, several additional
circumstances should be considered7
;&< his draft ,as prepared and approved by a Convention ,hich had been convened pursuant to
!esolution ?o. * passed by Congress on March &2, &(2', ,hich provides7
-ec. '. he amendments proposed by the Convention shall be valid and considered part of the
;*< Article D6%%, -ection &2, of the draft itself states7
-ec. &2. his Constitution shall take effect immediately upon its ratification by a majority of the votes cast
nineteen hundred and thirtyCfive and all amendments thereto.
he same procedure is prescribed in Article D6%, -ection *, for the ratification of any future
amendment to or revision of the said Constitution.
;A< After the draft Constitution ,as approved by the Constitutional Convention on ?ovember A9, &('*
the said body adopted !esolution ?o. B)JA, proposing 4to President 1erdinand /. Marcos that a
decree be issued calling a ple#iscite for the ratification of the proposed ?e, Constitution on such
appropriate date as he shall determine and providing for the necessary funds therefor.4 Pursuant to
said !esolution the President issued Decree ?o. 'A on the same day, calling a plebiscite to be held
on .anuary &B, &('A, at ,hich the proposed Constitution 4shall be submitted to the people for
ratification or rejection.4 he Decree had eighteen ;&)< sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such as7 ;a< publication of the
proposed Constitution in /nglish and Pilipino: ;b< freedom of information and discussion: ;c<
registration of voters7 ;d< appointment of boards of election inspectors and designation of ,atchers in
each precinct: ;e< printing of official ballots: ;f< manner of voting to insure freedom and secrecy
thereof: ;g< canvass of plebiscite returns: and ;h< in general, compliance ,ith the provisions of the
/lection Code of &('&, ,ith the Commission on /lections e8ercising its constitutional and statutory
po,ers of supervision of the entire process.
here can hardly be any doubt that in everybody$s vie, K from the framers of the &(AB Constitution
through all the Congresses since then to the &('& Constitutional Convention K amendments to the
Constitution should be ratified in only one ,ay, that is, in an election or plebiscite held in accordance
,ith la, and participated in only by #ualified and duly registered voters. %ndeed, so concerned ,as
this Court ,ith the importance and indispensability of complying ,ith the mandate of the ;&(AB<
Constitution in this respect that in the recent case of Tolentino vs. Co((ission on Elections, ?o. +C
AJ&B9, 0ctober &2, &('& ;J& -C!A '9*<, a resolution of the ;&('&< Constitutional Convention
submitting a proposed amendment for ratification to a plebiscite to be held in ?ovember &('& ,as
declared null and void. he amendment sought to reduce the voting age from t,entyCone to eighteen
years and ,as approved by the Convention for submission to a plebiscite ahead of and separately
from other amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later. his
Court held that such separate submission ,as violative of Article D6, -ection &, of the Constitution,
,hich contemplated that 4all the amendments to be proposed by the same Convention must be
submitted to the people in a single 4election4 or plebiscite.4 > hus a grammatical construction based
on a singular, instead of plural, rendition of the ,ord 4election4 ,as considered a sufficient ground to
rule out the plebiscite ,hich had been called to ratify a proposed amendment in accordance ,ith the
procedure and under all the safeguards provided in the /lection +a,.
%n the cases no, before =s ,hat is at issue is not merely the ratification of just one amendment, as in
Tolentino vs. CO'E0EC, but the ratification of an entire charter setting up a ne, form of government:
and the issue has arisen not because of a disputed construction of one ,ord or one provision in the
&(AB Constitution but because no election or plebiscite in accordance ,ith that Constitution and ,ith
the /lection Code of &('& ,as held for the purpose of such ratification.
he Citi"ens Assemblies ,hich purportedly ratified the draft Constitution ,ere created by Presidential
Decree ?o. )2 dated December A&, &('*, 4to broaden the base of citi"en participation in the
democratic process and to afford ample opportunities for the citi"enry to e6press t*eir vie)s on
important national issues.4 he Assemblies 4shall consist of all persons ,ho are residents of the
barrio, district or ,ard for at least si8 months, ,i,teen years of age or over, citi"ens of the Philippines
and ,ho are registered in the lists of Citi"en Assembly members kept by the barrio, district or ,ard
secretary.4 By Presidential Decree ?o. )2CA, dated .anuary B, &('A, the Assemblies ,ere convened
for a referendum bet,een .anuary &9 and &B, to 4consider vital national issues no, confronting the
country, like the holding of the plebiscite on the ne, Constitution, the continuation of martial rule, the
convening of Congress on .anuary **, &('A, and the holding of elections in ?ovember &('A.4
0n .anuary B, &('A the ne,spapers came out ,ith a list of four #uestions to be submitted to the
Citi"ens Assemblies, the fourth one being as follo,s7 4>o, soon ,ould you like plebiscite on the ne,
Constitution to be heldI4 %t should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite ,hich he had called for .anuary &B,
&('A ;Presidential Decree ?o. 'A< for the ratification of the Constitution, and that he ,as considering
t,o ne, dates for the purpose K 1ebruary &( or March B: that he had ordered that the registration of
voters ;pursuant to Decree ?o. 'A< be e8tended to accommodate ne, voters: and that copies of the
ne, Constitution ,ould be distributed in eight dialects the people. ;"ulletin To!a, December *J,
&('*.<
0n .anuary &9, &('A it ,as reported that one more #uestion ,ould be added to the original four
,hich ,ere to be submitted to the Citi"ens Assemblies. he #uestion concerning plebiscite ,as
re,orded as follo,s7 4Do you like the plebiscite to be held laterI4 he implication, it may like,ise be
noted, ,as that the Assemblies should e8press their vie,s as to the plebiscite should be held, not as
to ,hether or not it should be held at all.
he ne8t day, .anuary &&, it ,as reported that si8 additional #uestions ,ould be submitted, namely7
national interestI
;*< .o ou approve o, t*e ne) Constitution2
;A< .o ou )ant a ple#iscite to #e calle! to rati, t*e ne) Constitution2
;J< Do you ,ant the elections to be held in ?ovember, &('A accordance ,ith the provisions of the &(AB
ConstitutionI
;B< %f the elections ,ould not be held, ,hen do you ,ant the ne8t elections to be calledI
;2< Do you ,ant martial la, to continueI GBulletin oday, .anuary &&, &('A: emphasis suppliedH.
Appended to the si8 additional #uestions above #uoted ,ere the suggested ans,ers, thus7
C0MM/?- 0?
P=/-%0? ?o. &
P=/-%0? ?o. *
P=/-%0? ?o. A
P=/-%0? ?o. J
P=/-%0? ?o. B
P=/-%0? ?o. 2
,ant him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country.
%f all other measures fail, ,e ,ant President Marcos to declare a revolutionary government along the lines of the ne,
Constitution ,ithout the ad interim Assembly.
-o it ,as that on .anuary &&, &('A, the second day of the purported referendum, the suggestion ,as
broached, for the first time, that the plebiscite should be done a,ay ,ith and a favorable vote by the
Assemblies deemed e#uivalent ratification. his ,as done, not in the #uestionnaire itself, but in the
suggested ans,er to #uestion ?o. A. -trangely, ho,ever, it ,as not similarly suggested that an
unfavorable vote be considered as rejection.
here should be no serious dispute as to the fact that the manner in ,hich the voting ,as conducted
in the Citi"en Assemblies, assuming that such voting ,as held, ,as not ,ithin the intendment of
Article D6, -ection &, of the &(AB Constitution nor in accordance ,ith the /lection Code of &('&. he
referendum can by no means be considered as the plebiscite contemplated in -ection * of said Code
and in Article D6%%, -ection &2, of the draft Constitution itself, or as the election intended by Congress
,hen it passed !esolution ?o. * on March &2, &(2' calling a Convention for the revision of the &(AB
Constitution. he Citi"ens Assemblies ,ere not limited to #ualified, let alone registered voters, but
included all citi"ens from the age of fifteen, and regardless of ,hether or not they ,ere illiterates,
feebleCminded, or e8 convicts > K these being the classes of persons e8pressly dis#ualified from
voting by -ection &9* of the /lection Code. %n short, the constitutional and statutory #ualifications
,ere not considered in the determination of ,ho should participate. ?o official ballots ,ere used in
the voting: it ,as done mostly by acclamation or open sho, of hands. -ecrecy, ,hich is one of the
essential features of the election process, ,as not therefore observed. ?o set of rules for counting the
votes or of tabulating them and reporting the figures ,as prescribed or follo,ed. he Commission on
/lections, ,hich is the constitutional body charged ,ith the enforcement and administration of all la,s
relative to the conduct of elections, took no part at all, either by ,ay of supervision or in the
assessment of the results.
%t has been suggested that since according to Proclamation ?o. &&9* the over,helming majority of all
the members of the Citi"ens Assemblies had voted for the adoption of the proposed Constitution
there ,as a substantial compliance ,ith Article D6, -ection &, of the &(AB Constitution and ,ith the
/lection Code of &('&. he suggestion misses the point entirely. %t is of the essence of a valid
e8ercise of the right of suffrage that not only must a majority or plurality of the voters carry the day but
that the same must be duly ascertained in accordance ,ith the procedure prescribed by la,. %n other
,ords the very e8istence of such majority or plurality depends upon the manner of its ascertainment,
and to conclude that it e8ists even if it has not been ascertained according to la, is simply to beg the
issue, or to assume the very fact to be established. 0ther,ise no election or plebiscite could be
#uestioned for nonCcompliance ,ith the provisions of the /lection +a, as long as it is certified that a
majority of the citi"ens had voted favorably or adversely on ,hatever it ,as that ,as submitted to
them to vote upon.
>o,ever, a finding that the ratification of the draft Constitution by the Citi"ens Assemblies, as certified
by the President in Proclamation ?o. &&9*, ,as not in accordance ,ith the constitutional and
statutory procedure laid do,n for the purpose does not #uite resolve the #uestions raised in these
cases. -uch a finding, in our opinion, is on a matter ,hich is essentially justiciable, that is, ,ithin the
po,er of this Court to in#uire into. %t imports nothing more than a simple reading and application of
the pertinent provisions of the &(AB Constitution, of the /lection Code and of other related la,s and
official acts. ?o #uestion of ,isdom or of policy is involved. But from this finding it does not
necessarily follo, that this Court may justifiably declare that the Constitution has not become
effective, and for that reason give due course to these petitions or grant the ,rits herein prayed for.
he effectivity of the said Constitution, in the final analysis, is the basic and ultimate #uestion posed
by these cases, to resolve ,hich considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.
-everal theories have been advanced respectively by the parties. he petitioners lay stress on the
invalidity of the ratification process adopted by the Citi"ens Assemblies and on that premise ,ould
have this Court grant the reliefs they seek. he respondents represented by the -olicitor 3eneral,
,hose theory may be taken as the official position of the 3overnment, challenge the jurisdiction of
this Court on the ground that the #uestions raised in the petitions are political and therefore nonC
justiciable, and that in any case popular ac#uiescence in the ne, Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition of the po,er of judicial
revie,. !espondents 3il .. Puyat and .ose !oy ;in +CA2&2B<, in their respective capacities as
President and President Pro empore of the -enate of the Philippines, and through their counsel,
-enator Arturo olentino, like,ise invoke the political #uestion doctrine, but on a ground not
concurred in by the -olicitor 3eneral, namely, that approval of the &('A Constitution by the people
,as made under a revolutionary government, in the course of a successful political revolution, ,hich
,as converted by act of the people to the present !e 5ure government under the &('A Constitution.4
>eretofore, constitutional disputes ,hich have come before this Court for adjudication proceeded on
the assumption, conceded by all, that the Constitution ,as in full force and effect, ,ith the po,er and
authority of the entire 3overnment behind it: and the task of this Court ,as simply to determine
,hether or not the particular act or statute that ,as being challenged contravened some rule or
mandate of that Constitution. he process employed ,as one of interpretation and synthesis. %n the
cases at bar there is no such assumption7 the Constitution ;&(AB< has been derogated and its
continued e8istence as ,ell as the validity of the act of derogation is issue. he legal problem posed
by the situation is aggravated by the fact that the political arms of the 3overnment K the /8ecutive
Departments and the t,o >ouses of Congress K have accepted the ne, Constitution as effective7
the former by organi"ing themselves and discharging their functions under it, and the latter by not
convening on .anuary **, &('A or at any time thereafter, as ordained by the &(AB Constitution, and in
the case of a majority of the members by e8pressing their option to serve in the %nterim ?ational
Assembly in accordance ,ith Article D6%%%, -ection *, of the &('A Constitution. >
he theory advanced by -enator olentino, as counsel for respondents Puyat and !oy, may be taken
up and restated at same length if only because it ,ould constitute, if sustained, the most convenient
ground for the invocation of the politicalC#uestion doctrine. %n support of his theory, -enator olentino
contends that after President Marcos declared martial la, on -eptember *&, &('* ;Proclamation ?o.
&9)&< he established a revolutionary government ,hen he issued 3eneral 0rder ?o. & the ne8t day,
,herein he proclaimed 4that % shall govern the nation and direct the operation of the entire
government, including all its agencies and instrumentalities, in my capacity, and shall e8ercise all the
po,ers and prerogatives appurtenant and incident to my position as such CommanderCinCChief of all
the Armed 1orces of the Philippines.4 By this order, it is pointed out, the CommanderCinCChief of the
Armed 1orces assumed all the po,ers of government K e8ecutive, legislative, and judicial: and
thereafter proceeded to e8ercise such po,ers by a series of 0rders and Decrees ,hich amounted to
legislative enactments not justified under martial la, and, in some instances, trenched upon the
domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as 4those
involving the validity, legality, or constitutionality of Proclamation ?o. &9)&, or of any decree, order or
act issued, promulgated or performed by me or by my duly designated representative pursuant
thereto.4 ;3eneral 0rder ?o. A as amended by 3eneral 0rder ?o. ACA, dated -eptember *J, &('*.<
he ratification by the Citi"ens Assemblies, it is averred, ,as the culminating act of the revolution,
,hich thereupon converted the government into a !e 5ure one under the &('A Constitution.
ratification as ,ell as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of ,hether or not that Constitution has become effective and, as
necessary corollary, ,hether or not the government legitimately functions under it instead of under
the &(AB Constitution, is political and therefore nonCjudicial in nature. =nder such a postulate ,hat the
people did in the Citi"en Assemblies should be taken as an e8ercise of the ultimate sovereign po,er.
%f they had risen up in arms and by force deposed the then e8isting government and set up a ne,
government in its place, there could not be the least doubt that their act ,ould be political and not
subject to judicial revie, but only to the judgment of the same body politic act, in the conte8t just set
forth, is based on realities. %f a ne, government gains authority and dominance through force, it can
be effectively challenged only by a stronger force: judicial dictum can prevail against it. Ee do not see
that situation ,ould be any different, as far as the doctrine of judicial revie, is concerned, if no force
had been resorted to and the people, in defiance of the e8isting Constitution but peacefully because
of the absence of any appreciable opposition, ordained a ne, Constitution and succeeded in having
the government operate under it. Against such a reality there can be no ade#uate judicial relief: and
so courts forbear to take cogni"ance of the #uestion but leave it to be decided through political
means.
he logic of the politicalC#uestion doctrine is illustrated in statement of the =.-. -upreme Court in a
case > relied upon, curiously enough, by the -olicitor 3eneral, ,ho disagrees ,ith the revolutionary
government theory of -enator olentino. he case involved the issue of ,hich of t,o opposing
governments struggling for supremacy in the -tate of !hode %sland ,as the la,ful one. he issue had
previously come up in several other cases before the courts of the -tate, ,hich uniformly held that
the in#uiry belonged to the political po,er and not to the judicial. Commenting on the ruling thus
arrived at, the =.-. -upreme Court said7 4And if a -tate court should enter upon the in#uiry proposed
in this case, and should come to the conclusion that the government under ,hich it acted had been
put aside and displaced by an opposing government, it ,ould cease to be a court, and incapable of
pronouncing a judicial decision upon the #uestion it undertook to try. %f it decides at all as a court, it
po,er.4 %n other ,ords, since the court ,ould have no choice but to decide in one ,ay alone in order
to be able to decide at all, the #uestion could not be considered proper for judicial determination.
%t should be noted that the above statement from +uther vs. Borden ,ould be applicable in the cases
at bar only on the premise that the ratification of the Constitution ,as a revolutionary act and that the
government no, functioning it is the product of such revolution. >o,ever, ,e are not prepared to
agree that the premise is justified.
%n the first, place, ,ith specific reference to the #uestioned ratification, several significant
circumstances may be noted. ;&< he Citi"ens Assemblies ,ere created, according to Presidential
Decree ?o. )2, 4to broaden the base of citi"en participation in the democratic process and to afford
ample opportunities for the citi"enry to e6press t*eir vie)s on important national issues.4 ;*< he
President announced, according to the .ail E6press of .anuary *, &('A, that 4the referendum ,ill be
in the nature of a loose consultation ,ith the people.4 ;A< he #uestion, as submitted to them on the
particular point at issue here, ,as 4Do you a approve o, the ConstitutionI4 ;J< President Marcos, in
proclaiming that the Constitution had been ratified, stated as follo,s7 4;-<ince the referendum results
sho, that more than ninetyCfive ;(B< per cent of the members of the Barangays ;Citi"ens Assemblies<
are in favor of the ne, Constitution, the Gatipunan n+ (+a "aran+a has stron+l reco((en!e! that
the ne, Constitution should already #e !ee(e! ratified by the 1ilipino people.4 ;B< here ,as not
enough time for the Citi"ens Assemblies to really familiari"e themselves ,ith the Constitution, much
less ,ith the many other subjects that ,ere submitted to them. %n fact the plebiscite planned for
.anuary &B, &('A under Presidential Decree ?o. 'A had been postponed to an indefinite date, the
reasons for the postponement being, as attributed to the President in the ne,spapers, that 4there ,as
little time to campaign for or against ratification4 ;.ail E6press, Dec. **, &('*<: that he ,ould base
his decision ;as to the date, of the plebiscite< on the compliance by the Commission ;on /lections< on
the publication re#uirement of the ne, Charter and on the position taken by national leaders4 ;.ail
E6press, Dec. *A, &('*<: and that 4the postponement ,ould give us more time to debate on the
merits of the Charter.4 ;"ulletin To!a, Dec. *J, &('*.<
he circumstances above enumerated lead us to the conclusion that the Citi"ens Assemblies could
not have understood the referendum to be for the ratification of the Constitution, but only for the
e8pression of their vie,s on a consultative basis. %ndeed, if the e8pression of those vie,s had been
intended as an act of ratification ;or of rejection as a logical corollary< K there ,ould have been no
need for the Gatipunan n+ (+a "aran+a to reco((en! that the Constitution should already be
deemed ratified, for recommendation imports recognition of some higher authority in ,hom the final
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had
been ratified and had come into effect. he more relevant consideration, therefore, as far as ,e can
see, should be as to ,hat the President had in mind in convening the Citi"ens Assemblies, submitting
the Constitution to them and proclaiming that the favorable e8pression of their vie,s ,as an act of
ratification. %n this respect subjective factors, ,hich defy judicial analysis and adjudication, are
necessarily involved.
%n positing the problem ,ithin an identifiable frame of reference ,e find no need to consider ,hether
or not the regime established by President Marcos since he declared martial la, and under ,hich the
ne, Constitution ,as submitted to the Citi"ens Assemblies ,as a revolutionary one. he pivotal
#uestion is rather ,hether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation ?o. &&9*, upon the recommendation of the Gatipunan n+ (+a "aran+a, ,as intended
to be definite and irrevocable, regardless of nonCcompliance ,ith the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. Ee must confess that after considering
all the available evidence and all the relevant circumstances ,e have found no reasonably reliable
ans,er to the #uestion. 0n one hand ,e read, for instance, the follo,ing public statements of the
President7
-peaking about the proclamation of martial la,, he said7
% reiterate ,hat % have said in the past7 there is no turning back for our people.
Ee have committed ourselves to this revolution. Ee have pledged to it our future, our fortunes, our lives,
our destiny. Ee have burned our bridges behind us. +et no man misunderstand the strength of our
resolution. ;A !eport to the ?ation, .an. ', &('A.<
0n the occasion of the signing of Proclamation ?o. &&9* on .anuary &', &('A, the President said the
follo,ing, among other things7
... Ee can, perhaps delimit the po,er of the people to speak on legal matters, on justiciable matters, on
matters that may come before the e8perts and interpreters of the la,. But ,e cannot dis#ualify the people
from speaking on ,hat ,e and the people consider purely political matters especially those that affect the
fundamental la, of the land.
... he political #uestions that ,ere presented to the people are e8actly those that refer to the form of
government ,hich the people ,ant ... he implications of disregarding the people$s ,ill are too a,esome
to be even considered. 1or if any po,er in government should even dare to disregard the people$s ,ill
there ,ould be valid ground for revolt.
... +et it be kno,n to everybody that the people have spoken and they ,ill no longer tolerate any attempt
to undermine the stability of their !epublic: they ,ill rise up in arms not in revolt against the !epublic #ut
in protection o, t*e >epu#lic )*ic* t*e *ave installe!. %t is #uite clear ,hen the people say, ,e ratify the
Constitution, that they mean they ,ill not discard, the Constitution.
0n .anuary &(, &('A the .ail E6press published statement of the President made the day before,
from ,hich the follo,ing portion is #uoted7
... the times are too grave and the stakes too high for us permit the customary concessions to traditional
democratic process to hold back our people$s clear and une#uivocal resolve and mandate to meet and
overcome the e8traordinary challenges presented by these e8traordinary times.
0n the same occasion of the signing of Proclamation ?o. &&9* the President made pointed reference
to 4the demand of some of our citi"ens ... that ,hen all other measures should fail, that the President
be directed to organi"e and establish a !evolutionary 3overnment,4 but in the ne8t breath added7 4...
if ,e do ratify the Constitution, ho, can ,e speak of !evolutionary 3overnmentI hey cannot be
compatible ...4 4;%<t is my feeling,4 he said, 4that the Citi"ens$ Assemblies ,hich submitted this
recommendation merely sought articulate their impatience ,ith the status ;uo that has brought about
anarchy, confusion and misery to the masses ...4 he only alternatives ,hich the President clearly
implied by the foregoing statements ,ere the ratification of the ne, Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratified. he third obvious alternative ,as entirely ruled out,
namely, a return to the &(AB Constitution, for it ,as the status ;uo under that Constitution that had
caused 4anarchy, confusion and misery.4 he message seems clear7 rather than return to such status
;uo, he ,ould heed the recommendation of the Citi"ens$ Assemblies to establish a revolutionary
government, because that ,ould be the only other ,ay to carry out the reforms he had envisioned
and initiated K reforms ,hich, in all fairness and honesty, must be given credit for the improved
#uality of life in its many aspects, e8cept only in the field of civil liberties.
%f there is any significance, both e8plicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection ,ith the ratification of the Constitution ,as
meant to be irreversible, and that nothing anyone could say ,ould make the least difference. And if
this is a correct and accurate assessment of the situation, then ,e ,ould say that since it has been
brought about by political action and is no, maintained by the government that is in undisputed
authority and dominance, the matter lies beyond the po,er of judicial revie,.
0n the other hand, by avo,als no less significant if not so emphatic in terms, President Marcos has
professed fealty to the Constitution. %n 4oday$s !evolution7 Democracy4 he says7
% believe, therefore, in the necessity of !evolution as an instrument of individual and social change ... but
that in a democratic society, revolution is of necessity, constitutional, peaceful, and legal.
%n his 6 address of -eptember *A, &('*, President Marcos told the nation7
% have proclaimed martial la, in accordance ,ith the po,ers veste! in t*e Presi!ent # t*e Constitution
o, t*e P*ilippines.
888 888 888
% repeat, this is not a military takeover of civil government functions. he 3overnment of the >epu#lic o,
t*e P*ilippines )*ic* )as esta#lis*e! # our people in $%J/ continues.
888 888 888
% assure you that % am utili"ing this po,er veste! in (e # t*e Constitution to save the !epublic and
reform our society...
% have had to use this constitutional po,er in order that ,e may not completely lose the civil rights and
freedom ,hich ,e cherish...
... Ee are against the ,all. Ee must no, defend the !epublic )it* t*e stron+er po)ers o, t*e
Constitution.
;6ital Documents, pp. &C&*: emphasis supplied<.
%n the report of an intervie, granted by the President to the ?e,s,eek Maga"ine ;published in the
issue of .anuary *(, &('A<, the follo,ing appears7
888 888 888
P. ?o, that you have gotten off the constitutional track, ,on$t you be in serious trouble if you run into critical problems
,ith your programsI
!. % have never gotten off the constitutional track. /verything % am doing is in accordance ,ith the &(AB Constitution.
he only thing is that instead of &)CyearColds voting, ,e have allo,ed &BCyearColds the right to vote. But the &BCyearC
olds of today are highCschool students, if not graduates, and they are better informed than my contemporaries at that
age. 0n the matter of ,hether it is constitutional to proclaim martial la,, it is constitutional because the Constitution
provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. Ee may #uarrel about
,hether ,hat ,e have gone through is sufficient cause to proclaim martial la, but at the very least there is a danger of
rebellion because so many of our soldiers have been killed. @ou must remember this ;martial la, provision< ,as lifted
from the American legislation that ,as the fundamental la, of our country.
888 888 888
President. Ee have earlier made reference to subjective factors on ,hich this Court, to our mind, is in
no position to pass judgment. Among them is the President$s o,n assessment of the ,ill of the
people as e8pressed through the Citi"ens Assemblies and of the importance of the &('A Constitution
to the successful implementation of the social and economic reforms he has started or envisioned. %f
he should decide that there is no turning back, that ,hat the people recommended through the
Citi"ens Assemblies, as they ,ere reported to him, demand that the action he took pursuant thereto
be final and irrevocable, then judicial revie, is out of the #uestion.
%n articulating our vie, that the procedure of ratification that ,as follo,ed ,as not in accordance ,ith
the &(AB Constitution and related statutes, ,e have discharged our s,orn duty as ,e conceive it to
be. he President should no, perhaps decide, if he has not already decided, ,hether adherence to
such procedure is ,eighty enough a consideration, if only to dispel any cloud of doubt that may no,
and in the future shroud the nation$s Charter.
%n the deliberations of this Court one of the issues formulated for resolution is ,hether or not the ne,
Constitution, since its submission to the Citi"ens Assemblies, has found acceptance among the
people, such issue being related to the political #uestion theory propounded by the respondents. Ee
have not tarried on the point at all since ,e find no reliable basis on ,hich to form a judgment. =nder
a regime of martial la,, ,ith the free e8pression of opinions through the usual media vehicles
restricted, ,e have no means of kno,ing, to the point of judicial certainty, ,hether the people have
accepted the Constitution. %n any event, ,e do not find the issue decisive insofar as our vote in these
cases is concerned. o interpret the Constitution K that is judicial. hat the Constitution should be
deemed in effect because of popular ac#uiescence K that is political, and therefore beyond the
domain of judicial revie,.
Ee therefore vote not to give due course to the instant petitions.
As far as % am concerned, % regard the present petitions as no more than mere reiterations of the
-upplemental Petitions filed by Counsel +oren"o M. aLada on .anuary &B, &('A in the so called
Plebiscite Cases decided by this Court on .anuary **, &('). 0f course, there are amplifications of
some of the grounds previously alleged and in the course of the unprecedented fiveCday hearing that
,as held from 1ebruary &* to &2 last, more e8tensive and illuminating arguments ,ere heard by =s,
but, in my estimation, and ,ith due recognition of the sincerety, brilliance and elo#uence of counsels,
nothing more cogent and compelling than ,hat had already been previously presented by Counsel
aLada is before =s no,. Accordingly, % cannot see any reason ,hy % should change the position %
took in regard to the earlier cases. % reiterate, therefore, the vote % cast ,hen these petitions ,ere
initially considered by the Court: namely, to dismiss them.
%n vie,, ho,ever, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that % reserved before
the filing of a more e8tended opinion, % ,ill take this opportunity to e8plain further ,hy % hold that the
&('A Constitution is already in force, if only to clarify that apart from the people$s right of revolution to
,hich % made pointed reference in my previous opinion, % can see no,, after further reflection, that the
vote of the people in the referendum in the Citi"ens Assemblies held on .anuary &9 to &B, &('A, upon
the result of ,hich Proclamation &&9* is based, may be vie,ed more importantly as a political act
than as a purely legal one ,ith the result that such vote to consider the &('A Constitution as ratified
,ithout the necessity of holding a plebiscite in the form follo,ed in the previous ratification plebiscites
in &(AB of the Constitution itself, &(A' of ,omen$s suffrage, &(A( of the amendments to the
0rdinance Appended to the Constitution, &(J9 of the reCelection of the President, the bicameral
legislature and the Commission on /lections, &(J' of the parity amendment and &(2', rejecting the
proposed increase in the members of the >ouse of !epresentatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in
compliance ,ith the basic intent of Article D6 of the &(AB Constitution. %f indeed this e8planation may
be considered as a modification of my rationali"ation then, % ,ish to emphasi"e that my position as to
the fundamental issue regarding the enforceability of the ne, Constitution is even firmer no, than
ever before. As % shall elucidate anon, paramount considerations of national import have led me to the
conviction that the best interests of all concerned ,ould be best served by the -upreme Court holding
that the &('A Constitution is no, in force, not necessarily as a conse#uence of the revolutionary
concept previously suggested by me, but upon the ground that as a political, more than as a legal, act
of the people, the result of the referendum may be construed as a compliance ,ith the substantiality
of Article D6 of the &(AB Constitution.
%
he facts that gave rise to these proceedings are historical and ,ell kno,n. 3enerally, they may be
taken judicial notice of. hey revolve around the purported ratification of the Constitution of &('A
declared in Proclamation &&9* issued by the President on .anuary &', &('A.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March
&2, &(2', delegates to a constitutional convention to propose amendments to the Constitution of &(AB
,ere elected in accordance ,ith the implementing la,, !epublic Act 2&A*, on ?ovember &9, &('9.
Nno,n as the Constitutional Convention of &('&, the assembly began its sessions on .une &, &('&.
After encountering a lot of difficulties, due to bitter rivalries over important positions and committees
and an incomprehensible fear of overconcentrating po,ers in their officers, the delegates ,ent about
their ,ork in comparatively slo, pace, and by the third #uarter of &('* had finished deliberations and
secondCreading voting only on an insignificant number of proposals K until -eptember *&, &('*,
,hen the President, not altogether une8pectedly, yet abruptly, issued Proclamation &9)& declaring
martial la, throughout the country. An attempt ,as made to have the Convention recessed until after
the lifting of martial la,, and not long after the motion of Delegate Nala, to such effect ,as turned
do,n, the activities ,ithin the assembly shifted to high gear. As if unmindful of the arrest and
continued detention of several of its members, the convention gathered s,ift momentum in its ,ork,
and on ?ovember A9, &('*, it approved by over,helming vote the draft of a complete constitution,
instead of mere specific amendments of particular portions of the Constitution of &(AB. ?eedless to
say, before martial la, ,as declared, there ,as full and unlimited coverage of the ,orkings in the
convention by the mass media. At the same time, public debates and discussions on various aspects
of proposed amendments ,ere not uncommon.
/arlier, on ?ovember **, &('*, the Convention had !esolution ?o. B)JA proposing 4to President
1erdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed ne,
Constitution on appropriate date as he shall determine and providing for necessary funds therefor.4
Acting under this authority, December &, &('*, the President issued Presidential Decree ?o. 'A
submitting the draft constitution for ratification by the people at a plebiscite set for .anuary &B, &('A.
his order contained provisions more or less similar to the plebiscite la,s passed by Congress
relative to the past plebiscites held in connection ,ith previous proposed amendments.
%n connection ,ith the plebiscite thus contemplated, 3eneral 0rder ?o. &' ,as issued ordering and
enjoining the authorities to allo, and encourage public and free discussions on proposed constitution.
?ot only this, subse#uently, under date of December &', &('*, the President ordered the suspension
the effects of martial la, and lifted the suspension of privilege of the ,rit of *a#eas corpus insofar as
activities connected ,ith the ratification of the draft constitution ,ere concerned. hese t,o orders
,ere not, ho,ever, to last very long. 0n .anuary ', &('A, the President, invoking information related
to him that the area of public debate and discussion had opened by his previous orders ,as being
taken advantage of by subversive elements to defeat the purposes for ,hich they ,ere issued and to
foment public confusion, ,ithdre, said orders and enjoined full and stricter implementation of martial
la,.
%n the meantime, the President had issued on December A, &('* Presidential Decree ?o. )2 creating
Citi"ens Assemblies 4so as to afford ample opportunities for the citi"enry to e8press their vie,s on
important national issues4 and one of the #uestions presented to said assemblies ,as7 4Do you like
the plebiscite on the proposed Constitution to be held later4 -o, the same order of .anuary ', &('A,
3eneral 0rder ?o. *9, the President ordered, 4that the plebiscite scheduled to be held .anuary &B,
&('A, be postponed until further notice4.
%n the mean,hile also, on .anuary B, &('A, the President issued Presidential Decree, ?o. )2CA
providing as follo,s7
P!/-%D/?%A+ D/C!// ?0. )2CA
-!/?3>/?%?3 A?D D/1%?%?3 >/ !0+/ 01
BA!A?3A@- ;C%%5/?- A--/MB+%/-<
E>/!/A-, on the basis of preliminary and initial reports from the field as gathered from barangays
;citi"ens assemblies< that have so far been established, the people ,ould like to decide for themselves
#uestions or issues, both local and national, affecting their dayCtoCday lives and their future:
E>/!/A-, the barangays ;citi"ens assemblies< ,ould like themselves to be the vehicle for e8pressing
the vie,s of the people on important national issues:
E>/!/A-, such barangays ;citi"ens assemblies< desire that they be given legal status and due
recognition as constituting the genuine, legitimate and valid e8pression of the popular ,ill: and
E>/!/A-, the people ,ould like the citi"ens assemblies to conduct immediately a referendum on
certain specified #uestions such as the ratification of the ne, Constitution, continuance of martial la,, the
convening of Congress on .anuary **, &('A, and the elections in ?ovember &('A pursuant to the &(AB
Constitution.
vested in me by the Constitution as CommanderCinCChief of all Armed 1orces of the Philippines, do
hereby declare as part of the la, of the land the follo,ing7
&. he present barangays ;citi"ens assemblies< are created under Presidential Decree ?o. )2 dated
December A&, &('*, shall constitute the base for citi"en participation in governmental affairs and their
collective vie,s shall be considered in the formulation of national policies or programs and, ,herever
practicable, shall be translated into concrete and specific decision:
*. -uch barangays ;citi"ens assemblies< shall consider vital national issues no, confronting the country,
like the holding of the plebiscite on the ne, Constitution, the continuation of martial rule, the convening of
Congress on .anuary **, &('A, and the holding of elections in ?ovember &('A, and others in the future,
,hich shall serve as guide or basis for action or decision by the national government:
A. he barangays ;citi"ens assemblies< shall conduct bet,een .anuary &9 and &B, &('A, a referendum on
important national issues, including those specified in paragraph * hereof, and submit results thereof to
the Department of +ocal 3overnments Community Development immediately thereafter, pursuant to
e8press ,ill of the people as reflected in the reports gathered from the many thousands of barangays
;citi"ens assemblies< throughout the country.
J. his Decree shall take effect immediately.
Done in the City of Manila, this Bth day of .anuary, in the year of 0ur +ord, nineteen hundred and seventy
three.
And on .anuary ', &('A, this ,as follo,ed by Presidential Decree ?o. )2CB reading thus7
P!/-%D/?%A+ D/C!// ?0. )2CB
D/1%?%?3 1=!>/! >/ !0+/ 01 BA!A?3A@- ;C%%5/?-
A--/MB+%/-<
E>/!/A-, since their creation pursuant to Presidential Decree ?o. )2 dated December A&, &('*, the
Barangays ;Citi"ens Assemblies< have petitioned the 0ffice of the President to submit them for resolution
E>/!/A-, one of the #uestions persistently mentioned refers to the ratification of the Constitution
E>/!/A-, on the basis of the said petitions, it is evident that the people believe that the submission of
the proposed Constitution to the Citi"ens Assemblies or Barangays should be taken as a plebiscite in
?0E >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers in
me vested by the Constitution, do hereby order that important national issues shall from time to time be
referred to the Barangays ;Citi"ens Assemblies< for resolution in accordance ,ith Presidential Decree ?o.
)2CA dated .anuary B, &('A and that the initial referendum shall include the matter of ratification of the
Constitution proposed by the &('& Constitutional Convention.
he -ecretary of the Department of +ocal 3overnments and Community Development shall insure the
Done in the City of Manila, this 'th day of .anuary in the year of 0ur +ord, nineteen hundred and seventyC
three.
And so it ,as that by .anuary &9, &('A, ,hen the Citi"ens Assemblies thus created started the
referendum ,hich ,as held from said date to .anuary &B, &('A, the follo,ing #uestions ,ere
submitted to them7
;&< Do you like the ?e, -ocietyI
;*< Do you like the reforms under martial la,I
;A< Do you like Congress again to hold sessionsI
;J< Do you like the plebiscite to be held laterI
;B< Do you like the ,ay President Marcos is running the affairs of the governmentI.
but on .anuary &&, &('A, si8 #uestions ,ere added as follo,s7
national interestsI
;*< Do you approve of the ?e, ConstitutionI
;A< Do you ,ant a plebiscite to be called to ratify the ne, ConstitutionI
;J< Do you ,ant the elections to be held in ?ovember, &('A in accordance ,ith the provisions of the &(AB
ConstitutionI
;B< %f the elections ,ould not be held, ,hen do you ,ant it to be calledI
;2< Do you ,ant martial la, to continueI
%t is not seriously denied that together ,ith the #uestion the voters ,ere furnished 4comments4 on the
said #uestions more or less suggestive of the ans,er desired. %t may assumed that the said
4comments4 came from official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these 4comments4 ,ere the follo,ing7
C0MM/?- 0?
888 888 888
P=/-%0? ?o. *
But ,e do not ,ant the Ad %nterim Assembly to be convoke. 0r if it is to be convened at all, it should not be done so
P=/-%0? ?o. A
%f the Citi"ens Assemblies approve of the ne, Constitution then the ne, Constitution should be deemed ratified.
he -olicitor 3eneral claims, and there seems to be sho,ing other,ise, that the results of the
referendum ,ere determined in the follo,ing manner7
hereafter, the results of the voting ,ere collated and sent to the Department of +ocal 3overnments. he
transmission of the results ,as made by telegram, telephone, the provincial government --B -ystem in
each province connecting all to,ns: the --B communication of the PACD connecting most provinces: the
Department of Public %nformation ?et,ork -ystem: the Eeather Bureau Communication -ystem
connecting all provincial capitals and the ?ational Civil Defense ?et,ork connecting all provincial capitals.
he certificates of results ,ere then flo,n to Manila to confirm the previous figures received by the
aforementioned means of transmission. he certificates of results tallied ,ith the previous figures taken
,ith the e8ception of fe, cases of clerical errors.
he Department adopted a system of regionali"ing the receiving section of the Citi"ens Assemblies
operation at the Department ,herein the identity of the barrio and the province ,as immediately given to
a staff in charge of each region. /very afternoon at *799 o$clock, the && regions submitted the figures they
received from the field to the central committee to tabulate the returns. he last figures ,ere tabulated at
&* midnight of .anuary &2, &('A and early morning of .anuary &', &('A and ,ere then communicated to
the President by the Department of +ocal 3overnments.
he development culminated in the issuance by the President of Proclamation &&9* on .anuary &',
&('A. -aid proclamation reads7
P!0C+AMA%0? ?0. &&9* A??0=?C%?3 >/ !A%1%CA%0? B@ >/ 1%+%P%?0 P/0P+/ 01 >/
C0?-%=%0? P!0P0-/D B@ >/ &('& C0?-%=%0?A+ C0?6/?%0?.
E>/!/A-, the Constitution proposed by the nineteen hundred seventyCone Constitutional Convention is
subject to ratification by the 1ilipino people:
E>/!/A-, Citi"ens Assemblies ,ere created in barrios in municipalities and in districtsF,ards in
chartered cities pursuant to Presidential Decree ?o. 2, dated December A&, &('*, composed of all
E>/!/A-, the said Citi"ens Assemblies ,ere establish precisely to broaden the base of citi"en
participation in the democratic process and to afford ample opportunity for the citi"en to e8press their
E>/!/A-, responding to the clamor of the people an pursuant to Presidential Decree ?o. )2CA, dated
.anuary B, &('A, the follo,ing #uestions ,ere posed before Citi"ens$ Assemblies or Barangays7 Do you
approve of the ?e, ConstitutionI Do you still ,ant a plebiscite to be called to ratify the ne, ConstitutionI
E>/!/A-, fourteen million nine hundred seventyCsi8 thousand five hundred si8ty one ;&J,('2,B2&<
as against seven hundred fortyCthree thousand eight hundred si8ty nine ;'JA,)2(< ,ho voted for its
ratify the ne, Constitution fourteen million t,o hundred ninetyCeight thousand eight hundred fourteen
;&J,*(),)&J< ans,ered that there ,as no need for plebiscite and that the vote of the Barangays ;Citi"ens
Assemblies< should be considered as a vote in a plebiscite:
E>/!/A-, since the referendum results sho, that more than ninetyCfive ;(B< percent of the members of
the Barangays ;Citi"en Assemblies< are in favor of the ?e, Constitution, the Natipunan ng Mga Barangay
has strongly recommended that the ne, Constitution should already be deemed ratified by the 1ilipino
people:
me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the
over,helmingly majority of all of the votes cast by the members of all the Barangays ;Citi"ens
Assemblies< throughout the Philippines, and has thereby come into effect.
seventyCthree.
he first attempt to #uestion the steps just enumerated taken by the President ,as in the soCcalled
Plebiscite Cases, ten in number, ,hich ,ere filed by different petitioners during the first half of
December &('*.
1
heir common target then ,as Presidential Decree ?o. 'A, but before the said
cases could be decided, the series of moves tending in effect to make them moot and academic
insofar as they referred e8clusively to the said Presidential Decree began to take shape upon the
issuance of Presidential Decree ?o. )2CA, #uoted above. And ,hen Presidential Decree ?o. )2CB,
also above #uoted, ,as issued and the si8 additional #uestions ,hich ,ere first publici"ed on
.anuary &&, &('A ,ere kno,n, together ,ith the 4comments4, petitioners sensed that a ne, and
unorthodo8 procedure ,as being adopted to secure approval by the people of the ne, Constitution,
hence Counsel aLada, not being satisfied ,ith the fate of his urgent motion for early decision of the
above ten cases dated .anuary &*, &('A, filed on .anuary &B, &('A, his supplemental motion seeking
the prohibition against and injunction of the proceedings going on. Principal objective ,as to prevent
that the President be furnished the report of the results of the referendum and thereby disable him
from carrying out ,hat petitioners ,ere apprehensively foreseeing ,ould be done K the issuance of
some kind of proclamation, order or decree, declaring that the ne, Constitution had been ratified.
!eacting s,iftly, the Court resolved on the same day, .anuary &B, ,hich ,as Monday, to consider the
supplemental motion as a supplemental petition and to re#uire the respondents to ans,er the same
the ne8t Eednesday, .anuary &'th, before the hour of the hearing of the petition ,hich set for (7A9
o$clock in the morning of that day. he details ,hat happened that morning form part of the recital of
facts the decision rendered by this Court in the ten cases on .anuary **, &('A and need not be
repeated here. -uffice it to state no that before the hearing could be closed and ,hile Counsel
aLada ,as still insisting on his prayer for preliminary injunction or restraining order, the -ecretary of
.ustice arrived and personally handed to the Chief .ustice a copy Proclamation &&9* ,hich had been
issued at about &&799 o$clock that same morning. %n other ,ords, the valiant and persistent efforts of
petitioners and their counsels ,ere overtaken by adverse developments, and in the mind of the
majority of the members of the Court, the cases had become academic. 1or my part, % took the vie,
that even on the basis of the supplemental petition and the ans,er thereto filed by respondents, the
Court could already decide on the fundamental issue of the validity Proclamation &&9*, as .ustices
5aldivar, Antonio and /sguerra also believed, inasmuch as Counsel aLada$s pleading and argument
had anticipated its issuance, but the majority felt it ,as not ready to resolve the matter, for lack,
according them, of full ventilation, and so, the decision reserved petitioners the filing of the
4appropriate4 cases, evidently, the present ones.
%%
At the threshold, % find myself confronted by a matter ,hich, although believed to be inconse#uential
by my learned brethren, % strongly feel needs special attention. % refer to the point raised by Counsel
Arturo M. olentino for respondent 3il .. Puyat and .ose !oy, ,ho have been sued as President and
President Pro empore of the -enate, to the effect that change in the composition of the -upreme
Court provided for the &('A Constitution, from the &&Cman tribunal under the &(AB Constitution to a
&BCman Court, makes of these cases ,hich ,ere filed after .anuary &', &('A the date ,hen
Proclamation &&9* declared the ne, Constitution as ratified, political nature and beyond our
jurisdiction. he main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from si8 to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, e8ecutive agreement
4
or la,, the
Court ,ould have to resolve first as a prejudicial #uestion ,hether the Court is acting in these cases
as the &BCman or the &&Cman Court, in ,hich event, it ,ould be faced ,ith the dilemma that if it acts
either as the former or as the latter, it ,ould be prejudging the very matter in issue one ,ay or the
other, and, in effect, it ,ould be choosing bet,een t,o constitutions, ,hich is a political determination
not ,ithin the Court$s competence.
Ehile % agree that the problem is at first blush rather involved, % do not share the vie, that the
premises laid do,n by counsel necessarily preclude this Court from taking a definite stand on
,hether the Court is acting in these cases as the &BCMan or the &&Cman Court. % feel very strongly
that the issue should not be ignored or dodged, if only to make the ,orld kno, that the -upreme
Court of the Philippines is never incogni"ant of the capacity in ,hich it is acting, much less lacking in
courage or ,isdom to resolve an issue that relates directly to its o,n composition. Ehat a disgrace it
,ould be to admit that this -upreme Court does not kno,, to use a common apt e8pression, ,hether
it is fish or fo,l. Eithal, scholars and researchers ,ho might go over our records in the future ,ill
inevitably e8amine minutely ho, each of us voted and upon ,hat considerations ,e have individually
acted, and, indeed, doubts may arise as to ,hether or not, despite the general result ,e might
announce, there had been the re#uisite number of votes for a valid collegiate action.
1or instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if ,e are acting as the &&Cman Court, only si8 votes ,ould suffice to declare Proclamation
&&9* ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
si8 of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees )2CA and )2CB and related orders of the
President as not being in conformity ,ith Article D6 of the old Constitution, a cloud ,ould e8ist as to
efficacy of the dispositive portion of 0ur decision dismiss these cases, even if ,e have it understood
that by the vote of justices in favor of such dismissal, Ee intended to mean the implementation or
enforcement of the ne, Constitution no, being done could continue.
Be that as it may, % am against leaving such an important point open to speculation. By nature % am
averse to ambiguity and e#uivocation and as a member of the -upreme Court, last thing % should
kno,ingly countenance is uncertainty as to the juridical significance of any decision of the Court
,hich is precisely being looked upon as the haven in ,hich doubts are supposed to be authoritatively
dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute K ,e cannot
act in both capacities of a &BCman and an &&Cman Court at the same time, in like manner that it is
inconceivable that the &(AB and &('A Constitution can be considered by =s both in force. 0ur
inescapable duty is to make a choice bet,een them, according to ,hat la, and other considerations
inherent to our function dictate. % cannot bear the thought that someone may someday say that the
-upreme Court of the Philippines once decided a case ,ithout kno,ing the basis of its author to act
or that it ,as ever ,anting in judicial courage to define the same.
Accordingly, ,ith full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in ,hich the Court acting in
these cases, % hold that ,e have no alternative but adopt in the present situation the orthodo8 rule
that ,hen validity of an act or la, is challenged as being repugnant constitutional mandate, the same
is allo,ed to have effect until the -upreme Court rules that it is unconstitutional. -tated differently,
Ee have to proceed on the assumption that the ne, Constitution is in force and that Ee are acting in
these cases as the &BCman -upreme Court provided for there Contrary to counsel$s contention, there
is here no prejudgment for or against any of the t,o constitutions. he truth of matter is simply that in
the normal and logical conduct governmental activities, it is neither practical nor ,ise to defer the
course of any action until after the courts have ascertained their legality, not only because if that ,ere
to be the rule, the functioning of government ,ould correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the first instance accord due respect
to the acts of the other departments, as other,ise, the smooth running of the government ,ould have
to depend entirely on the unanimity of opinions among all its departments, ,hich is hardly possible,
unless it is assumed that only the judges have the e8clusive prerogative of making and enforcing the
la,, aside from being its sole interpreter, ,hich is contrary to all norms of juridical and political
thinking. o my kno,ledge, there is yet no country in the ,orld that has recogni"ed judicial
supremacy as its basic governmental principle, no matter ho, desirable ,e might believe the idea to
be.
%ndeed, it is not hard to visuali"e the difficulty if not absurdity of 0ur acting on the assumption that this
Court is still functioning under the &(AB Constitution. %t is undeniable that the ,hole government,
including the provincial, municipal and barrio units and not e8cluding the lo,er courts up to the Court
of Appeals, is operating under the &('A Constitution. Almost daily, presidential orders and decrees of
the most legislative character affecting practically every aspect of governmental and private activity
as ,ell as the relations bet,een the government and the citi"enry are pouring out from MalacaLang
under the authority of said Constitution. 0n the other hand, ta8es are being e8acted and penalties in
connection there,ith are being imposed under said orders and decrees. 0bligations have been
contracted and business and industrial plans have been and are being projected pursuant to them.
Displacements of public officials and employees in big numbers are going on in obedience to them.
1or the ten justices of the -upreme Court to constitute an island of resistance in the midst of these
developments, ,hich even unreasoning obstinacy cannot ignore, much less impede, is unimaginable,
let alone the absurd and complicated conse#uences such a position entails in the internal ,orkings
,ithin the judiciary amount its different components, ,hat ,ith the lo,er courts considering such
orders and decrees as forming part of the la, of the land in making their orders and decisions,
,hereas the -upreme Court is holding, as it ,ere, their effectivity at bay if it is not being indifferent to
or ignoring them.
%t is suggested that the President, being a man of la,, committed to abide by the decision of the
-upreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
ne, Constitution, he can ,ait for its decision. Accepting the truth of this assertion, it does necessarily
follo, that by this attitude of the President, considers the -upreme Court as still operating under the
Constitution. Puite on the contrary, it is a fact that he has given instructions for the payment of the
justices in accordance ,ith the rate fi8ed in the ?e, Constitution. ?ot only that, official alter e+o, the
-ecretary of .ustice, has been shoving this Court, since .anuary &), &('A, all matters related to the
administrative supervision of the lo,er courts ,hich by the ne, charter has been transferred from the
Department of .ustice to the -upreme Court, and as far as % kno,, President has not countermanded
the -ecretary$s steps in that direction. hat, on the other hand, the President has not augmented the
justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no
conse#uence considering that ,ith the presence of ten justices ,ho are the Court no,, there is a
,orking #uorum, and the addition of ne, justices cannot in any,ay affect the voting on the
constitutional #uestions no, before =s because, ,hile there sufficient justices to declare by their
unanimous vote illegality of Proclamation &&9*, the votes of the justices to added ,ould only be
committed to upholding the same, since they cannot by any standard be e8pected to vote against
legality of the very Constitution under ,hich they ,ould be appointed.
Moreover, ,hat makes the premise of presumptive valid preferable and, even imperative, is that Ee
are dealing here ,ith a ,hole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. %t is, to mind, unrealistic to insist on that, fundamentally, the &('A Constitution is
the same &(AB Constitution, ,ith a fe, improvements. A cursory perusal of the former should
convince anyone that it is in essence a ne, one. Ehile it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are some,hat different in
certain respects. 0ne cannot but note that the change embraces practically every part of the old
charter, from its preamble do,n to its amending and effectivity clauses, involving as they do the
statement of general principles, the citi"enship and suffrage #ualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citi"ens but also of officers of the government and the provisions on the national economy as ,ell as
the patrimony of the nation, not to mention the distinctive features of the general provisions. Ehat is
more, the transitory provisions notably depart from traditional and orthodo8 vie,s in that, in general,
the po,ers of government during the interim period are more or less concentrated in the President, to
the e8tent that the continuation or discontinuance of ,hat is no, practically a oneCmanCrule, is even
left to his discretion. ?otably, the e8press ratification of all proclamations, orders, decrees and acts
previously issued or done by the President, obviously meant to encompass those issued during
martial la,, is a commitment to the concept of martial la, po,ers being implemented by President
Marcos, in defiance of traditional vie,s and prevailing jurisprudence, to the effect that the /8ecutive$s
po,er of legislation during a regime of martial la, is all inclusive and is not limited to the matters
demanded by military necessity. %n other ,ords, the ne, constitution unlike any other constitution
countenances the institution by the e8ecutive of reforms ,hich normally is the e8clusive attribute of
the legislature.
Eithal, the best proofs that by its e8pressed and implied intent, the Constitution of &('A is a ne, one,
are that ;&< -ection &2 of its Article D6%% ,hich provides that this constitution shall 4supersede the
Constitution of nineteen hundred and thirtyCfive and all amendments thereto4 and ;*< its transitory
provisions e8pressly continue the effectivity of e8isting la,s, offices and courts as ,ell as the tenure
of all incumbent officials, not adversely affected by it, ,hich ,ould have been unnecessary if the old
constitution ,ere being merely amended.
he ne, Constitution, in its -ection &9, Article D6%%, provides that 4;<he incumbent members of the
.udiciary ;,hich include the Chief .ustice and Associate .ustices of -upreme Court< may continue in
office ;under the constitution< until they reach the age of seventy years, etc.4 By virtue of the
presumptive validity of the ne, charter, all of form part of the &BCmanCCourt provided for therein
correspondingly, Ee have in legal contemplation, ceased in the mean,hile to be members of the &&C
manCCourt in the &(AB Constitution. -hould the Court finally decide that the Constitution is invalid,
then Ee ,ould automatically revert to our positions in the &&CmanC Court, other,ise, Ee ,ould just
continue to be in our membership in the &BCmanCCourt, unless Ee feel Ee cannot in conscience
accept the legality of e8istence. 0n the other hand, if it is assumed that Ee are the &&CmanCCourt and
it happens that 0ur collective decision is in favor of the ne, constitution, it ,ould be problematical for
any dissenting justice to consider himself as included automatically in the &BCmanCCourt, since that
,ould tantamount to accepting a position he does not honestly believe e8ists.
%%%
%n brief, the main contention of the petitioners is that Proclamation &&9* is invalid because the
ratification of the &('A Constitution it purports to declare as having taken place as a result of the
referendum aboveCreferred to is ineffective since it cannot be said on the basis of the said referendum
that said Constitution has been 4approved by a majority of the votes cast at an election4 in the
manner prescribed by Article D6 the Constitution of &(AB. More specifically, they maintain that the
,ord 4election4 in the said Article has already ac#uired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the 0ld Constitution than that ,hich had been
follo,ed &(AB, &(A', &(A(, &(J9, &(J2 and &(2', the last three or four ,hich ,ere held under the
supervision of the Commission on /lections. 1urthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum ,as a farce and its
results ,ere manufactured or prefabricated, considering that Mr. 1rancisco Cru", ,ho is supposed to
have submitted the final report to the President, ,hich served as basis for Proclamation &&9*, had no
official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the &B million votes allegedly reported ,ithin the
short period of time employed. 0f course, they also contend that in any event, there ,as no proper
submission because martial la, per se creates constructive duress ,hich deprives the voters of the
complete freedom needed for the e8ercise of their right of choice and actually, there ,as neither time
nor opportunity for real debate before they voted.
0n the other hand, the position of the -olicitor 3eneral as counsel for the respondents is that the
matter raised in the petitions is a political one ,hich the courts are not supposed to in#uire into, and,
any,ay, there has been a substantial compliance ,ith Article D6 of the &(AB Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the ?e, Constitution.
% need not d,ell at length on these variant positions of the parties. %n my separate opinion in the
Plebiscite Cases, % already made the observation that in vie, of the lack of solemnity and regularity in
the voting as ,ell as in the manner of reporting and canvassing conducted in connection ,ith the
referendum, % cannot say that Article D6 of the 0ld Constitution has been complied ,ith, albeit % held
that nonetheless, the Constitution of &('A is already in force. %n order, ho,ever, to make myself
clearer on some relevant points, % ,ould like to add a fe, considerations to ,hat % have already said
in the former cases.
%n my opinion in those cases, the most important point % took into account ,as that in the face of the
Presidential certification through Proclamation &&9* itself that the ?e, Constitution has been
approved by a majority of the people and having in mind facts of general kno,ledge ,hich % have
judicial notice of, % am in no position to deny that the result of the referendum ,as as the President
had stated. % can believe that the figures referred to in the proclamation may not accurate, but %
cannot say in conscience that all of them are manufactured or prefabricated, simply because % sa,
,ith o,n eyes that people did actually gather and listen discussions, if brief and inade#uate for those
,ho are abreast of current events and general occurrences, and that they did vote. % believe % can
safely say that ,hat % have seen have also been seen by many others throughout the country and
unless it can be assumed, ,hich honestly, % do not believe to be possible, that in fact there ,ere
actually no meetings held and no voting done in more places than those ,herein there ,ere such
meetings and votings, % am not prepared to discredit entirely the declaration that there ,as voting and
that the majority of the votes ,ere in favor of the ?e, Constitution. %f in fact there ,ere substantially
less than &J million votes of approval, the real figure, in my estimate, could still be significant enough
and legally sufficient to serve as basis for a valid ratification.
%t is contended, ho,ever, that the understanding ,as that the referendum among the Citi"ens
Assemblies ,as to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. % can see that at the outset, ,hen the first set of #uestions ,as released,
such may have been the idea. %t must not be lost sight of, ho,ever, that if the ne,spaper reports are
to be believed, and % say this only because petitioners ,ould consider the ne,spapers as the official
ga"ettes of the administration, the last set of si8 #uestions ,ere included precisely because the
reaction to the idea of mere consultation ,as that the people ,anted greater direct participation, thru
the Citi"ens Assemblies, in decisionCmaking regarding matters of vital national interest. hus, looking
at things more understandingly and realistically the t,o #uestions emphasi"ed by counsel, namely,
;&< Do yo approve of the ?e, ConstitutionI and ;*< Do you ,ant plebiscite to be called to ratify the
ne, ConstitutionI should be considered no longer as loose consultations but as direct in#uiries about
the desire of the voters regarding the matters mentioned. Accordingly, % take it that if the majority had
e8pressed disapproval of the ne, Constitution, the logical conse#uence ,ould have been the
complete abandonment of the idea of holding any plebiscite at all. 0n the other hand, it is very plain
to see that since the majority has already approved the ne, Constitution, a plebiscite ,ould be
superfluous. Clear as these rationali"ations may be, it must have been thought that if the holding of a
plebiscite ,as to be abandoned, there should be a direct and e8pressed desire of the people to such
effect in order to forestall as much as possible any serious controversy regarding the nonCholding of
the plebiscite re#uired by the letter of -ection &2 of Article D6%%, the effectivity clause, of the ne,
Constitution. 0ddly enough, the 4comments4 accompanying the #uestions do strongly suggest this
vie,. And as it turned out, the majority found no necessity in holding a plebiscite.
%n connection ,ith the #uestion, Do you approve of the ?e, ConstitutionI capital is being made of the
point that as so framed, the thrust of the said #uestion does not seek an ans,er of fact but of opinion.
%t is argued that it ,ould have been factual ,ere it ,orded categorically thus K Do you approve the
?e, ConstitutionI he contention ,ould have been ,eighty ,ere it not unrealistic. % remember
distinctly that the observation regarding the construction of the subject #uestion ,as not originally
made by any of the talented counsels for petitioners. %t came from Mr. .ustice 1red !ui" Castro
,hose mastery of the /nglish language can rightly be the cause of envy of even professors of
/nglish. ?one of the other members of the Court, as far as % can recall, ever noticed ho, the said
#uestion is phrased, or if anyone of =s did, % am not a,are that he gave it more than passing
attention. Ehat % mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said #uestion other,ise than calling for a factual ans,er instead
of a mere opinion, ho, could anyone e8pect the millions of unlettered members of the Citi"ens
Assemblies to have noticed the point brought out by .ustice CastroI ruth to tell, % myself did not
reali"e the difference until .ustice Castro gave it emphasis. Besides, reading the #uestion in the light
of the accompanying 4comment4 corresponding to it in particular, % am certain that any one ,ho
ans,ered the same understood it in no other sense than a direct in#uiry as to ,hether or not, as a
matter of fact, he approves the ?e, Constitution, and naturally, affirmative ans,er must be taken as
a categorical vote of approval thereof, considering, particularly, that according to the reported result of
the referendum said ans,er ,as even coupled ,ith the re#uest that the President defer the
convening of the %nterim ?ational Assembly.
%t is also contended that because of this reference in ans,er to that #uestion to the deferment of the
convening of the interim assembly, the said ans,er is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. he contention has no basis. %n interest of accuracy,
the additional ans,er proposed in pertinent 4comment4 reads as follo,s7 4But ,e do not ,ant Ad
%nterim Assembly to be convoked etc.4 0n the assumption that the actual ans,er, as reported, ,as of
similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the intention is no more
than a suggestion or a ,ish.
As regards said 4comments4, it must be considered that a martial la, ,as declared, the
circumstances surrounding making of the Constitution ac#uired a different and more meaningful
aspect, namely, the formation of a ne, society. 1rom the point of vie, of the President and on the
basis of intelligence reports available to him, the only ,ay to meet situation created by the subversive
elements ,as to introduce immediately effective reforms calculated to redeem the people from the
depth of retrogression and stagnation caused by rampant graft and corruption in high places,
influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of
peace and order, the so ine#ualities ,idening the gap bet,een the rich and the poor, and many other
deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of
rebellious movement that threatened the Puirino Administration, the remedy ,as far from using
bullets alone. %f a constitution ,as to be approved as an effective instrument to,ards the eradication
of such grave problems, it had to be approved ,ithout loss of time and sans the cumbersome
processes that, from the realistic vie,point, have in the past obstructed rather than hastened the
progress of the people. -tated other,ise, in the conte8t of actualities, the evident objective in having
a ne, constitution is to establish ne, directions in the pursuit of the national aspirations and the
carrying out of national policies. 0nly by bearing these considerations in mind can the 4comments4
already referred to be properly appreciated. o others said 4comments4 may appear as evidence of
corruption of the ,ill of those ,ho attended the assemblies, but actually, they may also be vie,ed in
the same light as the sample ballots commonly resorted to in the elections of officials, ,hich no one
can contend are per se means of coercion. +et us not forget that the times are abnormal, and
prolonged dialogue and e8change of ideas are not generally possible, nor practical, considering the
need for faster decisions and more resolute action. After all voting on a ,hole ne, constitution is
different from voting on one, t,o or three specific proposed amendments, the former calls for nothing
more than a collective vie, of all the provisions of the ,hole charter, for necessarily, one has to take
the good together ,ith the bad in it. %t is rare for anyone to reject a constitution only because of a fe,
specific objectionable features, no matter ho, substantial, considering the ever present possibility
that after all it may be cured by subse#uent amendment. Accordingly, there ,as need to indicate to
the people the paths open to them in their #uest for the betterment of their conditions, and as long as
it is not sho,n that those ,ho did not agree to the suggestions in the 4comments4 ,ere actually
compelled to vote against their ,ill, % am not convinced that the e8istence of said 4comments4 should
make any appreciable difference in the court$s appraisal of the result of the referendum.
% must confess that the fact that the referendum ,as held during martial la, detracts someho, from
the value that the referendum ,ould other,ise have had. As % intimated, ho,ever, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
la, per se. 1or one thing, many of the objectionable features of martial la, have not actually
materiali"ed, if only because the implementation of martial la, since its inception has been generally
characteri"ed by restraint and consideration, thanks to the e8pressed ,ishes of the President that the
same be made 4Philippine style4, ,hich means ,ithout the rigor that has attended it in other lands
and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial la, do have their corresponding adverse effects on the area of information
,hich should be open to a voter, in its real sense ,hat 4chills4 his freedom of choice and mars his
e8ercise of discretion is suspension of the privilege of the ,rit of *a#eas corpus. he reason is simply
that a man may freely and correctly vote even if the needed information he possesses as to the
candidates or issues being voted upon is more or less incomplete, but ,hen he is subject to arrest
and detention ,ithout investigation and ,ithout being informed of the cause thereof, that is something
else ,hich may actually cause him to cast a captive vote. hus it is the suspension of the ,rit of
*a#eas corpus accompanying martial la, that can cause possible restraint on the freedom choice in
an election held during martial la,. %t is a fact, ho,ever, borne by history and actual e8perience, that
in the Philippines, the suspension of the privilege of the ,rit *a#eas corpus has never produced any
chilling effect upon the voters, since it is kno,n by all that only those ,ho run afoul the la,, saving
inconse#uential instances, have any cause for apprehension in regard to the conduct by them of the
normal activities of life. And so it is recorded that in the elections &(B& and &('&, held ,hile the
privilege of ,rit of *a#eas corpus ,as under suspension, the 1ilipino voters gave the then opposition
parties over,helming if not s,eeping victories, in defiance of the respective administrations that
ordered the suspensions.
At this juncture, % think it is fit to make it clear that % am not trying to sho, that the result of the
referendum may considered as sufficient basis for declaring that the ?e, Constitution has been
ratified in accordance ,ith the amending clause of the &(AB Constitution. % reiterate that in point of
la,, % find neither strict nor substantial compliance. he foregoing discussion is only to counter, if %
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum ,hich could have in one ,ay or another affected the e8ercise of the freedom of choice
and the use of discretion by the members of the Citi"ens Assemblies, to the end that as far as the
same conditions may be relevant in my subse#uent discussions of the acceptance by the people of
the ?e, Constitution they may also be considered.
%6
%t is my sincere conviction that the Constitution of &('A has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. 1actors ,hich are nonClegal but nevertheless ponderous and
compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
%n my opinion in the Plebiscite Cases, % joined my colleagues in holding that the #uestion of ,hether
or not there ,as proper submission under Presidential Decree ?o. 'A is justiciable, and % still hold that
the propriety of submission under any other la, or in any other form is constitutionally a fit subject for
in#uiry by the courts. he ruling in the decided cases relied upon by petitioners are to this effect. %n
vie,, ho,ever, of the factual background of the cases at bar ,hich include ratification itself, it is
necessary for me to point out that ,hen it comes to ratification, % am persuaded that there should be a
boundary beyond ,hich the competence of the courts no longer has any reason for being, because
the other side is e8clusively political territory reserved for their o,n dominion by the people.
he main basis of my opinion in the previous cases ,as acceptance by the people. 0thers may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. 1or my part, % consider it unnecessary to be strictly judicial in in#uiring into
such fact. Being personally a,are, as % have already stated, that the Citi"ens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out ,ith absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of e8cess votes
may be found, even if e8trapolated ,ill not, as far as % can figure out, suffice to overcome the outcome
officially announced. !ather than try to form a conclusion out of the ra, evidence before =s ,hich the
parties did not care to really complete, % feel safer by referring to the results announced in the
proclamation itself. 3iving substantial allo,ances for possible error and do,nright manipulation, it
must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government ,hich under the principle separation of po,ers is clothed ,ith presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, ,hich in these
cases does not e8ist. %n any event, considering that due to the unorthodo8y of the procedure adopted
and the difficulty of an accurate checking of all the figures, % am unable to conceive of any
manageable means of ac#uiring information upon ,hich to predicate a denial, % have no alternative
but to rely on ,hat has been officially declared. At this point, % ,ould venture to e8press the feeling
that if it ,ere not generally conceded that there has been sufficient sho,ing of the acceptance in
#uestion by this time, there ,ould have been already demonstrative and significant indications of a
rather ,idespread, if not organi"ed resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, % cannot accord to
the filing of these cases as indicative enough of the general attitude of the people.
%t is true that in the opinion % had the privilege of penning the Court in olentino vs. Comelec, J&
-C!A '9*, % made strong and une#uivocal pronouncements to the effect that any amendment to the
Constitution of &(AB, to be valid, must appear to have been made in strict conformity ,ith the
re#uirements of Article D6 thereof. Ehat is more, that decision asserted judicial competence to
in#uire into the matter of compliance or non compliance as a justiciable matter. % still believe in the
correctness of those vie,s and % ,ould even add that % sincerely feel it reflects the spirit of the said
constitutional provision. Eithout trying to strain any point ho,ever, %, submit the follo,ing
considerations in the conte8t of the peculiar circumstances of the cases no, at bar, ,hich are entirely
different from those in the backdrop of the olentino rulings % have referred to.
&. Consider that in the present case ,hat is involved is not just an amendment of a particular
provision of an e8isting Constitution: here, it is, as % have discussed earlier above, an entirely ne,
Constitution that is being proposed. his important circumstance makes a great deal of difference.
?o less than counsel olentino for herein respondents Puyat and !oy, ,ho ,as himself the petitioner
in the case % have just referred to is, no, inviting 0ur attention to the e8act language of Article D6 and
suggesting that the said Article may be strictly applied to proposed amendments but may hardly
govern the ratification of a ne, Constitution. %t is particularly stressed that the Article specifically
refers to nothing else but 4amendments to this Constitution4 ,hich if ratified 4shall be valid as part of
this Constitution.4 %ndeed, ho, can a ,hole ne, constitution be by any manner of reasoning an
amendment to any other constitution and ho, can it, if ratified, form part of such other constitutionI %n
fact, in the olentino case % already someho, hinted this point ,hen % made reference in the
resolution denying the motion for reconsideration to the fact that Article D6 must be follo,ed 4as long
as any amendment is formulated and submitted under the aegis of the present Charter.4 -aid
resolution even added. 4;<his is not to say that the people may not, in the e8ercise of their inherent
revolutionary po,ers, amend the Constitution or promulgate an entirely ne, one other,ise.4.
ne, constitution is being adopted implies a general intent to put aside the ,hole of the old one, and
,hat ,ould be really incongrous is the idea that in such an eventuality, the ne, Constitution ,ould
subject its going into effect to any provision of the constitution it is to supersede, to use the language
precisely of -ection 2, Article D6%%, the effectivity clause, of the ?e, Constitution. My understanding is
that generally, constitutions are selfCborn, they very rarely, if at all, come into being, by virtue of any
provision of another constitution. A his must be the reason ,hy every constitution has its o,n
effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the ratification of the ?e, Constitution, %
,ould have had serious doubts as to ,hether Article D6 could have had priority of application.
*. Ehen an entirely ne, constitution is proposed to supersede the e8isting one, ,e cannot but take
into consideration the forces and the circumstances dictating the replacement. 1rom the very nature
of things, the proposal to ordain a ne, constitution must be vie,ed as the most elo#uent e8pression
of a people$s resolute determination to bring about a massive change of the e8isting order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any #uestion arise as to its effectivity and there is
some reasonable indication that the ne, charter has already received in one ,ay or another the
sanction of the people, % ,ould hold that the better rule is for the courts to defer to the people$s
judgment, so long as they are convinced of the fact of their approval, regardless of the form by ,hich
it is e8pressed provided it be reasonably feasible and reliable. 0ther,ise stated, in such instances,
the courts should not bother about in#uiring into compliance ,ith technical re#uisites, and as a matter
of policy should consider the matter nonCjusticiable.
A. here is still another circumstance ,hich % consider to be of great relevancy. % refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. ?either the -enate nor the >ouse of !epresentatives has been reported to have even
made any appreciable effort or attempt to convene as they ,ere supposed to do under the
Constitution of &(AB on .anuary **, &('A for the regular session. %t must be assumed that being
composed of e8perienced, kno,ledgeable and courageous members, it ,ould not have been difficult
for said parliamentary bodies to have conceived some ingenious ,ay of giving evidence of their
determined adherence to the Constitution under ,hich they ,ere elected. 1rankly, much as % admire
the efforts of the handful of senators ,ho had their picture taken in front of the padlocked portals of
the -enate chamber, % do not feel ,arranted to accord such act as enough token of resistance. As
counsel olentino has informed the court, there ,as noting to stop the senators and the congressmen
to meet in any other convenient place and someho, officially organi"e themselves in a ,ay that can
logically be considered as a session, even if nothing ,ere done than to merely call the roll and
disperse. Counsel olentino even pointed out that if there ,ere not enough members to form a
;uorum, any smaller group could have ordered the arrest of the absent members. And ,ith particular
relevance to the present cases, it ,as not constitutionally indispensable for the presiding officers to
issue any call to the members to convene, hence the present prayers for (an!a(us have no legal
and factual bases. And to top it all, #uite to the contrary, the records of the Commission on /lections
sho, that at least &B of *J senators and over (B out of less than &*9 members of the >ouse of
!epresentatives, have officially and in ,riting e8ercised the option given to them to join the %nterim
?ational Assembly under the ?e, Constitution, thereby manifesting their acceptance of the ne,
charter.
?o,, having these facts in mind, and it being obvious that of the three great departments of the
government under the &(AB Constitution, t,o, the /8ecutive and the +egislative, have already
accepted the ?e, Constitution and recogni"ed its enforceability and enforcement, % cannot see ho,
this -upreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial po,er prevail against the decision of those ,ho ,ere duly chosen by the people to be their
authori"ed spokesmen and representatives. %t is not alone the physical futility of such a gesture that
concerns me. More than that, there is the stark reality that the -enators and the Congressmen, no
less than the President, have taken the same oath of loyalty to the Constitution that ,e, the .ustices,
have taken and they are, therefore, e#ually bound ,ith =s to preserve and protect the Constitution. %f
as the representatives of the people, they have already opted to accept the ?e, Constitution as the
more effective instrument for fulfillment of the national destiny, % really ,onder if there is even any
idealistic ,orth in our desperately clinging by 0urselves alone to 0ur s,orn duty visCaCvis the &(AB
Constitution. Conscious of the declared objectives of the ne, dispensation and cogni"ant of the
decisive steps being ,ith the least loss of time, to,ards their accomplishment, cannot but feel
apprehensive that instead of serving the best interests of our people, ,hich to me is in reality the real
meaning of our oath of office, the Court might be standing in the ,ay of the very thing our beloved
country needs to retrieve its past glory and greatness. %n other ,ords, it is my conviction that ,hat
these cases demand most of all is not a decision demonstrative of our legal erudition and -olomonic
,isdom but an all rounded judgment resulting from the consideration of all relevant circumstances,
principally the political, or, in brief, a decision more political than legal, ,hich a court can render only
by deferring to the apparent judgment of the people and the announcement thereof by the political
departments of the government and declaring the matter nonCjusticiable.
J. 6ie,ed from the strictly legal angle and in the light of judicial methods of ascertainment, % cannot
agree ,ith the -olicitor 3eneral that in the legal sense, there has been at least substantial
compliance ,ith Article D6 of the &(AB Constitution, but ,hat % can see is that in a political sense, the
ans,ers to the referendum #uestions ,ere not given by the people as legal conclusions. % take it that
,hen they ans,ered that by their signified approval of the ?e, Constitution, they do not consider it
necessary to hold a plebiscite, they could not have had in mind any intent to do ,hat ,as
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that ,hat ,as being done ,as in conformity ,ith prevailing
constitutional standards. Ee are not to assume that the sovereign people ,ere indulging in a futile
e8ercise of their supreme political right to choose the fundamental charter by ,hich their lives, their
liberties and their fortunes shall be safeguarded. %n other ,ords, ,e must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that conte8t. %t
is my considered opinion that vie,ed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the &('A Constitution declared in Proclamation &&9* complies substantially ,ith Article
D6 of the &(AB Charter, specially ,hen it is considered that the most important element of the
ratification therein contemplated is not in the ,ord 4election4, ,hich conceivably can be in many
feasible and manageable forms but in the ,ord 4approved4 ,hich may be said to constitute the
substantiality of the ,hole article, so long as such approval is reasonably ascertained. %n the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
#uestion ,as constitutionally justified and justifiable.
B. 1inally, if any doubt should still linger as to the legitimacy of the ?e, Constitution on legal grounds,
the same should be dispelled by vie,ing the situation in the manner suggested by Counsel olentino
and by the ,riter of this opinion in his separate opinion, oftCreferred to above, in the Plebiscite Cases
K that is, as an e8tra constitutional e8ercise by the people, under the leadership of President Marcos,
of their inalienable right to change their fundamental charter by any means they may deem
appropriate, the moment they are convinced that the e8isting one is no longer responsive to their
fundamental, political and social needs nor conducive to the timely attainment of their national
destiny. his is not only the teaching of the American Declaration of %ndependence but is indeed, a
truth that is selfCevident. More, it should be regarded as implied in every constitution that regardless
of the language of its amending clause, once the people have given their sanction to a ne, charter,
the latter may be deemed as constitutionally permissible even from the point of vie, of the preceding
constitution. hose ,ho may feel restrained to consider this vie, out of respect to the import of
olentino vs. Comelec, supra., ,ould be ,ell advised to bear in mind that the case ,as decided in the
conte8t of submission, not accomplished ratification.
6
he language of the disputed amending clause of the &(AB Constitution should not be deemed as the
be all and end all the nation. More important than even the Constitution itself ,ith all its e8cellent
features, are the people living under it K their happiness, their posterity and their national destiny.
here is nothing that cannot be sacrificed in the pursuit of these objectives, ,hich constitute the
totality of the reasons for national e8istence. he sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy ,e have hitherto observed are mere
integral parts of this totality: they are less important by themselves.
Ehat seems to me to be bothering many of our countrymen no, is that by denying the present
petitions, the Court ,ould be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the #ualified curtailment of individual liberties no, being
practiced, and this ,ould amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of &(AB. his is certainly something one must gravely ponder upon. Ehen % consider,
ho,ever, that the President, the 6ice President, the members of both >ouses of Congress, not to
speak of all e8ecutive departments and bureaus under them as ,ell as all the lo,er courts, including
the Court of Appeals have already accepted the ?e, Constitution as an instrument of a meaningful
nation,ideCallClevel change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, % am led to ,onder ,hether or not ,e, as members of the -upreme Court are being true
to our duty to our people by refusing to follo, suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because ,e feel that by the
people$s o,n act of ratifying the Constitution of &(AB, they have so encased themselves ,ithin its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity there,ith. %
cannot believe that any people can be so stifled and enchained. %n any event, % consider it a 3odC
given attribute of the people to disengage themselves, if necessary, from any covenant that ,ould
obstruct their taking ,hat subse#uently appears to them to be the better road to the promotion and
protection of their ,elfare. And once they have made their decision in that respect, ,hether
sophisticatedly or crudely, ,hether in legal form or other,ise, certainly, there can be no court or
po,er on earth that can reverse them.
% ,ould not be human if % should be insensitive to the passionate and elo#uent appeals of Counsels
aLada and -alonga that these cases be decided on the basis of conscience. hat is e8actly ,hat %
am doing. But if counsel mean that only by granting their petitions can this Court be ,orthily the
bul,ark of the people$s faith in the government, % cannot agree, albeit my admiration and respect are
all theirs for their "eal and tenacity, their industry and ,isdom, their patriotism and devotion to
principle. 6erily, they have brought out everything in the 1ilipino that these cases demand.
%n times of national emergencies and crises, not arising from foreign invasion, ,e need not fear
playing opposite roles, as long as ,e are all animated by sincere love of country and aim e8clusively
at the attainment of the national destiny. 0ur heroes of the past, !i"al, Bonifacio, Aguinaldo, Antonio
+una, Mabini and so also ,ith our patriots of the recent generations, Pue"on, 0smeLa, !o8as, +aurel
and !ecto, to mention only some of them, had their differences of vie,s K and they did not hesitate
to take diametrically opposing sides K that even reached tragic proportions, but all of them are
admired and venerated.
%t is my faith that to act ,ith absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to ,hatever course of action % feel sincerely is demanded by the ,elfare
and best interests of the people.
%n this momentous juncture of our history, ,hat is imperative is national unity. May 3od grant that the
controversies the events leading to these cases have entail ,ill heal after the decision herein is
promulgated, so that all us 1ilipinos may forever join hands in the pursuit of our national destiny.
%? 6%/E 01 A++ >/ 10!/30%?3, % vote to dismiss these petitions for (an!a(us and prohibition
,ithout costs.
Assuming, ,ithout conceding, that Article D6 of the &(AB Constitution prescribes a procedure for the
ratification of constitutional amendments or of a ne, Constitution and that such procedure ,as no
complied ,ith, the validity of Presidential Proclamation ?o. &&9* is a political, not a justiciable, issue:
for it is inseparably or ine8tricably link ,ith and strikes at, because it is decisive of, the validity of
ratification and adoption of, as ,ell as ac#uiescence of people in, the &('A Constitution and the
legitimacy of the government organi"ed and operating thereunder. And being political, it is beyond the
ambit of judicial in#uiry, tested by the definition of a political #uestion enunciated in TaAa!a, et. al. vs.
Cuenco, et al. ;&9A Phil. &9B&<, aside from the fact the this vie, ,ill not do violence to rights vested
under the ne, Constitution, to international commitments forged pursuant thereto and to decisions
rendered by the judicial as ,ell as #uasiCjudicial tribunals organi"ed and functioning or ,hose
jurisdiction has been altered by the &('A Constitution and the government established thereunder,
and ,ill dissipate any confusion in the minds of the citi"enry, ,ho have been obeying the mandates of
the ne, Constitution, as ,ell as e8ercising the rights and performing the obligations defined by the
ne, Constitution, and decrees and orders issued in implementation of the same and cooperating ,ith
the administration in the renovation of our social, economic and political system as reCstructured by
the &('A Constitution and by the implementing decrees and orders ;see Miller vs. .ohnson, &) -E
B**, B**CB*2, &)(*<.
%n &(B', Mr. Chief .ustice !oberto Concepcion, then Associate .ustice, in behalf of the Court, defined
a political #uestion as one ,hich, under the Constitution, is 4to be decided by the people in their
sovereign capacity, or in regard to ,hich full discretionary authority had been delegated to the
+egislature or /8ecutive branch of the government.4 ;aLada, et al. vs. Cuenco, et al., supra<.
Article D6 of the &(AB Constitution provides7 4-uch amendments shall be valid as part of this
Constitution ,hen approved by a majority of the votes cast at an election at ,hich the amendments
are submitted to the people for ratification.4 =nder Article D6 of the &(AB Constitution, the po,er to
propose constitutional amendments is vested in Congress or in a constitutional convention: ,hile the
po,er to ratify or reject such proposed amendments or ne, Constitution is reserved by the sovereign
people. he nullification of Proclamation ?o. &&9* ,ould inevitably render inoperative the &('A
Constitution, ,hich is in fact the e8press prayer of the petitioners in 3.!. ?o. +CA2&2J. !egardless of
the modality of submission or ratification or adoption K even if it deviates from or violates the
procedure delineated therefore by the old Constitution K once the ne, Constitution is ratified,
adopted andFor ac#uiesced in by the people or ratified even by a body or agency not duly authori"ed
therefor but is subse#uently adopted or recogni"ed by the people and by the other official organs and
functionaries of the government established under such a ne, Constitution, this Court is precluded
from in#uiring into the validity of such ratification, adoption or ac#uiescence and of the conse#uent
effectivity of the ne, Constitution. his is as it should be in a democracy, for the people are the
repository of all sovereign po,ers as ,ell as the source of all governmental authority ;Pole vs. 3ray,
&9J -0 *nd )J& G&(B)H<. his basic democratic concept is e8pressly restated in -ection & of Article %%
of the Declaration of Principles of the &(AB and &('A Constitutions, thus7 4-overeignty resides in the
people and all government authority emanates from them.4
he legality of the submission is no longer relevant: because the ratification, adoption andFor
ac#uiescence by the people cures any infirmity in its submission or any other irregularities therein
,hich are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or ac#uiescence by the people. As Mr. .ustice Bre,er, then of the Nansas
-tate -upreme Court and later Associate .ustice of the 1ederal -upreme Court, stated in re
Prohibitory Amendment Cases ;*J Nansas '99 M '&9 !eprint J((, B92<7 4T*e t)o i(portant, vital
ele(ents o, t*e 0e+islature an! a (a5orit o, t*e popular vote. "eon! t*ese, ot*er provisions are
(ere (ac*ineries an! ,or(s. T*e (a not #e !isre+ar!e!, #ecause # t*e( certaint as to t*e
essentials is secure!. "ut t*e are not t*e(selves t*e essentials.4 ;Cited in +arken vs. 3ronna, *)B
?E B(, 2&C2J, &(A(<.
his ,as the ruling by the American -upreme Court in the &(A( case of Cole(an vs. 'iller ;A9' =.-.
JAA, )A +.ed. &A)B<, ,here Chief .ustice >ughes, speaking for the majority, stated that7
... hus the political departments of the government dealt ,ith the effect of both previous rejection and
attempted ,ithdra,al and determined that both ,ere ineffectual in the presence of an actual ratification ...
. his decision by the political departments of the 3overnment as to the validity of the adoption of the
1ourteenth amendment has been accepted.
Ee think that in accordance ,ith this historic precedent the #uestion of the efficacy of ratifications by state
legislatures, in the light of previous rejection or attempted ,ithdra,al, should be regarded as a political
#uestion pertaining to the political departments, ,ith the ultimate authority in the Congress in the e8ercise
of its control over the promulgation of the adoption of the amendment.
his vie, ,as like,ise emphasi"ed by Mr. .ustice Black in his concurring opinion, in ,hich Mr.
.ustices !oberts, 1rankfurter, and Douglas join, thus7
he Constitution grants Congress e8clusive po,er to control submission of constitutional amendments.
1inal determination by Congress that ratification by threeCfourths of the -tates has taken place 4is
conclusive upon the courts.4 %n the e8ercise of that po,er, Congress, of course, is governed by the
Constitution. >o,ever, ,hether submission, intervening procedure or Congressional determination of
ratification conforms to the commands of the Constitution, calls for decisions by a 4political department4 of
#uestions of a type ,hich this Court has fre#uently designated 4political.4 And decision of a 4political
#uestion4 by the 4political department4 to ,hich the Constitution has committed it 4conclusively binds the
judges, as ,ell as all other officers, citi"ens and subjects of...government.4 Proclamation under authority
amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority
of interpretation. o the e8tent that the Court$s opinion in the present case even impliedly assumes a
and ratification of amendments, ,e are unable to agree... ;American Constitutional %ssues, by Pritchett,
&(2* /d., p. JJ<.
he doctrine in the aforesaid case of Coleman vs. Miller ,as adopted by 0ur -upreme Court in toto
in 'a#ana+ vs. 0opez @ito ;') Phil. &<.
he ruling in the cases of Gonzales vs. Co(elec, et al. ;+C*)**J, ?ov. *(, &(2', *& -C!A ''J< and
Tolentino vs. Co(elec, et al. ;+CAJ&B9, 0ct. &2, &('&, J& -C!A '9*< on ,hich petitioners place great
reliance K that the courts may revie, the propriety of a submission of a proposed constitutional
amendment #e,ore t*e rati,ication or a!option o, suc* propose! a(en!(ent # t*e soverei+n people,
hardly applies to the cases at bar: because the issue involved in the aforesaid cases refers to only the
propriety of the submission of a proposed constitutional amendment to the people for ratification,
unlike the present petitions, ,hich challenge inevitably the validity of the &('A Constitution after its
ratification or adoption thru ac#uiescence by the sovereign people. As heretofore stated, it is specious
and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of
the &('A Constitution and the government operating thereunder.
%t should be stressed that even in the 3on"ales case, supra, Ee held that7
general grant of legislative po,ers to Congress. %t is part of the inherent po,ers of the people K as the
repository of sovereignty in a republican state, such as ours K to make, and hence, to amend their o,n
1undamental +a,. Congress may propose amendments to the same e8plicitly grants such po,er. >ence,
,hen e8ercising the same, it is said that -enators and Members of the >ouse of !epresentatives act, not
as members, but as component elements of a constituent asse(#l. Ehen acting as such, the members
of Con+ress derive their authority from the Constitution, unli-e t*e people, ,hen performing the same
function, for their authority does not emanate from the Constitution K they are t*e ver source o, all
po,ers of government, inclu!in+ t*e Constitution itself. ;*& -C!A ')'<
Ee did not categorically and entirely overturn the doctrine in 'a#ana+ vs. 0opez @ito ;') Phil. &< that
both the proposal to amend and the ratification of such a constitutional amendment are political in
nature forming as they do the essential parts of one political scheme K the amending process. E/
merely stated therein that the force of the ruling in the said case of 'a#ana+ vs. 0opez @ito has been
,eakened by subse#uent cases. hus, Ee pronounced therein7
%t is true that in Mabanag vs. +ope" 6ito, this Court characteri"ing the issue submitted thereto as a
political one, declined to pass upon the #uestion ,hether or not a given number of votes cast in Congress
ratification K satisfied the three fourths vote re#uirement of the fundamental la,. he force of this
precedent has been ,eakened, ho,ever, by -uanes vs. Chief Accountant of the -enate, Avelino vs.
Cuenco, aLada vs. Cuenco and Macias vs. Commission on /lections. %n the first, ,e held the officers
and employees of the -enate /lectoral ribunal are supervision and control, not of that of the -enate
President, claimed by the latter: in the second, this Court proceeded to determine the number of -enators
necessary for a ;uorum in the -enate: in the third ,e nullified the election, by -enators 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 t,o ;*< -enators belonging to the first party, as members,
for the second party, of the -enate /lectoral ribunal: and in the fourth, ,e declared unconstitutional an
act of Congress purporting to apportion the representative districts for the >ouse of !epresentatives,
upon the ground that the apportionment had not been made as may be possible according to the number
of inhabitants of each province. hus ,e rejected the theory advanced in these four ;J< cases, that the
issues therein raised ,ere political #uestions the determination of ,hich is beyond judicial revie,. ;*&
-C!A pp. ')BC')2<:
for ,hich reason Ee concluded
%n short, the issue ,hether or not a resolution of Congress before acting as a constituent assembly K
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial revie,, and
to t*e e6tent t*at t*is vie) (a #e inconsistent )it* t*e stan! ta-en in 'a#ana+ vs. 0opez @ito, t*e latter
s*oul! #e !ee(e! (o!i,ie! accor!in+l. ;p. ')', emphasis supplied.<
%n the olentino case, supra, Ee reiterated the foregoing statements ;J& -C!A '9AC'&J<.
he inevitable conse#uence therefore is that the validity of the ratification or adoption of or
ac#uiescence by the people in the &('A Constitution, remains a political issue removed from the
jurisdiction of this Court to revie,.
0ne more ,ord about the 3on"ales and olentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal ,ith propriety or
,isdom or absence of either of an official act or of a la,. .udicial po,er concerns only ,ith the
legality or illegality, constitutionality or unconstitutionality of an act7 it in#uires into the e8istence of
po,er or lack of it. .udicial ,isdom is not to be pitted against the ,isdom of the political department of
the government.
he classic e8ample of an illegal submission that did not impair the validity of the ratification or
adoption of a ne, Constitution is the case of the 1ederal Constitution of the =nited -tates. %t should
be recalled that the thirteen ;&A< original states of the American =nion K ,hich succeeded in
liberating themselves from /ngland after the revolution ,hich began on April &(, &''B ,ith the
skirmish at +e8ington, Massachusetts and ended ,ith the surrender of 3eneral Corn,allis at
@orkto,n, 6irginia, on 0ctober &(, &')&;/ncyclopedia Brit., 6ol. %, &(AA /d., p. ''2< K adopted their
Articles of Confederation and Perpetual =nion, that ,as ,ritten from &''2 to &''' and ratified on
March &, &')& ;/ncyclopedia Brit., 6ol. %%, &(22 /d., p. B*B<. About si8 thereafter, the Congress of the
Confederation passed a resolution on 1ebruary *&, &')' calling for a 1ederal Constitutional
Convention 1,or t*e sole an! e6press purpose o, revisin+ t*e articles o, con,e!eration ... .4 ;Appendi8
%, 1ederalist, Modern +ibrary ed., p. B'', emphasis supplied<.
he Convention convened at Philadelphia on May &J, &')'. Article D%%% of the Articles of
Confederation and Perpetual =nion stated specifically7
he articles of this confederation shall be inviolably observed in every state, and the union shall be
perpetual: nor s*all an alterations at an ti(e *erea,ter #e (a!e in an o, t*e(9 unless suc* alteration
#e a+ree! to in a con+ress o, t*e unite! states, an! #e a,ter)ar!s con,ir(e! # t*e le+islatures o, ever
state. ;-ee the 1ederalist, Appendi8 %%, Modern +ibrary /d., &(A', p. B)J: emphasis supplied.<
But the foregoing re#uirements prescribed by the Articles of Confederation and Perpetual =nion for
the alteration for the ratification of the 1ederal Constitution as drafted by the Philadelphia Convention
,ere not follo,ed. 1earful the said 1ederal Constitution ,ould not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution re#uesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine ;(< states, not necessarily in all thirteen
;&A< states, the said Constitution shall take effect.
%t ,ould have been a counsel of perfection to consign the ne, constitution to the tender mercies of the
legislatures of each and all of the &A states. /8perience clearly indicated that ratification then ,ould have
had the same chance as the scriptural camel passing through the eye of a needle. It )as t*ere,ore
!eter(ine! to reco((en! to Con+ress t*at t*e ne) Constitution #e su#(itte! to conventions in t*e
several states especiall electe! to pass upon it an! t*at, ,urt*er(ore, t*e ne) +overn(ent s*oul! +o
into e,,ect i, an! )*en it s*oul! #e rati,ie! # nine o, t*e t*irteen states ... . ;he 1ederalist, Modern
+ibrary /d., &(A', %ntroduction by /d,ard /arle Mead, pp. viiiCi8: emphasis supplied<
he Convention, anticipating that the influence of many state politicians ,ould be Antifederalist, provided
for ratification of the Constitution by popularly elected conventions in each state. -uspecting that !hode
%sland, at least, ,ould prove recalcitrant, it declared that the Constitution ,ould go into effect as soon as
nine states ratified. he convention method had the further advantage that judges, ministers, and others
ineligible to state legislatures, could be elected to a convention. he nineCstate provision ,as, of course,
mildly revolutionary. But the Congress of the Confederation, still sitting in ?e, @ork to carry on federal
government until relieved, formally submitted the ne, constitution to the states and politely faded out
before the first presidential inauguration. ;he 08ford >istory of the Am. People, by -amuel /liot Morison,
&(2B ed., p. A&*<.
states on May *(, &'(9 ;&* C... p. 2'( footnote, &2 C...-., *'. K by the state conventions and not
by all thirteen ;&A< state legislatures as re#uired by Article D%%% of the Articles of Confederation and
Perpetual =nion afore#uoted H and in spite of the fact that the 1ederal Constitution as originally
adopted suffers from t,o basic infirmities, namely, t*e a#sence o, a #ill o, >i+*ts an! o, a provision
a,,ir(in+ t*e po)er o, 5u!icial revie).
he liberties of the American people ,ere guaranteed by subse#uent amendments to the 1ederal
Constitution. he doctrine of judicial revie, has become part of American constitutional la, only by
virtue of a judicial pronouncement by Chief .ustice Marshall in the case of 'ar#ur vs. 'a!ison
;&)9A, & Cranch &A'<.
%n the &(J2 case of K*eeler vs. "oar! o, Trustees ;A' -/ *nd A**, A*2CAA9<, ,hich enunciated the
submission or ratification by the people, but on t*e ,act or ,iat or approval or a!option or
ac;uiescence # t*e people )*ic* ,act o, rati,ication or a!option or ac;uiescence is all t*at is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the 1ederal Constitution, thus7
?o case identical in its facts ,ith the case no, under consideration has been called to our attention, and
,e have found none. Ke t*in- t*at t*e principle )*ic* )e appl in t*e instant case )as ver clearl
applie! in t*e creation o, t*e constitution o, t*e Enite! States. T*e convention create! # a resolution o,
Con+ress *a! aut*orit to !o one t*in+, an! one onl, to )it, a(en! t*e articles o, con,e!eration. T*is
t*e !i! not !o, #ut su#(itte! to t*e soverei+n po)er, t*e people, a ne) constitution. In t*is (anner )as
t*e constitution o, t*e Enite! States su#(itte! to t*e people an! it #eca(e operative as t*e or+anic la)
o, t*is nation )*en it *a! #een properl a!opte! # t*e people.
Pomeroy$s Constitutional +a,, p. BB, discussing the convention that formulated the constitution of the
=nited -tates, has this to say7 4T*e convention procee!e! to !o, an! !i! acco(plis*, )*at t*e )ere not
aut*orize! to !o # a resolution o, Con+ress t*at calle! t*e( to+et*er. T*at resolution plainl
conte(plate! a(en!(ents to t*e articles o, con,e!eration, to #e su#(itte! to an! passe! # t*e
Con+ress, an! a,ter)ar!s rati,ie! # all t*e State le+islatures, in t*e (anner pointe! out # t*e e6istin+
or+anic la). "ut t*e convention soon #eca(e convince! t*at an a(en!(ents )ere po)erless to e,,ect
a cure9 t*at t*e !isease )as too !eepl seate! to #e reac*e! suc* tentative (eans. T*e sa) t*at t*e
sste( t*e )ere calle! to i(prove (ust #e totall a#an!one!, an! t*at t*e national i!ea (ust #e re4
esta#lis*e! at t*e center o, t*eir political societ. %t ,as objected by some members, that they had no
po,er, no authority, to construct a ne, government. hey had no authority, if their decisions ,ere to be
final: and no authority ,hatsoever, under the articles of confederation, to adopt the course they did. But
they kne, that their labors ,ere only to be suggestions: and that they as ,ell as any private individuals,
and any private individuals as ,ell as they, had a right to propose a plan of government to the people for
their adoption. hey ,ere, in fact, a mere assemblage of private citi"ens, and their ,ork had no more
binding sanction than a constitution drafted by Mr. >amilton in his office ,ould have had. he people, by
their e8pressed ,ill, transformed this suggestion, this proposal, into an organic la,, and the people might
have done the same ,ith a constitution submitted to them by a single citi"en.4
888 888 888
... K*en t*e people a!opt a co(pletel revise! or ne) constitution, t*e ,ra(in+ or su#(ission o, t*e
instru(ent is not )*at +ives it #in!in+ ,orce an! e,,ect. T*e ,iat o, t*e people an! onl t*e ,iat o, t*e
people, can #reat*e li,e into a constitution.
888 888 888
soverei+n. T*is )oul! #e an aut*orize! e6ercise o, soverei+n po)er # t*e court. %n State v. S)i,t, 2( %nd.
B9B, B&(, the %ndiana -upreme Court said7 4he people of a -tate may form an original constitution, or
abrogate an old one and form a ne, one, at any time, ,ithout any political restriction e8cept the
constitution of the =nited -tates: ... .4 ;A' -/ A*'CA*), A*(, emphasis supplied.<
%n the &(9A case of Keston vs. >an, the Court held7
%t remains to be said that if ,e felt at liberty to pass upon this #uestion, and ,ere compelled to hold that
the act of 1ebruary *A, &))', is unconstitutional and void, it ,ould not, in our opinion, by any means
follo, that the amendment is not a part of our state Constitution. %n the recent case of Talor vs.
Co((on)ealt* ;6a.< JJ -./. 'BJ, t*e Supre(e Court o, @ir+inia *ol! t*at t*eir state Constitution o,
$%F2, *avin+ #een ac-no)le!+e! an! accepte! # t*e o,,icers a!(inisterin+ t*e state +overn(ent, an!
# t*e people, an! #ein+ in ,orce )it*out opposition, (ust #e re+ar!e! as an e6istin+ Constitution
irrespective o, t*e ;uestion as to )*et*er or not t*e convention )*ic* pro(ul+ate! it *a! aut*orit so to
!o )it*out su#(ittin+ it to a vote o, t*e people. %n "rittle v. People, * ?eb. &(), is a similar holding as to
certain provisions of the ?ebraska Constitution of &))2, ,hich ,ere added by the +egislature at the
re#uirement of Congress, though never submitted to the people for their approval.4 ;(' ?E AJ(CAB9:
emphasis supplied<.
Against the decision in the Eheeler case, supra, confirming the validity of the ratification and adoption
of the American Constitution, in spite of the fact that such ratification ,as in clear violation of the
prescription on alteration and ratification of the Articles of Confederation and Perpetual =nion,
petitioners in 3.!. ?o. +CA2&2B dismissed this most significant historical fact by calling the 1ederal
Constitution of the =nited -tates as a revolutionary one, invoking the opinion e8pressed in 6ol. &2,
Corpus .uris -ecundum, p. *', that it ,as a revolutionary constitution because it did not obey the
re#uirement that the Articles of Confederation and Perpetual =nion can be amended only ,ith the
consent of all thirteen ;&A< state legislatures. his opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the =nited -tates Constitution on p. 2'( of 6ol.
&*, C.-. Petitioners, on p. &) of their main ?otes, refer =- to pp. *'9CA&2 of the O6,or! Cistor o,
t*e 3(erican People, &(2B /d. by -amuel /liot Morison, ,ho discusses the Articles of Confederation
and Perpetual =nion in Chapter D6%%% captioned 4!evolutionary Constitution Making, &''B &')&4 ;pp.
*'9C*)&<. %n Chapter DD on 4he Creative Period in Politics, &')BC&')),4 Professor Morison
delineates the genesis of the 1ederal Constitution, but does not refer to it even implicitly as
revolutionary constitution ;pp. *('CA&2<. >o,ever, the 1ederal Constitution may be considered
revolutionary from the vie, point of Mc%ver if the term revolution is understood in 4its ,ider sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthro, of an established order, ... .4 ;!.M. Mac%ver, he Eeb of 3overnment, &(2B ed., p.
*9A<.
%t is rather ridiculous to refer to the American Constitution as a revolutionary constitution. he Articles
of Confederation and Perpetual =nion that ,as in force from .uly &*, &''2 to &')), forged as it ,as
during the ,ar of independence ,as a revolutionary constitution of the thirteen ;&A< states. %n the
e8isting 1ederal Constitution of the =nited -tates ,hich ,as adopted seven ;'< or nine ;(< years after
the thirteen ;&A< states ,on their independence and long after popular support for the government of
the Confederation had stabili"ed ,as not a product of a revolution. he 1ederal Constitution ,as a
4creation of the brain and purpose of man4 in an era of peace. %t can only be considered revolutionary
in the sense that it is a radical departure from its predecessor, the Articles of Confederation and
Perpetual =nion.
successor to the Articles of Confederation and Perpetual =nion. he fallacy of the statement is so
obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation ?o. &&9* strikes at the validity and
enforceability of the &('A Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the &('A Constitution is inoperative ;+CA2&2J<. %f Proclamation
?o. &&9* is nullified, then there is no valid ratification of the &('A Constitution and the inevitable
conclusion is that the government organi"ed and functioning thereunder is not a legitimate
government.
hat the issue of the legitimacy of a government is like,ise political and not justiciable, had long been
decided as early as the &)J( case of 0ut*er vs. "or!en ;' >o,. &, &* +.ed., B)&<, affirmed in the
&(99 case of Talor vs. "ec-*a( ;&') =.-. BJ), JJ +.ed. &&)'< and reCenunciated in &(&* in the
case of Paci,ic States Telep*one an! Tele+rap* Co(pan vs. Ore+on ;**A =.-. &&), &AAC&B&, B2
+.ed. A''CA)2<. Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to #uote the decision in Pacific -tates elephone and elegraph Co., supra, penned
by Mr. Chief .ustice Ehite, ,ho reCstated7
%n vie, of the importance of the subject, the apparent misapprehension on one side and seeming
misconception on the other, suggested by the argument as to the full significance of the previous doctrine,
,e do not content ourselves ,ith a mere citation of the cases, but state (ore at len+t* t*an )e ot*er)ise
)oul! t*e issues an! t*e !octrine e6poun!e! in t*e lea!in+ an! a#solutel controllin+ case K 0ut*er v.
"or!en, 7 Co). $, $2 0.e!. 8&$.
888 888 888
... 0n this subject it ,as said ;p. A)<7
4For i, t*is court is aut*orize! to enter upon this in#uiry, proposed by the plaintiff, and it should be decided
that the character government had no legal e8istence during the period of time above mentioned, K if it
had been annulled by the adoption of the opposing government, K t*en t*e la)s passe! # its le+islature
!urin+ t*at ti(e )ere nullities9 its ta6es )ron+,ull collecte!, its salaries an! co(pensations to its o,,icers
ille+all pai! 9 its pu#lic accounts i(properl settle! an! t*e 5u!+(ents an! sentences o, its courts in civil
an! cri(inal cases null an! voi!, an! t*e o,,icers )*o carrie! t*eir !ecisions into operation ans)era#le
as trespassers, i, not in so(e cases as cri(inals.4
888 888 888
4he fourth section of the fourth article of the Constitution of the =nited -tates shall guarantee to every
state in the =nion a republican form of government, and shall protect each of them against invasion: and
on the application of the +egislature or of the /8ecutive ;,hen the legislature cannot be convened<
against domestic violence.
4=nder this article of the Constitution it rests ,ith Congress to decide ,hat government is established one
in a state. 1or, as the =nited -tate guarantee to each state a republican government, Con+ress (ust
necessaril !eci!e )*at +overn(ent is esta#lis*e! in t*e state #e,ore it can !eter(ine )*et*er it is
repu#lican or not. 3n! )*en t*e senators an! representatives o, a state are a!(itte! into t*e Councils o,
t*e Enion, t*e aut*orit o, t*e +overn(ent un!er )*ic* t*e )ere appointe!, as )ell as its repu#lican
c*aracter, is reco+nize! # t*e proper constitutional aut*orit. 3n! its !ecision is #in!in+ on ever ot*er
!epart(ent o, t*e +overn(ent, an! coul! not #e ;uestione! in a 5u!icial tri#unal. %t is true that the contest
in this case did not last long enough to bring the matter to this issue: and as no senators or
representatives ,ere elected under the authority of the government of ,hich Mr. Dorr ,as the head,
Congress ,as not called upon to decide the controversy. Yet t*e ri+*t to !eci!e is place! t*ere an! not in
t*e courts.4
888 888 888
... Ee do not stop to cite other cases ,hich indirectly or incidentally refer to the subject, but conclude by
directing attention to the statement by the court, speaking through Mr. Chief .ustice 1uller, in aylor vs.
Beckham, &') =.-. BJ), JJ +.ed. &&)', *9 -up. Ct. !ep. )(9, &99(, ,here, after disposing of a
contention made concerning the &Jth Amendment, and coming to consider a proposition ,hich ,as
necessary to be decided concerning the nature and effect of the guaranty of - J of article J, it ,as said
;p. B')<7
4But it is said that the &Jth Amendment must be read ,ith - J of article J, of the Constitution, providing
that the =nited -tates shall guarantee to every state in this =nion a republican form of government, and
shall protect each of them against invasion: and on application of the legislature, or the /8ecutive ;,hen
the legislature cannot be convened<, against domestic violence.4
888 888 888
4It )as lon+ a+o settle! t*at t*e en,orce(ent o, t*is +uarant #elon+e! to t*e political !epart(ent. 0ut*er
v. "or!en, ' >o,. &, &* +.ed. B)&. %n that case it ,as held that the #uestion, ,hich of the t,o opposing
governments of !hode %sland, namely, the charter government or the government established by a
voluntary convention, ,as the legitimate one, ,as a #uestion for the determination of the political
department: and ,hen that department had decided, the courts ,ere bound to take notice of the decision
and follo, it.4
888 888 888
3s t*e issues presented, in their very essence, are, and *ave lon+ since # t*is Court #een, !e,initel
!eter(ine! to #e political an! +overn(ental, and embraced ,ithin the scope of the scope of the po,ers
conferred upon Congress, and not, t*ere,ore )it*in t*e reac* o, 5u!icial po)er, it ,ollo)s t*at t*e case
presente! is not )it*in our 5uris!iction, and the ,rit of error must therefore be, and it is, dismissed for
,ant of jurisdiction. ;**A =.-. pp. &J*C&B&: emphasis supplied<.
/ven a constitutional amendment that is only promulgated by the Constitutional Convention ,ithout
authority therefor and ,ithout submitting the same to the people for ratification, becomes valid, ,hen
recogni"ed, accepted and acted upon the by Chief of -tate and other government functionaries, as
,ell as by the people. %n the &(9A case of Talor vs. Co((on)ealt* ;JJ -/ 'BJC'BB<, the Court
ruled7
he sole ground urged in support of the contention that Constitution proclaimed in &(9* is invalid is that it
,as ordained and promulgated by the convention ,ithout being submitted for ratification or rejection by
the people of the common,ealth.
he Constitution of &(9* ,as ordained and proclaimed by convention duly called by direct vote of the
people of the state to revise and amend the Constitution of &)2(. he result of the ,ork that the
convention has been recogni"ed, accepted, and acted upon as the only valid Constitution of the state by
the 3overnor in s,earing fidelity to it and proclaiming it, as directed thereby: by the +egislature in its
formal official act adopting a joint resolution, .uly &B, &(9*, recogni"ing the Constitution ordained by the
convention ,hich assembled in the city of !ichmond on the &*th day of .une &(9&, as the Constitution of
6irginia: by the individual oaths of members to support it, and by its having been engaged for nearly a
year in legislating under it and putting its provisions into operation but the judiciary in taking the oath
prescribed thereby to support and by enforcing its provisions: and by the people in their primary capacity
by peacefully accepting it and ac#uiescing in it, registering as voters under it to the e8tent of thousands
through the state, and by voting, under its provisions, at a general election for their representatives in the
Congress of the =nited -tates. ;p. 'BB<.
he Court in the aylor case aboveCmentioned further said7
Ehile constitutional procedure for adoption or proposal to amend the constitution must be duly follo,ed,
,ithout omitting any re#uisite steps, courts should uphold amendment, unless satisfied that the
Constitution ,as violated in submitting the proposal. ... Su#stance (ore t*an ,or( (ust #e re+ar!e! in
consi!erin+ )*et*er t*e co(plete constitutional sste( ,or su#(ittin+ t*e proposal to a(en! t*e
constitution )as o#serve!.
%n the &(*B case of Talor vs. Gin+ ;&A9 A J9', J9) J&9<, the Court stated7
here may be technical error in the manner in ,hich a proposed amendment is adopted, or in its
advertisement, yet, if follo,ed, unobjected to, by approval of the electors, it becomes part of the
Constitution. +egal complaints to the submission may be made prior to taking the vote, but, if once
sanctioned, the amendment is embodied therein, and cannot be attacked, either directly or collaterally,
because of any mistake antecedent thereto. /ven though it be submitted at an improper time, it is
effective for all purposes ,hen accepted by the majority. 3r(stron+ v. Gin+, *)& Pa. *9', &*2 A. *2A.
;&A9 A J9(<.
/ven if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or ac#uiescence by the people. hus, in the &(9B case of E6 parte
Birmingham and A.!. Company ;J* -0 pp. &&) M &*A<, the Alabama -upreme Court upheld this
principle and stated that7 4he authorities are almost uniform that this ratification of an unauthori"ed
act by the people ;and the people are the principal in this instance< renders the act valid and binding.4
%t has like,ise been held that it is not necessar t*at voters rati,in+ t*e ne) Constitution are
re+istere! in t*e #oo- o, voters9 it is enou+* t*at t*e are electors votin+ on t*e ne) Constitution.
;Bott vs. Eurts, J9 A 'J9 G&)((H: JB +!A *B&, emphasis supplied<.
%n the &(B2 case of T*o(son vs. Peoples State "an- ;'B ?E *nd A'9, A'B<, the -upreme Court of
Eisconsin ruled that 4irregularity in the procedure for the submission of the proposed constitutional
amendment ,ill not defeat the ratification by the people.4
Again, in the &(B) case of S)ai( vs. Tuscaloosa Count ;&9A -0 *nd '2(<, the Alabama -upreme
Court pronounced that 4the irregularity in failing to publish the proposed constitutional amendment
once in each of the J calendar ,eeks ne8t preceding the calendar ,eek in ,hich the election ,as
held or once in each of the 'Cday periods immediately preceding the day of the election as re#uired
by the Constitution, did not invalidate the amendment ,hich ,as ratified by the people.4
he same principle ,as reiterated in &(2& by the 'ississippi Supre(e Court in "arnes, et al. v.
0a!ner ;&A&< -0 *nd JB J2*<, ,here they admitted irregularities or illegalities committed in the
procedure for submission of the proposed constitutional amendment to the people for ratification
consisted of7 4;a< the alleged failure of the county election commissioners of the several counties to
provide a sufficient number of ballot bo8es $secured by good and substantial locks,$ as provided by
-ection A*J(, Code of &(J*, !ec., to be used in the holding of the special election on the
constitutional amendment, and ;b< the alleged failure of the -tate /lection Commissioners to comply
,ith the re#uirements of Code -ections A*9J and A*9B in the appointment of election commissioners
in each of the )* counties. T*e irre+ularities co(plaine! o,, even i, prove!, )ere not suc*
irre+ularities )oul! *ave invali!ate! t*e election.4 ;/mphasis supplied: see also -ylvester vs. indall,
) -0 *nd )(*: &BJ 1la. 22A<.
/ven prior to the election in ?ovember, &('9 of delegates of the Constitutional Convention and during
the deliberations of the Constitutional Convention from .une &, &('& until martial la, ,as proclaimed
on -ept. *&, &('*, the salient reforms contained in the &('A Constitution ,hich have long been
desired by the people, had been thoroughly discussed in the various committees of the Constitutional
Convention, on the floor of the Convention itself, in civic forums and in all the media of information.
Many of the decrees promulgated by the Chief /8ecutive from -ept. **, &('* to .an. &', &('A
implement some of the reforms and had been ratified in -ec. A;*< of Article D6%% of the &('A
Constitution.
Petitioners cannot safely state that during martial la, the majority of the people cannot freely vote for
these reforms and are not complying ,ith the implementing decrees promulgated by the President.
1ree election is not inevitably incompatible ,ith martial la,. Ee had free elections in &(B& and &('&
,hen the opposition ,on si8 out of eight senatorial seats despite the suspension of the privileges of
the ,rit of *a#eas corpus ;see +ansang vs. 3arcia, et al., Dec. &J, &('&, J* -C!A JJ)<, ,hich
suspension implies constraint on individual freedom as the proclamation of martial la,. %n both
situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by ?acionalistas or +iberals, as ,ell as officials of the
+egislative and /8ecutive branches of the government elected andFor appointed under the &(AB
Constitution have either recogni"ed or are no, functioning under the &('A Constitution, aside from
the fact of its ratification by the sovereign people through the Citi"ens Assemblies. ?inetyCfive ;(B< of
a total of one hundred ten ;&&9< members of the >ouse of !epresentatives including the -peaker and
the -peaker Pro empore as ,ell as about eleven ;&&< Congressmen ,ho belong to the +iberal Party
and fifteen ;&B< of a total of t,entyCfour ;*J< senators including +iberal senators /dgar =. %larde and
.ohn 0smeLa opted to serve in the %nterim Assembly, according to the certification of the
Commission on /lections dated 1ebruary &(, &('A ;Anne8 !ejoinderCA to Consolidated !ejoinder of
petitioners in +CA2&2B<. 0nly the five ;B< petitioners in +CA2&2B close their eyes to a ,ait acco(pli. All
the other functionaries recogni"e the ne, government and are performing their duties and e8ercising
their po,ers under the &('A Constitution, including the lo,er courts. he civil courts, military tribunals
and #uasiCjudicial bodies created by presidential decrees have decided some criminal, civil and
administrative cases pursuant to such decrees. he foreign ambassadors ,ho ,ere accredited to the
!epublic of the Philippines before martial la, continue to serve as such in our country: ,hile t,o ne,
ambassadors have been accepted by the Philippines after the ratification of the &('A Constitution on
.anuary &', &('A. Copies of the &('A Constitution had been furnished the =nited ?ations
0rgani"ation and practically all the other countries ,ith ,hich the Philippines has diplomatic relations.
?o adverse reaction from the =nited ?ations or from the foreign states has been manifested. 0n the
contrary, our permanent delegate to the =nited ?ations 0rgani"ation and our diplomatic
representatives abroad appointed before martial la, continue to remain in their posts and are
performing their functions as such under the &('A Constitution.
/ven the Commission on /lections is no, implementing the provisions of the &('A Constitution by
re#uiring all election registrars to register &)Cyear olds and above ,hether literates or not, ,ho are
#ualified electors under the &('A Constitution ;see pars. &CA;c<, ;d<, M ;e< of Anne8 A to ?otes of
respondents Puyat and !oy in +CA2&2B<.
%n brief, it cannot be said that the people are ignoring the &('A Constitution and the government
,hich is enforcing the same for over &9 ,eeks no, Eith the petitioners herein, secessionists, rebels
and subversives as the only possible e8ceptions, the rest of the citi"enry are complying ,ith decrees,
orders and circulars issued by the incumbent President implementing the &('A Constitution.
0f happy relevance on this point is the holding in 'iller vs. Jo*nson &) -E B**7
%f a set of men, not selected by the people according to the forms of la,, ,ere to formulate an instrument
and declare it the constitution, it ,ould undoubtedly be the duty of the courts declare its ,ork a nullity.
his ,ould be revolution, and this the courts of the e8isting government must resist until they are
overturned by po,er, and a ne, government established. T*e convention, *o)ever, )as t*e o,,sprin+ o,
la). T*e instru(ent )*ic* )e are as-e! to !eclare invali! as a constitution *as #een (a!e an!
pro(ul+ate! accor!in+ to t*e ,or(s o, la). It is a (atter o, current *istor t*at #ot* t*e e6ecutive an!
le+islative #ranc*es o, t*e +overn(ent *ave reco+nize! its vali!it as a constitution, and are no, daily
doing so. %s the #uestion, t*ere,ore, one o, a 5u!icial c*aracter2 %t is our undoubted duty, if a statute be
unconstitutional to so declare it: also, if a provision of the state constitution be in conflict ,ith the federal
constitution, to hold the former invalid. But this is a very different case. It (a #e sai!, *o)ever, t*at, ,or
ever violation o, or non4co(pliance )it* t*e la), t*ere s*oul! #e a re(e! in t*e courts. T*is is not,
*o)ever, al)as t*e case. For instance, t*e po)er o, a court as to t*e acts o, t*e ot*er !epart(ents o,
t*e +overn(ent is not an a#solute one, #ut (erel to !eter(ine )*et*er t*e *ave -ept )it*in
constitutional li(its, it is a !ut rat*er t*an a po)er, T*e 5u!iciar cannot co(pel a co4e;ual !epart(ent
to per,or( a !ut. %t is responsible to the people: but if it does act, then, ,hen the #uestion is properly
presented, it is the duty of the court to say ,hether it has conformed to the organic la,. K*ile t*e
5u!iciar s*oul! protect t*e ri+*ts o, t*e people )it* +reat care an! 5ealous, #ecause t*is is its !ut, an!
also #ecause, in ti(es o, +reat popular e6cite(ent, it is usuall t*eir last resort, et it s*oul! at t*e sa(e
ti(e #e care,ul to overstep t*e proper #oun!s o, its po)er, as #ein+ per*aps e;uall !an+erous9 an!
especiall )*ere suc* (o(entous results (i+*t ,ollo) as )oul! #e li-el in t*is instance, i, t*e po)er o,
t*e 5u!iciar per(itte!, an! its !ut re;uire!, t*e overt*ro) o, t*e )or- o, t*e convention.
After the American !evolution the state of !hode %sland retained its colonial character as its constitution,
and no la, e8isted providing for the making of a ne, one. %n &)J& public meetings ,ere held, resulting in
the election of a convention to form a ne, one, K to be submitted to a popular vote. he convention
framed one, submitted it to a vote, and declared it adopted. /lections ,ere held for state officers, ,ho
proceeded to organi"e a ne, government. he charter government did not ac#uiesce in these
proceedings, and finally declared the state under martial la,. %t called another convention, ,hich in &)JA
formed a ne, constitution. K*et*er t*e c*arter +overn(ent, or t*e one esta#lis*e! # t*e voluntar
convention, )as t*e le+iti(ate one, )as uni,or(l *el! # t*e courts o, t*e state not to #e a 5u!icial, #ut a
political ;uestion9 an! t*e political !epart(ent *avin+ reco+nize! t*e one, it )as *el! to #e t*e !ut o, t*e
5u!iciar to ,ollo) its !ecision. T*e supre(e court o, t*e Enite! States, in 0ut*er v. "or!en, 7 Co). $,
)*ile not e6pressl !eci!in+ t*e principle, as it *el! t*e ,e!eral court, et in t*e ar+u(ent approves it, an!
in su#stance sas t*at )*ere t*e political !epart(ent *as !eci!e! suc* a (atter t*e 5u!iciar s*oul!
a#i!e # it.
+et us illustrate the difficulty of a court deciding the #uestion7 -uppose this court ,ere to hold that the
convention, ,hen it reassembled, had no po,er to make any material amendment, and that such as ,ere
made are void by reason of the people having theretofore approved the instrument. hen, ne8t, this court
must determine ,hat amendments ,ere material: and ,e find the court, in effect, making a constitution.
his ,ould be arrogating sovereignty to itself. Perhaps the members of the court might differ as to ,hat
amendments are material, and the result ,ould be confusion and anarchy. 0ne judge might say that all
the amendments, material and immaterial, ,ere void: another, that the convention had then the implied
po,er to correct palpable errors, and then the court might differ as to ,hat amendments are material. %f
the instrument as ratified by the people could not be corrected or altered at all, or if the court must
determine ,hat changes ,ere material, then the instrument, as passed upon by the people or as fi8ed by
the court ,ould be lacking a promulgation by the convention: and, if this be essential, then the #uestion
,ould arise, ,hat constitution are ,e no, living under, and ,hat is the organic la, of the stateI A
suggestion of these matters sho,s ,hat endless confusion and harm to the state might and likely ,ould
arise. I,, t*rou+* error o, opinion, t*e convention e6cee!e! its po)er, an! t*e people are !issatis,ie!,
t*e *ave a(ple re(e!, )it*out t*e 5u!iciar #ein+ as-e! to overstep t*e proper li(its o, its po)er. T*e
instru(ent provi!es ,or a(en!(ent an! c*an+e. I, a )ron+ *as #een !one, it can, in t*e proper )a in
)*ic* it s*oul! #e re(e!ie!, is # t*e people actin+ as a #o! politic. %t is not a #uestion of ,hether
merely an amendment to a constitution, made ,ithout calling a convention, has been adopted, as
re#uired by that constitution. %f it provides ho, it is to be done, then, unless the manner be follo,ed, the
judiciary, as the interpreter of that constitution, ,ill declare the amendment invalid. Goe*ler v. Cill, 29
%o,a, BJA, &J ?.E. !ep. 'A), and &B ?.E. !ep. 29(: State v. Tu,,, & ?ev. A(&, &* Pac. !ep. )AB. "ut it
is a case )*ere a ne) constitution *as #een ,or(e! an! pro(ul+ate! accor!in+ to t*e ,or(s o, la).
Great interests *ave alrea! arisen un!er it9 i(portant ri+*ts e6ist # virtue o, it9 persons *ave #een
convicte! o, t*e *i+*est cri(e -no)n to t*e la), accor!in+ to its provisions9 t*e political po)er o, t*e
+overn(ent *as in (an )as reco+nize! it9 an!, un!er suc* circu(stances, it is our !ut to treat an!
re+ar! it as a vali! constitution, an! no) t*e or+anic la) o, our co((on)ealt*.
Ee need not consider the validity of the amendments made after the convention reassembled. %f the
making of them ,as in e8cess of its po,ers, yet, as the entire instrument has been recogni"ed as valid in
the manner suggested, it ,ould be e#ually an abuse of po,er by the judiciary and violative of the rights of
the people, K ,ho can and properly should remedy the matter, if not to their liking, K if it ,ere to declare
the instrument of a portion invalid, and bring confusion and anarchy upon the state. ;emphasis supplied<.
%f this Court in#uires into the validity of Proclamation ?o. &&9* and conse#uently of the adoption of
the &('A Constitution it ,ould be e8ercising a veto po,er on the act of the sovereign people, of ,hom
this Court is merely an agent, ,hich to say the least, ,ould be anomalous. his Court cannot dictate
to our principal, the sovereign people, as to ho, the approval of the ne, Constitution should be
manifested or e8pressed. he sovereign people have spoken and ,e must abide by their decision,
regardless of our notion as to ,hat is the proper method of giving assent to the ne, Charter. %n this
respect, E/ cannot presume to kno, better than the incumbent Chief /8ecutive, ,ho, unlike the
members of this Court, only last .anuary ), &('A, Ee affirmed in Os(eAa vs. 'arcos ;Pres. /lection
Contest ?o. A, .an. ), &('A<, ,as reCelected by the vote of over B million electors in &(2( for another
term of four years until noon of December A9, &('A under the &(AB Constitution. his Court, not
having a similar mandate by direct ,iat from the sovereign people, to e8ecute the la, and administer
the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action
e8pressly and e8clusively reserved by the sovereign people themselves.
he people in Article D6 of the &(AB Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic la,. hat ,ould be incompatible ,ith their sovereign
character of ,hich Ee are reminded by -ection &, of Article %% of both the &(AB and the &('A
Constitutions.
he opinion of .udge homas Mc%ntire Cooley that the sovereign people cannot violate the procedure
for ratification ,hich they themselves define in their Constitution, cannot apply to a unitary state like
the !epublic of the Philippines. >is opinion e8pressed in &)2) may apply to a 1ederal -tate like the
=nited -tates, in order to secure and preserve the e8istence of the 1ederal !epublic of the =nited
-tates against any radical innovation initiated by the citi"ens of the fifty ;B9< different states of the
American =nion, ,hich states may be jealous of the po,ers of the 1ederal government presently
granted by the American Constitution. his dangerous possibility does not obtain in the case of our
!epublic.
hen again, .udge Cooley advanced the aforesaid opinion in &)2) ,hen he ,rote his opus
4Constitutional +imitations.4 > ;6ol. 2, /ncyclopedia Brit., &(2( ed. pp. JJB JJ2<. %t is possible that,
,ere he live today, in a milieu vastly different from &)2) to &)(), he might have altered his vie,s on
the matter.
/ven if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation
?o. &&9* that the people through their Citi"ens$ Assemblies had over,helmingly approved the ne,
Constitution due regard to a separate, coordinate and coCe#ual branch of the government demands
adherence to the presumption of correctness of the President$s declaration. -uch presumption is
accorded under the la, and jurisprudence to officials in the lo,er levels of the /8ecutive branch,
there is no overCriding reason to deny the same to the Chief of -tate as head of the /8ecutive
Branch. E/ cannot reverse the rule on presumptions, ,ithout being presumptuous, in the face of the
certifications by the 0ffice the -ecretary of the Department of +ocal 3overnment and Community
Development. ;Anne8es &, to &C/, Anne8es * to *C0 to the compliance ,ith manifestation filed by the
-olicitor 3eneral on behalf of the respondents public officers dated March ', &('A<. here is nothing
in the records that contradicts, much less overthro, the results of the referendum as certified. Much
less are Ee justified in reversing the burden of proof K by shifting it from the petitioners to the
respondents. =nder the rules on pleadings, the petitioners have the duty to demonstrate by clear and
convincing evidence their claim that the people did not ratify through the Citi"ens$ Assemblies nor
adopt by ac#uiescence the &('A Constitution. And have failed to do so.
?o member of this ribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources ,hich could be biased and hearsay, aside from the fact
that such reports are not contained in the record. Proclamation ?o. &&9* is not just an ordinary act of
the Chief /8ecutive. %t is a ,ellCnigh solemn declaration ,hich announces the highest act of the
sovereign people K their i(pri(atur to the basic Charter that shall govern their lives hereafter K may
be for decades, if not for generations.
Petitioners decry that even &BCyear olds, e8 convicts and illiterates ,ere allo,ed to vote in the
Citi"ens$ Assemblies, despite their admission that the term 4Filipino people4 in the preamble as ,ell
as 1people1 in -ections & and B of Article %% of the &(AB Constitution and in -ection &;A< of Article %%% of
the Bill of !ights includes all 1ilipino citi"ens of all ages, of both se8es, ,hether literate or illiterate,
,hether peaceful citi"ens, rebels, secessionists, convicts or e8Cconvicts. Eithout admitting that e8C
convicts voted in the referendum, about ,hich no proof ,as even offered, these sectors of our
citi"enry, ,hom petitioners seem to regard ,ith contempt or decision and ,hom petitioners ,ould
deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of
their progenies, are entitled as much as the educated, the la, abiding, and those ,ho are *& years of
age or above to e8press their conformity or non conformity to the proposed Constitution, because
their stake under the ne, Charter is not any less than the stake of the more fortunate among us. As a
matter of fact, these citi"ens, ,hose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the -tate than the rest of the citi"enry. %n the
ultimate analysis, the inclusion of those from &B years up to belo, *& years old, the e8Cconvicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the e8press affirmation in -ection & of Article %% of the Declaration of Principles that 4sovereignty
resides in the people and all government authority emanates from them.4
Moreover, e8Cconvicts granted absolute pardon are #ualified to vote. ?ot all e8Cconvicts are banned
from voting. 0nly those ,ho had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon e8piration of ten years after service of
sentence ;-ec. &9*, &('& !ev. /lec. Code<. 1urthermore, e8Cconvicts and imbeciles constitute a very
negligible number in any locality or barrio, including the localities of petitioners.
%ncluded like,ise in the delegated authority of the President, is the prerogative to proclaim the results
of the plebiscite or the voting the Citi"ens$ Assemblies. Petitioners deny the accuracy or correctness
of Proclamation ?o. &&9* that the &('A Constitution ,as ratified by the over,helming vote of close to
&B million citi"ens because there ,as no official certification to the results of the same from the
Department of +ocal 3overnments. But there ,as such certification as per Anne8 & to &CA to the
?otes submitted by the -olicitor 3eneral counsel for respondents public officers. his should suffice
to dispose of this point. /ven in the absence of such certification, in much the same ,ay that in
passing la,, Congress or the legislative body is presumed to be in possession of the facts upon
,hich such la,s are predicated ;.ustice 1ernando, he Po,er of .udicial !evie,, &(2' /d., pp. &&*C
&& citing +oren"o vs. Dir., etc., G&(*'H B9 Phil. B(B and 0$3onmore, et al7 vs. >artford, etc., G&(A&H
*)* =.-. *B&<, it should like,ise be presumed that the President ,as in possession of the fact upon
,hich Proclamation ?o. &&9* ,as based. his presumption is further strengthened by the fact that
the Department of +ocal 3overnments, the Department ?ational Defense and the Philippine
Constabulary as ,ell the Bureau of Posts are all under the President, ,hich offices as his alter ego,
are presumptively acting for and in behalf of the President and their acts are valid until disapproved or
reprobated by the President ;Planas vs. 3il, 2' Phil. 2*: 6illen vs. -ecretary of %nterior, 2' Phil. JB&<.
o deny the truth or the proclamation of the President as to the over,helming majority vote in the
Citi"ens$ Assemblies in favor of the ne, Constitution, is to charge the President ,ith falsification,
,hich is a most grievous accusation. =nder the, rules of pleadings and evidence, the petitioners have
the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable
doubt in criminal prosecutions, ,here the accused is al,ays presumed to be innocent. Must this
constitutional right be reversed simply because the petitioner all assert the contraryI %s the rule of la,
they pretend invoke only valid as long as it favors themI
he presumption of regularity in the performance of official functions is accorded by the la, and
jurisprudence to acts of public officers ,hose category in the official hierarchy is very much lo,er
than that of the Chief of -tate. Ehat reason is there to ,ithhold such a presumption in favor of the
PresidentI Does the fact that the President belong to the party in po,er and that four ;J< of the five
;B< senators ,ho are petitioners in +CA2&2B belong to the opposition party, justify a discrimination
against the President in matters of this natureI =nsupported as their ,ord is by any credible and
competent evidence under the rules of evidence, must the ,ord of the petitioners prevail over that of
the Chief /8ecutive, because they happen to be former senators and delegates to the Constitutional
ConventionI More than any of the petitioners herein in all these cases, the incumbent President
reali"es that he risks the ,rath of his people being visited upon him and the adverse or hostile verdict
of history: because of the restrictions on the civil liberties of his people, inevitable concomitants of
martial la,, ,hich necessarily entail some degree of sacrifice on the part of the citi"enry. =ntil the
contrary is established or demonstrated, herein petitioners should grant that the Chief /8ecutive is
motivated by ,hat is good for the security and stability of the country, for the progress and happiness
of the people. All the petitioners herein cannot stand on the proposition that the rights under the &(AB
Constitution are absolute and invulnerable to limitations that may be needed for the purpose of
bringing about the reforms for ,hich the petitioners pretend to be clamoring for and in behalf of the
people. he five ;B< petitioners in +CA2&2B and four ;J< of the seven ;'< petitioners in +CA2&2J ,ere all
participants in the political drama of this country since &(J2. hey are ,itness to the frustrations of
,ellCmeaning Presidents ,ho ,anted to effect the reforms, especially for the benefit of the landless
and the laboring class H ho, politics and political bargaining had stymied the effectuation of such
reforms thru legislation. he eight ;)< petitioners in +CA2&2J and +CA2&2B may not have participated in
the systematic blocking of the desired reforms in Congress or outside of it: but the #uestion may be
asked as to ,hat e8actly they did to support such reforms. 1or the last seven ;'< decades since the
turn of the century, for the last thirtyCfive ;AB< years since the establishment of the Common,ealth
government in &(AB and for the last t,enty seven ;*'< years since the inauguration of the !epublic
on .uly J, &(J2, no tangible substantial reform had been effected, funded and seriously implemented,
despite the violent uprisings in the thirties, and from &(J2 to &(B*, and the violent demonstrations of
recent memory. Congress and the oligarchs acted like ostriches, 4burying their heads in timeless
sand. 4?o, the hopes for the longCa,aited reforms to be ,ithin a year or to are brighter. %t ,ould
seem therefore to the duty of everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided for in the ne, or &('A
Constitution and thru the means prescribed in that same Constitution.
As stated in Eheeler vs. Board of rustees, 4a court is never justified in placing by implication a
limitation upon the sovereign.4
his Court in the 3on"ales and olentino cases transcended its proper sphere and encroached upon
the province e8clusively reserved to and by the sovereign people. his Court did not heed to the
principle that the courts are not the fountain of all remedies for all ,rongs. E/ cannot presume that
,e alone can speak ,ith ,isdom as against the judgment of the people on the basic instrument ,hich
affects their very lives. E/ cannot determine ,hat is good for the people or ought to be their
fundamental la,. E/ can only e8ercise the po,er delegated to =s by the sovereign people, to apply
and interpret the Constitution and the la,s for the benefit of the people, not against them nor to
prejudice them. E/ cannot perform an act inimical to the interest of 0ur principal, ,ho at any time
may directly e8ercise their sovereign po,er ratifying a ne, Constitution in the manner convenient to
them.
%t is pertinent to ask ,hether the present -upreme Court can function under the &(AB Constitution
,ithout being a part of the government established pursuant thereto. =nlike in the Borden case,
supra, ,here there ,as at least another government claiming to be the legitimate organ of the state of
!hode %sland ;although only on paper as it had no established organ e8cept Dorr ,ho represented
himself to be its head: in the cases at bar there is no other government distinct from and maintaining
a position against the e8isting government headed by the incumbent Chief /8ecutive. ;-ee aylor vs.
Common,ealth, supra<. here is not even a rebel government duly organi"ed as such even only for
domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore
stated, both the e8ecutive branch and the legislative branch established under the &(AB Constitution
had been supplanted by the government functioning under the &('A Constitution as of .anuary &',
&('A. he vice president elected under the &(AB Constitution does not asset any claim to the
leadership of the !epublic of the Philippines. Can this -upreme Court legally e8ist ,ithout being part
of any governmentI
Brilliant counsel for petitioners in +CA2&2B has been #uite e8travagant in his appraisal of Chief .ustice
!oger Brooke aney ,hom he calls the 4hero of the American Bar,4 because during the American
civil ,ar he apparently had the courage to nullify the proclamation of President +incoln suspending
the privileges of the ,rit of *a#eas corpus in E6 parte Merryman ;1ederal Case ?o. (J)' G&)2&H<. But
,ho e8actly ,as Chief .ustice !oger Brooke aneyI he /ditorial Board of 6ol. *& of the
/ncyclopedia Brit., &(22 ed. ;pp. '')C''(, &(2( ed., pp. 2BJC2B'<, briefly recounts that he ,as born
in &''' in Calvert County, Maryland, of parents ,ho ,ere landed aristocrats as ,ell as slave o,ners.
%nheriting the traditional conservatism of his parents ,ho belonged to the landed aristocracy, aney
became a la,yer in &'((, practiced la, and ,as later appointed Attorney 3eneral of Maryland. >e
also ,as a member of the Maryland state legislature for several terms. >e ,as a leader of the
1ederalist Party, ,hich disintegrated after the ,ar of &)&*, compelling him to join the Democratic
Party of Andre, .ackson, also a slave o,ner and landed aristocrat, ,ho later appointed him first as
Attorney 3eneral of the =nited -tates, then -ecretary of the reasury and in &)A2 Chief .ustice of the
=nited -tates -upreme Court to succeed Chief .ustice .ohn Marshall, in ,hich position he continued
for *) years until he died on 0ctober *&, &)2J. >is death 4,ent largely unnoticed and unregretted.4
Because he himself ,as a slave o,ner and a landed aristocrat, Chief .ustice aney sympathi"ed ,ith
the -outhern -tates and, even ,hile Chief .ustice, hoped that the -outhern -tates ,ould be allo,ed
to secede peacefully from the =nion. hat he had no sympathy for the ?egroes ,as revealed by his
decision in .re! Scott vs. San!,or! ;&( >o,. A() G&)B'H< ,here he pronounced that the American
?egro is not entitled to the rights of an American citi"en and that his status as a slave is determined
by his returning to a slave state. 0ne can therefore discern his hostility to,ards President +incoln
,hen he decided /8 parte Merryman, ,hich animosity to say the least does no befit a judicial mind.
-uch a man could hardly be spoken of as a hero of the American Bar, least of all of the American
nation. he choice of heroes should not be e8pressed indiscriminately just to embellish one$s rhetoric.
Distinguished counsel in +CA2&2B appears to have committed another historical error, ,hich may be
due to his rhetorical in the /ncyclopedia Britannica ;6ol. (, &(2( ed., pp. B9)CB9(< to this effect. 0n
the contrary, /ncyclopedia Britannica ;6ol. &' /ncyclopedia Brit., &(22 M &(2( eds., 'A*C'AA<, refers
to Marshal >enri Philippe Petain as the genuine hero or 4-avior of 6erdun4: because he held 6erdun
against the &(&2 offensive of the 3erman army at the cost of AB9,999 of his 1rench soldiers, ,ho
,ere then demorali"ed and plotting mutiny. Certainly, the surviving members of the family of Marshal
Petain ,ould not relish the error. And neither ,ould the members of the clan of Marshal 1och
ackno,ledge the undeserved accolade, although Marshal 1och has a distinct place in history on his
o,n merits. he foregoing clarification is offered in the interest of true scholarship and historical
accuracy, so that the historians, researchers and students may not be led astray or be confused by
esteemed counsel$s elo#uence and mastery of the spoken and ,ritten ,ord as ,ell as by his
eminence as la, professor, author of la, books, political leader, and member of the ne,ly integrated
Philippine Bar.
%t is #uite intriguing ,hy the eminent counsel and coCpetitioner in +CA2&2J did not address like,ise his
challenge to the five ;B< senators ,ho are petitioners in +CA2&2B to also act as 4heroes and idealists,4
to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can
muster a #uorum or by causing the arrest of other senators to secure a #uorum and thereafter
remove respondents Puyat and !oy ;Avelino, et al. vs. Cuenco, et al. G&(J(H )A Phil. &'<, if they
believe most vehemently in the justice and correctness of their position that the &('A Constitution has
not been validly ratified, adopted or ac#uiesced in by the people since .anuary &), &('A until the
present. he proclaimed conviction of petitioners in +CA2&2B on this issue ,ould have a ring of
credibility, if they proceeded first to hold a rump session outside the legislative building: because it is
not unreasonable to demand or to e8act that he ,ho e8horts others to be brave must first
demonstrate his o,n courage. -urely, they ,ill not affirm that the mere filing of their petition in +C
A2&2B already made them 4heroes and idealists.4 he challenge like,ise seems to insinuate that the
members of this Court ,ho disagree ,ith petitioners$ vie,s are materialistic co,ards or mercenary
fenceCsitters. he Court need not be reminded of its solemn duty and ho, to perform it. E/ refuse to
believe that petitioners and their learned as ,ell as illustrious counsels, scholars and liberal thinkers
that they are, do not recogni"e the sincerity of those ,ho entertain opinions that clash ,ith their o,n.
-uch an attitude does not sit ,ell ,ith the dictum that 4Ee can differ ,ithout being difficult: ,e can
disagree ,ithout being disagreeable,4 ,hich distinguished counsel in +CA2&2B is ,ont to #uote.
E/ reserve the right to prepare an e8tensive discussion of the other points raised by petitioners,
,hich Ee do not find no, necessary to deal ,ith in vie, of 0ur opinion on the main issue.
%? 6%/E 01 >/ 10!/30%?3, A++ >/ P/%%0?- %? >/-/ 1%6/ CA-/- SCOE0. "E
.IS'ISSE..
Pursuant to 0ur reservation, Ee no, discuss the other issues raised by the petitioners.
II
/6/? %1 %--=/ %- .=-%C%AB+/, P/0P+/$- !A%1%CA%0?, AD0P%0? 0! ACP=%/-C/?C/
C!/A/- -!0?3 P!/-=MP%0? 01 6A+%D%@ 01 &('A C0?-%=%0?.
As intimated in the aforecited cases, even the courts, ,hich affirm the proposition that the #uestion as
to ,hether a constitutional amendment or the revised or ne, Constitution has been validly submitted
to the people for ratification in accordance ,ith the procedure prescribed by the e8isting Constitution,
is a justiciable #uestion, accor! all presu(ption o, vali!it to t*e constitutional a(en!(ent or t*e
revise! or ne) Constitution a,ter t*e +overn(ent o,,icials or t*e people *ave a!opte! or rati,ie! or
ac;uiesce! in t*e ne) Constitution or a(en!(ent, alt*ou+* t*ere )as an ille+al or irre+ular or no
su#(ission at all to t*e people. ;Collier vs. 3ray, Jth Dec. Dig. (AB G&(AJH, >ammond vs. Clark, '&
-/ J)*CJ)A: People vs. -ours, A& Colo. A2(, 'J Pac. &2', &9* Am. -t. !ep. AJ: hompson vs.
Einneth, ') ?eb. A'(, &&9 ?E &&&A, &9 +.!.A. G?.-.H &J(: -tate vs. +aylin, 2( 0hio -t. !ep. &, 2)
?/ B'J: Eeston vs. !yan, '9 ?eb. *&&, (' ?E AJ': Combs vs. -tate, )& 3a. ')9, ) -/ A&):
Eood,ard vs. -tate, &9A 3a. J(2, A9 -/ B**: Corre vs. Cooney, '9 Mont. ABB, **B P &99', &99(<.
As late as &('&, the courts stressed that the constitutional amendment or the ne, Constitution should
not be condemned 4unless our judgment its nullity is manifest beyond reasonable doubt4 ;&('& case
of Moore vs. -hanahan, J)2 Pac. *d B92, *9' Nan. &, 2JB: and the &(B2 case of ipton vs. -mith, et
al., supra<.
Mr. .ustice /nri#ue M. 1ernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthro, such
presumption ;/rmitaCMalate >otel, etc. vs. City Mayor, +C*J2(), .uly A&, &(2', *9 -C!A )J(<.
III
C0?-%=%0?A+ C0?6/?%0? K C0C/P=A+ E%> A?D %?D/P/?D/? 01 C0?3!/--,
/D/C=%6/ A?D .=D%C%A!@.
he Constitutional Convention is coCordinate and coCe#ual ,ith, as ,ell as independent of, the three
grand departments of the 3overnment, namely, the legislative, the e8ecutive and the judicial. As a
fourth separate and distinct branch, to emphasi"e its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as ,ell as the form of the
Charter that it proposes. %t enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the 3overnment in its proceedings, including the printing of its o,n journals
;aLada and 1ernando, Constitution of the Philippines, &(B* ed., 6ol. %, pp. ) (: Malcolm and +aurel,
Phil. Const. +a,, p. **: 1rant" vs. Autry, (& Pac. &(A<. %mplicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its ,ork ,ill not be frustrated, the Convention
has the po,er to fi8 the date for the plebiscite and to provide funds therefor. o deny the Convention
such prerogative, ,ould leave it at the tender mercy of both legislative and e8ecutive branches of the
3overnment. An unsympathetic Congress ,ould not be disposed to submit the proposed Constitution
drafted by the Constitutional Convention to the people for ratification, much less appropriate the
necessary funds therefor. hat could have been the fate of the &('A Constitution, because the same
abolished the -enate by creating a unicameral ?ational Assembly to be presided by a Prime Minister
,ho ,ields both legislative and e8ecutive po,ers and is the actual Chief /8ecutive, for the President
contemplated in the ne, Constitution e8ercises primarily ceremonial prerogatives. he ne,
Constitution like,ise shortened abruptly the terms of the members of the present Congress ;,hose
terms end on December A&, &('A, &('B and &(''< ,hich provides that the ne, Constitution shall
take effect immediately upon its ratification ;-ec. &2, Article D6%%, &('A Constitution<. he fact that
-ection * of the same Article D6%%% secures to the members of Congress membership in the interim
?ational Assembly as long as they opt to serve therein ,ithin thirty ;A9< days after the ratification of
the proposed Constitution, affords them little comfort: because the convening of the interim ?ational
Assembly depends upon the incumbent President ;under -ec. AG&H, Art. D6%%, &('A Constitution<.
=nder the foregoing circumstances, the members of Congress, ,ho ,ere elected under the &(AB
Constitution, ,ould not be disposed to call a plebiscite and appropriate funds therefor to enable the
people to pass upon the &('A Constitution, ratification of ,hich means their elimination from the
political scene. hey ,ill not provide the means for their o,n li#uidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its
independence and effectiveness, possesses the po,er to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the po,er to delegate the same to the President, ,ho, in
estimation of the Convention can better determine appropriate time for such a referendum as ,ell as
the amount necessary to effect the same: for ,hich reason the Convention thru !esolution ?o. *(
approved on ?ovember **, &('*, ,hich superseded !esolution ?o. B)JA adopted on ?ovember &2,
&('*, proposed to the President 4that a !ecree be issued calling a plebiscite for the ratification of the
proposed ne, Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...,4 after stating in 4,hereas4 clauses that the &('& Constitutional
Convention e8pected to complete its ,ork by the end of ?ovember, &('* that the urgency of
instituting reforms rendered imperative the early approval of the ne, Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the ne, Constitution.
%f Congress can legally delegate to the Chief /8ecutive or his subaltern the po,er to promulgate
subordinate rules and regulations to implement the la,, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a coCe#ual body.
Apart from the delegation to the Chief /8ecutive of the po,er to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its !esolution ?o. *(, the organi"ation of the
Citi"ens$ Assemblies for consultation on national issues, is comprehended ,ithin the ordinanceC
making po,er of the President under -ection 2A of the !evised Administrative Code, ,hich e8pressly
confers on the Chief /8ecutive the po)er to pro(ul+ate a!(inistrative acts an! co((an!s touc*in+
on t*e or+anization or (o!e o, operation o, t*e +overn(ent or reCarranging or reCadjusting any
district, division or part of the Philippines 4or !isposin+ o, issues o, +eneral concern ... .4 ;/mphasis
supplied<. >ence, as consultative bodies representing the localities including the barrios, their
creation by the President thru Presidential Decree ?o. )2 of December A&, &('*, cannot be
successfully challenged.
he employment by the President of these Citi"ens$ Assemblies for consultation on the &('A
Constitution or on ,hether there ,as further need of a plebiscite thereon, K both issues of national
concern K is still ,ithin the delegated authority reposed in him by the Constitutional Convention as
aforesaid.
%t should be noted that !esolution ?o. *(, ,hich superseded !esolution ?o. B)JA, does not prescribe
that the plebiscite must be conducted by the Commission on /lections in accordance ,ith the
provisions of the &('& !evised /lection Code. %f that ,ere the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like 4to call a plebiscite to be supervised by the Commission on /lections
in accordance ,ith the provisions of the &('& !evised /lection Code ;or ,ith e8isting la,s<.4 hat the
Constitutional Convention omitted such phrase, can only mean that it left to the President the
determination of the manner by ,hich the plebiscite should be conducted, ,ho shall supervise the
plebiscite, and ,ho can participate in the plebiscite. he fact that said !esolution ?o. *( e8pressly
states 4that copies of this resolution as approved in plenary session be transmitted to the President of
the Philippines and the Commission on /lections for implementation,4 did not in effect designate the
Commission on /lections as supervisor of the plebiscite. he copies of said resolution that ,ere
transmitted to the Commission on /lections at best serve merely to notify the Commission on
/lections about said resolution, but not to direct said body to supervise the plebiscite. he calling as
,ell as conduct of the plebiscite ,as left to the discretion of the President, ,ho, because he is in
possession of all the facts funnelled to him by his intelligence services, ,as in the superior position to
decide ,hen the plebiscite shall be held, ho, it shall be conducted and ,ho shall oversee it.
%t should be noted that in approving said !esolution ?o. *(, the Constitutional Convention itself
recogni"ed the validity of, or validated Presidential Proclamation ?o. &9)& placing the entire country
under martial la, by resolving to 4propose to President 1erdinand /. Marcos that a !ecree be issued
calling a plebiscite ... .4 he use of the term 4decree4 is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial la,. Conse#uently, the issuance by the President of
Presidential Decree ?o. 'A on December &, &('* setting the plebiscite on .anuary &B, &('A and
appropriating funds therefor pursuant to said !esolution ?o. *(, is a valid e8ercise of such delegated
authority.
-uch delegation, unlike the delegation by Congress of the ruleCmaking po,er to the Chief /8ecutive
or to any of his subalterns, does not need sufficient standards to circumscribe the e8ercise of the
po,er delegated, and is beyond the competence of this Court to nullify. But even if ade#uate criteria
should be re#uired, the same are contained in the 4Ehereas4 clauses of the Constitutional
Convention !esolution ?o. *(, thus7
E>/!/A-, the &('& Constitutional Convention is e8pected to complete its ,ork of drafting a proposed
ne, Constitution for the !epublic by the end of ?ovember, &('*:
E>/!/A-, in vie, of the urgency of instituting reforms, the early approval of the ?e, Constitution has
become imperative:
E>/!/A-, it is the desire of the national and local leaders that there be continuity in the immediate
political transition from the old to the ?e, Constitution:4 ;Anne8 4&4 of Ans,er, !es. ?o. *(, Constitutional
Convention<.
As Mr. .ustice 1ernando, ,ith ,hom Messrs. .ustices Barredo, Antonio and the ,riter concurred in
the Plebiscite Cases, stated7
... 0nce this ,ork of drafting has been completed, it could itself direct the submission to the people for
ratification as contemplated in Article D6 of the Constitution. >ere it did not do so. Eith Congress not
being in session, could the President, by the decree under #uestion, call for such a plebisciteI =nder
such circumstances, a ne+ative ans)er certainl coul! result in t*e )or- o, t*e Convention #ein+
ren!ere! nu+ator. he vie, has been repeatedly e8pressed in many American state court decisions that
to avoid such undesirable conse#uence the task of submission becomes ministerial, ,ith the political
branches devoid of any discretion as to the holding of an election for that purpose. ?or is the
appropriation by him of the amount necessary to be considered as offensive to the Constitution. I, it )ere
!one # *i( in *is capacit as Presi!ent, suc* an o#5ection )oul! in!ee! *ave #een ,or(i!a#le, not to
sa insur(ounta#le. I, t*e appropriation )ere (a!e in *is capacit as a+ent o, t*e Convention to assure
t*at t*ere #e su#(ission to t*e people, t*en suc* an ar+u(ent loses ,orce. T*e Convention itsel, coul!
*ave !one so. %t is understandable ,hy it should be thus. I, it )ere ot*er)ise, t*en a le+islative #o!, t*e
appropriatin+ ar( o, t*e +overn(ent, coul! conceiva#l (a-e use o, suc* aut*orit to co(pel t*e
Convention to su#(it to its )is*es, on pain o, #ein+ ren!ere! ,inanciall !istrau+*t. T*e Presi!ent t*en, i,
per,or(in+ *is role as its a+ent, coul! #e *el! as not !evoi! o, suc* co(petence. ;pp. *CA, concurring
opinion of .. 1ernando in +CAB(*B, etc., emphasis supplied<.
I@
6A3=/?/-- 0! AMB%3=%@ D0/- ?0 %?6A+%DA/ >/
&('A C0?-%=%0?
;&< Petitions challenge the &('A draft as vague and incomplete, and alluded to their arguments during
the hearings on December &) and &(, &('* on the Plebiscite Cases. But the inclusion of #uestionable
or ambiguous provisions does not affect the validity of the ratification or adoption of the &('A
Constitution itself ;Pope vs. 3ray, &9J -0, *d )J&: 'th Dec. pp. *&*C*&(, &(B2C&(22<.
Ale8ander >amilton, one of the leading founders and defenders of the American Constitution,
ans,ering the critics of the 1ederal Constitution, stated that7 4% never e8pect to see a perfect ,ork
from imperfect man. he result of the deliberations of all collective bodies must necessarily be a
compound, as ,ell of the errors and prejudices as of the good sense and ,isdom, of the individuals
of ,hom they are composed. he compacts ,hich are to embrace thirteen distinct -tates in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. >o, can perfection spring from such materialsI4 ;he 1ederalist, Modern +ibrary
/d., pp. 88C88i<.
;*< he &('A Constitution is like,ise impugned on the ground that it contains provisions ,hich are
ultra vires or beyond the po,er of the Constitutional Convention to propose.
his objection relates to the ,isdom of changing the form of government from Presidential to
Parliamentary and including such provisions as -ection A of Article %6, -ection &B of Article D%6 and
-ections A;*< and &* of Article D6%% in the &('A Constitution.
Article %6 K
-ec. A. he right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and sei"ures of ,hatever nature and for any purpose shall not be violated, and no
search ,arrant or ,arrant of arrest shall issue e6cept upon pro#a#le cause to #e !eter(ine! # t*e
5u!+e, or suc* ot*er responsi#le o,,icer as (a #e aut*orize! # la), after e8amination under oath or
affirmation of the complainant and the ,itnesses may produce, and particularly describing the place to be
searched, and the persons or things to be sei"ed.
Article D%6 K
-ec. &B. Any provision of paragraph one, -ection fourteen, Article /ight and of this Article
not,ithstanding, the Prime Minister may enter into international treaties or agreements as the national
,elfare and interest may re#uire.4 ;Eithout the consent of the ?ational Assembly.<
Article D6%% K
-ec. A;*< All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the la, of the land, and shall remain valid, legal, binding and
President, or unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.
888 888 888
-ec. &*. All treaties, e8ecutive agreements, and contracts entered into by the 3overnment, or any
subdivision, agency, or instrumentality thereof, including governmentCo,ned or controlled corporations,
are hereby recogni"ed as legal, valid and binding. Ehen the national interest so re#uires, the incumbent
President of the Philippines or the interim Prime Minister may revie, all contracts, concessions, permits,
or other forms of privileges for the e8ploration, development, e8ploitation, or utili"ation of natural
resources entered into, granted, issued or ac#uired before the ratification of this Constitution.
%n the Plebiscite Cases ;+CAB(*B, +CAB(*(, +CAB(J9, +CAB(J*, +CAB(J), +CAB(BA, +CAB(2&, +CAB(2B,
M +CAB('(<, Chief .ustice !oberto Concepcion, concurred in by .ustices 1ernando, Barredo, Antonio
and the ,riter, overruled this objection, thus7
... !egardless of the ,isdom and moral aspects of the contested provisions of the
proposed Constitution, it is my considered vie, that the Convention ,as legally deemed
fit to propose K save perhaps ,hat is or may be insistent ,ith ,hat is no, kno,n,
particularly in international la,, as Jus Co+ens K not only because the Convention
e8ercised sovereign po,ers delegated thereto by the people K although insofar only as
the determination of the proposals to be made and formulated by said body is concerned
K but also, because said proposals cannot be valid as part of our 1undamental +a,
unless and until 4approved by the majority of the votes cast at an election ,hich4 said
proposals 4are submitted to the people for their ratification,4 as provided in -ection & of
Article D6 of the &(AB Constitution. ;Pp. &'C&), Decision in +CAB(*B, etc.<.
his Court like,ise enunciated in .el >osario vs. Co(elec ;+CA*J'2, 0ct. *9, &('9, AB -C!A A2'<
that the Constitutional Convention has the authority to 4entirely overhaul the present Constitution and
propose an entirely ne, Constitution based on an ideology foreign to the democratic system ...:
because the same ,ill be submitted to the people for ratification. 0nce ratified by the sovereign
people, there can be no debate about the validity of the ne, Constitution.4
Mr. .ustice 1ernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in
the Del !osario case, supra, and added7 4... it seems to me a sufficient ans,er that once convened,
the area open for deliberation to a constitutional convention ..., is practically limitless4 ;citing Cf.
Noehler vs. >ill, &J ?E 'A), 29 %o,a BJA G&))AH: >atch -toneman, 2 P 'AJ, 22 Cal. 2A* G&))BH:
MacMillan v. Blattner, *B ?E *JB, 2' %o,a *)' G&)(BH: -tate v. Po,ell, *' -0 *(', '' Miss. BJA
G&(99H: >ammond v. Clark, '& -/ J'(, &A2 3a. A&A G&(&&H: >amilton v. 6aughan, &'( ?E BAA, *&*
Mich. A& G&(*9H: -tate v. -mith, &A) ?/ ))&, &9B 0hio -t. B'9 G&(**H: +ooney vs. +eeper, *(* P A2B,
&JB 0kl. *9* G&(A9H: -chool District vs. City of Pontiac, *J' ?E J'J, *2* Mich. AA) G&(AAH<.
Mr. .ustice Barredo, in his concurring opinion in said Plebiscite Cases, e8pressed the vie, 4that ,hen
the people elected the delegates to the Convention and ,hen the delegates themselves ,ere
campaigning, such limitation of the scope of their function and objective ,as not in their minds.4
@
&('A C0?-%=%0? D=+@ AD0P/D A?D
P!0M=+3A/D.
Petitioners ne8t claim that the &('& Constitutional Convention adjourned on ?ovember A9, &('*
,ithout officially promulgating the said Constitution in 1ilipino as re#uired by -ections A;&< of Article
D6 on 3eneral Provisions of the &('A Constitution. his claim is ,ithout merit because their Anne8
4M4 is the 1ilipino version of the &('A Constitution, like the /nglish version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its -ecretary,
that the proposed Constitution, approved on second reading on the *'th day of ?ovember, &('* and
on third reading in the Convention$s *(&st plenary session on ?ovember *(, &('* and accordingly
signed on ?ovember &('* by the delegates ,hose signatures are thereunder affi8ed. %t should be
recalled that Constitutional Convention President Diosdado Macapagal ,as, as President of the
!epublic &(2* to &(2B, then the titular head of the +iberal Party to ,hich four ;J< of the petitioners in
+CA2&2B including their counsel, former -enator .ovito -alonga, belong. Are they repudiating and
diso,ning their former party leader and benefactorI
@I
A!%C+/ D6 01 &(AB C0?-%=%0? D0/- ?0
P!/-C!%B/ A?@ P!0C/D=!/ 10! !A%1%CA%0? 01
&('A C0?-%=%0?.
;&< Article D6 of the &(AB Constitution simply provides that 4such amendments shall be valid as part
of this Constitution ,hen approved by a majority of the votes cast at an election at ,hich the
amendments are submitted to the people for ratification.4
But petitioners construe the aforesaid provision to read7 4-uch amendments shall be valid as part of
this Constitution ,hen approved by a majority of the votes cast at an election calle! # Con+ress at
,hich the amendments are submitted for ratification by the ;uali,ie! electors !e,ine! in 3rticle @
*ereo,, supervise! # t*e Co((ission on Elections in accor!ance )it* t*e e6istin+ election la) an!
a,ter suc* a(en!(ents s*all *ave #een pu#lis*e! in all t*e ne)spapers o, +eneral circulation ,or at
least ,our (ont*s prior to suc* election.4
his position certainly imposes limitation on the sovereign people, ,ho have the sole po,er of
ratification, ,hich imposition by the Court is never justified ;Eheeler vs. Board of rustees, supra<.
%n effect, petitioners and their counsels are amending by a strained and tortured construction Article
D6 of the &(AB Constitution. his is a clear case of usurpation of sovereign po,er they do not
possess K through some kind of escamotage. his Court should not commit such a grave error in the
guise of judicial interpretation.
%n all the cases ,here the court held that illegal or irregular submission, due to absence of substantial
compliance ,ith the procedure prescribed by the Constitution andFor the la,, nullifies the proposed
amendment or the ne, Constitution, the procedure prescribed by the state Constitution is so detailed
that it specifies that the submission should be at a general or special election, or at the election for
members of the -tate legislature only or of all state officials only or of local officials only, or of both
state and local officials: fi8es the date of the election or plebiscite limits the submission to only
electors or #ualified electors: prescribes the publication of the proposed amendment or a ne,
Constitution for a specific period prior to the election or plebiscite: and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot ,hich
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authori"es e8pressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. -ee the -tate Constitutions of Alabama G&(9&H:
Ari"ona G&(&*H: Arkansas G&)'JH: Colorado G&('2H: Connecticut G&)&)H: 1lorida G&))'H: 3eorgia G&(JBH:
%llinois G&('9H: %ndiana G&)B&H: %o,a G&)B'H: Nansas G&)2&H: Nentucky G&)(&H: +ouisiana G&(*&H:
Maryland G&)2'H: Massachusetts G&'(9H: Michigan G&(9(H: Minnesota G&)B'H: Mississippi G&)(9H: and
Missouri G&(JBH<.
As typical e8amples7
Constitution of Alabama ;&(9&<7
Article D6%%%. Mode of Amending the Constitution
-ec. *)J. +egislative Proposals. Amendments may be proposed to this Constitution by the legislature in
the manner follo,ing7 he proposed amendments shall be read in the house in ,hich they originate on
three several days, and, if upon the third reading, threeCfifths of all the members elected to that house
shall vote in favor thereof, the proposed amendments shall be sent to the other house, in ,hich they shall
like,ise be read on three several days, and if upon the third reading, threeCfifths of all the members
elected that house shall vote in favor of the proposed amendments, the le+islature s*all or!er an election
# t*e ;uali,ie! electors o, t*e state upon suc* propose! a(en!(ents, to #e *el! eit*er at t*e +eneral
election ne6t succee!in+ t*e session of the legislature at ,hich the amendments are proposed or upon
anot*er !a appointe! # t*e le+islature, not less t*an t*ree (ont*s a,ter t*e ,inal a!5ourn(ent of the
session of the legislature at ,hich the amendments ,ere proposed. Notice o, suc* election, together ,ith
the proposed amendments, shall be given by proclamation of the governor, )*ic* s*all #e pu#lis*e! in
ever count in such manner as the legislature shall direct, ,or at least ei+*t successive )ee-s ne6t
prece!in+ t*e !a appointe! ,or suc* election. 0n the day so appointed an election shall be held for the
vote of the #ualified electors of the state upon the proposed amendments. %f such election be held on the
day of the general election, the officers of such general election shall open a poll for the vote of the
#ualified electors upon the proposed amendments: if it be held on a day other than that of a general
election, officers for such election shall be appointed: and the election shall be held in all things in
accordance ,ith the la, governing general elections. %n all elections upon such proposed amendments,
t*e votes cast t*ereat s*all #e canvasse!, ta#ulate!, an! returns t*ereo, #e (a!e to t*e secretar o,
state, and counted, in the same manner as in elections for representatives to the legislature: and if it shall
thereupon appear that a majority of the #ualified electors ,ho voted at such election upon the proposed
amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as
parts of this Constitution. he result of such election shall be made kno,n by proclamation of the
governor. !epresentation in the legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
-ec. *)B. 1orm of ballot for amendment. =pon the ballots used at all elections provided for in section *)J
of this Constitution, the substance or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. 1ollo,ing each proposed amendment on the ballot shall be
printed the ,ord 4@es4 and immediately under that shall be printed the ,ord 4?o4. he choice of the
elector shall be indicated by a cross mark made by him or under his direction, opposite the ,ord
e8pressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a
majority of all the #ualified electors ,ho vote at such election.
Constitution of Arkansas ;&)'J<7
Article D%D. Miscellaneous Provisions.
-ec. **. Constitutional amendments. /ither branch of the 3eneral Assembly at a regular session thereof
may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments s*all #e entere! on t*e 5ournal )it* t*e
eas an! nas, an! pu#lis*e! in at least one ne)spaper in eac* count, )*ere a ne)spaper is
pu#lis*e!, ,or si6 (ont*s i((e!iatel prece!in+ t*e ne6t +eneral election ,or Senators an!
>epresentatives, at )*ic* ti(e t*e sa(e s*all #e su#(itte! to t*e electors o, t*e State ,or approval or
re5ection, and if a majority of the electors voting at such election adopt such amendments, the same shall
become a part of this Constitution: #ut no (ore t*an t*ree a(en!(ents s*all #e propose! or su#(itte! at
t*e sa(e ti(e. T*e s*all #e so su#(itte! as to ena#le t*e electors to vote on eac* a(en!(ent
separatel.
Constitution of Nansas ;&)2&<7
Article D%6. Amendments.
-ec. &. Proposal of amendments: publications: elections. Propositions for the amendment of this
constitution may be made by either branch of the legislature: and if t,o thirds of all the members elected
to each house shall concur therein, such proposed amendments, together ,ith the yeas and nays, shall
be entered on the journal: and the secretary of state shall cause the same to be published in at least one
ne,spaper in each county of the state ,here a ne,spaper is published, for three months preceding the
ne8t election for representatives, at ,hich time, the same shall be submitted to the electors, for their
approval or rejection: and if a majority of the electors voting on said amendments, at said election, shall
adopt the amendments, the same shall become a part of the constitution. Ehen more than one
amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to
vote on each amendments separately: and not more than three propositions to amend shall be submitted
at the same election.
Constitution of Maryland ;&)2'<7
Article D%6. Amendments to the Constitution.
-ec. &. Proposal in general assembly: publication: submission to voters: governor$s proclamation. he
3eneral Assembly may propose Amendments to this Constitution: provided that each Amendment shall
be embraced in a separate bill, embodying the Article or -ection, as the same ,ill stand ,hen amended
and passed by three fifths of all the members elected to each of the t,o >ouses, by yeas and nays, to be
entered on the .ournals ,ith the proposed Amendment. he bill or bills proposing amendment or
amendments shall be published by order of the 3overnor, in at least t,o ne,spapers, in each County,
,here so many may be published, and ,here not more than one may be published, then in the
ne,spaper, and in three ne,spapers published in the City of Baltimore, once a ,eek for four ,eeks
immediately preceding the ne8t ensuing general election, at ,hich the proposed amendment or
amendments shall be submitted, in a form to be prescribed by the 3eneral Assembly, to the #ualified
voters of the -tate for adoption or rejection. he votes cast for and against said proposed amendment or
amendments, severally, shall be returned to the 3overnor, in the manner prescribed in other cases, and if
it shall appear to the 3overnor that a majority of the votes cast at said election on said amendment or
amendments, severally, ,ere cast in favor thereof, the 3overnor shall, by his proclamation, declare the
said amendment or amendments having received said majority of votes, to have been adopted by the
people of Maryland as part of the Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. Ehen t,o or more amendments shall be submitted in the manner
aforesaid, to the voters of this -tate at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri ;&(JB<7
Article D%%. Amending the Constitution.
-ec. *;b<. -ubmission of amendments proposed by general assembly or by the initiative. All amendments
proposed by the general assembly or by the initiative shall be submitted to the electors for their approval
or rejection by official ballot title as may be provided by la,, on a separate ballot ,ithout party
designation, at the ne8t general election, or at a special election called by the governor prior thereto, at
,hich he may submit any of the amendments. ?o such proposed amendment shall contain more than
one amended and revised article of this constitution, or one ne, article ,hich shall not contain more than
one subject and matters properly connected there,ith. %f possible, each proposed amendment shall be
published once a ,eek for t,o consecutive ,eeks in t,o ne,spapers of different political faith in each
county, the last publication to be not more than thirty nor less than fifteen days ne8t preceding the
election. %f there be but one ne,spaper in any county, publication of four consecutive ,eeks shall be
made. %f a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at
the end of thirty days after the election. More than one amendment at the same election shall be so
submitted as to enable the electors to vote on each amendment separately.
Article D6 of the &(AB Constitution does not re#uire a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify ,hat kind of election
at ,hich the ne, Constitution shall be submitted: nor does it designate the Commission on /lections
to supervise the plebiscite. ?either does it limit the ratification to the #ualified electors as defined in
Article 6 of the &(AB Constitution. Much less does it re#uire the publication of the proposed
Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite
should be supervised in accordance ,ith the e8isting election la,.
;*< As afore#uoted, Article D6 does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. %t does not make any reference to the Commission on
/lections as the body that shall supervise the plebiscite. And Article D6 could not make any reference
to the Commission on /lections because the original &(AB Constitution as ratified on May &J, &(AB by
the people did not contain Article D on the Commission on /lections, ,hich article ,as included
therein pursuant to an amendment by that ?ational Assembly proposed only about five ;B< years later
K on April &&, &(J9, ratified by the people on .une &), &(J9 as approved by the President of the
=nited -tates on December &(J9 ;see -umulong vs. Commission, '9 Phil. '9A, '&A, '&B: 3on"ales,
Phil. Const. +a,, &(22 ed., p. &A<. -o it cannot be said that the original framers of the &(AB
Constitution as ratified May &J, &(AB intended that a body kno,n as the Commission on /lections
should be the one to supervise the plebiscite, because the Commission on /lections ,as not in
e8istence then as ,as created only by Common,ealth Act ?o. 29' approved on August **, &(J9 and
amended by Common,ealth Act ?o. 2B' approved on .une *&, &(J& ;see aLada M Carreon,
Political +a, of the Philippines, 6ol. %, &(2& ed., pp. J'BCJ'2: -umulong vs. Commission, &'9 Phil.
'9A, '9)C'&B: 'A Phil. *)), *(9CA99: aLada M 1ernando, Constitution of the Philippines, &(BA ed.,
6ol. %, p. B, 6ol. %%,
pp. &&C&(<.
Because before August, &(J9 the Commission on /lection ,as not yet in e8istence, the former
Department of %nterior ;no, Department of +ocal 3overnments and Community Development<
supervised the plebiscites on the &(A' amendment on ,oman$s suffrage, the &(A( amendment to the
0rdinance appended to the &(AB Constitution ;ydingsCNocialko,ski Act of the =.-. Congress< and
the three &(J9 amendments on the establishment of a bicameral Congress, the reCelection of the
President and the 6iceCPresident, and the creation of the Commission on /lections ;ratified on .une
&), &(J9<. he supervision of said plebiscites by the then Department of %nterior ,as not automatic,
but by virtue of an e8press authori"ation in Common,ealth Act ?os. AJ, J( and B&'.
%f the ?ational Assembly then intended that the Commission on /lections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have like,ise proposed
the corresponding amendment to Article D6 by providing therein that the plebiscite on amendments
shall be supervised by the Commission on /lections.
A< %f the framers of the &(AB Constitution and the people in ratifying the same on May &J, &(AB
,anted that only the #ualified voters under Article 6 of the &(AB Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in &(AB or in
the &(J9 amendment by just adding a fe, ,ords to Article D6 by changing the last phrase to
4submitted for ratification to the #ualified electors as defined in Article 6 hereof,4 or some such similar
phrases.
hen again, the term 4people4 in Article D6 cannot be understood to e8clusively refer to the #ualified
electors under Article 6 of the &(AB Constitution because the said term 4people4 as used in several
provisions of the &(AB Constitution, does not have a uniform meaning. hus in the preamble, the term
41ilipino people4 refer, to all 1ilipino citi"ens of all ages of both se8es. %n -ection & of Article %% on the
Declaration of Principles, the term 4people4 in ,hom sovereignty resides and from ,hom all
government authority emanates, can only refer also to 1ilipino citi"ens of all ages and of both se8es.
But in -ection B of the same Article %% on social justice, the term 4people4 comprehends not only
1ilipino citi"ens but also all aliens residing in the country of all ages and of both se8es. +ike,ise, that
is the same connotation of the term 4people4 employed in -ection &;A< of Article %%% on the Bill of
!ights concerning searches and sei"ures.
Ehen the &(AB Constitution ,ants to limit action or the e8ercise of a right to the electorate, it does so
e8pressly as the case of the election of senators and congressmen. -ection * Article 6% e8pressly
provides that the senators 4shall be chosen at large by the #ualified electors of the Philippines as may
provided by la,.4 -ection B of the same Article 6% specifically provides that congressmen shall 4be
elected by the #ualified electors.4 he only provision that seems to sustain the theory of petitioners
that the term 4people4 in Article D6 should refer to the #ualified electors as defined in Article 6 of the
&(AB Constitution is the provision that the President and 6iceCPresident shall be elected 4by direct
vote of the people.4 ;-ec. * of Art. 6%% of the &(AB Constitution<. But this alone cannot be conclusive
as to such construction, because of e8plicit provisions of -ections * and B of Article 6%, ,hich
specifically prescribes that the senators and congressmen shall be elected by the #ualified electors.
As aforesaid, most of the constitutions of the various states of the =nited -tates, specifically delineate
in detail procedure of ratification of amendments to or revision of said Constitutions and e8pressly
re#uire ratification by #ualified electors, not by the generic term 4people4.
he proposal submitted to the 0"amis Committee on the Amending Process of the &(AJCAB
Constitutional Convention satis,ie! t*at t*e a(en!(ent s*all #e su#(itte! to ;uali,ie! election ,or
rati,ication. T*is proposal )as not accepte! in!icatin+ t*at t*e $%7J478 Constitutional Convention !i!
inten! to li(it t*e ter( 1people1 in 3rticle I@ o, t*e $%78 Constitution to ;uali,ie! electors onl. As
above demonstrated, the &(AJCAB Constitutional Convention limits the use of the term 4#ualified
electors4 to elections of public officials. %t did not ,ant to tie the hands of succeeding future
constitutional conventions as to ,ho should ratify the proposed amendment or revision.
;J< %t is not e8actly correct to opine that Article D6 of &(AB Constitution on constitutional amendment
contemplates the automatic applicability of election la,s to plebiscites on proposed constitutional
amendments or revision.
he very phraseology of the specific la,s enacted by the ?ational Assembly and later by Congress,
indicates that there is need of a statute e8pressly authori"ing the application of the election la,s to
plebiscites of this nature. hus, Com. Act ?o. AJ on the ,oman$s suffrage amendment enacted on
-eptember A9, &(A2, consists of &* sections and, aside from providing that 4there shall be held a
ple#iscite on Fri!a, 3pril 7F, $%77, on the #uestion of ,oman$s suffrage ... and that said amendment
s*all #e pu#lis*e! in the 0fficial 3a"ette in /nglish and -panish for three consecutive issues at least
,i,teen :$8< !as prior to sai! election, ... an! s*all #e poste! in a conspicuous place in its (unicipal
an! provincial o,,ice #uil!in+ an! in its pollin+ place not later t*an 3pril 22, $%774 ;-ec. &*, Com. Act
?o. AJ<, specifies that the provisions of the /lection +a, regarding, the holding of a special election,
insofar as said provisions are not in conflict ,ith it, should apply to the said plebiscite ;-ec. A, Com.
Act ?o. AJ<&: and, that the votes cast according to the returns of the board of inspectors s*all #e
counte! # t*e National 3sse(#l ;-ec. &9, Com. Act ?o. AJ<.
he election la,s then in force before &(A) ,ere found in -ections A(*CJ)A of the !evised
Administrative Code.
-ec. & of Com. Act ?o. AB', the previous /lection Code enacted on August **, &(A), makes it
e8pressly applicable to plebiscites. @et the subse#uent la,s, namely, Com. Act ?os. J(* and B&'
and !ep. Act ?o. 'A calling for the plebiscite on the constitutional amendments in &(A(, &(J9 and
&(J2, including the amendment creating the Commission on /lections, specifically provided that the
provisions of the e8isting election la, shall apply to such plebiscites insofar as they are not
inconsistent ,ith the aforesaid Com. Act ?os. J(* and B&', as ,ell as !ep. Act ?o. 'A. hus K
Common,ealth Act ?o. J(*, enacted on -eptember &(, &(A(, calling for a plebiscite on the proposed
amendments to the Constitution adopted by the ?ational Assembly on -eptember &B, &(A(, consists
of ) sections and provides that the proposed amendments to the Constitution adopted in !esolution
?o. A( on -eptember &B, &(A( 4shall be submitted to the 1ilipino people for approval or disapproval
at a +eneral election to be held throughout the Philippines on uesday, 0ctober *J, &(A(4: that the
amendments to said Constitution proposed in 4!es. ?o. A), adopted on the same date, shall be
submitted at follo,ing election of local officials,4 ;-ec. &, Com. Act ?o. J(*< that the said
amendments shall be published in /nglish and -panish in three consecutive issues of the 0fficial
3a"ette at least ten :$F< !as prior to t*e elections: that copies thereof shall be posted not later than
0ctober *9, &(A( ;-ec. *, Com. Act J(*<: that the election shall be conducted accor!in+ to provisions
o, t*e Election Co!e inso,ar as t*e sa(e (a #e applica#le: that ,ithin thirty ;A9< days after the
election, Spea-er o, t*e National 3sse(#l s*all re;uest t*e Presi!ent to call a special session o, t*e
3sse(#l for the purpose of canvassing the returns and certify the results thereof ;-ec. 2, Com. Act
?o. J(*<.
Common,ealth Act ?o. B&', consisting of && sections, ,as approved on April *B, &(J9 and provided,
among others7 that the plebiscite on the constitutional amendments providing bicameral Congress, reC
election of the President and 6iceCPresident, and the creation of a Commission on /lections shall be
held at a general election on .une &), &(J9 ;-ec. &<: that said amendments shall be published in
three consecutive issues of the 0fficial 3a"ette in /nglish and -panish at least *9 days prior to the
election and posted in every local government office building and polling place not later than May &),
&(J9 ;-ec. *<: that the election shall be conducted in conformity ,ith the /lection Code insofar as the
same may be applicable ;-ec. A< that copies of the returns shall be for,arded to the -ecretary of
?ational Assembly and the -ecretary of %nterior ;-ec. '<: that the ?ational Assembly shall canvass
the returns to certify the results at a special session to be called by President ;-ec. )<.
!epublic Act ?o. 'A approved on 0ctober *&, &(J2 calling for a plebiscite on the parity amendment
consists of ) sections provides that the Amendment 4shall be submitted to the people, for approval or
disapproval, at a +eneral election ,hich shall be held on 'arc* $$, $%J7, in accordance ,ith the
provisions of this Act4 ;-ec. &, !.A. ?o. 'A<: that the said amendment shall be pu#lis*e! in /nglish
and -panish in three consecutive issues of the 0fficial 3a"ette at least 2F !as prior to t*e election:
that copies of the same shall be poste! in a conspicuous place and in every polling place not later
t*an Fe#ruar $$, $%J7 ;-ection *, !.A. ?o. 'A<: t*at t*e provisions o, Co(. 3ct No. 787 :Election
Co!e< and Com. Act ?o. 2B' creating the Commission on /lections, s*all appl to t*e election
inso,ar as t*e are not inconsistent )it* t*is 3ct ;-ec. A, !.A. ?o. 'A<: and that ,ithin A9 days after
the election, the -enate and >ouse of !epresentatives shall hold a joint session to canvass the
returns and certify the results thereof ;-ection 2, !.A. ?o. 'A<.
1rom the foregoing provisions, it is patent that Article D6 of the &(AB Constitution does not
contemplate nor envision the automatic application of the election la,: and even at that, not all the
provisions of the election la, ,ere made applicable because the various la,s aforecited contain
several provisions ,hich are inconsistent ,ith the provisions of the !evised /lection Code ;Com. Act
?o. AB'<. Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments ,as about &9 days, &B days or *9 days, and for posting at least J days, )
days or A9 days.
!epublic Acts ?os. &)9 and 2A)) like,ise e8pressly provide that the /lection Code shall apply to
plebiscites ;-ee. *, !.A. ?o. &)9, as amended, and -ection *, !ep. Act ?o. 2A))<.
%f the /lection Code ipso ,acto applies to plebiscites under Article D6 of the &(AB Constitution, there
,ould be no need for Congress to e8pressly provide therefor in the election la,s enacted after the
inauguration of the Common,ealth government under the &(AB Constitution.
;B< Article D6 of the &(AB Constitution does not specify ,ho can vote and ho, they shall vote. =nlike
the various -tate Constitutions of the American =nion ;,ith fe, e8ceptions<, Article D6 does not state
that only #ualified electors can vote in the plebiscite. As aboveCintimated, most of the Constitutions of
the various states of the =nited -tates provide for very detailed amending process and specify that
only #ualified electors can vote at such plebiscite or election.
Congress itself, in enacting !epublic Act ?o. AB(9, other,ise kno,n as the Barrio Charter, ,hich ,as
approved on .une &', &(2' and superseded !epublic Act ?o. *A'9, e8panded the membership of
the barrio assembly to include citi"ens ,ho are at least &) years of age, ,hether literate or not,
provided they are also residents of the barrio for at least 2 months ;-ec. J, !.A. ?o. AB(9<.
-ec. J. he barrio assembly. K he barrio assembly shall consist of all persons ,ho are residents of the
barrio for at least si8 months, ei+*teen ears o, a+e or over, citi"ens of the !epublic of the Philippines and
,ho are !ul re+istere! in t*e list o, #arrio asse(#l (e(#ers kept by the Barrio -ecretary.
he #arrio asse(#l s*all (eet at least once a ear to *ear t*e annual report o, t*e #arrio council
concernin+ t*e activities an! ,inances o, t*e #arrio.
%t shall meet also at the case of the barrio council or upon ,ritten petition of at least 0neCenth of the
members of the barrio assembly.
?o meeting of the barrio assembly shall take place unless notice is given one ,eek prior to the meeting
e8cept in matters involving public safety or security in ,hich case notice ,ithin a reasonable time shall be
sufficient. he barrio captain, or in his absence, the councilman acting as barrio captain, or an asse(#l
(e(#er selecte! !urin+ t*e (eetin+, s*all act as presi!in+ o,,icer at all (eetin+s o, t*e #arrio asse(#l.
he barrio secretary or in his absence, an (e(#er !esi+nate! # t*e presi!in+ o,,icer to act as
secretar s*all !isc*ar+e t*e !uties o, secretar o, t*e #arrio asse(#l.
1or the purpose of conducting business and taking any official action in the barrio assembly, it is
necessary that at least one4,i,t* o, t*e (e(#ers o, t*e #arrio asse(#l #e present to constitute a ;uoru(.
3ll actions s*all re;uire a (a5orit vote o, t*ese present at t*e (eetin+ t*ere #ein+ a ;uoru(.
-ec. B. Po,ers of the barrio assembly. K he po,ers of the barrio assembly shall be as follo,s7
a. o recommend to the barrio council the adoption of measures for the ,elfare of the
barrio:
b. o decide on the holding of a plebiscite as provided for in -ection 2 of this Act:
c. o act on budgetary and supplemental appropriations and special ta8 ordinances
submitted for its approval by the barrio council: and
d. o hear the annual report council concerning the activities and finances of the
assembly.
-ec. 2. Plebiscite. K A plebiscite may be held in the barrio ,hen authori"ed by a majority vote of the
members present in the barrio assembly, there being a #uorum, or ,hen called by at least four members
of the barrio council: Provided, ho,ever, hat no plebiscite shall be held until after thirty days from its
approval by either body, and such plebiscite has been given the ,idest publicity in the barrio, stating the
date, time, and place thereof, the #uestions or issues to be decided, action to be taken by the voters, and
such other information relevant to the holding of the plebiscite.
3ll !ul re+istere! #arrio asse(#l (e(#ers ;uali,ie! to vote (a vote in t*e ple#iscite. @otin+
proce!ures (a #e (a!e eit*er in )ritin+ as in re+ular election, an!Lor !eclaration # t*e voters to the
board of election tellers. he board of election tellers shall be the same board envisioned by section ),
paragraph * of this Act, in case of vacancies in this body, the barrio council may fill the same.
3 ple#iscite (a #e calle! to !eci!e on t*e recall o, an (e(#er o, t*e #arrio council. A plebiscite shall
be called to approve an #u!+etar, supple(ental appropriations or special ta6 or!inances.
For ta-in+ action on an o, t*e a#ove enu(erate! (easures, (a5orit vote o, all t*e #arrio asse(#l
(e(#ers re+istere! in t*e list o, #arrio secretar is necessar.
888 888 888
-ec &9. Pualifications of voters and candidates. K /very citi"en of the Philippines, t,entyCone years of
age or over, able to read and ,rite, ,ho has been a resident of the barrio during the si8 months
immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, ,ho is
not other,ise dis#ualified, (a vote or #e a can!i!ate in t*e #arrio elections.
he follo,ing persons shall not be #ualified to vote7
a. Any person ,ho has been sentenced by final judgment to suffer one year or more of
imprisonment, ,ithin t,o years after service of his sentence:
b. Any person ,ho has violated his allegiance to the !epublic of the Philippines: and
c. %nsane or feebleCminded persons.
All these barrio assembly members, ,ho are at least &) years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on ,hich re#uires 4a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary4 ;par. B, -ec. 2, !.A. ?o. AB(9<.
-uch plebiscite may be authori"ed by a majority vote of the members present in the barrio assembly,
there being a #uorum ;par. &, -ec. 2<.
>o,ever, in the case of election of barrio officials, only 1ilipino citi"ens, ,ho are at least *& years of
age, able to read and ,rite, residents of the barrio during the 2 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not other,ise
dis#ualified, may vote ;-ec. &9, !.A. ?o. AB(9<.
Paragraph * of -ection 2 like,ise authori"es open voting as it provides that 4voting procedures may
be made ... either in ,riting as in regular elections, andFor !eclaration # t*e voters to the board of
election tellers.4
hat said paragraph * of -ection 2 provides that 4all duly registered barrio assembly members
#ualified to vote may vote in the plebiscite,4 cannot sustain the position of petitioners in 3.!. ?o. +C
A2&2B that only those ,ho are *& years of age and above and ,ho possess all other #ualifications of
a voter under -ection &9 of !.A. ?o. AB(9, can vote on the plebiscites referred to in -ection 2:
because paragraph A of -ection 2 does not e8pressly limit the voting to those ,ith the #ualifications
under -ection &9 as said -ection 2 does not distinguish bet,een those ,ho are *& or above on the
one hand and those &) or above but belo, *& on the other, and ,hether literate or not, to constitute a
#uorum of the barrio assembly.
Conse#uently, on #uestions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are &) years of age or above: and that only those ,ho are *&
years of age or over and can read and ,rite, can vote in the elections of barrio officials.
0ther,ise there ,as no sense in e8tending membership in the barrio assembly to those ,ho are at
least &) years of age, ,hether literate or not. !epublic Act ?o. AB(9 could simply have restated
-ection J of !epublic Act ?o. *A'9, the old Barrio Charter, ,hich provided that only those ,ho are *&
and above can be members of the barrio assembly.
Counsels -alonga and aLada as ,ell as all the petitioners in +CA2&2B and t,o of the petitioners in +C
A2&2J participated in the enactment of !epublic Act ?o. AB(9 and should have kno,n the intendment
of Congress in e8panding the membership of the barrio assembly to include all those &) years of age
and above, ,hether literate or not.
%f Congress in the e8ercise of its ordinary legislative po,er, not as a constituent assembly, can
include &)Cyear olds as #ualified electors for barrio plebiscites, this prerogative can also be e8ercised
by the Chief /8ecutive as delegate of the Constitutional Convention in regard to the plebiscite on the
&('A Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation ?o. &&9* that the
&('A Constitution ,as over,helmingly ratified by the people through the Citi"ens$ Assemblies in a
referendum conducted from .anuary &9 to &B, &('A, should be accorded the presumption of
correctness: because the same ,as based on the certification by the -ecretary of the Department of
+ocal 3overnment and Community Development ,ho tabulated the results of the referendum all over
the country. he accuracy of such tabulation and certification by the said Department -ecretary
should like,ise be presumed: because it ,as done in the regular performance of his official functions
aside from the fact that the act of the Department -ecretary, as an alter ego of the President, is
presumptively the act of the President himself unless the latter disapproves or reprobates the same
;6illena vs. -ecretary of %nterior, 2' Phil. JB& <. he truth of the certification by the Department
-ecretary and the Chief /8ecutive on the results of the referendum, is further strengthened by the
affidavits and certifications of 3overnor %sidro !odrigue" of !i"al, Mayor ?orberto -. Amoranto of
Pue"on City and Councilor /duardo . Parades of Pue"on City.
he procedure for the ratification of the &(A' amendment on ,oman suffrage, the &(A( amendment
to the ordinance appended to the &(AB Constitution, the &(J9 amendments establishing the
bicameral Congress, creating the Commission on /lections and providing for t,o consecutive terms
for the President, and the &(J' parity amendment, cannot be invoked: because those amendments
,ere proposed by the ?ational Assembly as e8pressly authori"ed by Article 6 of the &(AB
Constitution respecting ,oman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure for
the submission of the proposed amendments to the &(AB Constitution.
%n the cases at bar, the &('A Constitution ,as proposed by an independent Constitutional
Convention, ,hich as heretofore discussed, has the e#ual po,er to prescribe the modality for the
submission of the &('A Constitution to the people for ratification or delegate the same to the
President of the !epublic.
he certification of 3overnor %sidro !odrigue" of !i"al and Mayor ?orberto Amoranto could be
utili"ed as the basis for the e8trapolation of the Citi"ens$ Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citi"ens$ Assemblies resulting from such e8trapolation ,ould still constitute a majority of the total
votes cast in favor of the &('A Constitution.
As claimed by petitioners in +CA2&2B, against the certification of the Department of +ocal 3overnment
and Community Development that in !i"al there ,ere &,&*2,999 @es votes and &99,A&9 ?o votes,
the certification of 3overnor %sidro !odrigue" of !i"al, sho,s only 2&J,&B' @es votes against *(*,BA9
?o votes. %n Cavite province, there ,ere *J(,))* @es votes against &*,*2( ?o votes as disclosed in
Anne8 &CA of respondents$ Compliance ;the certification by the Department of +ocal 3overnment and
Community Development<, ,hile the alleged certification of 3overnor +ino Bocalan of Cavite sho,s
only &*2,&2A @es votes and B,B'' ?o votes. %f such a ratio is e8tended by ,ay of e8trapolation to the
other provinces, cities and to,ns of the country, the result ,ould still be an over,helming vote in
favor of the &('A Constitution.
he alleged certification by 3overnor +ino Bocalan of Cavite, is not true: because in his duly
ackno,ledged certification dated March &2, &('A, he states that since the declaration of martial la,
and up to the present time, he has been under house arrest in his residence in =rdaneta 6illage,
Makati, !i"al: that he never participated in the conduct of the Citi"ens$ Assemblies on .anuary &9 &B,
&('A in the province of Cavite: that the acting chairman and coordinator of the Citi"ens$ Assemblies at
that time ,as 6iceC3overnor Dominador Camerino: and that he ,as sho,n a letter for his signature
during the conduct of the Citi"ens$ Assemblies, ,hich he did not sign but ,hich he referred to 6iceC
3overnor Camerino ;Anne8 &C!ejoinder of the -ol. 3en. dated March *9, &('A<.
Mayor Pablo Cuneta like,ise e8ecuted an affidavit dated March &2, &('A stating that on .anuary &B,
&('A, he caused the preparation of a letter addressed to -ecretary .ose !oLo of the Department of
+ocal 3overnment and Community Development sho,ing the results of the referendum in Pasay
City: that on the same day, there ,ere still in any Citi"ens$ Assemblies holding referendum in Pasay
City, for ,hich reason he did not send the aforesaid letter pending submittal of the other results from
the said Citi"ens$ Assemblies: and that in the afternoon of .anuary &B, &('A, he indorsed the
complete certificate of results on the referendum in Pasay City to the 0ffice of the President ;Anne8
BC!ejoinder of -ol. 3en. dated March *9, &('A<.
Pablo 1. -amonte, Assistant City reasurer and 0fficer in Charge of Pasay City also issued an
affidavit dated March &B, &('A stating that a certain Atty. Delia -utton of the -alonga +a, 0ffice
asked him for the results of the referendum: that he informed her that he had in his possession
unsigned copies of such results ,hich may not be considered official as they had then no kno,ledge
,hether the original thereof had been signed by the mayor: and that in spite of his advice that said
unsigned copies ,ere not official, she re#uested him if she could give her the unofficial copies
thereof, ,hich he gave in good faith ;Anne8 CC!ejoinder to the -ol. 3en.<.
here ,ere &&),9&9 @es votes as against B,B)) ?o votes in the Citi"ens$ Assemblies of Pue"on city
;Anne8 6 to Petitioners$ ?otes in +CA2&2B<. he fact that a certain Mrs. !emedio 3utierre", ,ife of
alleged barrio treasurer 1austino 3utierre", of barrio -outh riangle, Pue"on City, states that 4as far
as ,e kno,, there has been no Citi"ens$ Assembly meeting in our Area, particularly in .anuary of this
year,4 does not necessarily mean that there ,as no such meeting in said barrio: for she may not have
been notified thereof and as a result she ,as not able to attend said meeting. Much less can it be a
basis for the claim that there ,as no meeting at all in the other barrios of Pue"on City. he barrio
captain or the secretary of the barrio assembly could have been a credible ,itness.
Councilor /duardo . Paredes, chairman of the -ecretariat of Pue"on City !atification and
Coordinating Council, certified on March &*, &('A that as such chairman he ,as in charge of the
compilation and tabulation of the results of the referendum among the Citi"ens$ Assemblies in
Pue"on City based on the results submitted to the -ecretariat by the different Citi"ens$ Assemblies:
but many results of the referendum ,ere submitted direct to the national agencies having to do ,ith
such activity and all of ,hich he has no kno,ledge, participation and control ;Anne8 J !ejoinder of
the -ol. 3en.<.
3overnor %sidro !odrigue" of !i"al issued a certification dated March &2, &('A that he prepared a
letter to the President dated .anuary &B, &('A informing him of the results of the referendum in !i"al,
in compliance ,ith the instruction of the ?ational -ecretariat to submit such letter * or A days from
.anuary &9 to sho, the trend of voting in the Citi"ens$ Assemblies: that the figures 2&J,&B' and
*(*,BA9 mentioned in said letter ,ere based on the certificates of results in his possession as of
.anuary &J, &('A, ,hich results ,ere made the basis of the computation of the percenta+e o, votin+
tren! in t*e province9 t*at *is letter )as never inten!e! to s*o) t*e ,inal or co(plete result in t*e
re,eren!u( in t*e province as sai! re,eren!u( )as t*en still +oin+ on ,ro( Januar $J4$7, $%77, ,or
)*ic* reason t*e sai! letter (erel state! t*at it )as onl a 1su((ar result19 and that after .anuary
&B, &('A, he sent to the ?ational -ecretariat all the certificates of results in *2 municipalities of !i"al
for final tabulation ;Anne8 AC!ejoinder of the -ol. 3en.: emphasis supplied<.
+ydia M. /ncarnacion, acting chief of the !ecords -ection, Department of +ocal 3overnment and
Community Development, issued a certificate dated March &2, &('A that she ,as sho,n 8ero8
copies of unsigned letters allegedly coming from 3overnor +ino Bocalan dated .anuary &B, &('A and
marked 4!ejoinder Anne8 Cavite4 addressed to the President of the Philippines through the -ecretary
of the Department of +ocal 3overnment and Community Development and another unsigned letter
reportedly from Mayor Pablo Cuneta dated .anuary &B, &('A and marked 4!ejoinder Anne8 Pasay
City4 addressed to the -ecretary of the Department of +ocal 3overnment and Community
Development: that both 8ero8 copies of the unsigned letters contain figures sho,ing the results of the
referendum of the Citi"ens$ Assemblies in those areas: and that the said letters ,ere not received by
her office and that her records do not sho, any such documents received by her office ;Anne8 *C
!ejoinder of the -ol. 3en.<.
hus it ,ould seem that petitioners in +CA2&2B have attempted to deceive this Court by representing
said unsigned letters andFor certificates as duly signed andFor containing the complete returns of the
voting in the Citi"ens$ Assemblies.
he observation Ee made ,ith respect to the discrepancy bet,een the number of @es votes and ?o
votes contained in the summary report of 3overnor !odrigue" of !i"al as ,ell as those contained in
the alleged report of 3overnor +ino Bocalan of Cavite ,ho repudiated the same as not having been
signed by him for he ,as then under house arrest, on the one hand, and the number of votes certified
by the Department of +ocal 3overnment and Community Development, on the other, to the effect that
even assuming the correctness of the figures insisted on by counsel for petitioners in +CA2&2B, if they
,ere e8trapolated and applied to the other provinces and cities of the country, the @es votes ,ould
still be over,helmingly greater than the ?o votes, applies e#ually to the alleged discrepancy bet,een
the figures contained in the certification of the -ecretary of the Department of +ocal 3overnment and
Community Development and the figures furnished to counsel for petitioners in +CA2&2B concerning
the referendum in Camarines -ur, Bataan and ?egros 0ccidental.
he fact that the referendum in the municipality of Pasacao, Camarines -ur, sho,s that there ,ere
more votes in ,avor o, t*e ple#iscite to #e *el! later than those against, only serve to emphasi"e that
there ,as freedom of voting among the members of the Citi"ens$ Assemblies all over the country
during the referendum from .anuary &9 to &B, &('A ;Anne8C2 Camarines -ur to !ejoinder of
Petitioners in +CA2&2B<. %f there ,as no such freedom of choice, those ,ho ,anted a plebiscite ,ould
not outnumber those against holding such plebiscite.
he letter of 3overnor 1eli8 0. Alfelor, -r. dated .anuary &('A confirms the 4strong manifestation of
approval of the ne, Constitution by almost ('S by the members of the Citi"ens$ Assemblies in
Camarines -ur4 ;Anne8CCamarines -ur to !ejoinder of Petitioners in +CA2&2B<.
he report of 3overnor /fren B. Pascual of Bataan sho,s that the members of the Citi"ens$
Assemblies voted over,helmingly in favor of the ne, Constitution despite the fact that the second set
of #uestions including the #uestion 4Do you approve of the ne, ConstitutionI4 ,as received only on
.anuary &9. Provincial 3overnor Pascual stated that 4orderly conduct and favorable results of the
referendum4 ,ere due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, sho,ing
4their preference and readiness to accept this ne, method of government to people consultation in
shaping up government policies.4 ;Anne8CBataan to !ejoinder of Petitioners in +CA2&2B<.
As heretofore stated, it is not necessary that voters ratifying the ne, Constitution are registered in the
book of voters: it is enough that they are electors voting on the ne, Constitution ;Bott vs. Eurts, J9 A
'J9 G&)()H: JA A 'JJ, ))& G&)((H: JB +!A *B&<. he fact that the number of actual voters in the
referendum in certain localities may e8ceed the number of voters actually registered for the &('&
elections, can only mean that the e8cess represents the #ualified voters ,ho are not yet registered
including those ,ho are at least &B years of age and the illiterates. Although e8Cconvicts may have
voted also in the referendum, some of them might have been granted absolute pardon or ,ere
sentenced to less than one year imprisonment to #ualify them to vote ;-ec. *9&, &('& !ev. /lection
Code<. At any rate, the e8Cconvicts constitute a negligible number, discounting ,hich ,ould not tilt the
scale in favor of the negative votes.
-imilarly, the fact that Mayor Marcial 1. -amson of Caloocan City, ,ho belongs to the +iberal Party,
stated in his letter dated March &A, &('A that he does not 4feel authori"ed by the proper authorities to
confirm or deny the data4 concerning the number of participants, the @es votes and ?o votes in the
referendum on the ne, Constitution among the members of the Citi"ens$ Assemblies in Caloocan
City, does not necessarily give rise to the inference that Mayor -amson of Caloocan City is being
intimidated, having been recently released from detention: because in the same letter of Mayor
-amson, he suggested to counsel for petitioners in +CA2&2B that he can secure 4the true and
legitimate results of the referendum4 from the 0ffice of the President ;Anne8 CaloocanCB to !ejoinder
of Petitioners in +CA2&2B<. Ehy did not learned and eminent counsel heed such suggestionI
Counsel for petitioners in +CA2&2B, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citi"ens$ Assemblies referendum on .anuary &9 to &B, &('A by a certain
Professor Benjamin !. -alonga, of the Mapua %nstitute of echnology, ostensibly a close relative of
former -enator .ovito !. -alonga, eminent counsel for petitioners in +CA2&2B ;Anne8 MCas amended,
to Consolidated !ejoinder of petitioners in +CA2&2B to the ?otes of Arguments and Memorandum of
respondents<. Professor -alonga is not a #ualified statistician, ,hich all the more impairs his
credibility. Director ito A. Mijares of the Bureau of Census and -tatistics, in his letter dated March
&2, &('A address to the -ecretary of the Department of +ocal 3overnment and Community
Development, refutes the said computation of Professor Benjamin !. -alonga, thus7
&< % do not #uite understand ,hy ;Problem &< all #ualified registered voters and the &BC*9CyearCold youths
;&('*< ,ill have to be estimated in order to give a &9&.(S estimate of the percentage participation of the
4&BC*9 year old plus total number of #ualified voters4 ,hich does not deem to ans,er the problem. his
computation apparently fails to account for some B.2 million persons 4*& years old and over4 ,ho ,ere
not registered voters ;C0M/+/C<, but ,ho might be #ualified to participate at the Citi"en$s Assembly.
*< he official population projection of this office ;medium assumption< for 4&B year olds and over4 as of
.anuary &, &('A is **.B92 million. %f total number of participants at the Citi"ens$ Assembly !eferendum
held on .anuary &9C&B, &('A ,as &2.'9* million, participation rate ,ill therefore be the ratio of the latter
figure to the former ,hich gives 'J.*S.
A< & cannot also understand cC* 4-olution to Problem &&.4 he 4difference or implied number of &BC*9
year olds4 of B,9A(,(92 ,ould represent really not only all &BCyear olds and over ,ho participated at the
Citi"ens$ Assembly but might not have been registered voters at the time, assuming that all the
&&,22&,(9( registered voted at Citi"ens$ Assembly. >ence, the 4estimate percentage participation of &BC
*9 years olds4 of &9B.2S does not seem to provide any meaningful information.
o obtain the participation rate of 4&BC*9 years old4 one must divide the number in this age group, ,hich
,as estimated to be J.'*& million as of .anuary &, &('A by the population of 4&B years old and over4 for
the same period ,hich ,as estimated to be **.B92 million, giving *&.9S.
%n Problem %%%, it should be observed that registered voters also include names of voters ,ho are already
dead. %t cannot therefore be assumed that all of them participated at the Citi"ens$ Assembly. %t can
therefore be inferred that 4a total number of persons &B and over un#ualifiedFdis#ualified to vote4 ,ill be
more than &9,BJ),&(' and hence the 4difference or implied number of registered voters that participated4
,ill be less than 2,&BA,2&).
% have reservations on ,hether an 4appropriate number of #ualified voters that supposedly voted4 could
be meaningfully estimated.
B< he last remark ,ill therefore make the ratio ;a< G-olution to ProblemH more than &.'& and that for ;b<,
accordingly, ,ill also be less than A2.)S.4 ;Anne8 1 !ejoinder<.
1rom the foregoing analysis of the Director of Census and -tatistics as of .anuary *&, &('A, the
official population projection for &BCyear olds and over is **,B92,999. %f &2,'9*,999 voted in the
referendum, the participation ratio ,ould be 'J.*S of **,B92,999.
%f the registered electors as of the election of ?ovember ), &('& numbered &&,22&,(9(, the difference
bet,een &2,'9*,999 ,ho participated in the referendum and the registered electors of &&,22&,(9( for
the ?ovember ), &('& elections, is B,9J9,9(&, ,hich may include not only the &BCyear olds and
above but belo, *& but also the #ualified electors ,ho ,ere not registered before the ?ovember ),
&('& elections as ,ell as illiterates ,ho are &B years old and above but belo, *&.
Moreover, in the last Presidential election in ?ovember, &(2(, Ee found that the incumbent President
obtained over B,999,999 votes as against about A,999,999 votes for his rival +P -enator -ergio
0smeLa, .r., garnering a majority of from about )(2,J() to &,JA2,&&) ;0smeLa, .r. vs. Marcos,
Presidential /lection Contest ?o. A, .an. ), &('A<.
he petitioners in all the cases at bar cannot state ,ith justification that those ,ho voted for the
incumbent President in &(2( did not vote in favor of the &('A Constitution during the referendum from
.anuary &9 to &B, &('A. %t should also be stressed that many of the partisans of the President in the
&(2( Presidential elections, have several members in their families and relatives ,ho are #ualified to
participate in the referendum because they are &B years or above including illiterates, ,hich fact
should necessarily augment the number of votes ,ho voted for the &('A Constitution.
;2< %t is also urged that martial la, being the rule of force, is necessarily inconsistent ,ith freedom of
choice, because the people fear to disagree ,ith the President and CommanderCinCChief of the
Armed 1orces of the Philippines and therefore cannot voice vie,s opposite to or critical of the
position of the President on the &('A Constitution and on the mode of its ratification.
%t is also claimed or urged that there can be no free choice during martial la, ,hich inevitably
generates fear in the individual. /ven ,ithout martial la,, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual ,hich persuades the individual
to comply ,ith or obey the la,. But before martial la, ,as proclaimed, many individuals fear such
sanctions of the la, because of lack of effective e#ual enforcement or implementation thereof K in
brief, compartmentali"ed justice and e8traneous pressures and influences frustrated the firm and just
enforcement of the la,s. he fear that is generated by martial la, is merely the fear of immediate
e8ecution and s,ift enforcement of the la, and therefore immediate infliction of the punishment or
sanction prescribed by the la, ,henever it is transgressed during the period of martial la,. his is not
the fear that affects the voters$ freedom of choice or freedom to vote for or against the &('A
Constitution. hose ,ho cringe in fear are the criminals or the la, violators. -urely, petitioners do not
come under such category.
;'< Petitioners like,ise claim that open voting by viva voce or raising of hands violates the secrecy of
the ballot as by the election la,s. But the &(AB Constitution does not re#uire secret voting. Ee search
in vain for such guarantee or prescription in said organic la,. he Commission on /lections under the
&(J9 Amendment, embodied as Article D is merely mandated to insure 4free, orderly and honest
election.4 Congress, under its plenary la,Cmaking authority, could have validly prescribed in the
election la, open voting in the election of public officers, ,ithout trenching upon the Constitution. Any
objection to such a statute concerns its ,isdom or propriety, not its legality or constitutionality. -ecret
balloting ,as demanded by partisan strife in elections for elective officials. Partisanship based on
party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional
amendments or on a ne, Constitution. Ee have seen even before and during martial la, that voting
in meetings of government agencies or private organi"ations is usually done openly. his is specially
true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils
,hen voting on national or local issues, not on personalities.
hen again, open voting ,as not a universal phenomenon in the Citi"ens$ Assemblies. %t might have
been true in certain areas, but that does not necessarily mean that it ,as done throughout the
country.
he recent e8ample of an open voting is the last election on March A, &('A of the ?ational Press Club
officers ,ho ,ere elected by acclamation presided over by its former president, petitioner /duardo
Monteclaro in +CA2*A2 ;see Bulletin oday, p. ), March A, &('A issue<. here can be no more
hardboiled group of persons than ne,spapermen, ,ho cannot say that voting among them by
acclamation ,as characteri"ed by fear among the members of the ?ational Press Club.
Moreover, petitioners ,ould not be ,illing to affirm that all the members of the citi"enry of this country
are against the ne, Constitution. hey ,ill not deny that there are those ,ho favor the same, even
among the J99,999 teachers among ,hom officers of the Department of /ducation campaigned for
the ratification of the ne, Constitution.
?ot one of the petitioners can say that the common man K farmer, laborer, fisherman, lo,ly
employee, jeepney driver, ta8i driver, bus driver, pedestrian, salesman, or salesgirl K does not ,ant
the ne, Constitution, or the reforms provided for therein.
;)< Petitioners like,ise claim that there ,as no sufficient publicity given to the ne, Constitution. his
is #uite inaccurate: because even before the election in ?ovember, &('9 of delegates to the
Constitutional Convention, the proposed reforms ,ere already discussed in various forums and
through the press as ,ell as other media of information. hen after the Constitutional Convention
convened in .une, &('&, specific reforms advanced by the delegates ,ere discussed both in
committee hearings as ,ell as in the triCmedia K the press, radio and television. Printed materials on
the proposed reforms ,ere circulated by their proponents. 1rom .une, &('& to ?ovember *(, &('*,
reforms ,ere openly discussed and debated e8cept for a fe, days after the proclamation of martial
la, on -eptember *&, &('*. 1rom the time the Constitutional Convention reconvened in 0ctober,
&('* until .anuary ', &('A, the provisions of the ne, Constitution ,ere debated and discussed in
forums sponsored by private organi"ations universities and debated over the radio and on television.
he Philippines is a literate country, second only to .apan in the 1ar /ast, and more literate perhaps
than many of midC,estern and southern states of the American =nion and -pain. Many residents in
about &,B99 to,ns and AA,999 barrios of the country have radios. /ven the illiterates listened to radio
broadcasts on and discussed the provisions of the &('A Constitution.
As reported by the eminent and ,idely read columnist, eodoro 6alencia in his column in Bulletin
oday, March J, &('A issue, 40tto +ang, >olly,ood producer director ;ora, ora, ora< ,ent around
the country doing a A9Cminute documentary on the Philippines for American television stated that
,hat impressed him most in his travel throughout the country ,as the general acceptance of the ?e,
-ociety by the people ,hich he sa, in his 2C,eek travel from Aparri to .olo.4
he report of 1rank 6aleo ;Bulletin oday, March A and J, &('A and Daily /8press, March A, and
-unday /8press, March J<, -ecretary of the =nited -tates -enate, ,ho conducted a personal survey
of the country as delegate of -enator Mike Mansfield, Chairman, Committee on =-CPhilippine
relations, states7
'artial la) *as pave! t*e )a ,or a re4or!erin+ o, t*e #asic social structure o, t*e P*ilippines. President
Marcos has been prompt and sureCfooted in using the po,er of presidential decree under martial la, for
this purpose. Ce *as zeroe! in on areas )*ic* *ave #een )i!el reco+nize! as pri(e sources o, t*e
nationDs !i,,iculties K lan! tenanc, o,,icial corruption, ta6 evasion an! a#use o, oli+arc*ic econo(ic
po)er. Clearly, he kno,s the targets. Ehat is not yet certain is ho, accurate have been his shots.
Nevert*eless, t*ere is (ar-e! pu#lic support ,or *is lea!ers*ip an! tan+i#le alternatives *ave not #een
,ort*co(in+. T*at )oul! su++est t*at *e (a not #e stri-in+ too ,ar ,ro( t*e (ar-.
he =nited -tates business community in Manila seems to have been reCassured by recent
developments ... . ;/mphasis supplied.<
Petitioners cannot safely assume that all the peaceful citi"ens of the country, ,ho constitute the
majority of the population, do not like the reforms stipulated in the ne, Constitution, as ,ell as the
decrees, orders and circulars issued to implement the same. %t should be recalled, as hereinbefore
stated, that all these reforms ,ere the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as ,ell as in public forums sponsored by concerned
citi"ens or civic organi"ations at ,hich ConCCon delegates as ,ell as other kno,ledgeable
personages e8pounded their vie,s thereon and in all the media of information before the
proclamation of martial la, on -eptember *&, &('*. his is the reason ,hy the Constitutional
Convention, after spending close to PA9 million during the period from .une &, &('& to ?ovember *(,
&('*, found it e8pedient to accelerate their proceedings in ?ovember, &('* because all vie,s that
could possibly be said on the proposed provisions of the &('A Constitution ,ere already e8pressed
and circulated. he &('A Constitution may contain some un,ise provisions. But this objection to such
un,ise or vague provisions, as heretofore stated, refers to the ,isdom of the aforesaid provisions,
,hich issue is not for this Court to decide: other,ise Ee ,ill be substituting 0ur judgment for the
judgment of the Constitutional Convention and in effect acting as a constituent assembly.
6%
P!/-%D/? A- C0MMA?D/! %? C>%/1 /D/!C%-/-
+/3%-+A%6/ P0E/!- D=!%?3 MA!%A+ +AE.
he position of the respondent public officers that undermartial la,, the President as CommanderCinC
Chief is vested ,ith legislative po,ers, is sustained by the ruling in the &(J( case of Guro!a vs.
Jalan!oni, et al. ;)A Phil. &'&, &''C&')< ,hich reiterates the &(JB case of Ya(as*ita vs. Ster ;'B
Phil. B2A, B'&C'*<. he trial of 3eneral Nuroda ,as after the surrender of .apan on 0ctober *, &(JB
;*A /ncyc. Brit. &(2( ed., p. '((< and hence no more martial la, in the Philippines.
... Conse#uently, in the promulgation and enforcement of /8ecutive 0rder ?o. 2), the President of the
Philippines has acted in conformity ,ith the generally accepted principles and policies of international la,
,hich are part of our Constitution.
T*e pro(ul+ation o, sai! e6ecutive or!er is an e6ercise # t*e Presi!ent o, *is po)ers as Co((an!er in
C*ie, o, all our ar(e! ,orces, as upheld by this Court in the case of Ya(as*ita vs. Stver ;+C&*(, J* 0ff.
3a"., 22J< ,hen ,e said K
4Ear is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incidents of ,ar may remain pending ,hich should be disposed of as in time of
,ar. 43n i(portant inci!ent to a con!uct o, )ar is t*e a!option (easures # t*e (ilitar
co((an! not onl to repel an! !e,eat t*e ene(ies #ut to seize an! su#5ect to
!isciplinar (easures t*ose ene(ies )*o in t*eir atte(pt to t*)art or i(pe!e our (ilitar
e,,ort *ave violate! t*e la) o, )ar.4 ;/8 parte Puirin, A&' =.-., &: 2A -up. Ct., *.< %ndeed,
the po,er to create a military commission for the trial and punishment of ,ar criminals is
an aspect of ,aging ,ar. And, in the language of a ,riter, a military commission 4has
jurisdiction so long as the technical state of ,ar continues. his includes the period of an
armistice, or military occupation, up to the effective date of treaty of peace, and may
e8tend beyond, by treaty agreement.4 ;Co,les, rial of Ear Criminals by Military
ribunals, American Bar Association .ournal, .une, &(JJ<.
Conse;uentl, t*e Presi!ent as Co((an!er4in4C*ie, is ,ull e(po)ere! to consu((ate t*is un,inis*e!
aspect o, )ar, namely the trial and punishment of ,ar criminals, through the issuance and enforcement of
/8ecutive 0rder ?o. 2). ;)A Phil. &''C&'): emphasis supplied<.
Chief .ustice -tone of the =nited -tates -upreme Court like,ise appears to subscribe to this vie,,
,hen, in his concurring opinion in Duncan vs. Nahanamoku ;A*' =.-. A9J G&(J2H<, he defined martial
la, as 4t*e e6ercise o, t*e po)er )*ic* resi!es in t*e e6ecutive #ranc* o, t*e +overn(ent to
preserve or!er an! insure t*e pu#lic sa,et in ti(es o, e(er+enc, )*en ot*er #ranc*es o, t*e
+overn(ent are una#le to ,unction, or t*eir ,unctionin+ )oul! itsel, t*reaten t*e pu#lic sa,et.4
;/mphasis supplied<. here is an implied recognition in the aforesaid definition of martial la, that
even in places ,here the courts can function, such operation of the courts may be affected by martial
la, s*oul! t*eir 1,unctionin+ ... t*reaten t*e pu#lic sa,et.1 %t is possible that the courts, in asserting
their authority to pass upon #uestions ,hich may adversely affect the conduct of the punitive
campaign against rebels, secessionists, dissidents as ,ell as subversives, martial la, may restrict
such judicial function until the danger to the security of the state and of the people shall have been
decimated.
he foregoing vie, appears to be shared by !ossiter ,hen he stated7
1inally, t*is stron+ +overn(ent, )*ic* in so(e instances (i+*t #eco(e an outri+*t !ictators*ip, can *ave
no ot*er purposes t*an t*e preservation o, t*e in!epen!ence o, t*e state, t*e (aintenance o, t*e e6istin+
constitutional or!er, an! t*e !e,ense o, t*e political an! social li#erties o, t*e people. %t is important to
recogni"e the true and limited ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this ,ay7 the government of a free state is
proceeding on its ,ay and meeting the usual problems of peace and normal times ,ithin the limiting
frame,ork of its established constitutional order. he functions of government are parceled out among a
number of mutually independent offices and institutions: the po,er to e8ercise those functions is
circumscribed by ,ellCestablished la,s, customs, and constitutional prescriptions: and the people for
,hom this government ,as instituted are in possession of a lengthy catalogue of economic, political, and
social rights ,hich their leaders recogni"e as inherent and inalienable. 3 severe crisis arises K t*e
countr is inva!e! # a *ostile po)er, or a !issi!ent se+(ent o, t*e citizenr revolts, or t*e i(pact o, a
)orl!4)i!e !epression t*reatens to #rin+ t*e nationDs econo( in ruins. T*e +overn(ent (eets t*e crisis
# assu(in+ (ore po)ers an! respectin+ ,e)er ri+*ts. T*e result is a re+i(e )*ic* can act ar#itraril
an! even !ictatoriall in t*e s)i,t a!aption o, (easures !esi+ne! to save t*e state an! its people ,ro( t*e
!estructive e,,ects o, t*e particular crisis. And the narro, duty to be pursued by this strong government,
this constitutional dictatorshipI -imply this and nothing more7 to en! t*e crisis an! restore nor(al ti(es.
T*e +overn(ent assu(es no po)er an! a#ri!+es no ri+*t unless plainl in!ispensa#le to t*at en!: it
e8tends no further in time than the attainment of that end: and it makes no alteration in the political, social
and economic structure of the nation ,hich cannot be eradicated ,ith the restoration of normal times. %n
short, the aim of constitutional dictatorship is the complete restoration of the status ;uo ante #ellu(. his
historical fact does not comport ,ith philosophical theory, t*at t*ere never *as #een a per,ect
constitutional !ictators*ip, is an assertion t*at can #e (a!e )it*out ,ear o, contra!iction. "ut t*is is true
o, all institutions o, +overn(ent, an! t*e principle o, constitutional !ictators*ip re(ains eternall vali! no
(atter *o) o,ten an! seriousl it (a *ave #een violate! in practice. ;Constitutional Dictatorship, &(J)
ed., by Clinton +. !ossiter, p. ': emphasis supplied.<
1inally, !ossiter e8pressly recogni"es that during martial la,, the Chief /8ecutive e8ercises
legislative po,er, ,hether of temporary or permanent character, thus7
T*e (easures a!opte! in t*e prosecution o, a constitutional !ictators*ip s*oul! never #e per(anent in
c*aracter or e,,ect. /mergency po,ers are strictly conditioned by their purpose and this purpose is the
restoration of normal conditions. he actions !irecte! to t*is en! s*oul! t*ere,ore #e provisional. 1or
e8ample, (easures o, a le+islative nature )*ic* )or- a lastin+ c*an+e in t*e structure of the state or
constitute permanent derogations from e8isting la, s*oul! not #e a!opte! under an emergency enabling
act, at least not )it*out t*e positivel re+istere! approval o, t*e le+islature. Permanent la,s, ,hether
adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and
sentences of e8traordinary courts should be revie,ed by the regular courts after the termination of the
crisis.
"ut )*at i, a ra!ical act o, per(anent c*aracter, one )or-in+ lastin+ c*an+es in t*e political an! social
,a#ric, is in!ispensa#le to the successful prosecution of the particular constitutional dictatorshipI T*e onl
ans)er can #e= it (ust #e resolutel ta-en an! openl ac-no)le!+e!. Presi!ent 0incoln ,oun! it
necessar to procee! to t*e revolutionar step o, e(ancipation in ai! o, *is conservative purpose o,
preservin+ t*e Enion: as a constitutional dictator he had a moral right to take this radical action.
Nevert*eless, it is i(perative t*at an action )it* suc* lastin+ e,,ects s*oul! eventuall receive t*e
positive approval o, t*e people or o, t*eir representatives in t*e le+islature. ;P. A9A, emphasis supplied<.
1rom the foregoing citations, under martial la, occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government e8ercises more po,ers and
respects fe,er rights in order 4to end the crisis and restore normal times.4 he government can
assume additional po,ers indispensable to the attainment of that end K the complete restoration of
peace. %n our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the sine ;ua non to the complete restoration of normalcy. /8ercise of legislative po,er
by the President as Commander in Chief, upon his proclamation of martial la,, is justified because,
as he professes, it is directed to,ards the institution of radical reforms essential to the elimination of
the causes of rebellious, insurgent or subversive conspiracies and the conse#uent dismantling of the
rebellious, insurgent or subversive apparatus.
>ence, the issuance of Presidential Decree ?os. )2 and )2CA as ,ell as Proclamation ?o. &&9* is
indispensable to the effectuation of the reforms ,ithin the shortest possible time to hasten the
restoration of normalcy.
4Must the government be too strong for the liberties of the people: or must it be too ,eak to maintain
its e8istenceI4 hat ,as the dilemma that ve8ed President +incoln during the American Civil Ear,
,hen ,ithout e8press authority in the Constitution and the la,s of the =nited -tates, he suspended
one basic human freedom K the privilege of the ,rit of *a#eas corpus K in order to preserve ,ith
permanence the American =nion, the 1ederal Constitution of the =nited -tates and all the civil
liberties of the American people. his is the same dilemma that presently confronts the Chief
/8ecutive of the !epublic of the Philippines, ,ho, more than the Courts and Congress, must, by
e8press constitutional mandate, secure the safety of our !epublic and the rights as ,ell as lives of
the people against open rebellion, insidious subversion secession. he Chief /8ecutive announced
repeatedly that in choosing to proclaim martial la,, the po,er e8pressly vested in him by the &(AB
Constitution ;-ec. &9G*H, Art. 6%%, &(AB Constitution< to insure our national and individual survival in
peace and freedom, he is in effect ,aging a peaceful, democratic revolution from the center against
the violent revolution and subversion being mounted by the economic oligarchs of the e8treme right,
,ho resist reforms to maintain their economic hegemony, and the communist rebels a Maoist
oriented secessionists of the e8treme left ,ho demand s,ift institution of reforms. %n the e8ercise of
his constitutional and statutory po,ers, to save the state and to protect the citi"enry against actual
and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter ho, revered they may be by jurisprudence and time, should not be regarded as
peremptory commands: other,ise the dead hand of the past ,ill regulate and control the security and
happiness of the living present. A contrary vie, ,ould be to deny the selfCevident proposition that
constitutions and la,s are mere instruments for the ,ellCbeing, peace, security and prosperity of the
country and its citi"enry. he la, as a means of social control is not static but dynamic. Paraphrasing
Mr. .ustice 1rankfurter, the Constitution is neither a printed finality nor the imprisonment of the past,
but the enfolding of the future. %n the vein of Mr. .ustice >olmes, the meaning of the ,ords of the
Constitution is not to be determined by merely opening a dictionary. %ts terms must be construed in
the conte8t of the realities in the life of a nation it is intended to serve. Because e8perience may teach
one generation to doubt the validity and efficacy of the concepts embodied in the e8isting Constitution
and persuade another generation to abandon them entirely, heed should be paid to the ,ise counsel
of some learned jurists that in the resolution of constitutional #uestions K like those posed before =s
K the blending of idealism and practical ,isdom or progressive legal realism should be applied ;see
Ale8ander M. Bickel, the -upreme Court and the %dea of Progress, &('9 ed., pp. &(C*&<. o .ustice
1rankfurter, la) is 1a vital a+enc ,or *u(an #etter(ent1 an! constitutional la) 1is applie! politics
usin+ t*e )or! in its no#le sense.4 ;1rankfurter, +a, and Politics, &(A( ed., pp. A M 2: emphasis
supplied<. .ustice Brandeis gave utterance to the truth that 4Our Constitution is not a strai+*t 5ac-et. It
is a livin+ or+anis(. As such, it is capa#le o, +ro)t* K or e8pansion an! a!aptation to ne)
con!itions. 3ro,th implies changes, political, economic and social.4 ;Brandeis Papers, >arvard +a,
-chool: emphasis supplied<. >arvard Professor homas !eed Po,ell emphasi"es 4practical ,isdom,4
for 4t*e lo+ic o, constitutional la) is t*e co((on sense o, t*e Supre(e Court.4 ;Po,ell, the 6alidity of
-tate +egislation, under the EebbCNenyon +a,, * -outhern +a, Puarterly, pp. &&*, &A)C&A(, cited in
Bickel$s 0pus, supra: emphasis supplied<.
he eternal parado8 in this finite ,orld of mortal and fallible men is that nothing is permanent e8cept
change. +iving organisms as ,ell as manCmade institutions are not immutable. Civili"ed men organi"e
themselves into a -tate only for the purpose of serving their supreme interest K their ,elfare. o
achieve such end, they created an agency kno,n as the government. 1rom the savage era thru
ancient times, the Middle Ages, the Dark Ages and the !enaissance to this era of sophisticated
electronics and nuclear ,eaponry, states and governments have mutated in their search for the
magic instrument for their ,ellCbeing. %t ,as trial and error then as it is still no,. Political philosophies
and constitutional concepts, forms and kinds of government, had been adopted, overturned,
discarded, reCadopted or modified to suit the needs of a given society at a particular given epoch.
his is true of constitutions and la,s because they are not 4the infallible instruments of a manifest
destiny.4 ?o matter ho, ,e ,ant the la, to be stable, it cannot stand still. As Mr. .ustice >olmes
aptly observed, every 4constitution is an e8periment as all life is an e8periment,4 ;Abrahms vs. =.-.,
*B9 =- 2&2, 2A&< for 4the life of the la, is not logic, but e8perience.4 %n the pontifical tones of Mr.
.ustice Benjamin ?athan Cardo"o, 4so long as society is inconstant, there can be no constancy in
la,,4 and 4there ,ill be change ,hether ,e ,ill it or not.4 As .ustice .ose P. +aurel ,as ,ont to say,
4Ee cannot, CanuteClike, command the ,aves of progress to halt.4
hus, political scientists and jurists no longer e8alt ,ith vehemence a 4government that governs
least.4 Adherents there are to the poetic dictum of Ale8ander Pope7 41or forms of government let fools
contest: ,hatever is best administered is best.4 ;Poems of Pope, &(A& Cambridge ed., p. 'B9<. %n
bet,een, the shades vary from direct democracy, representative democracy, ,elfare states, socialist
democracy, mitigated socialism, to outright communism ,hich degenerated in some countries into
totalitarianism or authoritarianism.
>ence, even the scholar, ,ho advances academic opinions unrelated to factual situations in the
seclusion of his ivory to,er, must perforce submit to the ine8orable la, of change in his vie,s,
concepts, methods and techni#ues ,hen brought into the actual arena of conflict as a public
functionary K face to face ,ith the practical problems of state, government and public administration.
And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect
the lives, liberties and fortunes of the citi"ens and the nation, recommend the blending of idealism
,ith practical ,isdom ,hich legal thinkers prefer to identify as progressive legal realism. he national
leader, ,ho ,ields the po,ers of government, must and has to innovate if he must govern effectively
to serve the supreme interests of the people. his is especially true in times of great crises ,here the
need for a leader ,ith vision, imagination, capacity for decision and courageous action is greater, to
preserve the unity of people, to promote their ,ellCbeing, and to insure the safety and stability of the
!epublic. Ehen the methods of rebellion and subversion have become covert, subtle and insidious,
there should be a recognition of the corresponding authority on the part of the CommanderCinCChief of
the Armed 1orces to utili"e all the available techni#ues to suppress the peril to the security of the
government and the -tate.
0ver a century and a half ago, homas .efferson, one of the founding fathers of the American
Constitution and former President of the =nited -tates, ,ho personifies the progressive liberal, spoke
the truth ,hen he said that some men 4ascribe men of the preceding age a ,isdom more than
human, and suppose ,hat they did to be beyond amendment. ... But % kno, also, that la,s and
institutions must go hand in hand ,ith the progress of the human mind. As that becomes more
developed, more enlightened, as ne, discoveries are made, ne, truths disclosed and manners and
opinions change, ,ith the change of circumstances, institutions must also advance, and keep pace
,ith the times.4 ;6ol. &*, /ncyclopedia Britanica, &(2( ed., p. ()(<.
he ,isdom of the decision of the Chief /8ecutive can only be judged in the perspective of history. %t
cannot be ade#uately and fairly appraised ,ithin the present ambience, charged as it is ,ith so much
tension and emotion, if not partisan passion. he analytical, objective historians ,ill ,rite the final
verdict in the same ,ay that they pronounced judgment on President Abraham +incoln ,ho
suspended the privilege of the ,rit of *a#eas corpus ,ithout any constitutional or statutory authority
therefor and of President 1ranklin Delano !oosevelt ,ho approved the proclamation of martial la, in
&(J& by the governor of >a,aii throughout the >a,aiian territory. President +incoln not only
emancipated the ?egro slaves in America, but also saved the 1ederal !epublic of the =nited -tates
from disintegration by his suspension of the privilege of the ,rit of *a#eas corpus, ,hich po,er the
American Constitution and Congress did not then e8pressly vest in him. ?o one can deny that the
successful defense and preservation of the territorial integrity of the =nited -tates ,as due in part, if
not to a great e8tent, to the proclamation of martial la, over the territory of >a,aii K main bastion of
the outer periphery or the outpost of the American defense perimeter in the Pacific K ,hich protected
the =nited -tates mainland not only from actual invasion but also from aerial or naval bombardment
by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American
-upreme Court acted ,ith courage in its decision in the cases of E6 parte 'illi+an an! .uncan vs.
Ga*ana(o-u ;filed on May &9, &)2B argued on March B to &A, &)22, decided on April A, &)22, and
opinion delivered on December &', &)22< after the lifting of the proclamation suspending the privilege
of the ,rit of *a#eas corpus, long after the Civil Ear and the -econd Eorld ended respectively on
April ( or *2, &)C2B ;6ol. &, /ncyclopedia Britannica, &(2( ed., pp. 'A9, 'J*< and on -eptember *,
&(JB ;6ol. *A, /ncyclopedia Britannica, &(2( ed., p. '((<. Eas the delay on the part of the American
-upreme Court in deciding these cases against the position of the =nited -tates President K in
suspending the privilege of the ,rit of *a#eas corpus in one case and approving the proclamation of
martial la, in the other K deliberate as an act of judicial statesmanship and recognition on their part
that an adverse court ruling during the period of such a grave crisis might jeopardi"e the survival of
the 1ederal !epublic of the =nited -tates in its lifeCandCdeath struggle against an organi"ed and ,ell
armed rebellion ,ithin its o,n borders and against a formidable enemy from ,ithout its territorial
confines during the last global armageddonI
6%%%
D0C!%?/ 01 -/PA!A%0? 01 P0E/!- P!/C+=D/-
'3N.3'ES A3A%?- -/?A0!-.
%n 3.!. ?o. +CA2&2B, (an!a(us ,ill not lie to compel respondents 3il Puyat and .ose !oy to
convene the -enate of the Philippines even on the assumption that the &(AB Constitution still
subsists: because pursuant to the doctrine of separation of po,ers under the &(AB Constitution, the
processes of this Court cannot legally reach a coordinate branch of the government or its head. his
is a problem that is addressed to the -enate itself for resolution: for it is purely an internal problem of
the -enate. %f a majority of the senators can convene, they can elect a ne, -enate President and a
ne, -enate President Pro empore. But if they have no #uorum, those present can order the arrest
of the absent members ;-ec. &9G*H, Art. 6%, &(AB Constitution<. %f this fails, then there is no remedy
e8cept an appeal to the people. he dictum u#i 5us, u#i re(e!iu(, is not absolute and certainly does
not justify the invocation of the po,er of this Court to compel action on the part of a coCe#ual body or
its leadership. his ,as emphasi"ed ,ith sufficient clarity by this Court in the &(J( case of Avelino vs.
Cuenco ;)A Phil. &', **,*J<, ,ith ,hich the distinguished counsels for the petitioners in +CA2&2J and
+CA2&2B are familiar. Ee stress that the doctrine of separation of po,ers and the political nature of
the controversy such as this, preclude the interposition of the .udiciary to nullify an act of a coordinate
body or to command performance by the head of such a coCordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political #uestion doctrine
K almost in mockery K as a magic formula ,hich should be disregarded by this Court, forgetting that
this magic formula constitutes an essential skein in the constitutional fabric of our government, ,hich,
together ,ith other basic constitutional precepts, conserves the unity of our people, strengthens the
structure of the government and assures the continued stability of the country against the forces of
division, if not of anarchy.
Moreover, if they have a ;uorum, the senators can meet any,here. 6alidity of the acts of the -enate
does not depend on the place of session: for the Constitution does not designate the place of such a
meeting. -ection ( of Article 6% imposes upon Congress to convene in regular session every year on
the Jth Monday of .anuary, unless a different date is fi8ed by la,, or on special session called by the
President. As former -enator Arturo olentino, counsel for respondents Puyat and !oy in +CA2&2B,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. he fact that the doors of Congress are padlocked, ,ill not prevent the senators K especially
the petitioners in +CA2&2B K if they are minded to do so, from meeting else,here K at the -unken
3ardens, at the +uneta %ndependence 3randstand, in any of the big hotels or theaters, in their o,n
houses, or at the Araneta Coliseum, ,hich is o,ned by the fatherCinCla, of petitioner 3erardo !o8as
in +CA2&2B.
>o,ever, a session by the -enate alone ,ould be purely an e8ercise in futility, for it cannot validly
meet ,ithout the lo,er >ouse ;-ec. &9GBH, Art. 6%, &(AB Constitution<. >ence, this petition by five
former senators for (an!a(us in +CA2&2B is useless.
And as pointed out by former -enator Arturo olentino, counsel for respondents Puyat and !oy,
(an!a(us ,ill lie only if there is a la, imposing on the respondents the duty to convene the body.
he rule imposing such a duty invoked by petitioners in +CA2&2B is purely an internal rule of the
-enate: it is not a la, because it is not enacted by both >ouses and approved by the President.
he Constitutional provision on the convening of Congress, is addressed to the individual members of
the legislative body ;-ec. (, Art. 6% of &(AB Constitution<.
%D
0 ?=++%1@ P!0C+AMA%0? ?0. &&9* A?D &('A
C0?-%=%0? !/P=%!/- /%3> 0! /? 60/- 01
-=P!/M/ C0=!.
he petitioners in +CA2&2J and +CA2*A2 specifically pray for a declaration that the alleged ratification
of the &('A Constitution is null and void and that the said &('A Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation ?o. &&9* is an enactment of the President as CommanderCinC
Chief during martial la, as directly delegated to him by -ection &9;*< of Article 6%% of the &(AB
Constitution.
A declaration that the &('A Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. he proposed Constitution is an act of the Constitutional Convention,
,hich is coCe#ual and coordinate ,ith as ,ell as independent of either Congress or the Chief
/8ecutive. >ence, its final act, the &('A Constitution, must have the same category at the very least
as the act of Congress itself.
Conse#uently, the re#uired vote to nullify Proclamation ?o. &&9* and the &('A Constitution should be
eight ;)< under -ection &9 of Article 6%%% of the &(AB Constitution in relation to -ection ( of the
.udiciary Act or !epublic Act ?o. *(2, as amended, or should be ten ;&9< under -ection *;*< of
Article D of the &('A Constitution. -hould the re#uired vote of eight ;)< or ten ;&9<, as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the &('A Constitution must
be deemed to be valid, in force and operative.
D
A!%C+/ 01 1A%>
E/ yield to no man as devotees of human rights and civil liberties. +ike homas .efferson, Ee s,ear
4eternal hostility to,ards any form of tyranny over the mind of man4 as ,ell as to,ards bigotry and
intolerance, ,hich are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common ,eal. A civili"ed society cannot long endure ,ithout peace and order, the maintenance of
,hich is the primary function of the government. ?either can civili"ed society survive ,ithout the
natural right to defend itself against all dangers that may destroy its life, ,hether in the form of
invasion from ,ithout or rebellion and subversion from ,ithin. his is the first la, of nature and ranks
second to none in the hierarchy of all values, ,hether human or governmental. /very citi"en, ,ho
prides himself in being a member or a civili"ed society under an established government, impliedly
submits to certain constraints on his freedom for the general ,elfare and the preservation of the -tate
itself, even as he reserves to himself certain rights ,hich constitute limitations on the po,ers of
government. But ,hen there is an inevitable clash bet,een an e8ertion of governmental authority and
the assertion of individual freedom, the e8ercise of ,hich freedom imperils the -tate and the civili"ed
society to ,hich the individual belongs, there can be no alternative but to submit to the superior right
of the government to defend and preserve the -tate. %n the language of Mr. .ustice >olmes K often
invoked by herein petitioners K 4,hen it comes to a decision involving its ;state life, the ordinary
rights of individuals must yield to ,hat he ;the President< deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. ;-ee Neely vs.
-anders, (( =.-. JJ&, JJ2, *B + ed. A*', A*)<. his ,as admitted ,ith regard to killing men in the
actual clash of arms. And ,e think it is obvious, although it ,as disputed, that the same is true of
temporary detention to prevent apprehended harm.4 ;Moyer vs. Peabody, *&* =.-. '', )B, BA + ed.,
J&&, J&'<.
he rhetoric of freedom alone is not enough. %t must be the rhetoric of freedom ,ith order and
security for all, that should be the shibboleth: for freedom cannot be enjoyed in an environment of
disorder and anarchy.
he incumbent Chief /8ecutive ,ho ,as trying to gain the support for his reform program long before
-eptember *&, &('*, reali"ed almost too late that he ,as being deceived by his partymates as ,ell
as by the opposition, ,ho promised him cooperation, ,hich promises ,ere either offered as a
bargaining leverage to secure concessions from him or to delay the institution of the needed reforms.
he people have been victimi"ed by such bargaining and dillyCdallying. o vert a terrifying blood bath
and the breakdo,n of the !epublic, the incumbent President proclaimed martial la, to save the
!epublic from being overrun by communists, secessionists and rebels by effecting the desired
reforms in order to eradicate the evils that plague our society, ,hich evils have been employed by the
communists, the rebels and secessionists to e8hort the citi"enry to rise against the government. By
eliminating the evils, the enemies of the !epublic ,ill be decimated. >o, many of the petitioners and
their counsels have been utili"ing the rebels, secessionists and communists for their o,n personal or
political purposes and ho, many of them are being used in turn by the aforesaid enemies of the -tate
for their o,n purposesI
%f the petitioners are sincere in their e8pression of concern for the greater mass of the populace, more
than for their o,n selves, they should be ,illing to give the incumbent Chief /8ecutive a chance to
implement the desired reforms. he incumbent President assured the nation that he ,ill govern ,ithin
the frame,ork of the Constitution and if at any time, before normalcy is restored, the people thru their
Citi"ens$ Assemblies, cease to believe in his leadership, he ,ill step do,n voluntarily from the
Presidency. But if, as apprehended by the petitioners, he abuses and brutali"es the people, then to
the battlements ,e must go to man the ramparts against tyranny. his, it is believed, he kno,s only
too ,ell: because he is a,are that he ,ho rides the tiger ,ill eventually end inside the tiger$s
stomach. >e ,ho toys ,ith revolution ,ill be s,allo,ed by that same revolution. >istory is replete
,ith e8amples of libertarians ,ho turned tyrants and ,ere burned at stake or beheaded or hanged or
guillotined by the very people ,hom they at first championed and later deceived. he most bloody of
such mass e8ecutions by the ,rath of a ,ronged people, ,as the decapitation by guillotine of about
&B,999 1renchmen including the leaders of the 1rench revolution, like !obespierre, Danton,
Desmoulins and Marat. >e is fully cogni"ant of the lessons of history.
>/?C/, >/ D%-M%--A+ 01 >/-/ 1%6/ CA-/- %- .=-%1%/D.
ESG"ERRA, J., concurring7
hese petitions seek to stop and prohibit the respondents /8ecutive 0fficers from implementing the
Constitution signed on ?ovember A9, &('*: in +CA2&2B, to compel respondents 3il Puyat and .ose ..
!oy, President and President ProCempore, respectively, of the -enate under the &(AB Constitution,
to convene the -enate in regular session ,hich should have started on .anuary **, &('A: to nullify
Proclamation ?o. &&9* of the President, issued on .anuary &', &('A, ,hich declared the ratification
of the Constitution on ?ovember A9, &('*, by the 1ilipino people, through the barangays or Citi"ens
Assemblies established under Presidential Decree ?o. )2 issued on December A&, &('*, ,hich ,ere
empo,ered under Presidential Decree ?o. )2CA, issued on .anuary B, &('A, to act in connection ,ith
the ratification of said Constitution.
3rounds for the petitions are as follo,s7
&. hat the Constitutional Convention ,as not a free forum for the making of a Constitution after the
declaration of Martial +a, on -eptember *&, &('*.
*. he Convention ,as not empo,ered to incorporate certain provisions in the &('* Constitution
because they are highly un,ise and objectionable and the people ,ere not sufficiently informed about
them.
A. he President had no authority to create and empo,er the Citi"ens$ Assemblies to ratify the ne,
Constitution at the referendum conducted in connection there,ith, as said assemblies ,ere merely
for consultative purposes, and
J. he provisions of Article D6 of the &(AB Constitution prescribing the manner of amending the same
,ere not duly observed.
he petitions ,ere not given due course immediately but ,ere referred to the -olicitor 3eneral as
counsel for the respondents for comment, ,ith three members of the Court, including the
undersigned, voting to dismiss them outright. he comments ,ere considered motions to dismiss
,hich ,ere set for hearing and e8tensively argued. hereafter both parties submitted their notes and
memoranda on their oral arguments.
%.
he issues raised for determination, on ,hich the resolution of the Motion to Dismiss hinges, are as
follo,s7
&. %s the #uestion presented political and, hence, beyond the competence of this Court to decide, or is
it justiciable and fit for judicial determinationI
*. Eas the ne, Constitution of ?ovember A9, &('*, ratified in accordance ,ith the amending process
prescribed by Article D6 of the &(AB ConstitutionI
A. >as the ne, Constitution been accepted and ac#uiesced in by the 1ilipino peopleI
J. %s the ne, Constitution actually in force and effectI
B. %f the ans,ers to #uestions ?os. A and J be in the affirmative, are petitioners entitled to the reliefs
prayed forI
%%.
he pivotal #uestion in these cases is ,hether the issue raised is highly political and, therefore, not
justiciable. % maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act
of judicial statesmanship, should dismiss the petitions. %n resolving ,hether or not the #uestion
presented is political, joint discussion of issues ?os. &, A and J is necessary so as to arrive at a
logical conclusion. 1or after the acceptance of a ne, Constitution and ac#uiescence therein by the
people by putting it into practical operation, any #uestion regarding its validity should be foreclosed
and all debates on ,hether it ,as duly or la,fully ushered into e8istence as the organic la, of the
state become political and not judicial in character.
he undisputed facts that led to the issuance of Proclamation ?o. &&9* and Presidential Decrees
?os. )2 and )2CA are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on .anuary **, &('A, and need not be repeated here.
Petitioners seek to set at naught Proclamation ?o. &&9* and Presidential Decrees ?os. )2 and )2CA,
claiming that the ratification of the ne, Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree ?o. )2 organi"ed the barangays or Citi"ens Assemblies composed of all
citi"ens at least fifteen years of age, and through these assemblies the proposed &('* Constitution
,as submitted to the people for ratification. Proclamation ?o. &&9* of the President announced or
declared the result of the referendum or plebiscite conducted through the Citi"ens Assemblies, and
that &J,('2,B2& members thereof voted for the ratification of the ne, Constitution and 'JA,)2( voted
against it. Petitioners assail these t,o acts of the President as unauthori"ed and devoid of legal
effect.
But looking through the veneer of judicial conformity ,ith ,hich the petitions have been adroitly
contrived, ,hat is sought to be invalidated is the ne, Constitution itself K the very frame,ork of the
present 3overnment since .anuary &', &('A. he reason is obvious. he Presidential decrees set up
the means for the ratification and acceptance of the ne, Constitution and Proclamation ?o. &&9*
simply announced the result of the referendum or plebiscite by the people through the Citi"ens
Assemblies. he 3overnment under the ne, Constitution has been running on its tracks normally and
apparently ,ithout obstruction in the form of organi"ed resistance capable of jeopardi"ing its
e8istence and disrupting its operation. =ltimately the issue is ,hether the ne, Constitution may be
set aside by this Court. But has it the po,er and authority to assume such a stupendous task ,hen
the result of such invalidation ,ould be to subject this nation to divisive controversies that may totally
destroy the social order ,hich the 3overnment under the ne, Constitution has been admirably
protecting and promoting under Martial +a,I hat the ne, Constitution has taken deep root and the
people are happy and contended ,ith it is a living reality ,hich the most articulate critics of the ne,
order cannot deny. (B out of &9) members of the >ouse of !epresentatives have opted to serve in
the interim ?ational Assembly provided for under the ne, Constitution. &B out of *J -enators have
done like,ise. he members of the Congress did not meet anymore last .anuary **, &('A, not
because they ,ere really prevented from so doing but because of no serious effort on their parts to
assert their offices under the &(AB Constitution. %n brief, the +egislative Department under the &(AB
Constitution is a thing of the past. he /8ecutive Department has been fully reorgani"ed: the
appointments of key e8ecutive officers including those of the Armed 1orces ,ere e8tended and they
took an oath to support and defend the ne, Constitution. he courts, e8cept the -upreme Court by
reason of these cases, have administered justice under the ne, constitution. All government offices
have dealt ,ith the public and performed their functions according to the ne, Constitution and la,s
promulgated thereunder.
%f the real purpose of the petitions is to set aside the ne, Constitution, ho, can this Court justify its
assumption of jurisdiction ,hen no po,er has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and voidI %t is the height of absurdity and impudence for a court
to ,age open ,ar against the organic act to ,hich it o,es its e8istence. he situation in ,hich this
Court finds itself does not permit it to pass upon the #uestion ,hether or not the ne, Constitution has
entered into force and has superseded the &(AB Constitution. %f it declares that the present
Constitution has not been validly ratified, it has to uphold the &(AB Constitution as still the prevailing
organic la,. he result ,ould be too anomalous to describe, for then this Court ,ould have to declare
that it is governed by one Constitution or the &(AB Constitution, and the legislative and e8ecutive
branches by another or the &('* Constitution.
%f it declares that the &('* Constitution is no, operative, ho, can it e8ercise judicial discretion in
these cases ,hen it ,ould have no other choice but to uphold the ne, Constitution as against any
other oneI %n the circumstances it ,ould be bereft of judicial attributes as the matter ,ould then be
not meet for judicial determination, but one addressed to the sovereign po,er of the people ,ho have
already spoken and delivered their mandate by accepting the fundamental la, on ,hich the
government of this !epublic is no, functioning. o deny that the ne, Constitution has been accepted
and actually is in operation ,ould be flying in the face of reason and pounding one$s bare head
against a veritable stone ,all or a heavily reinforced concrete, or simply 4kicking the deadly pricks4
,ith one$s bare foot in an effort to eliminate the lethal points.
Ehen a Constitution has been in operation for sometime, even ,ithout popular ratification at that,
submission of the people thereto by the organi"ation of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slo, in nullifying a Constitution claimed to have been adopted not in accordance ,ith
constitutional or statutory directives GMiller vs. .ohnson, (* Ny. B)(: &)( -.E. B**: aylor vs
Common,ealth, &9&: 6a. )*(: JJ -./. 'BJ: -mith vs. 3ood, AJ 1 *9J, *9': Eiston vs. !yan, '9 ?eb.
*&&: (' ?.E. AJ'H.
%n 'iller vs. Jo*nson, supra, the Court said7
... But it is a case ,here a ne, constitution has been formed and promulgated according to the forms of
la,. 3reat interests have already arisen under it: important rights e8ist by virtue of it: persons have been
convicted of the highest crimes kno,n to the la,, according to its provisions: the political po,er of the
government has in many ,ays recogni"ed it: an!, un!er suc* circu(stances, it is our !ut to treat an!
re+ar! it as a vali! constitution, an! no) t*e or+anic la) o, our state. Ee need not consider the validity of
the amendments made after the convention reassembled. I, t*e (a-in+ o, t*e( )as in e6cess o, its
po)er, et as t*e entire instru(ent *as #een reco+nize! as vali! in t*e (anner su++este!, it )oul! #e
e;uall an a#use o, po)er # t*e 5u!iciar, an! violative o, t*e ri+*ts o, t*e people, H )*o can an!
properl s*oul! re(e! t*e (atter, i, not to t*eir li-in+, H i, it )ere to !eclare t*e instru(ent or a portion
invali!, an! #rin+ con,usion an! anarc* upon t*e state. ;/mphasis supplied<
%n S(it* vs. Goo!, supra, the Court said7
%t is said that a state court is forbidden from entering upon such an in#uiry )*en applie! to a ne)
constitution, an! not an a(en!(ent, because the judicial po,er presupposes an established government,
and if the authority of that government is annulled and overthro,n, the po,er of its courts is annulled ,ith
it: therefore, if a state court should enter upon such an in#uiry, come to the conclusion that the
government under ,hich it acted had been displaced by an opposing government, it ,ould cease to be a
court, and it ,ould be incapable of pronouncing a judicial decision upon the #uestion before it: but, if it
decides at all, it must necessarily affirm the e8istence of the government under ,hich it e8ercises its
judicial po,ers. ;/mphasis supplied<
hese rules are all traceable to 0ut*er vs. "or!en, J) =.- ;' >o,.<, &* +. /d. B)&, B() ;&)J(< ,here
it ,as held7
.udicial po,er presupposes an established government capable of enacting la,s and enforcing their
e8ecution, and appointing judges to e8pound and administer them. he acceptance of the judicial office is
a recognition of the authority of government from ,hich it is derived. And if the authority of the
government is annulled and overthro,n, the po,er of its courts and other officers is annulled ,ith it. And
if a -tate court should enter upon the in#uiry proposed in this case, and should come to conclusion that
the government under ,hich it acted had been put aside and displaced by an opposing government it
,ould cease to be a court, and be incapable of pronouncing a judicial decision upon the #uestion it
undertook to try. %f it decides at all as a court, it necessarily affirms the e8istence and authority of the
government under ,hich it is e8ercising judicial po,er.
he foreign relations of the !epublic of the Philippines have been normally conducted on the basis of
the ne, Constitution and no state ,ith ,hich ,e maintain diplomatic relations has ,ithdra,n its
recognition of our government. ;1or particulars about e8ecutive acts done under the ne, Constitution,
see pages **C*B of the Comments of the -olicitor 3eneral, dated 1ebruary A, &('A.<
Certainly the invalidation of Proclamation ?o. &&9* and Presidential Decrees ?os. )2 and )2CA by
this Court ,ould smack of plain political meddling ,hich is described by the =nited -tates -upreme
Court as 4entering a political thicket4 in Colegrove vs. 3reen, A*) =.-. p. BJ(. At this juncture it ,ould
be the part of ,isdom for this Court to adopt the proper attitude to,ards political upheavals and
reali"e that the #uestion before =s is political and not fit for judicial determination. 1or a political
#uestion is one entrusted to the people for judgment in their sovereign capacity ;aLada vs. Cuenco,
3.!. ?o. +C&9B*9, 1eb. *),&(2': &99 Phil. &&9&<, or to a coCe#ual and coordinate branch of the
3overnment ;6era vs. Arellano, '' Phil. &(*: Mabanag vs. +ope" 6ito, ') Phil. &: Alejandrino vs.
Pue"on, J2 Phil. AB: Cabili vs. 1rancisco, 3.!. ?o. J2A), May ), &(A&<. A case involves a political
#uestion ,hen there ,ould be 4the impossibility of undertaking independent resolutions ,ithout
e8pressing a lack of respect due to coordinate branches of government4, or ,hen there is 4the
#uestion.4
o preserve the prestige and eminence that this Court has long enjoyed as the 4ultimate organ of the
4-upreme +a, of the +and4 in that vast range of legal problems often strongly entangled in popular
feeling on ,hich this Court must pronounce4, let us harken to the follo,ing admonition of .ustice
1rankfurter in his dissent in "a-er vs. Carr, A2( =.-. &)2: )* -. Ct. 2(&: ' +. /d. *d. 22A7
he Court$s authority K possessed neither of the purse nor the s,ord K ulti(atel rests on sustaine!
pu#lic con,i!ence in its (oral sanction. Suc* ,eelin+ (ust #e nouris*e! # t*e CourtDs co(plete
!etac*(ent, in ,act an! appearance, ,ro( political entan+le(ents an! a#stention ,ro( in5ectin+ itsel, into
t*e clas* o, political ,orces in political settle(ent. ...4 ;/mphasis supplied<
he people have accepted and submitted to a Constitution to replace the &(AB Constitution. he ne,
organic la, is no, in the plenitude of its efficacy and vigor. Ee are no, living under its aegis and
protection and only the cynics ,ill deny this. his Court should not in the least attempt to act as a
superClegislature or a superCboard of canvassers and so, confusion and discord among our people
by pontificating there ,as no valid ratification of the ne, Constitution. he sober reali"ation of its
proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping ,ith the preservation of our democratic tradition
than the blatant declamations of those ,ho ,ish the Court to engage in their brand of activism and
,ould not mind plunging it into the ,hirlpool of passion and emotion in an effort to capture the
into8icating applause of the multitude.
1or all the foregoing, % vote to dismiss all petitions.
5A+D%6A!, .., concurring and dissenting7
%n these five cases, the main issue to be resolved by Court is ,hether or not the Constitution
proposed by the Constitutional Convention of &('& had been ratified in accordance ,ith the
provisions of Article D6 of the &(AB Constitution. %n the plebiscite cases, ,hich ,ere decided by this
Court on .anuary **, &('A
1
, % held the vie, that this issue could be properly resolved by this Court,
and that it ,as in the public interest that this Court should declare then ,hether or not the proposed
Constitution had been validly ratified. he majority of this Court, ho,ever, ,as of the vie, that the
issue ,as not s#uarely raised in those cases, and so the Court, as a body, did make any categorical
pronouncement on the #uestion of ,hether or not the Constitution proposed by the &('& Convention
,as validly ratified. % ,as the only one ,ho e8pressed the opinion that the proposed Constitution ,as
not validly ratified and therefore 4it should not be given force and effect.4
he Court is no, called upon to declare, and to inform the people of this country, ,hether or not that
proposed Constitution had been validly ratified and had come into effect.
he -olicitor 3eneral, ho,ever, contends that this Court has no jurisdiction to resolve the issue that
,e have mentioned because that issue is a political #uestion that cannot be decided by this Court.
his contention by the -olicitor 3eneral is untenable. A political #uestion relates to 4those #uestions
,hich under the Constitution are to be decided by the people in their sovereign capacity or in regard
to ,hich full discretionary authority has been delegated to the legislative, or to the e8ecutive, branch
of the government.
4
he courts have the po,er to determine ,hether the acts of the e8ecutive are
authori"ed by the Constitution and the la,s ,henever they are brought before the court in a judicial
proceeding. he judicial department of the government e8ercises a sort of controlling, or rather
restraining, po,er over the t,o other departments of the government. /ach of the three departments,
,ithin its proper constitutional sphere, acts independently of the other, and restraint is only placed on
one department ,hen that sphere is actually transcended. Ehile a court may not restrain the
e8ecutive from committing an unla,ful act, it may, ,hen the legality of such an act is brought before it
in a judicial proceeding, declare it to be void, the same as it may declare a la, enacted by the
legislature to be unconstitutional.
3
%t is a settled doctrine that every officer under a constitutional
government must act according to la, and subject to its restrictions, and every departure therefrom,
or disregard thereof, must subject him to the restraining and controlling po,er of the people, acting
through the agency of the judiciary. %t must be remembered that the people act through the courts, as
,ell as through the e8ecutive or the legislature. 0ne department is just as representative as the other,
and judiciary is the department ,hich is charged ,ith the special duty of determining the limitations
,hich the la, places upon all official actions
5
. %n the case of Gonzales v. Co((ission on Elections
5
,
this Court ruled that the issue as to ,hether or not a resolution of Congress acting as a constituent
assembly violates the Constitution is not a political #uestion and is therefore subject to judicial revie,.
%n the case of 3velino v. Cuenco
:
, this Court held that the e8ception to the rule that courts ,ill not
interfere ,ith a political #uestion affecting another department is ,hen such political #uestion involves
an issue as to the construction and interpretation of the provision of the constitution. And so, it has
been held that the #uestion of ,hether a constitution shall be amended or not is a political #uestion
,hich is not in the po,er of the court to decide, but ,hether or not the constitution has been legally
amended is a justiciable #uestion.
7

My study on the subject of ,hether a #uestion before the court is political or judicial, based on
decisions of the courts in the =nited -tates K ,here, after all, our constitutional system has been
patterned to a large e8tent K made me arrive at the considered vie, that it is in the po,er of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. !atification or nonCratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and % believe
that the Court can in#uire into, and decide on, the #uestion of ,hether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance ,ith the re#uirements
prescribed in the Constitution that ,as amended. And so, in the cases no, before =s, % believe that
the #uestion of ,hether or not the Constitution proposed by the &('& Constitutional Convention had
been validly ratified or not is a justiciable #uestion.
he Chief .ustice, in his opinion, has discussed lengthily the subject on ,hether or not, the cases,
before =s involve a political, or a judicial, #uestion. % fully concur ,ith his conclusion that the #uestion
involved in these cases is justiciable.
0n the #uestion no, of ,hether or not the Constitution proposed by the &('& Constitutional
Convention has been validly ratified, % am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases7
he ratification of the Constitution proposed by the &('& Constitutional Convention must be done in
accordance ,ith the provisions of -ection &, Article D6 of the &(AB Constitution of the Philippines, ,hich
reads7
4-ection &. he Congress in joint session assembled by a vote of three fourths of all the
Members of the -enate and of the >ouse of !epresentatives voting separately, may
propose amendments to the Constitution or call a convention for that purpose. -uch
amendments shall be valid as part of this Constitution ,hen approved by a majority of the
votes cast at an election at ,hich the amendments are submitted to the people for their
ratification.4
%t is in consonance ,ith the above#uoted provision of the &(AB Constitution that on March &2, &(2', the
Congress of the Philippines !esolution ?o. * calling a convention to propose amendments to the
Constitution of the Philippines. -ec. ' of said !esolution ?o. * reads as follo,s7
4-ection '. he amendments proposed by the Convention shall be valid and considered
part of the Constitution ,hen approved by a majority of the votes cast in an election at
,hich they are submitted to the people for their ratification pursuant to Article D6 of the
Constitution.
%t follo,s that from the very resolution of the Congress of the Philippines ,hich called for the &('&
Constitutional Convention, there ,as a clear mandate that the amendments proposed by the &('&
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 ,hich they are submitted to the people for the ratification as provided in
the Constitution.
his Court, in the case of Tolentino vs. Co((ission Elections, +CAB&J9, 0ctober &2, &('& ;J& -C!A
'&B<, speaking through Mr. .ustice Barredo, said7
4he Constitutional Convention of &('&, as any other convention of the same nature,
o)es its e6istence an! all its aut*orit an! po)er ,ro( t*e e6istin+ Constitution o, t*e
P*ilippines. his Convention has not been called by the people directly as in the case of
a revolutionary convention ,hich drafts the first Constitution of an entirely ne,
government born of either a ,ar of liberation from a mother country or of revolution
against an e8isting government or of a bloodless sei"ure of po,er a la coup !Detat. As to
such kind of conventions, it is absolutely true that the convention is completely ,ithout
restraint and omnipotent all ,ise, and it as to such conventions that the remarks of
Delegate Manuel !o8as of the Constitutional Convention of &(AJ #uoted by -enator
Pelae" refer. ?o amount of rationali"ation can belie the fact that the current convention
came into being only because it ,as called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of -ection &, Article D6 of the present
Constitution ... .4
888 888 888
4As 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 su#5ect to all t*e provisions o, t*e e6istin+ Constitution. ?o, ,e hold
that even as to its latter tas- o, proposin+ a(en!(ents to t*e Constitution, it is su#5ect to
t*e provisions o, Section $ o, 3rticle I@.4
%n Proclamation ?o. &&9*, issued on .anuary &', &('A, the President of the Philippines certified that as a
result of the voting before the barangays ;Citi"ens Assemblies< &J,('2,B2& members of the barangays
voted for the adoption of the proposed Constitution, as against 'JA,)2( ,ho voted for its rejection, and on
the basis of the over,helming majority of the votes cast by the members of all the barangays throughout
the Philippines, the President proclaimed that the Constitution proposed by the &('& Convention has
been ratified and has thereby come into effect.
%t is very plain from the very ,ordings of Proclamation ?o. &&9* that the provisions of -ection & of Article
D6 of the Constitution of &(AB ,ere not complied ,ith. %t is not necessary that evidence be produced
before this Court to sho, that no elections ,ere held in accordance ,ith the provisions of the /lection
Code. Proclamation ?o. &&9* une#uivocally states that the proposed Constitution of &('* ,as voted
upon by the barangays. %t is very clear, therefore, that the voting held in these barangays is not the
election contemplated in the provisions of -ection &, Article D6, of the &(AB Constitution. he election
contemplated in said constitutional provision is an election held in accordance ,ith the provisions of the
election la,, ,here only the #ualified and registered voters of the country ,ould cast their votes, ,here
official ballots prepared for the purpose are used, ,here the voters ,ould prepare their ballots in secret
inside the voting booths in the polling places established in the different election precincts throughout the
country, ,here the election is conducted by election inspectors duly appointed in accordance ,ith the
election la,, ,here the votes are canvassed and reported in a manner provided for in the election la,. %t
,as this kind of election that ,as held on May &J, &(AB, ,hen the Constitution of &(AB ,as ratified: on
April A9, &(A', ,hen the amendment to the Constitution providing for Eomen$s -uffrage ,as ratified: on
.une &), &(J9, ,hen the &(J9 Amendments to the Constitution ,ere ratified: on March &&, &(J' ,hen
the Parity Amendment to the Constitution ,as ratified: and on ?ovember &J, &(2' ,hen the amendments
to the Constitution to increase the number of Members of the >ouse of !epresentatives and to allo, the
Members of Congress to run in the elections for Delegates to the Constitutional Convention of &('& ,ere
rejected.
% cannot see any valid reason ,hy the practice or procedure in the past, in implementing the constitutional
provision re#uiring the holding, of an election to ratify or reject an amendment to the Constitution, has not
been follo,ed in the case of the Constitution proposed by the &('& Constitutional Convention.
%t is my vie, that the President of the Philippines cannot by decree order the ratification of the proposed
&('* Constitution thru a voting in the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. %t is very clear, to me, that Proclamation ?o. &&9* ,as issued in
complete disregard or in violation, of the provisions of -ection & of Article D of the &(AB Constitution.
Proclamation ?o. &&9* mentions, furthermore, that on the #uestion as to ,hether or not the people ,ould
still like a plebiscite to be called to ratify the ne, Constitution, &J,*(),)&J members of the barangays
ans,ered that there ,as no need for a plebiscite but that the vote of the barangays should be considered
a vote in a plebiscite. %t ,ould thus appear that the barangays assumed the po,er to determine ,hether a
plebiscite as ordained in the Constitution be held or not. %ndeed, the provision of -ection &, Article D6 of
the Constitution ,as completely disregarded.
he affirmative votes cast in the barangays are not the votes contemplated in -ection & of Article D6 of
the &(AB Constitution. he votes contemplated in said constitutional provision are votes obtained through
the election processes as provided by la,.
4An election is the embodiment of the popular ,ill, the e8pression of the sovereign po,er
of the people. %n common parlance, an election is the act of casting and receiving the
ballots, counting them, and making the return.4 ;>ontiveros vs. Altavas, *J Phil. 2A*,
2A'<.
4/lection4 implies a choice by an electoral body at the time and substantially in the
manner and ,ith the safeguards provided by la, ,ith respect to some #uestion or issue.
;+effel v. Bro,n, Com. P&., &B( ?./. *d )9', )9) cited in *( C...-. &A at footnote 2.B<.
4... the statutory method ,hereby ;uali,ie! voters or electors pass on various public
matters submitted to them K the election of officers, national, state, county, to,nship K
the passing on various other #uestions submitted for their determination.4 ;*( C...-. &A,
citing %o,aC%llinois 3as M /lec. Co. v. City of Bettendorf, J& ?.E. *d &, B, *J& %o,a AB)<.
4/lection4 is e8pression of choice by voters of body politic. ;3insburg v. 3iles, '* -.E. *d
JA), *BJ Ny. '*9, in Eords and Phrases, Permanent /dition, p. *AJ<.
4he right to vote may be e8ercised only on compliance ,ith such statutory re#uirements
as have been set by the legislature.4 ;People e8 rel. !ago v. +ipsky, 2A ?./. *d 2J*, A*'
%%%. App. 2A: !othfels v. -outh,orth, AB2 P. *d 2&*, && =tah *d &2( in *( C...-. A)<.
%n this connection % herein #uote the pertinent provisions of the /lection Code of &('&7
4-ec. *. 3pplica#ilit o, t*is 3ct. K All elections of public officers e8cept barrio officials and plebiscites
shall be conducted in the manner provided by this Code.4
4-ec ((. Necessit o, re+istration to #e entitle! to vote. K %n order that a #ualified 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 ,hich he resides7 Provided, that no person shall register more
than once ,ithout first applying for cancellation of his previous registration.4 ;/mphasis supplied<. ;Please
see also -ections &99C&9*, /lection Code of &('&, !.A. ?o. 2A))<
%t is stated in Proclamation ?o. &&9* that the voting ,as done by the members of citi"ens assemblies ,ho
are &B years of age or over. =nder the provision of -ection % of Article 6 of the &(AB Constitution, the age
re#uirement to be a #ualified voter is *& years or over.
But ,hat is more note,orthy is the fact that the voting in the barangays, e8cept in very fe, instances, ,as
done by the raising of hands by the persons indiscriminately gathered to participate in the voting, ,here
even children belo, &B years of age ,ere included. his is a matter of common observation, or of
common kno,ledge, ,hich the Court may take judicial notice of. o consider the votes in the barangays
as e8pressive of the popular ,ill and use them as the basis in declaring ,hether a Constitution is ratified
or rejected is to resort to a voting by demonstrations, ,hich is ,ould mean the rule of the cro,d, ,hich is
only one degree higher than the rule by the mob. Certainly, so important a #uestion as to ,hether the
Constitution, ,hich is the supreme la, of the land, should be ratified or not, must not be decided by
simply gathering people and asking them to raise their hands in ans,er to the #uestion of ,hether the
vote for or against a proposed Constitution. he election as provided by la, should be strictly observed in
determining the ,ill of the sovereign people in a democracy. %n our !epublic, the ,ill of the people must
be e8pressed through the ballot in a manner that is provided by la,.
%t is said that in a democracy, the ,ill of the people is the supreme la,. %ndeed, the people are sovereign,
but the ,ill of the people must be e8pressed in a manner as the la, and the demands a ,ellCordered
society re#uire. he rule of la, must prevail even over the apparent ,ill of the majority of the people, if
that ,ill had not been e8pressed, or obtained, in accordance ,ith the la,. =nder the rule of la,, public
#uestions must be decided in accordance ,ith the Constitution and the la,. his is specially true in the
case of adoption of a constitution or in the ratification of an amendment to the Constitution.
he follo,ing citations are, to me, very relevant in the effort to determine ,hether the proposed
Constitution of &('* had been validly ratified, or not7
4Ehen it is said that 4the people4 have the right to alter or amend the constitution, it must
not be understood that term necessarily includes all the inhabitants of the state. -ince the
#uestion of the adoption or rejection of a proposed ne, constitution or constitutional
amendment must be ans,ered a vote, the determination of it rests ,ith those ,ho, by
e8isting constitution, are accorded the right of suffrage. But the #ualified electors must be
understood in this, as in many other cases, as representing those ,ho have not the right
to participate in the ballot. %f a constitution should be abrogated and a ne, one adopted,
by the ,hole mass of people in a state acting through representatives not chosen by the
4people4 in political sense of the term, but by the general body of the populace, the
movement ,ould be e8traClegal.4 ;B%ack$s Constitutional +a,, -econd /dition, pp. J'CJ)<.
4he theory of our political system is that the ultimate sovereignty is in the people, from
,hom springs all legitimate authority. he people of the =nion created a national
constitution, and conferred upon it po,ers of sovereignty on certain subjects, and the
people of each -tate created a -tate government, to e8ercise the remaining po,ers of
sovereignty so far as they ,ere disposed to allo, them to be e8ercised at all. By the
constitution ,hich they establish, they not only tie up the hands of their official agencies,
but their o,n hands as ,ell: and neither the officers of the -tate, nor the ,hole people as
an aggregate body, are at liberty to take action in opposition to this fundamental la,.4
;Cooley$s Constitutional +imitations, )th /dition, 6ol. %, p. )& cited in 3raham v. .ones, A
-o. *d. '2&, ')*<.
4he theory that a favorable vote by the electorate, ho,ever unanimous, on a proposal to
amend a constitution, may cure, render innocuous, 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, ,here the doctrine of the
stated theory ,as denied, in obvious effect, by the pronouncement 29 years ago of
broad, ,holesome constitutional principles in Collier v. Frierson, supra, as #uoted in the
original opinion, ante. he people themselves are bound by the Constitution: and, being
so bound, are po,erless, ,hatever their numbers, to change or th,art its mandates,
e8cept through the peaceful means of a constitutional convention, or of an amendment
according to the mode therein prescribed, or through the e8ertion of the original right of
revolution. 4he Constitution may be set aside by revolution, but it can only be amended
in the ,ay it provides,4 said >obson, C..., in McCreary v. -peer, &B2 Ny. ')A, '(&, &2*
-.E. ((, &9A. ;.ohnson vs. Craft, et al., )' -o. A'B, A)B, A)', 0n !ehearing<.
4he fact that a majority voted for the amendment, unless the vote ,as taken as provided
by the Constitution, is not sufficient to make a change in that instrument. Ehether a
proposed amendment has been legally adopted is a judicial #uestion, for the court must
uphold and enforce the Constitution as ,ritten until it is amended in the ,ay ,hich it
provides for.4 Koo! v. Too-er, &B Mont. ), A' Pac )J9, *B +.!.A. B29: 'cConau+*t v.
State, &92 Minn. J9(, &&( ?.E. J9): Oa-lan! Pavin+ Co(pan v. Cilton, 2( Cal. J((, &&
Pac. A: Etter v. 'osel, &2 %daho *'J, &99 Pac. &(B), &AA Am. -t. !ep. (J, &) Ann. Cas.
'*A. ;McCreary v. -peer, &2* -.E. ((, &9J<.
4Provisions of a constitution regulating its o,n amendment, ... are not merely directory,
but are mandatory: and a strict observance of every substantial mandatory: and a strict
observance of every substantial re#uirement is essential to the validity of the proposed
amendment. hese provisions are as binding on the people as on the legislature, and the
former are po,erless by vote of acceptance to give legal sanction to an amendment the
submission of ,hich ,as made in disregard of the limitations contained in the
constitution.4 ;&2 C...-. ABCA2. cited in 3raham v. .ones, A -o. *d '2&, ')*<.
4%t is said that chaos and confusion in the government affairs of the -tate ,ill result from
the Court$s action in declaring the proposed constitutional amendment void. his
statement is grossly and manifestly inaccurate. %f confusion and chaos should ensue, it
,ill not be due to the action of the Court but ,ill be the result of the failure of the drafters
joint resolution to observe, follo, and obey the plain essential provisions of the
Constitution. 1urthermore, to say that, the Court disregards its s,orn duty to enforce the
Constitution, chaos and confusion ,ill result, is an inherently ,eak argument in favor of
the alleged constitutionality of the proposed amendment. %t is obvious that, if the Court
,ere to countenance the violations of the sacramental provisions Constitution, those ,ho
,ould thereafter desire to violate it disregard its clear mandatory provisions ,ould resort
to the scheme of involving and confusing the affairs of the -tate then simply tell the Court
that it ,as po,erless to e8ercise one of its primary functions by rendering the proper
decree to make the Constitution effective.4 ;3raham v. .ones, A -o. *d. '2&, '(AC'(J<.
%n our jurisprudence % find an instance ,here this Court did not allo, the ,ill of the majority to prevail,
because the re#uirements of the la, ,ere not complied ,ith. %n the case of 'onsale v. Nico, )A Phil. 'B),
Monsale and ?ico ,ere both candidates for the office of Municipal Mayor of Miagao, %loilo, in the elections
of ?ovember &&, &(J'. Monsale had duly filed his certificate of candidacy before the e8piration of the
period for the filing of the same. >o,ever, on 0ctober &9, &(J', after the period for the filing of the
certificate of candidacy, Monsale ,ithdre, his certificate of candidacy. But on ?ovember ', &(J' Monsale
attempted to revive his certificate of candidacy by ,ithdra,ing the ,ithdra,al of certificate of candidacy.
he Commission on /lections, ?ovember ), &(J', ruled that Monsale could no longer be a candidate.
Monsale nevertheless proceeded ,ith his candidacy. he boards of inspectors in Miagao, ho,ever, did
not count the votes cast for Monsale upon the ground that the votes cast for him ,ere stray votes,
because he ,as considered as having no certificate of candidacy. 0n the other hand, the boards of
inspectors credited ?ico ,ith *,*(& votes, and ?ico ,as proclaimed elected. Monsale filed a protest
against the election of ?ico in the Court of 1irst %nstance of %loilo. %n the count of the ballots during the
proceedings in the trial court, it appeared that Monsale had obtained *,)'' votes ,hile ?ico obtained
*,*'2 votes, or a margin of 29& votes in favor of Monsale. he Court of 1irst %nstance of %loilo decided the
election protest in favor of Monsale. =pon appeal by ?ico, this Court reversed the decision of the lo,er
court. his Court declared that because Monsale ,ithdre, his certificate of candidacy, his attempt to
revive it by ,ithdra,ing his ,ithdra,al of his certificate of candidacy did not restore the effectiveness of
his certificate of candidacy, and this Court declared ?ico the ,inner in spite of the fact that Monsale had
obtained more votes than he.
Ee have cited this Monsale case to sho, that the ,ill of the majority of the voters ,ould not be given
effect, as declared by this Court, if certain legal re#uirements have not been complied ,ith in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases no, before this Court, the fact that the voting in the citi"ens assemblies ;barangays<
is not the election that is provided for in the &(AB 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 &('* Constitution, in spite of the fact that it ,as reported that &J,('2,B2&
members of the citi"ens assemblies voted for the adoption as against 'JA,)2( for the rejection, because
the votes thus obtained ,ere not in accordance ,ith the provisions of -ection & of Article D6 of the &(AB
Constitution of the Philippines. he rule of la, mast be upheld.
My last observation7 0ne of the valid grounds against the holding of the plebiscite on .anuary &B, &('A,
as provided in Presidential Decree ?o. 'A, is that there is no freedom on the part of the people to e8ercise
their right of choice because of the e8istence of martial la, in our country. he same ground holds true as
regards to the voting of the barangays on .anuary &9 to &B, &('A. More so, because by 3eneral 0rder
?o. *9, issued on .anuary ', &('A, the President of the Philippines ordered 4that the provisions of -ection
A of Presidential Decree ?o. 'A in so far as they allo, free public discussion of the proposed constitution,
as ,ell as my order of December &', &('* temporarily suspending the effects of Proclamation ?o. &9)&
for the purpose of free and open debate on the proposed constitution, be suspended in the meantime.4 %t
is, therefore, my vie, that voting in the barangays on .anuary &9, &('A ,as not free, and so this is one
added reason ,hy the results of the voting in the barangays should not be made the basis for
proclamation of the ratification of the proposed Constitution.
%t is my vie,, therefore, that Proclamation ?o. &&9* repugnant to the &(AB Constitution, and so it is
invalid, and should not be given effect. he Constitution of &('* proposed by the &('& Constitutional
Convention should be considered as not yet ratified by the people of this !epublic, and so it should not be
given force and effect.
%t is urged by the -olicitor 3eneral, ho,ever, that the voting in the citi"ens assemblies ,as a
substantial compliance ,ith the provisions of Article D6 of the &(AB Constitution. he -olicitor
3eneral maintains that the primary thrust of the provision of Article D6 of the &(AB Constitution is that
4to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people.4 %t is not disputed that in a democratic sovereignty
resides in the people. But the term 1people1 must be understood in its constitutional meaning, and
they are 4those persons ,ho are permitted by the Constitution to e8ercise the elective franchise.4
8

hus, in -ection * of Article 6%% of the &(AB Constitution, it is provided that 4the President shall hold
his office during a term of four years and, together ,ith the 6iceCPresident chosen for the same term,
shall be elected by direct vote of the people...4 Certainly under that constitutional provision, the
1people1 ,ho elect directly the President and the 6iceCPresident are no other than the persons ,ho,
under the provisions of the same Constitution, are granted the right to vote. %n like manner the
provision in -ection & of Article %% of the &(AB Constitution ,hich says 4-overeignty resides in the
people and all government authority emanates from them4, the 4people4 ,ho e8ercise the sovereign
po,er are no other than the persons ,ho have the right to vote under the Constitution. %n the case of
Garc*itorena vs. Crescini
9
, this Court, speaking through Mr. .ustice .ohnson, said, 4%n democracies,
the people, combined, represent the sovereign po,er of the -tate. heir sovereign authority is
e8pressed through the ballot, of the #ualified voters, in duly appointed elections held from time to
time, by means of ,hich they choose their officials for definite fi8ed periods, and to ,hom they
entrust, for the time being, as their representatives, the e8ercise of the po,ers of government.4 %n the
case of 'oa v. .el Fierro,
10
this Court, speaking through Mr. .ustice +aurel, said, 4As long as
popular government is an end to be achieved and safeguarded, suffrage, ,hatever may be the
modality and form devised, must continue to be the means by ,hich the great reservoir of po,er
must be emptied into the receptacular agencies ,rought by the people through their Constitution in
the interest of good government and the common ,eal. !epublicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to the en,ranc*ise! citizen as a
particle o, popular soverei+nt an! as t*e ulti(ate source o, t*e esta#lis*e! aut*orit.4 And in the
case of 3#anil v. Justice o, t*e Peace o, "acolo!,
11
this Court said7 4%n the scheme of our present
republican government, the people are allo)e! to *ave a voice t*erein t*rou+* t*e instru(entalit o,
su,,ra+e to be availed of by those possessing certain prescribed #ualifications. he people, in clothing
a citi"en ,ith the elective franchise for the purpose of securing a consistent and perpetual
administration of the government they ordain, charge him ,ith the performance of a duty in the nature
of a public trust, and in that respect constitute *i( a representative o, t*e )*ole people. his duty
re#uires that the privilege thus besto,ed e8clusively for the benefit of the citi"en or class of citi"ens
professing it, but in good faith and ,ith an intelligent "eal for the general benefit and ,elfare of the
state. ;=.-. v. Cruikshauk, (* =.-. B))<...4 here is no #uestion, therefore, that ,hen ,e talk of
sovereign people, ,hat is meant are the people ,ho act through the duly #ualified and registered
voters ,ho vote during an election that is held as provided in the Constitution or in the la,.
he term 4election4 as used in -ection & of Article D6 of the &(AB Constitution should be construed
along ,ith the term 4election4 as used in the Provisions of -ection J of the Philippine %ndependence
Act of the Congress of the =nited -tates, popularly kno,n as the ydingsCMcDuffie +a, ;Public Act
?o. &*'<. -aid -ection J of the ydingsCMcDuffie +a, provides as follo,s7
Section J. After the President of the =nited -tates certified that the constitution conforms ,ith the
provisions of this act, it shall be submitted to the people of the Philippine %slands for their ratification or
rejection at an election to he held ,ithin months after the date of such certification, on a date to be fi8ed
by the Philippine +egislature at )*ic* election, t*e ;uali,ie! voters o, t*e P*ilippine Islan!s s*all *ave an
opportunit to vote !irectl or a+ainst t*e propose! constitution and ordinances append thereto. -uch
election shall be held in such manner as may prescribed by the Philippine +egislature to ,hich the return
of the election shall be made. he Philippine +egislature shall certify the result to the 3overnorC3eneral of
the Philippine %slands, together ,ith a statement of the votes cast, and a copy of said constitution
ordinances. %f a majority of the votes cast shall be for the constitution, such vote shall be deemed an
e8pression of the ,ill of the people of the Philippine %ndependence, and the 3overnorC3eneral shall,
,ithin thirty days after receipt of the certification from the Philippine +egislature, issue a proclamation for
the election of officers of the government of the Common,ealth of the Philippine %slands provided for in
the Constitution...
%t can safely be said, therefore, that ,hen the framers of the &(AB Constitution used, the ,ord
4election4 in -ection % Article D6 of the &(AB Constitution they had no other idea in mind e8cept the
elections that ,ere periodically held in the Philippines for the choice of public officials prior to the
drafting of the &(AB Constitution, and also the 4election4 mentioned in the %ndependence Act at ,hich
4the #ualified voters of the Philippine %slands shall have an opportunity to vote directly for or against
the proposed constitution...4 %t is but logical to e8pect that the framers of the &(AB Constitution ,ould
provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the
original Constitution itself.
%t is clear therefore, that the ratification or any amendment to the &(AB Constitution could only be
done by holding an election, as the term 4election4 ,as understood, and practiced, ,hen the &(AB
Constitution as drafted. he alleged referendum in the citi"ens assemblies K participated in by
persons aged &B years or more, regardless of ,hether they ,ere #ualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ,ard captain, to the
municipal mayor, ,ho in turn submitted the report to the provincial 3overnor, and the latter for,arding
the reports to the Department of +ocal 3overnments, all ,ithout the intervention of the Commission
on /lections ,hich is the constitutional body ,hich has e8clusive charge of the enforcement and
administration of all la,s, relative to the conduct of elections K ,as not only a nonCsubstantial
compliance ,ith the provisions of -ection & of Article D6 of the &(AB Constitution but a do,nright
violation of said constitutional provision. %t ,ould be indulging in sophistry to maintain that the voting
in the citi"ens assemblies amounted to a substantial compliance ,ith the re#uirements prescribed in
-ection & of Article D6 of the &(AB Constitution.
%t is further contended by the -olicitor 3eneral, that even if the Constitution proposed by the &('&
Constitutional Convention ,as not ratified in accordance ,ith the provisions of -ection & of Article D6
of the &(AB Constitution, the fact is that after the President of the Philippines had issued Proclamation
?o. &&9* declaring that the said proposed Constitution 4has been ratified by over,helming majority of
all the votes cast by the members of all the barangays ;citi"ens assemblies< throughout the
Philippines and had thereby come into effect4 the people have accepted the ne, Constitution. Ehat
appears to me, ho,ever, is that practically it is only the officials and employees under the e8ecutive
department of the 3overnment ,ho have been performing their duties apparently in observance of
the provisions of the ne, Constitution. %t could not be other,ise, because the President of the
Philippines, ,ho is the head of the e8ecutive department, had proclaimed that the ne, Constitution
had come into effect, and his office had taken the steps to implement the provisions of the ne,
Constitution. rue it is, that some (* members of the >ouse of !epresentatives and &B members of
the -enate, of the Congress of the Philippines had e8pressed their option to serve in the interim
?ational Assembly that is provided for in -ection * of Article D6%% of the proposed Constitution. %t must
be noted, ho,ever, that of the &B senators ,ho e8pressed their option to serve in the interim ?ational
Assembly only one them took his oath of office: and of the (* members of the >ouse of
!epresentatives ,ho opted to serve in the interim ?ational Assembly, only ** took their oath of office.
he fact that only one -enator out of *J, and only ** !epresentative out of &&9, took their oath of
office, is an indication that only a small portion of the members of Congress had manifested the
acceptance of the ne, Constitution. %t is in the taking of the oath of office ,here the affiant says that
he s,ears to 4support and defend the Constitution4 that the acceptance of the Constitution is made
manifest. % agree ,ith counsel petitioners in +CA2&2B ;3erardo !o8as, et al. v. Alejandro Melchor, et
al.< ,hen he said that the members of Congress ,ho opted to serve in the interim ?ational Assembly
did only e6 a#un!ante cautela, or by ,ay of a precaution, making sure, that in the event the ne,
Constitution becomes definitely effective and the interim ?ational Assembly convened, they can
participate in legislative ,ork in the capacity as duly elected representatives of the people, ,hich
other,ise they could not do if they did not manifest their option to serve, and that option had to be
made ,ithin A9 day from .anuary &', &('A, the date ,hen Proclamation ?o. &&9 ,as issued. 0f
course, if the proposed Constitution does not become effective, they continue to be members of
Congress under the &(AB Constitution. +et it be considered that the members of the >ouse of
!epresentatives ,ere elected in &(2( to serve a term ,hich ,ill yet e8pire on December A&, &('A.
Ehereas, of the -enators ,ho opted to serve in the interim ?ational Assembly, the term of some of
them ,ill yet e8pire on December A&, &('A, some on December A&, &('B, and the rest on December
A&, &(''. +et if be noted that ( -enators did not opt to serve in the interim ?ational Assembly, and &)
members of the >ouse of !epresentatives also did not opt to serve in the interim ?ational Assembly.
?either can it be said that the people have accepted the ne, Constitution. % cannot, in conscience,
accept the reported affirmative votes in the citi"ens assemblies as a true and correct e8pression by
the people of their approval, or acceptance, of the proposed Constitution. % have my serious doubts
regarding the freedom of the people to e8press their vie,s regarding the proposed Constitution
during the voting in the citi"ens assemblies, and % have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citi"ens assemblies. his doubt has been
engendered in my mind after a careful e8amination and study of the records of these cases,
particularly ,ith respect to the reports of the voting in the citi"ens assemblies. Perhaps, it may be said
that the people, or the inhabitants of this country, have ac#uiesced to the ne, Constitution, in the
sense that they have continued to live peacefully and orderly under the government that has been
e8isting since .anuary &', &('A ,hen it ,as proclaimed that the ne, Constitution came into effect.
But ,hat could the people doI %n the same ,ay that the people have lived under martial la, since
-eptember *A, &('*, they also have to live under the government as it no, e8ists, and as it has
e8isted since the declaration of martial la, on -eptember *&, &('*, regardless of ,hat Constitution is
operative K ,hether it is the &(AB Constitution or the ne, Constitution. %ndeed, there is nothing that
the people can do under the circumstances actually prevailing in our country today K circumstances,
kno,n to all, and ,hich % do not consider necessary to state in this opinion. % cannot agree, therefore,
,ith my ,orthy colleagues in the Court ,ho hold the vie, that the people have accepted the ne,
Constitution, and that because the people have accepted it, the ne, Constitution should be
considered as in force, regardless of the fact that it ,as not ratified in accordance ,ith the provisions
of -ection & of Article D6 of the &(AB Constitution.
%t is my honest vie, that the Constitution proposed by the &('& Constitutional Convention has not
come into effect. % do not say, ho,ever, that the proposed Constitution is invalid. o me, the validity of
the proposed Constitution is not in issue in the cases before =s. Ehat the petitioners assail is not the
validity of the proposed Constitution but the validity of Presidential Proclamation ?o. &&9* ,hich
declares the proposed Constitution as having been ratified and has come into effect. %t being my
considered vie, that the ratification of the proposed Constitution, as proclaimed in Proclamation ?o.
&&9*, is not in accordance ,ith the provisions of -ection & of Article D6, of the &(AB Constitution, %
hold that Proclamation ?o. &&9* is invalid and should not be given force and effect. heir proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. he
proposed Constitution may still be submitted to a plebiscite in conformity ,ith -ection & of Article D6
of the &(AB Constitution. %ncidentally, % must state that the Constitution is still in force, and this Court
is still functioning under the &(AB Constitution.
% sincerely believe that the proposed Constitution may still be submitted to the people in an election or
plebiscite held in accordance ,ith the provisions of -ection & of Article D6 of the &(AB Constitution. %n
fact, as ,e have adverted to in this opinion, this ,as the mandate of Congress ,hen, on March &2,
&(2', it passed !esolution ?o. * calling a convention to propose amendments to the &(AB
Constitution. he Court may take judicial notice of the fact that the President of the Philippines has
reassured the nation that the government of our !epublic since the declaration of martial la, is not a
revolutionary government, and that he has been acting all the ,ay in consonance ,ith his po,ers
under the Constitution. he people of this !epublic has reason to be happy because, according to the
President, ,e still have a constitutional government. %t being my vie, that the &(AB Constitution is still
in force, % believe Congress may still convene and pass a la, calling for an election at ,hich the
Constitution proposed by the &('& Constitutional Convention ,ill be submitted to the people their
ratification or rejection. A plebiscite called pursuant to -ection & of Article D6 of the &(AB Constitution
is an assurance to our people that ,e still have in our country the !ule of +a, and that the
democratic system of government that has been implanted in our country by the Americans, and
,hich has become part of our social and political fabric, is still a reality.
he vie,s that % have e8pressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. % feel that if this Court ,ould give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation ?o. &&9*, it
being very clear that the provisions of -ection & of Article D6 of the &(AB Constitution had not been
complied ,ith, Ee ,ill be opening the gates for a similar disregard of the Constitution in the future.
Ehat % mean is that if this Court no, declares that a ne, Constitution is no, in force because the
members of the citi"ens assemblies had approved the said ne, Constitution, although that approval
,as not in accordance ,ith the procedure and the re#uirements prescribed in the &(AB 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 e8isting Constitution and the la,, and then said proposed
amendment is submitted to the people in any manner and ,hat ,ill matter is that a basis is claimed
that there ,as approval by the people. here ,ill not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court % only ,ish to contribute my
humble efforts to prevent the happening of such a situation in the future.
%t appearing to me that the announced ratification of the proposed Constitution through the voting in
the citi"ens assemblies is a clear violation of the &(AB Constitution, ,hat % say in this opinion is simply
an endeavor on my part to be true to my oath of office to defend and support the &(AB Constitution. %
am inspired by ,hat the great jurist and statesman, .ose P. +aurel, said7
+et our judges be as it ,ere the vestal keepers of the purity and sanctity of our Constitution, and the
protection and vindication of popular rights ,ill be safe and secure in their reverential guardianship.
% only ,ish to help prevent, if % can, democracy and the liberties of our people from vanishing in our
land, because, as .ustice 3eorge -utherland of the =. -. -upreme Court said7
;t<he saddest epitaph ,hich can be carved in memory of a vanished liberty is that it ,as lost because its
possessors failed to stretch forth a saving hand ,hile yet there ,as time.
% concur fully ,ith the personal vie,s e8pressed by the Chief .ustice in the opinion that he has ,ritten
in these cases. Along ,ith him, % vote to deny the motion to dismiss and give due course to the
petitions in these cases.
FERNANDO, J., dissenting7
?o #uestion more momentous, none impressed ,ith such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. 1or ,hile the specific
substantive issue is the validity of Presidential Proclamation ?o. &&9*, an adverse judgment may be
fraught ,ith conse#uences that, to say the least, are farCreaching in its implications. As stressed by
respondents, 4,hat petitioners really seek to invalidate is the ne, Constitution.4
1
-trict accuracy
,ould of course #ualify such statement that ,hat is in dispute, as noted in the opinion of the Chief
.ustice, goes only as far as the validity of its ratification. %t could very ,ell be though that the ultimate
outcome is not confined ,ithin such limit, and this is not to deny that under its aegis, there have been
marked gains in the social and economic sphere, but given the premise of continuity in a regime
under a fundamental la,, ,hich itself e8plicitly recogni"es the need for change and the process for
bringing it about,
4
it seems to me that the more appropriate course is this Court to give heed to the
plea of petitioners that the most serious attention be paid to their submission that the challenged
e8ecutive act fails to meet the test of constitutionality. =nder the circumstances, ,ith regret and ,ith
due respect for the opinion of my brethren, % must perforce dissent. %t ,ould follo, therefore that the
legal position taken by the Chief .ustice as set forth ,ith his usual lucidity and thoroughness has, on
the ,hole, my concurrence, subject, of course, to reservations insofar as it contains vie,s and
nuances to ,hich % have in the past e8pressed doubts. ?onetheless, % feel that a brief e8pression of
the reasons for the stand % take ,ould not be amiss.
%n coping ,ith its responsibility arising from the function of judicial revie,, this Court is not e8pected to
be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. %t is, by virtue of its role under the separation of po,ers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. /ven then, there is realism in ,hat +erner did say about the American -upreme
Court as 4the focal point of a set of dynamic forces ,hich Gcould playH havoc ,ith the landmarks of the
American state and determine the po,er configuration of the day.4
3
hat is ,hy there is this caveat.
%n the =nited -tates as here, the e8ercise of the po,er of judicial revie, is conditioned on the
necessity that the decision of a case or controversy before it so re#uires. o repeat, the .ustices of
the highest tribunal are not, as .ustice 1rankfurter made clear, 4architects of policy. hey can nullify
the policy of others, they are incapable of fashioning their o,n solutions for social problems.4
5

?onetheless, as ,as stressed by Professors Black
5
and Murphy,
:
a -upreme Court by the conclusion
it reaches and the decision it renders does not merely check the coordinate branches, but also by its
approval stamps ,ith legitimacy the action taken. hus in affirming constitutional supremacy, the
political departments could seek the aid of the judiciary. 1or the assent it gives to ,hat has been done
conduces to its support in a regime ,here the rule of la, holds s,ay. %n discharging such a role, this
Court must necessarily take in account not only ,hat the e8igent needs of the present demand but
,hat may lie ahead in the une8plored and unkno,n vistas of the future. %t must guard against the
pitfall of lack of understanding of the dominant forces at ,ork to seek a better life for all, especially
those suffering from the pangs of poverty and disease, by a blind determination to adhere to the
status ;uo. %t ,ould be tragic, and a clear case of its being recreant to its trust, if the suspicion can
,ith reason be entertained that its approach amounts merely to a militant vigilantism that is violently
opposed to any form of social change. %t follo,s then that it does not suffice that recourse be had only
to ,hat passes for scholarship in the la, that could be marred by inapplicable erudition and narro,
legalism. /ven ,ith due recognition, such factors, ho,ever, % cannot, for reasons to be set more
lengthily and in the light of the opinion of the Chief .ustice, reach the same result as the majority of
my brethren. 1or, in the last analysis, it is my firm conviction that the institution of judicial revie,
speaks too clearly for the point to be missed that official action, even ,ith due allo,ance made for the
good faith that invariably inspires the step taken, has to face the gauntlet of a court suit ,henever
there is a proper case ,ith the appropriate parties.
&. !espondents are acting in the soundest constitutional tradition ,hen, at the outset, they ,ould
seek a dismissal of these petitions. 1or them, the #uestion raised is political and thus beyond the
jurisdiction of this Court. -uch an approach cannot be indicted for unorthodo8y. %t is implicit in the
concept of the rule of la, that rights belong to the people and the government possesses po,ers
only. /ssentially then, unless such an authority may either be predicated on e8press or implied grant
in the Constitution or the statutes, an e8ercise thereof cannot survive an in#uiry as to its validity.
!espondents through -olicitorC3eneral Mendo"a ,ould deny our competence to proceed further. %t is
their vie,, vigorously pressed and plausibly asserted, that since ,hat is involved is not merely the
effectivity of an amendment but the actual coming into effect of a ne, constitution, the matter is not
justiciable. he immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of po,ers that it is not only the function but the solemn duty of the
judiciary to determine ,hat the la, is and to apply it in cases and controversies that call for decision.
7

-ince the Constitution preCeminently occupies the highest rung in the hierarchy of legal norms, it is in
the judiciary, ultimately this ribunal, that such a responsibility is vested. Eith the &(AB Constitution
containing, as above noted, an e8plicit article on the subject of amendments, it ,ould follo, that the
presumption to be indulged in is that the #uestion of ,hether there has been deference to its terms is
for this Court to pass upon. Ehat is more, the 3on"ales,
8
olentino
9
and Planas
10
cases speak
une#uivocally to that effect. ?or is it a valid objection to this conclusion that ,hat ,as involved in
those cases ,as the legality of the submission and not ratification, for from the very language of the
controlling article, the t,o vital steps are proposal and ratification, ,hich as pointed out in .illon v.
Gloss,
11
4cannot be treated as unrelated acts, but as succeeding steps in a single endeavor.4
14
0nce
an aspect thereof is vie,ed as judicial, there ,ould be no justification for considering the rest as
devoid of that character. %t ,ould be for me then an indefensible retreat, deriving no justification from
circumstances of ,eight and gravity, if this Court ,ere to accede to ,hat is sought by respondents
and rule that the #uestion before us is political.
0n this point, it may not be inappropriate to refer to a separate opinion of mine in 0ansan+ v. Garcia.
13
hus7 4he term has been made applicable to controversies clearly nonCjudicial and therefore
beyond its jurisdiction or to an issue involved in a case appropriately subject to its cogni"ance, as to
,hich there has been a prior legislative or e8ecutive determination to ,hich deference must be paid.
%t has like,ise been employed loosely to characteri"e a suit ,here the party proceeded against is the
President or Congress, or any branch thereof. %f to be delimited ,ith accuracy, 4political #uestions4
should refer to such as ,ould under the Constitution be decided by the people in their sovereign
capacity or in regard to full discretionary authority is vested either in the President or Congress. %t is
thus beyond the competence of the judiciary to pass upon. =nless clearly falling ,ithin the
formulation, the decision reached by the political branches ,hether in the form of a congressional act
or an e8ecutive order could be tested in court. Ehere private rights are affected, the judiciary has no
choice but to look into its validity. %t is not to be lost sight of that such a po,er comes into play if there
be an appropriate proceeding that may be filed only after each coordinate branch has acted. /ven
,hen the Presidency or Congress possesses plenary po,ers, its improvident e8ercise or the abuse
thereof, if sho,n, may give rise to a justiciable controversy. 1or the constitutional grant of authority is
usually unrestricted. here are limits to ,hat may be done and ho, it is to be accomplished.
?ecessarily then, the courts in the proper e8ercise of judicial revie, could in#uire into the #uestion of
,hether or not either of the t,o coordinate branches has adhered to ,hat is laid do,n by the
Constitution. he #uestion thus posed is judicial rather than political.4
15
he vie, entertained by
Professor Dodd is not too dissimilar. 1or him such a term 4is employed to designate certain types of
functions committed to the political organs of government ;the legislative and e8ecutive departments,
or either of them< and not subject to judicial investigation.4
15
After a thorough study of American
judicial decisions, both federal and state, he could conclude7 4he field of judicial nonenforceability is
important, but is not large ,hen contrasted ,ith the ,hole body of ,ritten constitutional te8ts. he
e8ceptions from judicial enforceability fall primarily ,ithin the field of public or governmental interests.4
1:
?or ,as Professor Eeston$s formulation any different. As ,as e8pressed by him7 4.udicial
#uestions, in ,hat may be thought the more useful sense, are those ,hich the sovereign has set to
be decided in the courts. Political #uestions, similarly, are those ,hich the sovereign has entrusted to
the soCcalled political departments of government or has reserved to be settled by its o,n e8traC
governmental action.4
17
Ehat appears undeniable then both from the standpoint of Philippine as ,ell
as American decisions is the care and circumspection re#uired before the conclusion is ,arranted
that the matter at issue is beyond judicial cogni"ance, a political #uestion being raised.
*. he submission of respondents on this subject of political #uestion, admittedly one of comple8ity
and importance, deserves to be pursued further. hey ,ould derive much aid and comfort from the
,ritings of both Professor Bickel
18
of @ale and Professor 1reund
19
of >arvard, both of ,hom in turn
are unabashed admirers of .ustice Brandeis. Ehatever be the merit inherent in their lack of
enthusiasm for a more active and positive role that must be played by the =nited -tates -upreme
Court in constitutional litigation, it must be judged in the light of our o,n history. %t cannot be denied
that from the ,ell nigh four decades of constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of American sovereignty, there has sprung a
tradition of ,hat has been aptly termed as judicial activism. -uch an approach could be traced to the
valedictory address before the &(AB Constitutional Convention of Claro M. !ecto. >e spoke of the
trust reposed in the judiciary in these ,ords7 4%t is one of the parado8es of democracy that the people
at times place more confidence in instrumentalities of the -tate other than those directly chosen by
them for the e8ercise of their sovereignty.4 *9 %t ,ould thus appear that even then this Court ,as
e8pected not to assume an attitude of timidity and hesitancy ,hen a constitutional #uestion is posed.
here ,as the assumption of course that it ,ould face up to such a task, ,ithout regard to political
considerations and ,ith no thought e8cept that of discharging its trust. Eitness these ,ords .ustice
+aurel in an early landmark case, People v. @era,
41
decided in &(A'7 4%f it is ever necessary for us to
make vehement affirmance during this formative period of political history, it is that ,e are
independent of the /8ecutive no less than of the +egislative department of our government K
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our s,orn duty as ,e see it
and as ,e understand it.4
44
he hope of course ,as that such assertion of independence impartiality
,as not mere rhetoric. hat is a matter more appropriately left to others to determine. %t suffices to
stake that ,hat elicits approval on the part of our people of a judiciary ever alert to in#uire into alleged
breaches of the fundamental la, is the reali"ation that to do so is merely to do ,hat is e8pected of it
and that thereby there is no invasion of spheres appropriately belonging to the political branches. 1or
it needs to be kept in kind al,ays that it can act only ,hen there is a suit ,ith proper parties before it,
,herein rights appropriate for judicial enforcement are sought to be vindicated. hen, too, it does not
approach constitutional #uestions ,ith dogmatism or apodictic certainty nor vie, them from the
shining cliffs of perfection. his is not to say though that it is satisfied ,ith an empiricism untroubled
by the search for jural consistency and rational coherence. A balance has to be struck. -o juridical
realism re#uires. 0nce allo,ance made that for all its care and circumspection this Court manned by
human beings fettered by fallibility, nonetheless earnestly and sincerely striving to do right, the public
acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to
understand. %t has not in the past shirked its responsibility to ascertain ,hether there has been
compliance ,ith and fidelity to constitutional re#uirements. -uch is the teaching of a host of cases
from 3n+ara v. Electoral
Co((ission
43
to Planas v. Co((ission on Elections.
45
%t should continue to e8ercise its jurisdiction,
even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is
political.
?or am % persuaded that the reading of the current drift in American legal scholarship by the -olicitorC
3eneral and his e#ually able associates presents the ,hole picture. 0n the #uestion of judicial
revie,, it is not a case of black and ,hite: there are shaded areas. %t goes too far, in my vie,, if the
perspective is one of dissatisfaction, ,ith its overtones of distrust. his e8pression of disapproval has
not escaped Dean !osto, of @ale, ,ho began one of his most celebrated legal essays. he
Democratic Character of .udicial !evie,, thus7 4A theme of uneasiness, and even of guilt, colors the
literature about judicial revie,. Many of those ,ho have talked, lectured, and ,ritten about the
Constitution have been troubled by a sense that judicial revie, is undemocratic.4
45
>e ,ent on to
state7 4.udicial revie,, they have urged, is an undemocratic shoot on an other,ise respectable tree. %t
should be cut off, or at least kept pruned and
inconspicuous.4
4:
>is vie, ,as precisely the opposite. hus7 4he po,er of constitutional revie,, to
be e8ercised by some part of the government, is implicit in the conception of a ,ritten constitution
delegating limited po,ers. A ,ritten constitution ,ould promote discord rather than order in society if
there ,ere no accepted authority to construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthori"ed governmental action against individuals.
he limitation and separation of po,ers, if they are to survive, re#uire a procedure for independent
mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional
po,er ,hich arise in the process of government.4
47
More than that, he took pains to emphasi"e7
4Ehether another method of enforcing the Constitution could have been devised, the short ans,er is
that no such method developed. he argument over the constitutionality of judicial revie, has long
since been settled by history. he po,er and duty of the -upreme Court to declare statutes or
e8ecutive action unconstitutional in appropriate cases is part of the living Constitution. $he course of
constitutional history,$ Mr. .ustice 1rankfurter recently remarked, $has cast responsibilities upon the
-upreme Court ,hich it ,ould be 4stultification4 for it to evade.$ 4
48
?or is it only Dean !osto, ,ho
could point 1rankfurter, reputed to belong to the same school of thought opposed to judicial activism,
if not its leading advocate during his long stay in the =nited -tates -upreme Court, as one fully
cogni"ant of the stigma that attaches to a tribunal ,hich neglects to meet the demands of judicial
revie,. here is a statement of similar importance from Professor Mason7 4%n Stein v. Ne) Yor-
1rankfurter remarked, some,hat selfCconsciously perhaps, that the $duty of deference cannot be
allo,ed imperceptibly to slide into abdication.$ 4
49
Professor Nonefsky, like Dean !osto,, could not
accept characteri"ation of judicial revie, as undemocratic. hus his study of >olmes and Brandeis,
the follo,ing appears7 4Ehen it is said that judicial revie, is an undemocratic feature of our political
system, it ought also to be remembered that architects of that system did not e#uate constitutional
government ,ith unbridled majority rule. 0ut of their concern for political stability and security for
private rights, ..., they designed a structure ,hose keystone ,as to consist of barriers to the
untrammeled e8ercise of po,er by any group. hey perceived no contradiction bet,een effective
government and constitutional checks. o .ames Madison, ,ho may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints ,as the best ans,er to ,hat he
vie,ed as the chief problem in erecting a system of free representative government7 $%n framing a
government ,hich is to be administered by men over men, the great difficulty lies in this7 you must
first enable the government to control the governed: and in the ne8t place oblige it to control itself.$ 4
30
here is thus an inevitability to the flo,ering of judicial revie,. Could it be that the tone of discontent
apparent in the ,ritings of eminent authorities on the subject evince at the most fears that the
American -upreme Court might overstep the bounds allotted to the judiciaryI %t cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust ,henever appropriate to the decision of a case before them. hat is ,hy it has been correctly
maintained that not,ithstanding the absence of any e8plicit provision in the fundamental la, of the
=nited -tates Constitution, that distinguished American constitutional historian, Professor Cor,in,
could rightfully state that judicial revie, 4is simply incidental to the po,er of courts to interpret the la,,
of ,hich the Constitution is part, in connection ,ith the decision of cases.4
31
his is not to deny that
there are those ,ho ,ould place the blame or the credit, depending upon one$s predilection, on
Marshall$s epochal opinion in 'ar#ur v. 'a!ison.
34
Curtis belonged to that persuasion. As he put it7
4he problem ,as given no ans,er by the Constitution. A hole ,as left ,here the Court might drive in
the peg of judicial supremacy, if it could. And that is ,hat .ohn Marshall did.4
33
At any rate there ,as
something in the soil of American juristic thought resulting in this tree of judicial po,er so precariously
planted by Marshall striking deep roots and sho,ing ,onderful vitality and hardiness. %t no,
dominates the American legal scene. hrough it, Chief .ustice >ughes, before occupying that e8alted
position, could state in a lecture7 4Ee are under a Constitution, but the Constitution is ,hat the judges
say it is ... .4
35
he above statement is more than just an aphorism that lends itself to inclusion in
judicial anthologies or bar association speeches. %t could and did provoke from .ustice .ackson, an
e8ponent of the judicial restraint school of thought, this meaningful #uery7 4he Constitution no,here
provides that it shall be ,hat the judges say it is. >o,, did it come about that the statement not only
could be but could become current as the most understandable comprehensive summary of
American Constitutional la,I4
35
%t is no ,onder that Professor >aines could pithily and succinctly sum
up the place of the highest American tribunal in the scheme of things in this ,ise7 4he -upreme
Court of the =nited -tates has come to be regarded as the uni#ue feature of the American
governmental system.4
3:
+et me not be misunderstood. here is here no attempt to close one$s eyes
to a discernible tendency on the part of some distinguished faculty minds to look askance at ,hat for
them may be inadvisable e8tension of judicial authority. 1or such indeed is the case as reflected in
t,o leading cases of recent vintage, "a-er v. Carr,
37
decided in &(2* and Po)ell v. 'acCor(ac-,
38
in
&(2(, both noted in the opinion of the Chief .ustice. he former disregarded the ,arning of .ustice
1rankfurter in Colegrove v. 3reen A( about the American -upreme Court declining jurisdiction on the
#uestion of apportionment as to do so ,ould cut very deep into the very being of Congress.4
50
1or
him, the judiciary 4ought not to enter this political thicket.4 Baker has since then been follo,ed: it has
spa,ned a host of cases.
51
Po,ell, on the #uestion of the po,er of a legislative body to e8clude from
its ranks a person ,hose #ualifications are uncontested, for many the very staple of ,hat is
essentially political, certainly goes even further than the authoritative Philippine decision of @era v.
3velino,
54
%t does look then that even in the =nited -tates, the plea for judicial selfCrestraint, even if
given voice by those competent in the field of constitutional la,, has fallen on deaf ears. here is in
the comments of respondents an e8cerpt from Professor 1reund #uoting from one of his essays
appearing in a volume published in &(2). %t is not ,ithout interest to note that in another paper, also
included therein, he ,as less than assertive about the necessity for selfCrestraint and apparently
mindful of the claims of judicial activism. hus7 41irst of all, the Court has a responsibility to maintain
the constitutional order, the distribution of public po,er, and the limitations on that po,er.4
53
As for
Professor Bickel, it has been said that as counsel for the ?e, @ork imes in the famous 6ietnam
papers case,
55
he ,as less than insistent on the American -upreme Court e8ercising judicial selfC
restraint. here are signs that the contending forces on such #uestion, for some an une#ual contest,
are no, #uiescent. he fervor that characteri"ed the e8pression of their respective points of vie,
appears to have been minimi"ed. ?ot that it is to be e8pected that it ,ill entirely disappear,
considering ho, dearly cherished are, for each group, the convictions, prejudices one might even
say, entertained. At least ,hat once ,as fitly characteri"ed as the booming guns of rhetoric, coming
from both directions, have been muted. 0f late, scholarly disputations have been centered on the
standards that should govern the e8ercise of the po,er of judicial revie,. %n his celebrated >olmes
lecture in &(B( at the >arvard +a, -chool, Professor Eechsler advocated as basis for decision ,hat
he termed neutral principles of constitutional la,.
55
%t has brought forth a plethora of la, revie,
articles, the reaction ranging from guarded conformity to caustic criticism.
5:
here ,as, to be sure, no
clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental
agencies ,ithin constitutional channels. he matter has been put in temperate terms by Professor
1rank thus7 4Ehen allo,ance has been made for all factors, it nevertheless seems to me that the
doctrine of political #uestions ought to be very sharply confined to ,here the functional reasons justify
it and that in a give involving its e8pansion there should be careful consideration also of the social
considerations ,hich may militate against it. he doctrine has a certain specious charm because of
its nice intellectualism and because of the fine deference it permits to e8pertise, to secret kno,ledge,
and to the prerogatives of others. %t should not be allo,ed to gro, as a merely intellectual plant.4
57

%t is difficult for me at least, not to be s,ayed by appraisal, coming from such impeccable sources of
the ,orth and significance of judicial revie, in the =nited -tates. % cannot resist the conclusion then
that the vie,s advanced on this subject by distinguished counsel for petitioners, ,ith -enators
+oren"o M. aLada and .ovito -alonga at the van, rather than the advocacy of the -olicitorC3eneral,
possess the greater ,eight and carry persuasion. -o much then for the invocation of the political
#uestion principle as a bar to the e8ercise of our jurisdiction.
A. hat brings me to the issue of the validity of the ratification. he crucial point that had to be met is
,hether Proclamation ?o. &&9* manifests fidelity to the e8plicit terms of Article D6. here is, of
course, the vie, not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the te8t to allo, deference to its spirit to control. Eith due recognition of
its force in constitutional litigation,
58
if my reading of the events and the process that led to such
proclamation, so clearly set forth in the opinion of the Chief .ustice, is not inaccurate, then it cannot
be confidently asserted that there ,as such compliance. %t ,ould be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any other conclusion ,ould, for me,
re#uire an interpretation that borders on the strained. -o it has to be if one does not lose sight of ho,
the article on amendments is phrased. A ,ord, to paraphrase .ustice >olmes may not be a crystal,
transparent and unchanged, but it is not, to borro, from +earned >and, that eminent jurist, a rubber
band either. %t ,ould be un,arranted in my vie, then to assert that the re#uirements of the &(AB
Constitution have been met. here are American decisions,
59
and they are not fe, in number, ,hich
re#uire that there be obedience to the literal terms of the applicable provision. %t is understandable
,hy it should be thus. %f the Constitution is the supreme la,, then its mandate must be fulfilled. ?o
evasion is tolerated. -ubmission to its commands can be sho,n only if each and every ,ord is given
meaning rather than ignored or disregarded. his is not to deny that a recognition conclusive effect
attached to the electorate manifesting its ,ill to vote affirmatively on the amendments proposed
poses an obstacle to the judiciary being insistent on the utmost regularity. Briefly stated, substantial
compliance is enough. A great many American -tate decisions may be cited in support of such a
doctrine.
50

/ven if the assumption be indulged in that Article D6 is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to ,hat could be considered ,ords
of vague generality, pregnant ,ith uncertainty, still ,hatever obscurity it possesses is illumined ,hen
the light of the previous legislation is thro,n on it. %n the first Common,ealth Act,
51
submitting to the
1ilipino people for approval or disapproval certain amendments to the original ordinance appended to
the &(AB Constitution, it ,as made that the election for such purpose ,as to 4be conducted in
conformity ,ith the provisions of the /lection Code insofar as the same may be applicable.4
54
hen
came the statute,
53
calling for the plebiscite on the three &(J9 amendments providing for the
plebiscite on the three &(A9 amendments providing for a bicameral Congress or a -enate and a
>ouse of !epresentatives to take the place of a unicameral ?ational Assembly,
55
reducing the term
of the President to four years but allo,ing his reCelection ,ith the limitation that he cannot serve more
than eight consecutive years,
55
and creating an independent Commission on /lections.
5:
Again, it
,as e8pressly provided that the election 4shall be conducted in conformity ,ith the provisions of the
/lection Code in so far as the same may be applicable.4
57
he approval of the present parity
amendment ,as by virtue of a !epublic Act
58
,hich specifically made applicable the then /lection
Code.
59
here is a similar provision in the
legislation,
:0
,hich in cotemplation of the &('& Constitutional Convention, sa, to it that there be an
increase in the membership of the >ouse of !epresentatives a ma8imum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
,ithout forfeiting their seats, as proposed amendments to be voted on in the &(2' elections.
:1
hat is
the consistent course of interpretation follo,ed by the legislative branch. %t is most persuasive, if not
controlling. he restraints thus imposed ,ould set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or under his martial la,
prerogatives, he ,as not devoid of po,er to specify the mode of ratification. 0n t,o vital points, ,ho
can vote and ho, they register their ,ill, Article D6 had been given a definitive construction. hat is
,hy % fail to see sufficient justification for this Court affi8ing the imprimatur of its approval on the mode
employed for the ratification of the revised Constitution as reflected in Proclamation ?o. &&9*.
J. ?or is the matter before us solely to be determined by the failure to comply ,ith the re#uirements
of Article D6. %ndependently of the lack of validity of the ratification of the ne, Constitution, if it be
accepted by the people, in ,hom sovereignty resides according to the Constitution,
:4
then this Court
cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect.
-uch a fundamental principle is meaningless if it does not imply, to follo, +aski, that the nation as a
,hole constitutes the 4single center of ultimate reference,4 necessarily the possessor of that 4po,er
that is able to resolve disputes by saying the last ,ord.4
:3
%f the origins of the democratic polity
enshrined in the &(AB Constitution ,ith the declaration that the Philippines is a republican state could
be traced back to Athens and to !ome, it is no doubt true, as Mc%ver pointed out, that only ,ith the
recognition of the nation as the separate political unit in public la, is there the juridical recognition of
the people composing it 4as the source of political authority.4
:5
1rom them, as Cor,in did stress,
emanate 4the highest possible embodiment of human ,ill,4
:5
,hich is supreme and must be obeyed.
o avoid any confusion and in the interest of clarity, it should be e8pressed in the manner ordained by
la,. /ven if such is not the case, ho,ever, once it is manifested, it is to be accepted as final and
authoritative. he government ,hich is merely an agency to register its commands has no choice but
to submit. %ts officials must act accordingly. ?o agency is e8empt such a duty, not even this Court. %n
that sense, the lack of regularity in the method employed to register its ,ishes is fatal in its
conse#uences. 0nce the fact of acceptance by people of a ne, fundamental la, is made evident, the
judiciary is left ,ith no choice but to accord it recognition. he obligation to render it obeisance falls
on the courts as ,ell.
here are American -tate decisions that enunciate such a doctrine. Ehile certainly not controlling,
they are not entirely bereft of persuasive significance. %n 'iller v. Jo*nson,
::
decided in &)(*, it ,as
set forth in the opinion of Chief .ustice >olt that on May A, &)(9, an act ,as passed in Nentucky,
providing for the calling of a convention for the purpose of framing a ne, constitution and the election
of delegates. %t provided that before any form of constitution made by them should become operative,
it should be submitted to the vote of the state and ratified by a majority of those voting. he
constitution then in force authori"ed the legislature, the preliminary steps having been taken, to call a
convention 4for the purpose of readopting, amending, or changing4 it contained no provision giving
the legislature the po,er to re#uire a submission of its ,ork to a vote of the people. he convention
met in -eptember, &)(9. By April, &)(&, it completed a draft of a constitution, submitted it to a
popular vote, and then adjourned until -eptember follo,ing. Ehen the convention reassembled, the
delegates made numerous changes in instrument. As thus amended, it ,as promulgated by the
convention of -eptember *), &)(&, as the ne, constitution. An action ,as brought to challenge its
validity. %t failed in the lo,er court. %n affirming such judgment dismissing the action, Chief .ustice >olt
stated7 4%f a set of men, not selected by the people according to the forms of la,, ,ere to formulate an
instrument and declare it the constitution, it ,ould undoubtedly be the duty of the courts to declare its
,ork a nullity. his ,ould be revolution, and this the courts of the e8isting government must resist
until they are overturned by po,er, and a ne, government established. he convention, ho,ever,
,as the offspring of la,. he instrument ,hich ,e are asked to declare invalid as a constitution has
been made and promulgated according to the forms of la,. %t is a matter of current history that both
the e8ecutive and legislative branches of the government have recogni"ed its validity as a
constitution, and are no, daily doing so. ... Ehile the judiciary should protect the rights of the people
,ith great care and jealousy, because this is its duty, and also because: in times of great popular
e8citement, it is usually their last resort, yet it should at the same time be careful not to overstep the
proper bounds of its po,er, as being perhaps e#ually dangerous: and especially ,here such
momentous results might follo, as ,ould be likely in this instance, if the po,er of the judiciary
permitted, and its duty re#uires, the overthro, of the ,ork of the convention.4
:7
%n Talor v.
Co((on)ealt*,
:8
a &(9A decision, it ,as contended that the 6irginia Constitution reclaimed in &(9*
is invalid as it ,as ordained and promulgated by the convention ,ithout being submitted for
ratification or rejection by the people. he Court rejected such a vie,. As stated in the opinion of
.ustice >arrison7 4he Constitution of &(9* ,as ordained and proclaimed by a convention duly called
by direct vote of the people of the state to revise and amend the Constitution of &)2(. he result of
the ,ork of the convention has been recogni"ed, accepted, and acted upon as the only valid
Constitution of the state by the 3overnor in s,earing fidelity to it and proclaiming it, as directed
thereby: by the +egislature in its formal official act adopting a joint resolution, .uly &B, &(9*,
recogni"ing the Constitution ordained by the convention ,hich assembled in the city of !ichmond on
the &*th day of .une, &(9&, as the Constitution of 6irginia: by the individual oaths of members to
support it, and by enforcing its provisions: and the people in their primary capacity by peacefully
accepting it and ac#uiescing in it, by registering as voters under it to the e8tent of thousands
throughout the state, and by voting, under its provisions, at a general election for their representatives
in the Congress of the =nited -tates. he Constitution having been thus ackno,ledged and accepted
by the office administering the government and by the people of the state, and there being no
government in e8istence under the Constitution of &)2( opposing or denying its validity, ,e have no
difficulty in holding that the Constitution in #uestion, ,hich ,ent into effect at noon on the &9th day of
.uly, &(9*, is the only rightful, valid, and e8isting Constitution of this state, and that to it all the citi"ens
of 6irginia o,e their obedience and loyal allegiance.4
:9

%t cannot be plausibly asserted then that premises valid in la, are lacking for the claim that the
revised Constitution has been accepted by the 1ilipino people. Ehat is more, so it has been argued, it
is not merely a case of its being implied. hrough the Citi"ens Assemblies, there ,as a plebiscite ,ith
the result as indicated in Proclamation ?o. &&9*. 1rom the standpoint of respondents then, they could
allege that there ,as more than just mere ac#uiescence by the sovereign people. %ts ,ill ,as thus
e8pressed formally and unmistakably. %t may be added that there ,as nothing inherently
objectionable in the informal method follo,ed in ascertaining its preference. ?or is the fact that
1ilipinos of both se8es above the age of fifteen ,ere given the opportunity to vote to be deplored. he
greater the base of mass participation, the more there is fealty to the democratic concept. %t does
logically follo, like,ise that such circumstances being conceded, then no justifiable #uestion may be
raised. his Court is to respect ,hat had thus received the people$s sanction. hat is not for me
though ,hole of it. 1urther scrutiny even then is not entirely foreclosed. here is still an aspect that is
judicial, an in#uiry may be had as to ,hether such indeed ,as the result. his is no more than ,hat
the courts do in election cases. here are other factors to bear in mind. he fact that the President so
certified is ,ellCnigh conclusive. here is in addition the evidence flo,ing from the conditions of peace
and stability. here thus appears to be conformity to the e8isting order of things. he daily course of
events yields such a conclusion. Ehat is more, the officials under the &(AB Constitution, including
practically all !epresentatives and a majority of the -enators, have signified their assent to it. he
thought persists, ho,ever, that as yet sufficient time has not elapsed to be really certain.
?or is this all. here is for me an obstacle to the petitions being dismissed for such ascertainment of
popular ,ill did take place during a period of martial la,. %t ,ould have been different had there been
that freedom of debate ,ith the least interference, thus allo,ing a free market of ideas. %f it ,ere thus,
it could be truly said that there ,as no barrier to liberty of choice. %t ,ould be a clearCcut decision
either ,ay. 0ne could be certain as to the fact of the acceptance of the ne, or of adherence to the
old. his is not to deny that votes are cast by individuals ,ith their personal concerns uppermost in
mind, ,orried about their immediate needs and captive to their e8isting moods. hat is inherent in any
human institution, much more so in a democratic polity. ?or is it open to any valid objection because
in the final analysis the state e8ists for the individuals ,ho in their collectivity compose it. Ehatever
be their vie,s, they are entitled to respect. %t is difficult for me, ho,ever, at this stage to feel secure in
the conviction that they did utili"e the occasion afforded to give e8pression to ,hat ,as really in their
hearts. his is not to imply that such doubt could not be dispelled by evidence to the contrary. %f the
petitions be dismissed ho,ever, then such opportunity is forever lost.
B. Eith the foregoing legal principles in mind, % find myself unable to join the ranks of my esteemed
brethren ,ho vote for the dismissal of these petitions. % cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. %t is
not an easy decision to reach. %t has occasioned deep thought and considerable soulCsearching. 1or
there are countervailing considerations that e8ert a compulsion not easy to resist. %t can be asserted
,ith truth, especially in the field of social and economic rights, that ,ith the revised Constitution, there
is an auspicious beginning for further progress. hen too it could resolve ,hat appeared to be the
deepening contradictions of political life, reducing at times governmental authority to near impotence
and imparting a sense of disillusionment in democratic processes. %t is not too much to say therefore
that there had indeed been the revision of a fundamental la, to vitali"e the very values out of ,hich
democracy gro,s. %t is one ,hich has all the earmarks of being responsive to the dominant needs of
the times. %t represents an outlook cogni"ant of the tensions of a turbulent era that is the present.
hat is ,hy for some ,hat ,as done represented an act of courage and faith, coupled ,ith the hope
that the solution arrived at is a harbinger of a bright and rosy future.
%t is such a comfort then that even if my appraisal of the situation had commanded a majority, there is
not, ,hile these la,suits are being further considered, the least interference, ,ith the e8ecutive
department. he President in the discharge of all his functions is entitled to obedience. >e remains
commanderCinCchief ,ith all the constitutional po,ers it implies. Public officials can go about their
accustomed tasks in accordance ,ith the revised Constitution. hey can pursue even the tenor of
their ,ays. hey are free to act according to its tenets. hat ,as so these past fe, ,eeks, even
petitions ,ere filed. here ,as not at any time any thought of any restraining order. -o it ,as before.
hat is ho, things are e8pected to remain even if the motions to dismiss ,ere not granted. %t might be
asked though, suppose the petitions should prevailI Ehat thenI /ven so, the decision of this Court
need not be e8ecutory right a,ay. -uch a disposition of a case before this Court is not novel. hat
,as ho, it ,as done in the /mergency Po,ers Act controversy.
70
0nce compliance is had ,ith the
re#uirements of Article D6 of the &(AB Constitution, to assure that the coming force of the revised
charter is free from any taint of infirmity, then all doubts are set at rest.
1or some, to so vie, the #uestion before us is to be caught in a ,eb of unreality, to cherish illusions
that cannot stand the test of actuality. Ehat is more, it may give the impression of reliance on ,hat
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. hat may be so, but % find it impossible to transcend ,hat for me are the
implications of traditional constitutionalism. his is not to assert that an occupant of the bench is
bound to apply ,ith undeviating rigidity doctrines ,hich may have served their day. >e could at times
even look upon them as mere scribblings in the sands to be ,ashed a,ay by the advancing tides of
the present. he introduction of novel concepts may be carried only so far though. As Cardo"o put
the matter7 4he judge, even ,hen he is free, is still not ,holly free. >e is not to innovate at pleasure.
>e is not a knightCerrant, roaming at ,ill in pursuit of his o,n ideal of beauty or of goodness. >e is to
dra, his inspiration from consecrated principles. >e is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. >e is to e8ercise a discretion informed by tradition, methodi"ed by
analogy, disciplined by system, and subordinated to 4the primordial necessity of order in the social
life.4 Eide enough in all conscience is the field of discretion that remains.4
71
Moreover ,hat made it
difficult for this Court to apply settled principles, ,hich for me have not lost their validity, is traceable
to the fact that the revised Constitution ,as made to take effect immediately upon ratification. %f a
period of time ,ere allo,ed to elapse precisely to enable the judicial po,er to be e8ercised, no
complication ,ould have arisen. +ike,ise, had there been only one or t,o amendments, no such
problem ,ould be before us. hat is ,hy % do not see sufficient justification for the orthodo8ies of
constitutional la, not to operate.
/ven ,ith full reali"ation then that the approach pursued is not all that it ought to have been and the
process of reasoning not ,ithout its shortcomings, the basic premises of a constitutional democracy,
as % understand them and as set forth in the preceding pages, compel me to vote the ,ay % did.
he masterly opinion of the Chief .ustice ,herein he painstakingly deals ,ith the momentous issues
of the cases at bar in all their comple8ity commands my concurrence.
% ,ould herein make an e8position of the fundamental reasons and considerations for my stand.
he unprecedented and precedentCsetting issue submitted by petitioners for the Court$s resolution is
the validity and constitutionality of Presidential Proclamation ?o. &&9* issued on .anuary &', &('A,
certifying and proclaiming that the Constitution proposed by the &('& Constitutional Convention 4has
been ratified by an over,helming majority of all the votes cast by the members of all the Barangays
;Citi"ens Assemblies< throughout the Philippines, and has thereby come into effect.4
More specifically, the issue submitted is ,hether the purported ratification of the proposed
Constitution by means of the Citi"ens Assemblies has substantially complied ,ith the mandate of
Article D6 of the e8isting Constitution of &(AB that duly proposed amendments thereto, in toto or parts
thereof, 4shall be valid as part of this Constitution ,hen approved by a (a5orit of the votes cast at an
election at ,hich the amendments are su#(itte! to the people for their rati,ication.4
1

A necessary corollary issue is ,hether the purported ratification of the proposed Constitution as
signed on ?ovember A9, &('* by the &('& Constitutional Convention may be said also to have
substantially complied ,ith its o,n mandate that 4;<his Constitution shall take immediately upon its
rati,ication by a (a5orit of the votes cast in a ple#iscite calle! ,or t*e purpose and e8cept as herein
provided, shall supersede the Constitution of ?ineteen hundred and thirtyCfive and all amendments
thereto.4
4

!espondents contend that 4;A<lthough apparently ,hat is sought to be annulled is Proclamation ?o.
&&9*, ,hat petitioners really seek to invalidate is the ne, Constitution4, and their actions must be
dismissed, #ecause7
K 4the Court may not in#uire into the vali!it of the proce!ure ,or rati,ication4 ,hich is 1political in
character4 and that 4,hat is sought to be invalidated is not an act of the President but of the people:
K 4;<he ,act o, approval of the ne, Constitution by an over,helming majority of the votes cast as
!eclare! an! certi,ie! in Proclamation ?o. &&9* is conclusive on the courts:
K 4Proclamation ?o. &&9* ,as issued by the President in the e8ercise of legislative po,er under martial
la,. ... Alternatively, or contemporaneously, he did so as 4agent4 of the Constitutional Convention:4
K 4alleged !e,ects, such as absence of secret votin+, enfranchisement of persons less than *& years,
non supervision ;by< the Co(elec are matters not re;uire! by Article D6 of the &(AB Constitution4: ;sic<
K 4a,ter rati,ication, ,hatever defects there might have been in the procedure are overcome and (oote!
;and (ute!< by the ,act o, rati,ication4: and
K 4;A<ssuming finally that Article D6 of the &(AB Constitution ,as not strictly follo,ed, the ratification of
the ne, Constitution must nonetheless be respected. 1or the procedure outlined in Article D6 ,as not
intended to be e8clusive of other procedures, especially one ,hich contemplates popular and direct
participation of the citi"enry ... .4
3

o test the validity of respondents$ submittal that the Court, in annulling Proclamation ?o. &&9* ,ould
really be 4invalidating the ne, Constitution4, the terms and premises of the issues have to be defined.
K !espondents themselves assert that 4Proclamation ?o. &&9* ... is plainly merely !eclarator of the fact
that the &('A Constitution has been rati,ie! and has come into force.
5

K he measure of the fact of ratification is Article D6 of the &(AB Constitution. his has been consistently
held by the Court in the Gonzales7
5
and Tolentino
:
cases.
K %n the Tolentino case, this Court emphasi"ed 4that the provisions of -ection & of Article D6 of the
Constitution, dealing ,ith the proce!ure or (anner o, a(en!in+ the fundamental la, are binding upon the
Convention and the other departments of the government. %t must be added that ... they are no less
#in!in+ upon the people.4
7

K %n the same Tolentino case, this Court further proclaimed that 4as long as any amendment is
,hich is not in conformity ,ith the letter, spirit and intent of the C*arter for effecting amendments, cannot
receive the sanction of this Court.4
8

K As continues to be held by a majority of this Court, proposed amendments to the Constitution 4should
be ratified in only one ,ay, that is, in an election or plebiscite held in accordance ,ith la, and participated
in only by #ualified and duly registered voters4
9
and under the supervision of the Commission on
/lections.
10

K >ence, if the Court declares Proclamation &&9* null and void because on its ,ace, the purported
ratification of the proposed Constitution has not faithfully nor substantially observed nor complied ,ith the
mandatory re#uirements of Article D6 of the ;&(AB< Constitution, it ,ould not be 4invalidating4 the
proposed ne, Constitution but ,ould be simply declaring that the announced fact of ratification thereof by
means of the Citi"ens Assemblies referendums does not pass the constitutional test and that the
proposed ne, Constitution has not constitutionally come into e8istence.
K -ince Proclamation &&9* is ackno,ledged by respondent to be 4plainly merely declaratory4 of the
disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing
the selfCsame declaration as proof of the purported ratification therein declared.
Ehat complicates the cases at bar is the fact that the proposed &('* Constitution ,as enforced as
having immediately taken effect upon the issuance on .anuary &', &('A of Proclamation &&9* and
the #uestion of ,hether 4confusion and disorder in government affairs ,ould ;not< result4 from a
judicial declaration of nullity of the purported ratification is raised by the -olicitorC3eneral on behalf of
respondents.
A comparable precedent of great crisis proportions is found in the /mergency Po,ers cases,
11

,herein the Court in its !esolution of -eptember &2, &(J( after judgment ,as initially not obtained on
August *2, &(J( for lack of the re#uired si8 ;2< votes, finally declared in effect that the preC,ar
emergency po,ers delegated by Congress to the President, under Common,ealth Act 2'& in
pursuance of Article 6%, section *2 of the Constitution, had ceased and became inoperative at the
latest in May, &(J2 ,hen Congress met in its first regular session on May *B, &(J2.
hen Chief .ustice Manuel 6. Moran recited the great interests and important rights that had arisen
under e8ecutive orders 4issued in good faith and ,ith the best of intentions by three successive
Presidents, and some of them may have already produced e8tensive effects on the life of the nation4
K in the same manner as may have arisen under the bona fide acts of the President no, in the
honest belief that the &('* Constitution had been validly ratified by means of the Citi"ens Assemblies
referendums K and indicated the proper course and solution therefor, ,hich ,ere duly abided by and
confusion and disorder as ,ell as harm to public interest and innocent parties thereby avoided as
follo,s7
=pon the other hand, ,hile % believe that the emergency po,ers had ceased in .une &(JB, % am not
prepared to hold that all e8ecutive orders issued thereafter under Common,ealth Act ?o. 2'&, are per se
null and void. %t must be borne in mind that these e8ecutive orders had been issued in good faith and ,ith
the best of intentions by three successive Presidents, and some of them may have already produced
e8tensive effects in the life of the nation. Ee have, for instance, /8ecutive 0rder ?o. 'A, issued on
?ovember &*, &(JB, appropriating the sum of P2,'B9,999 for public ,orks: /8ecutive 0rder ?o. )2,
issued on .anuary ', &(J2, a(en!in+ a previous or!er re+ar!in+ t*e or+anization o, t*e Supre(e Court:
/8ecutive 0rder ?o. )(, issued on .anuary &, &(J2, reorgani"ing Courts of 1irst %nstance: /8ecutive
0rder ?o. &)J, issued on ?ovember &(, &(J), controlling rice and palay to combat hunger: and other
e8ecutive orders appropriating funds for other purposes. he conse#uences of a #lan-et nulli,ication of all
these e8ecutive orders ,ill be un#uestionably serious an! *ar(,ul. And % hold that before nullifying them,
ot*er i(portant circu(stances should be in;uire! into, as for instance, ,hether or not they have been
ratified by Congress e8pressly or impliedly, ,hether their purposes have already been accomplished
entirely or partially, and in the last instance, to ,hat e8tent: ac#uiescence of litigants: !e ,acto officers:
acts and contracts of parties acting in good faith: etc. %t is my opinion that each e8ecutive order must be
vie,ed in the light of its peculiar circumstances, and, if necessary and possible, nullifying it, precautionary
measures should be taken to avoi! *ar( to public interest and innocent parties.
14

%nitially, then Chief .ustice Moran voted ,ith a majority of the Court to grant the Araneta and 3uerrero
petitions holding null and void the e8ecutive orders on rentals and e8port control but to defer
judgment on the !odrigue" and Barredo petitions for judicial declarations of nullity of the e8ecutive
orders appropriating the &(J(C&(B9 fiscal year budget for the government and P2 million for the
holding of the &(J( national elections. After rehearsing, he further voted to also declare null and void
the last t,o e8ecutive orders appropriating funds for the &(J( budget and elections, completing the
4sufficient majority4 of si8 against four dissenting justices 4to pronounce a valid judgment on that
matter.4
13

hen Chief .ustice Moran, ,ho penned the Court$s majority resolution, e8plained his vote for
annulment despite the great difficulties and possible 4harmful conse#uences4 in the follo,ing
passage, ,hich bears reCreading7
>o,ever, no, that the holding of a special session of Congress for the purpose of remedying the nullity of
the e8ecutive orders in #uestion appears remote and uncertain, % am compelled to, and do hereby, give
my un#ualified concurrence in the decision penned by Mr. .ustice uason declaring that these t,o
e8ecutive orders ,ere issued ,ithout authority of la,.
Ehile in voting for a temporary deferment of the judgment % ,as moved by the belief that positive
compliance ,ith the Constitution by the other branches of the 3overnment, ,hich is our prime concern in
all these cases, ,ould be effected, and indefinite deferment ,ill produce the opposite result because it
,ould legitimi"e a prolonged or permanent evasion of our organic la,. /8ecutive orders ,hich are, in our
opinion, repugnant to the Constitution, ,ould be given permanent life, opening the ,ay or practices ,hich
may undermine our constitutional structure.
he harmful conse#uences ,hich, as % envisioned in my concurring opinion, ,ould come to pass should
the said e8ecutive orders be immediately declared null and void are still real. hey have not disappeared
by reason of the fact that a special session of Congress is not no, forthcoming. >o,ever, the remedy
no, lies in the hands of the Chief /8ecutive and of Congress, for the Constitution vests in the former the
po,er to call a special session should the need for one arise, and in the latter, the po,er to pass a valid
appropriations act.
hat Congress may again fail to pass a valid appropriations act is a remote possibility, for under the
circumstances it fully reali"es its great responsibility of saving the nation from breaking do,n: and
furthermore, the President in the e8ercise of his constitutional po,ers may, if he so desires, compel
Congress to remain in special session till it approves the legislative measures most needed by the
country.
Democracy is on trial in the Philippines, and surely it ,ill emerge victorious as a permanent ,ay of life in
this country, if each of the great branches of the 3overnment, ,ithin its o,n allocated sphere, complies
,ith its o,n constitutional duty, uncompromisingly and regardless of difficulties.
0ur !epublic is still young, and the vital principles underlying its organic structure should be maintained
firm and strong, hard as the best of steel, so as to insure its gro,th and development along solid lines of a
stable and vigorous democracy.
15

he late .ustice Pedro uason ,ho penned the initial majority judgment ;declaring null and void the
rental and e8port control e8ecutive orders< like,ise observed that 4;<he truth is that under our
concept of constitutional government, in times of e8treme perils more than in normal circumstances
$the various branches, e8ecutive, legislative, and judicial,$ given the ability to act, are called upon $to
perform the duties discharge the responsibilities committed to respectively.$ 4
15

%t should be duly ackno,ledged that the Court$s task of discharging its duty and responsibility has
been considerably lightened by the President$s public manifestation of adherence to constitutional
processes and of ,orking ,ithin the proper constitutional frame,ork as per his press conference of
.anuary *9,&('A, ,herein he stated that 4;<he -upreme Court is the final arbiter of the Constitution.
%t can and ,ill probably determine the validity of this Constitution. % did not ,ant to talk about this
because actually there is a case pending before the -upreme Court. But suffice it to say that %
recogni"e the po,er of the -upreme Court. Eith respect to appointments, the matter falls under a
general provision ,hich authori"es the Prime Minister to appoint additional members to the -upreme
Court. =ntil the matter of the ne, Constitution is decided, % have no intention of utili"ing that po,er.4
1:
hus, it is that as in an analogous situation ,herein the state -upreme Court of Mississippi held that
the #uestions of ,hether the submission of the proposed constitutional amendment of the -tate
Constitution providing for an elective, instead of an appointive, judiciary and ,hether the proposition
,as in fact adopted, ,ere justifiable and not political #uestions, ,e may echo the ,ords therein of
Chief .ustice Ehitfield that 4;E<e do not seek a jurisdiction not imposed upon us by the Constitution.
Ee could not, if ,e ,ould, escape the e8ercise of that jurisdiction ,hich the Constitution has imposed
upon us. %n the particular instance in ,hich ,e are no, acting, our duty to kno, ,hat the Constitution
of the state is, and in accordance ,ith our oaths to support and maintain it in its integrity, imposed on
us a most difficult and embarrassing duty, one ,hich ,e have not sought, but one ,hich, like all
others, must be discharged.4
17

%n confronting the issues at bar, then, ,ith due regard for my colleagues$ contrary vie,s, ,e are faced
,ith the hard choice of maintaining a firm and strict K perhaps, even rigid K stand that the
Constitution is a 4superior para(ount la), unc*an+ea#le # or!inar (eans4 save in the particular
mode and manner prescribed therein by the people, ,ho, in Cooley$s ,ords, so 4tied up ;not only< the
hands of their official agencies, but their o,n hands as ,ell4
18
in the e8ercise of their sovereign ,ill or
a liberal and fle8ible stand that ,ould consider compliance ,ith the constitutional article on the
amending process as merely directory rather than mandatory.
he first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended in toto or other,ise e6clusivel 4by approval by a majority of the votes cast an election at
,hich the amendments are submitted to the people for their ratification4,
19
participated in onl by
;uali,ie! and duly re+istere! voters t)ent4one ears of age or over
40
and duly supervise! by the
Commission on /lections,
41
in accordance ,ith the cited mandatory constitutional re#uirements.
he alternative choice of a liberal stand ,ould permit a !isre+ar! of said re#uirements on the theory
urged by respondents that 4the procedure outlined in Article D6 ,as not intended to be e6clusive of
other procedures especially one ,hich contemplates popular and direct participation of the citi"enry4,
44
that the constitutional age and literacy re#uirements and other statutory safeguards for ascertaining
the ,ill of the majority of the people may like,ise be changed as 4suggested, if not prescribed, by the
people ;through the Citi"ens Assemblies< themselves4,
43
and that the Comelec is constitutionally
4mandated to oversee ... elections ;of public officers< and not plebiscites.4
45

o paraphrase =.-. Chief .ustice .ohn Marshall ,ho first declared in the historic &)9A case of
'ar#ur vs. 'a!ison
45
the =.-. -upreme Court$s po,er of judicial revie, and to declare void la,s
repugnant to the Constitution, there is no middle ground bet,een these t,o alternatives. As Marshall
e8pounded it7 4;<he Constitution is either a superior paramount la,, unchangeable by ordinary
means, or it is on a level ,ith ordinary legislative acts, and, like other acts, alterable ,hen the
legislature shall please to alter it. %f the former part of the alternative be true, then a legislative act,
contrary to the Constitution, is not la,: if the latter part be true, then ,ritten constitutions are absurd
attempts on the part of a people, to limit a po,er, in its o,n nature, illimitable.4
As ,as to be restated by .ustice .ose P. +aurel a century and a third later in the &(A2 landmark case
of 3n+ara vs. Electoral Co((ission,
4:
4;<he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental po,ers and agencies. %f these restrictions and
limitations are transcended it ,ould be inconceivable if the Constitution had not provided for a
mechanism by ,hich to direct the course of government along constitutional channels, for then the
distribution of po,ers ,ould be mere verbiage, the bill of rights mere e8pressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution are real as they should be in any living
Constitution.4
.ustice +aurel pointed out that in contrast to the =nited -tates Constitution, the Philippine Constitution
as 4a definition of the po,ers of government4 placed upon the judiciary the great burden of
4determining the nature, scope and e8tent of such po,ers4 and stressed that 4,hen the judiciary
departments ... but only asserts the solemn and sacred obligation 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 ,hich the instrument secures and guarantees to them.4
%%
Marshall ,as to utter much later in the e#ually historic &)&( case of 'cCulloc* vs. 'arlan!
47
the
4climactic phrase,4
48
4,e must never forget that it is a constitution ,e are e8pounding,4 K termed by
.ustice 1rankfurter as 4the single most important utterance in the literature of constitutional la, K
most important because most comprehensive and comprehending.4
49
his enduring concept to my
mind permeated to this Court$s e8position and rationale in the hallmark case of olentino, ,herein ,e
rejected the contentions on the Convention$s behalf 4that the issue ... is a political #uestion and that
the Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts.4
30

his Court therein made its une;uivocal choice of strictly re#uiring ,ait*,ul ;,hich really includes
substantial< compliance ,ith the (an!ator re#uirements of the a(en!in+ process.
&. %n denying reconsideration of our judgment of 0ctober &2, &('& prohibiting the submittal in an
advance election of &('& Constitutional Convention$s 0rganic !esolution ?o. & proposing to amend
Article 6, section & of the Constitution by lo,ering the voting age to &) years ;vice *& years< A9a
4,ithout prejudice to other amendments that ,ill be proposed in the future ... on other portions of the
amended section4, this Court stated that 4the constitutional provision in #uestion ;as proposed<
presents no doubt ,hich may be resolved in favor of respondents and intervenors. Ee do not believe
such doubt can e8ist only because it is urged that the en! sought to be achieved is to be !esire!.
Paraphrasing no less than the President of Constitutional Convention of &(AJ, Claro M. !ecto, let
la, purportedly in order to attain some laudable objective bear in mind that someday someho, others
31

*. his Court held in olentino that7
... 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 e8isting Constitution. ?o, Ee hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of -ection & of 3rticle I@. his must be so,
because it is plain to =s that the framers of the Constitution took care that the process of amending the
same should not be undertaken ,ith the same ease and ,acilit in changing an ordinary legislation.
succeeding generations generally cherish. And because the Constitution affects the lives, ,ortunes, ,uture
and ever ot*er conceiva#le aspect of the lives of all t*e people ,ithin the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A constitution ,orthy of the people
for deliberation and study. %t is obvious that correspondingly, an a(en!(ent of the Constitution is of no
less importance than the ,hole Constitution itself, and perforce must be conceived and prepared ,ith as
much care and deliberation. 1rom the very nature of things, the drafters of an original constitution, as
already observed earlier, operate ,ithout any limitations, restraints or inhibitions save those that they may
impose upon themselves. his is not necessarily true of subse#uent conventions called to amend the
original constitution. 3enerally, the framers of the latter see to it that their handi,ork is not lightly treated
and as easily mutilated or changed, not only for reasons purely personal but more importantly, because
,ritten 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 e8igencies of the people, hence, they must be
insulate! against precipitate and hasty actions motivated by more or less passing political moods or
fancies. hus, as a rule, the original constitutions carry ,ith them limitations and conditions, more or less
stringent, (a!e so # t*e people t*e(selves, in regard to the process of their a(en!(ent. And ,hen
such limitations or conditions are so incorporated in the original constitution, it does not lie in the
delegates of any subse#uent convention to claim that they may ignore and disregard such conditions
because they are po,erful and omnipotent as their original counterparts.
34

A. his Court in Tolentino like,ise formally adopted the doctrine of proper su#(ission first advanced
in Gonzales vs. Co(elec
33
, thus7
Ee 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 su,,icient ti(e but a(ple #asis for an
intelli+ent appraisal of the nature of amendment per se as ,ell as its relation to the other parts of the
Constitution ,ith ,hich it has to form a harmonious ,hole. %n the conte8t of the present state of things,
,here the Convention hardly started considering the merits of hundreds, if not thousands, proposals to
amend the e8isting Constitution, to present to people any single proposal or a fe, of them cannot comply
,ith this re#uirement. Ee are of the opinion that the present Constitution does not contemplate in -ection
& of Article D6 a plebiscite or 4election4 ,herein the people are in the dark as to frame of reference they
can base their judgment on. Ee reject the rationali"ation that the present Constitution is a possible frame
of reference, for the simple reason that intervenors themselves are stating 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. %n brief, under the proposed plebiscite, there can be, in
the language of .ustice -anche", speaking for the si8 members of the Court in 3on"ales, supra, $no
proper su#(ission.$ 4
35

J. 1our other members of the Court
35
in a separate concurrence in Tolentino, e8pressed their
4essential agreement4 ,ith .ustice -anche"$ separate opinion in Gonzales on the need for 4,air
su#(ission ;and< intelli+ent re5ection4 as 4(ini(u( re#uirements that must be met in order that there
can be a proper su#(ission to the people of a proposed constitutional amendment4 thus7
capabilities, should strain every effort to inform every citi"en of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof. By this, ,e are not to be understood
as saying that, if one citi"en or &99 citi"ens or &,999 citi"ens cannot be reached, then there is no
submission ,ithin the meaning of the ,ord as intended by the framers of the Constitution. Ehat the
Constitution in effect directs is that the government, in submitting an amendment for ratification, should
put every instrumentality or agency ,ithin its structural frame,ork to enlighten the people, educate them
,ith respect to their act of ratification or rejection. 1or as ,e have earlier stated, one thing is submission
and another is ratification. here (ust be ,air su#(ission, intelli+ent consent or re5ection.
3:

hey stressed further the need for un!ivi!e! attention, su,,icient in,or(ation and ,ull !e#ate,
conformably to the intendment of Article D6, section & of the Constitution, in this ,ise7
A number of doubts or misgivings could conceivably and logically assail the average voter. Ehy should
the voting age be lo,ered at all, in the first placeI Ehy should the ne, voting age be precisely &) years,
and not &( or *9I And ,hy not &'I 0r even &2 or &BI %s the &)Cyear old as mature as the *&Cyear old, so
that there is no need of an educational #ualification to entitle him to voteI %n this age of permissiveness
and dissent, can the &)Cyear old be relied upon to vote ,ith judiciousness ,hen the *&Cyear old, in the
past elections, has not performed so ,ellI %f the proposed amendment is voted do,n by the people, ,ill
the Constitutional Convention insist on the said amendmentI Ehy is there an unseemly haste on the part
of the Constitutional Convention in having this particular proposed amendment ratified at this particular
timeI Do some of the members of the Convention have future political plans ,hich they ,ant to begin to
subserve by the approval this year of this amendmentI %f this amendment is approved, does it thereby
mean that the &)Cyear old should not also shoulder the moral and legal responsibilities of the *&Cyear oldI
Eill he be re#uired to compulsory military service under the colorsI Eill the contractual consent be
reduced to &) yearsI %f % vote against the amendment, ,ill % not be unfair to my o,n child ,ho ,ill be &)
years old, come &('AI
he above are just samplings from here, there and every,here K from a domain ;of searching #uestions<
the bounds of ,hich are not immediately ascertainable. -urely, many more #uestions can be added to the
already long litany. And the ans,ers cannot e8cept as the #uestions are !e#ate! ,ull, pon!ere! upon
purpose,ull, an! accor!e! un!ivi!e! attention.
su,,icientl in,or(e! of the (eanin+, nature an! e,,ects of the proposed constitutional amendment. hey
have not been afforded a(ple ti(e to deliberate thereon conscientiously. hey have been and are
effectively distracted from a ,ull an! !ispassionate consi!eration o, t*e (erits an! !e(erits of the
cannot thus ,eigh in tran#uility the need for and the ,isdom proposed
amendment.
37

B. his Court therein dismissed the plea of disregarding mandatory re#uirements of the amending
process 4in favor of allo,ing the sovereign people to e8press their decision on the proposed
amendments4 as 4anachronistic in the real constitutionalism and repugnant to the essence of the rule
of la,,4 in the follo,ing terms7
... he preamble of the Constitution says that the Constitution has been ordained by the $1ilipino people,
imploring the aid of Divine Providence.$ -ection & of Article D6 is nothing than a part of the Constitution
thus or!aine! # t*e people. >ence, in construing said section, Ee must read it as if the people had said,
$his Constitution may be a(en!e!, but it is our )ill that the amendment must be propose! and
su#(itte! to =s for ratification onl in t*e (anner *erein provi!e!.$ ... Accordingly, the real issue here
cannot be ,hether or not the amending process delineated by the present Constitution may be
disregarded in favor of allo,ing the sovereign people to e8press their decision on the proposed
amendments, if only because it is evident that the very idea of !epartin+ from the fundamental la, is
anac*ronistic in t*e real( o, constitutionalis( and repu+nant to t*e essence o, t*e rule o, la): rather, it is
,hether or not the provisional nature of the proposed amendment and the (anner o, its su#(ission to the
people for ratification or rejection con,or( ,ith the (an!ate o, t*e people themselves in such regard, as
e8pressed in, the Constitution itself.
38

2. his Court, in not heeding the popular clamor, thus stated its position7 4;%<t ,ould be tragic and
contrary to the plain compulsion of these perspectives, if the Court ,ere to allo, itself in deciding this
case to be carried astray by considerations other than the i(peratives of the rule of la) and of the
applicable provisions of the Constitution. ?eedless to say, in a larger measure than ,hen 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 ,ith the proper parties and by striking do,n any act violative thereof.
>ere, as in all other cases, Ee are resolved to !isc*ar+e that !ut.
39

'. he Chief .ustice, in his separate opinion in Tolentino concurring ,ith this Court$s denial of the
motion for reconsideration, succinctly restated this Court$s position on the fundamentals, as follo,s7
K 0n the premature submission of a partial amendment proposal, ,ith a 4temporary provisional or
tentative character47 K 4... a partial amendment ,ould deprive the voters of the conte8t ,hich is usually
necessary for them to make a reasona#l intelli+ent appraisal of the issue submitted for their ratification
or rejection. ... hen, too, the submission to a plebiscite of a partial amendment, ,ithout a !e,inite ,ra(e
o, re,erence, is fraught ,ith possibilities ,hich may jeopardi"e the social fabric. 1or one thing, it opens the
door to ,ild speculations. %t offers ample opportunities for over"ealous leaders and members of opposing
political camps to unduly e8aggerate the pros and cons of the partial amendment proposed. %n short, it is
apt to breed ,alse *opes and create )ron+ i(pressions. As a conse#uence, it is bound to unduly strain
the people$s faith in the soundness and validity of democratic processes and institutions.
K 0n the plea to allo, submission to the sovereign people of the 4fragmentary and incomplete4 proposal,
although inconsistent ,ith the letter and spirit of the Constitution7 4he vie,, has, also, advanced that the
foregoing considerations are not decisive on the issue before =s, inasmuch as the people are soverei+n,
and the partial amendment involved in this case is being submitted to them. he issue before =s is
,hether or not said partial amendment (a be vali!l su#(itte! to the people for ratification 4in a
plebiscite coincide ,ith the local elections in ?ovember &('&,4 and t*is particular issue ,ill not be
submitted to the people. Ehat is more, the Constitution does not permit its submission to the people. he
#uestion sought to be settled in the scheduled plebiscite is ,hether or not the people are in favor of the
reduction of the voting age.
K 0n a 4political4 rather than 4le+alistic4 approach7 4%s this approach to the problem too 4le+alisticI4 his
term has possible connotations. %t may mean strict a!*erence to t*e la), ,hich in the case at bar is the
Supre(e 0a) of the land. 0n point, suffice it to say that, in compliance ,ith the specific man of such
-upreme +a,, the members of the -upreme Court taken the re#uisite 4oath to support and defend the
Constitution.4 ... hen, again, the term 4le+alistic4 may be used to suggest inversely that the some,hat
strained interpretation of the Constitution being urged upon this Court be tolerate! or, at least,
overlooked, upon the theory that the partial amendment on voting age is badly needed and reflects the
,ill of the people, specially the youth. his course of action favors, in effect, adoption of a political
approac*, inasmuch as the advisability of the amendment and an appraisal of the people$s feeling
thereon political (atters. %n fact, apart from the obvious message of the mass media, and, at times, of the
pulpit, the Court has been literally bombarded ,ith scores of hand,ritten letters, almost all of ,hich bear
the penmanship and the signature of girls, as ,ell as letterhead of some sectarian educational
institutions, generally stating that the ,riter is &) years of age and urging that she or he be allo,ed to
vote. hus, the pressure of public opinion has brought to bear heavily upon the Court for a
reconsideration of its decision in the case at bar.
As above stated, ho,ever, the )is!o( of the amendment and the popularit thereof are political
#uestions beyond our province. %n fact, respondents and the intervenors originally maintained that Ee
have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a
political one. Aside from the absence of authority to pass upon political #uestion, it is obviously improper
and un,ise for the bench to develop into such #uestions o,ing to the danger of +ettin+ involve! in
politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulness of courts
of justice as objective and impartial arbiters of justiciable controversies.
hen, too, the suggested course of action, if adopted, ,ould constitute a grievous disservice to the people
and the very Convention itself. %ndeed, the latter and the Constitution it is in the process of drafting stand
essentially for the !ule of +a,. >o,ever, as the -upreme +a, of the land, a Constitution ,ould not be
,orthy of its name, and the Convention called upon to draft it ,ould be engaged in a futile undertaking, if
,e did not e8act ,ait*,ul a!*erence to the ,un!a(ental tenets set forth in the Constitution and compliance
,ith its provisions ,ere not obligatory. %f ,e, in effect, approved, consented to or even overlooked a
circumvention of said tenets and provisions, because of the good intention ,ith ,hich !esolution ?o. & is
animated, the Court ,ould thereby become the Ju!+e of the +oo! or #a! intentions of the Convention and
thus be involved in a #uestion essentially political in nature.
his is confirmed by the plea made in the motions for reconsideration in favor of the e8ercise of judicial
statesmanship in deciding the present case. %ndeed, 4politics4 is the ,ord commonly used to epitomi"e
compromise, even ,ith principles, for the sake of political e8pediency or the advancement of the bid for
po,er of a given political party. =pon the other hand, statesmanship is the e8pression usually availed of
to refer to high politics or politics on the highest level. %n any event, politics, political approach, political
e8pediency and statesmanship are generally associated, and often identified, ,ith the dictum that 4t*e
en! 5usti,ies t*e (eans.4 % earnestly hope that the administration of justice in this country and the
-upreme Court, in particular, ,ill adhere to or approve or indorse such dictum.4
50

Tolentino, he pointed out that although 4;M<ovants$ submittal that 4;<he primary purpose for the
submission of the proposed amendment lo,ering the voting age to the plebiscite on ?ovember ),
&('& is to enable the youth &) to *9 years ,ho comprise more than three ;A< million of our population
to participate in the ratification of the ne, Constitution in so far as 4to allo, young people ,ho ,ould
be governed by the Constitution to be given a say on ,hat kind of Constitution they ,ill have4 is a
laudable end, ... those urging the vitality and importance of the proposed constitutional amendment
and its approval ahead of the complete and final draft of the Constitution must seek a valid solution to
achieve it in a manner sanctioned by the amendatory process ordained by our people in the present
Constitution4
51
K so that there may be 4submitted, not pieceCmeal, but by ,ay of complete and final
amendments as an integrated ,hole ;integrated either ,ith the subsisting Constitution or ,ith the ne,
proposed Constitution<...4
(. he universal validity of the vital constitutional precepts and principles aboveCenunciated can
hardly be gainsaid. % fail to see the attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to soCcalled entirely ne,
Constitutions. Amendments to an e8isting Constitution presumably may be only of certain parts or in
toto, and in the latter case ,ould rise to an entirely ne, Constitution. Ehere this Court held in
Tolentino that 4an amendment of the Constitution is of no less importance than the ,hole
Constitution itself and perforce must be conceived and prepared ,ith as much care and deliberation4,
it ,ould appeal that the reverse ,ould e#ually be true: ,hich is to say, that the adoption of a ,hole
ne, Constitution ,ould be of no less importance than any particular amendment and therefore the
necessary care and deliberation as ,ell as the mandatory restrictions and safeguards in the
amending process ordained by the people themselves so that 4they ;may< be insulate! against
precipitate and hasty actions motivated by more or less passing political moods or fancies4 must
necessarily e#ually apply thereto.
%%%
&. o restate the basic premises, the people provided in Article D6 of the Constitution for the
amending process onl 4by approval by a majority of the votes cast at an election at ,hich the ;duly
proposed< amendments are submitted to the people for their ratification.4
he people ordained in Article 6, section & that only those thereby enfranchised and granted the right
of suffrage may speak the 4)ill o, t*e #o! politic1, viz, ;uali,ie! literate voters t)ent one ears of
age or over ,ith one year$s residence in the municipality ,here they have registered.
he people, not as yet satisfied, further provided by amendment duly approved in &(J9 in accordance
,ith Article D6, for the creation of an in!epen!ent Commission on /lections ,ith 4e6clusive c*ar+e4
for the purpose of 4insuring free, orderly and honest elections4 and ascertaining the true ,ill of the
electorate K and more, as ruled by this Court in Tolentino, in the case of proposed constitutional
amendments, insuring proper su#(ission to the electorate of such proposals.
54

*. A Massachussets case
53
,ith a constitutional system and provisions analogous to ours, best
defined the uses of the term 1people1 as a #o! politic and 1people1 in t*e political sense ,ho are
synonymous ,ith the #ualified voters granted the right to vote by the e8isting Constitution and ,ho
therefore are 4the sole organs through ,hich the ,ill of the body politic can be e8pressed.4
%t ,as pointed out therein that 4;<he ,ord $people$ may have some,hat varying significations
dependent upon the connection in ,hich it is used. %n some connections in the Constitution it is
confined to citi"ens and means the same as citi"ens. %t e8cludes aliens. %t includes men, ,omen and
children. %t comprehends not only the sane, competent, la,Cabiding and educated, but also those ,ho
are ,holly or in part dependents and charges upon society by reason of immaturity, mental or moral
deficiency or lack of the common essentials of education. All these persons are secured fundamental
guarantees of the Constitution in life, liberty and property and the pursuit of happiness, e8cept as
these may be limited for the protection of society.4
%n the sense of 4body politic ;as< formed by voluntary association of individuals4 governed by a
constitution and common la,s in a 4social compact ... for the common good4 and in another sense of
4people4 in a 4practical sense4 for 4political purposes4 it ,as therein fittingly stated that in this sense,
4people4 comprises many ,ho, by reason of ,ant of years, of capacity or of the educational
re#uirements of Article *9 of the amendments of the Constitution, can have no voice in any
government and ,ho yet are entitled to all the immunities and protection established by the
Constitution. $People$ in t*is aspect is coe6tensive ,ith the #o! politic. But it is obvious that $people$
cannot be used ,ith this broad meaning of political signification. he $people$ in this connection
means that part of the entire body of inhabitants ,ho under the Constitution are intrusted ,ith the
e8ercise of the sovereign po,er and the conduct of government. he DpeopleD in t*e Constitution in a
practical sense means those ,ho under the e8isting Constitution possess the right to e8ercise the
elective franchise and ,ho, ,hile that instrument remains in force unchanged, ,ill be the sole or+ans
through ,hich the )ill of the #o! politic can be e6presse!. $PeopleD for political purposes must be
considered snon(ous ,ith ;uali,ie! voters.$ 4
As ,as also ruled by the =.-. -upreme Court, 4... Ehile the people are thus the source of political
po,er, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their o,n po,er, as against the sudden impulse of mere
majorities.4
55

1rom the te8t of Article D6 of our Constitution, re#uiring approval of amendment proposals 4by a
majority of the votes cast at an election at ,hich the amendments are submitted to the people for
their ratification4, it seems obvious as aboveCstated that 4people4 as therein used must be considered
synonymous ,ith 4;uali,ie! voters4 as enfranchised under Article 6, section & of the Constitution H
since only 4people4 ,ho are #ualified voters can e8ercise the right of suffrage and cast their votes.
A. -ound constitutional policy and the sheer necessity of ade#uate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the ,ill of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional re#uirements laid do,n for the process of amending in toto or in part the supreme
la, of the land.
/ven at barrio level JB the !evised Barrio Charter fi8es certain safeguards for the holding of barrio
plebiscites thus7 4-/C. 2. Ple#iscite. H A plebiscite may be held in the barrio ,hen authori"ed by a
majority vote of the members present in the barrio assembly, there being a ;uoru(, or ,hen called by
at least four members of the barrio council7 Provi!e!, *o)ever, hat no plebiscite shall be held until
after thirty days from its approval by either body, and such plebiscite has been given the ,idest
publicity in the barrio, stating the date, time and place thereof, the #uestions or issues to be decided,
action to be taken by the voters, and such other information relevant to the holding of the plebiscite.4
5:

As to voting at such barrio plebiscites, the Charter further re#uires that 4;A<ll !ul re+istere! barrio
assembly members ;uali,ie! to vote may vote in the plebiscite. 6oting procedures may be made
either in )ritin+ as in regular elections, andFor !eclaration by the voters to t*e #oar! o, election
tellers.4
57

he subjects of the barrio plebiscites are like,ise delimited thus7 4A plebiscite may be called to decide
on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special ta8 ordinances4 and the re#uired majority vote is
specified7 4;1<or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members re+istere! in t*e list o, t*e #arrio secretar is necessary.4
58

he ;uali,ications ,or voters in such barrio plebiscites and elections of barrio officials
59
comply ,ith
the suffrage #ualifications of Article 6, section & of the Constitution and provide that 4;-</C. &9.
?uali,ications o, @oters an! Can!i!ates. H /very citi"en of the Philippines, t)ent one ears of age
or over, a#le to rea! an! )rite, ,ho has been a resident of the barrio during the si8 months
immediately preceding the election, !ul re+istere! in t*e list o, voters # t*e #arrio secretar, ,ho is
not other,ise dis#ualified, may vote or be a candidate in the barrio elections.4
50

%6
&. -ince it appears on the face of Proclamation &&9* that the mandatory re#uirements under the
aboveCcited constitutional articles have not been complied ,ith and that no election or plebiscite for
ratification as therein provided as ,ell as in section &2 of Article D6%% of the proposed Constitution
itself
51
has been called or held, there cannot be said to have been a valid ratification.
*. Petitioners raised serious #uestions as to the veracity and genuineness of the reports or
certificates of results purportedly sho,ing unaccountable discrepancies in seven figures in just five
provinces
54
bet,een the reports as certified by the Department of +ocal 3overnments and the reports
as directly submitted by the provincial and city e8ecutives, ,hich latter reports respondents
disclaimed inter alia as not final and complete or as not signed:
53
,hether the reported votes of
approval of the proposed Constitution conditioned upon the nonCconvening of the interim ?ational
Assembly provided in Article D6%%, section & thereof,
55
may be considered as valid: the allegedly huge
and uniform votes reported: and many others.
A. hese #uestions only serve to justify and sho, the basic validity of the universal principle
governing ,ritten constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. =nder Article D6,
section & of our Constitution, amendments thereto may be ratified only in the one ,ay therein
provided, i.e. in an election or plebiscite held in accordance ,ith la, and duly supervised by the
Commission on /lections, and ,hich is participated in only by #ualified and duly registered voters. %n
this manner, the safeguards provided by the election code generally assure the true ascertainment of
the results of the vote and interested parties ,ould have an opportunity to thresh out properly before
the Comelec all such #uestions in preCproclamation proceedings.
J. At any rate, unless respondents seriously intend to #uestion the very statements and
pronouncements in Proclamation &&9* itself ,hich sho,s on its face, as already stated, that the
mandatory amending process re#uired by the ;&(AB< Constitution ,as not observed, the cases at bar
need not reach the stage of ans,ering the host of #uestions, raised by petitioners against the
procedure observed by the Citi"ens Assemblies and the reported referendum results H since the
purported ratification is rendered nugatory by virtue of such nonCobservance.
B. 1inally, as to respondents$ argument that the President issued Proclamation &&9* 4as 4agent4 of
the Constitutional Convention4
55
under !esolution ?o. B)JJ approved on ?ovember **, &('A, and
4as agent of the Convention the President could devise other forms of plebiscite to determine the ,ill
of the majority visCaCvis the ratification of the proposed Constitution.4
5:

he minutes of ?ovember **, &('*, of the Convention, ho,ever, do not at all support this contention.
0n the contrary, the said minutes fully sho, that the Convention$s proposal and 4agency4 ,as that the
President issue a decree precisely calling a ple#iscite for the ratification of the proposed ne,
Constitution on an appropriate date, under the charge of the Co(elec, and ,ith a reasonable period
for an information campaign, as follo,s7
&*. =pon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the
resolution portion of ,hich read as follo,s7
4!/-0+6/D, A- % %- >/!/B@ !/-0+6/D, that the &('& Constitutional Convention
propose to President 1erdinand /. Marcos that a decree be issued calling a plebiscite for
the ratification of the proposed ?e, Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that copies of this
resolution as approved in plenary session be transmitted to the President of the
Philippines and the Commission on /lections for implementation.4
>e suggested that in vie, of the e8pected approval of the final draft of the ne, Constitution by the end of
?ovember &('* according to the Convention$s timetable, it ,ould be necessary to lay the ground,ork for
the appropriate agencies of the government to undertake the necessary preparation for the plebiscite.
888 888 888
&*.* %nterpellating, Delegate Pimentel ;6.< contended that the resolution ,as unnecessary because
section &B, Article D6%% on the ransitory Provision, ,hich had already been approved on second and
third readings, provided that the ne, constitution should be ratified in a plebiscite called for the purpose
by the incumbent President. Delegate Duavit replied that the provision referred to did not include the
appropriation o, ,un!s ,or t*e ple#iscite and that, moreover, the resolution ,as intended to serve formal
notice to the Presi!ent an! t*e Co((ission on Elections to initiate t*e necessar preparations.
888 888 888
&*.J %nterpellating, Delegate Madarang suggested that a reasona#le perio! ,or an in,or(ation ca(pai+n
,as necessary in order to properly apprise the people of the implications and significance of the ne,
charter. Delegate Duavit agreed, adding that this ,as precisely ,hy the resolution ,as modified to give
the President the discretion to choose the most appropriate date for the plebiscite.
&*.B Delegate +aggui asked ,hether a formal communication to the President informing him of the
adoption of the ne, Constitution ,ould not suffice considering that under -ection &B of the ransitory
Provisions, the President ,ould be dutyCbound to call a plebiscite for its ratification. Delegate Duavit
replied in the negative, adding that the resolution ,as necessary to serve notice to the proper authorities
to prepare evert*in+ necessar ,or t*e ple#iscite.
&*.2 %n reply to Delegate Britanico, Delegate Duavit stated that the (ec*anics for the holding of the
ple#iscite ,ould be lai! !o)n # t*e Co((ission on Elections in coordination ,ith the President.
&*.' Delegate Catan in#uired if such mechanics for the plebiscite could inclu!e a partial li,tin+ o, (artial
la) in order to allo, the people to assemble peaceably to discuss the ne, Constitution. Delegate Duavit
suggested that the Committee on Plebiscite and !atification could coordinate ,ith the C0M/+/C on the
matter.
&*.) Delegate 3u"man moved for the previous #uestion. he Chair declared that there ,as one more
interpellant and that a prior reservation had been made for the presentation of such a motion.
&.)a Delegate 3u"man ,ithdre, his motion.
&*.( Delegate Astilla suggested in his interpellation that there ,as actually no need for such a resolution
in vie, of the provision of section &B, Article D6%% on the ransitory Provisions. Delegate Duavit
disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose.
&A. Delegate 0"ami" then moved to close the debate and proceed to the period of amendment.
&A.& 1loor +eader Montejo stated that there ,ere no reservations to amend the resolution.
&A.* Delegate 0"ami" then moved for the previous #uestion. -ubmitted to a vote, the motion ,as
approved.
=pon re#uest of the Chair, Delegate Duavit restated the resolution for voting.
&J.&. Delegate 0rdoLe" moved for nominal voting. -ubmitted to a vote, the motion ,as lost.
&J.*. hereupon, the Chair submitted the resolution to a vote. %t ,as approved by a sho, of hands.
57

%, therefore, vote to deny respondents$ motion to dismiss and to give due course to the petitions.
Promulgated7 .une
J, &('A >
%n conformity ,ith my reservation, % shall discuss the grounds for my concurrence.
%
%t is my vie, that to preserve the independence of the -tate, the maintenance of the e8isting
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, ,hen the legislative branch of the government is unable to function or its
functioning ,ould itself threaten the public safety, the Chief /8ecutive may promulgate measures
legislative in character, for the successful prosecution of such objectives. 1or the 4President$s po,er
as CommanderC inCchief has been transformed from a simple po,er of military command to a vast
reservoir of indeterminate po,ers in time of emergency. ... %n other ,ords, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national po,er
and the capacity of the President to gather unto himself all constitutionally available po,ers in order
the more effectively to focus them upon the task of the hour.4 ;Cor,in, he President7 0ffice M
Po,ers, pp. A&', A&), G&(J)H<.
&. he proclamation of martial rule, ushered the commencement of a crisis government in this
country. %n terms of po,er, crisis government in a constitutional democracy entails the concentration
of governmental po,er. 4he more complete the separation of po,ers in a constitutional system, the
more difficult, and yet the more necessary4 according to !ossiter, 4,ill be their fusion in time of
crisis... he po,er of the state in crisis must not only be concentrated and e8panded, it must be freed
from the normal system of constitutional and legal limitations. 0ne of the basic features of emergency
po,ers is the release of the government from the paralysis of constitutional restraints4 ;!ossiter,
Constitutional Dictatorship, p. *(9<.
%t is clearly recogni"ed that in moments of peril the effective action of the government is channeled
through the person of the Chief /8ecutive. 4/nergy in the e8ecutive,4 according to >amilton, 4is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and highChanded combinations ,hich sometimes interrupt the ordinary course
of justice: to the security of liberty against the enterprises and assaults of ambition, of faction, and of
anarchy.4 ;he 1ederalist, ?umber '9<. 4he entire strength of the nation4, said .ustice Bre,er in the
Debs case ;&B) =.-. B2J: A( +. ed. &9(*<, 4may be used to enforce in any part of the land the full and
free e8ercise of all national po,ers and the security of all rights entrusted by the constitution to its
care.4 he marshalling and employment of the 4strength of the nation4 are matters for the discretion of
the Chief /8ecutive. he President$s po,ers in time of emergency defy precise definition since t*eir
e6tent an! li(itations are lar+el !epen!ent upon con!itions an! circu(stances.
*. he po,er of the President to act decisively in a crisis has been grounded on the broad conferment
upon the Presidency of the /8ecutive po,er, ,ith the added specific grant of po,er under the
4CommanderCinCChief4 clause of the constitution. he contours of such po,ers have been shaped
more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial
interpretation. +incoln ,edded his po,ers under the 4commanderCinCchief4 clause ,ith his duty 4to
take care that the la,s be faithfully e8ecuted,4 to justify the series of e8traordinary measures ,hich he
took H the calling of volunteers for military service, the augmentation of the regular army and navy,
the payment of t,o million dollars from unappropriated funds in the reasury to persons unauthori"ed
to receive it, the closing of the Post 0ffice to 4treasonable correspondence4, the blockade of southern
ports, the suspension of the ,rit of *a#eas corpus, the arrest and detention of persons 4,ho ,ere
represented to him4 as being engaged in or contemplating 4treasonable practices4 H all this for the
most part )it*out t*e least statutor aut*orization. hose actions ,ere justified by the imperatives of
his logic, that the President may, in an emergency thought by him to re#uire it, partially suspend the
constitution. hus his famous #uestion7 4Are all la,s but one to be une8ecuted, and the 3overnment
itself go to pieces lest that one be violatedI4 he actions of +incoln 4assert for the President4,
aspects of a ,ar emergency.4 ;Cor,in, he President7 0ffice M Po,ers, p. *)9 G&(J)H<. he facts of
the civil ,ar have sho,n conclusively that in meeting the domestic problems as a conse#uence of a
great ,ar, an indefinite po,er must be attributed to the President to take emergency measures. he
concept of 4emergency4 under ,hich the Chief /8ecutive e8ercised e8traordinary po,ers under,ent
correlative enlargement during the first and second Eorld Ears. 1rom its narro, concept as an
4emergency4 in time of ,ar during the Civil Ear and Eorld Ear %, the concept has been e8panded in
Eorld Ear %% to include the 4emergency4 preceding the ,ar and even after it. 4he -econd Eorld
Ear4 observed Cor,in and Noenig, ,as the 1irst Eorld Ear ,rit large, and the #uasiClegislative
po,ers of 1ranklin !oosevelt as 4CommanderCinCChief in ,artime4... burgeoned correspondingly. he
precedents ,ere there to be sure, most of them from the 1irst Eorld Ear, but they proliferated
ama"ingly. Ehat is more, !oosevelt took his first step to,ard ,ar some fifteen months before our
entrance into s*ootin+ )ar. his step occurred in -eptember, &(J9, ,hen he handed over fifty soC
called overage destroyers to 3reat Britain. he truth is, they ,ere not overage, but had been recently
reconditioned and recommissioned. ... Actually, ,hat President !oosevelt did ,as to ta-e over ,or t*e
nonce Con+ressDs po)er to !ispose o, propert o, t*e Enite! States ;Article %6, -ection A< and to
repeal at least t)o statutes.4 ;Cor,in M Noenig, he Presidency oday, ?e, @ork =niversity Press,
&(B2: sf Cor,in, he President7 0ffice and Po,ers, &(J).<
he creation of public offices is a po,er confided by the constitution to Congress. And yet President
Eilson, during Eorld Ear % on the basis of his po,ers under the 4CommanderCinCChief4 clause
created 4offices4 ,hich ,ere copied in lavish scale by President !oosevelt in Eorld Ear %%. %n April
&(J*, thirtyCfive 4e8ecutive agencies4 ,ere purely of Presidential creation. 0n .une ', &(J& on the
basis of his po,ers as 4CommanderCinCChief4, he issued an e8ecutive order sei"ing the ?orth
American Aviation plant of %ngle,ood, California, ,here production stopped as a conse#uence of a
strike. his ,as justified by the government as the e8ercise of presidential po,er gro,ing out of the
4duty constitutionally and inherently resting upon the President to e8ert his civil and military as ,ell as
his moral authority to keep the defense efforts of the =nited -tates a going concern4 as ,ell as 4to
obtain supplies for ,hich Congress has appropriated money, and ,hich it has directed the President
to obtain.4 0n a similar justification, other plants and industries ,ere taken over by the government. %t
is true that in @oungsto,n -heet M ube vs. -a,yer ;AJA =.-. B'(: '* -. Ct. )2A: (2 +. /d. &&BA,
G&(B*H<, the -upreme Court of the =nited -tates did not sustain the claims that the President could,
as the ?ation$s Chief /8ecutive and CommanderCinCChief of the armed forces, validly order the
sei"ure of most of the country$s steel mills. he Court ho,ever did not face the naked #uestion of the
President$s po,er to sei"e steel plants in the absence of any congressional enactment or e8pressions
of policy. he majority of the Court found that this legislative occupation of the field made untenable
the President$s claim of authority to sei"e the plants as an e8ercise of inherent e8ecutive po,er or as
CommanderCinCChief. .ustice Clark, in his concurrence to the main opinion of the Court, e8plicitly
asserted that the President does possess, in the absence of restrictive legislation, a resi!ual or
resultant po)er a#ove or in conse;uence o, *is +rante! po)ers, to deal ,ith emergencies that he
regards as threatening the national security. he same vie, ,as shared ,ith vague #ualification by
.ustices 1rankfurter and .ackson, t,o of the concurring .ustices. he three dissenting .ustices,
speaking through Chief .ustice 6inson, apparently ,ent further by #uoting ,ith approval a passage
e8tracted from the brief of the government in the case of Enite! States vs. 'i!)est Oil Co., ;*A2 =.-.
JB( B( +. /d. 2'A, AB -. Ct. A9(< ,here the court sustained the po,er of the President to order
,ithdra,als from the public domain not only ,ithout Congressional sanction but even contrary to
Congressional statutes.
%t is evident therefore that the -teel -ei"ure Case, cannot be invoked as an authority to support the
vie, that the President in times of a grave crisis does not possess a residual po,er above or in
conse#uence of his granted po,ers, to deal ,ith emergencies that he regards as threatening the
national security. he lesson of the -teel -ei"ure case, according to Cor,in and Noenig,
4=n#uestionably ... tends to supplement presidential emergency po,er to adopt temporary remedial
legislation ,hen Congress has been, in the judgment of the President, unduly remiss in taking
cogni"ance of and acting on a given situation.4 ;Cor,in and Noenig, he Presidency oday, ?e,
@ork =niversity Press, &(B2<.
he accumulation of precedents has thus built up the presidential po,er under emergency conditions
to 4dimensions of e8ecutive prerogative as described by .ohn +ocke, of a po,er to ,it, to fill needed
gaps in the la,, or even to supersede it so far as may be re#uisite to reali"e t*e ,un!a(ental la) o,
nature an! +overn(ent, na(el, t*at as (uc* as (a #e all t*e (e(#ers o, societ are to #e
preserve!.4 ;Cor,in and Noenig, he Presidency oday<.
%n the light of the accumulated precedents, ho, could it be reasonably argued therefore, that the
President had no po,er to issue Presidential Decree ?os. )2 and )2CA as ,ell as Proclamation ?o.
&&9*, since these measures ,ere considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcyI %t is unavailing for petitioners to
contend that ,e are not faced by an actual 4shooting ,ar4 for today$s concept of the emergency ,hich
justified the e8ercise of those po,ers has of necessity been e8panded to meet the e8igencies of ne,
dangers and crisis that directly threaten the nation$s continued and constitutional e8istence. 1or as
Cor,in observed7 4... today the concept of $,ar$ as a special type of emergency ,arranting the
reali"ation of constitutional limitations tends to spread, as it ,ere, in both directions, so that there is
not only 4the ,ar before the ,ar,4 but the $,ar after the ,ar.$ %ndeed, in the economic crisis from
,hich the ?e, Deal may be said to have issued, the nation ,as confronted in the opinion of the late
President ,ith an $emergency greater than ,ar$: and in sustaining certain of the ?e, Deal measures
the Court invoked the justification of $emergency.$ %n the final result constitutional practices of ,artime
have moulded the Constitution to greater or less e8tent for peacetime as ,ell, seem likely to do so
still more pronouncedly under fresh conditions of crisis.4 ;Cor,in, I#i!. p. A&).<
he same vie, ,as e8pressed by !ossiter thus7
he second crisis is re#ellion, ,hen the authority of a constitutional government is resisted openly by
large numbers of citi"ens ,ho are engaged in violent insurrection against enforcement of its la,s or are
bent on capturing it illegally or destroying it altogether. he third crisis, one recogni"ed particularly in
modern times as sanctioning emergency action by constitutional governments, is econo(ic !epression.
he economic troubles ,hich plagued all the countries of the ,orld in the early thirties involved
governmental methods of an un#uestionably dictatorial character in many democracies. %t ,as thereby
ackno,ledged that an economic e8istence as a ,ar or a rebellion. And these are not the only cases
,hich have justified e8traordinary governmental action in nations like the =nited -tates. 1ire, flood,
drought, earth#uake, riots, great strikes have all been dealt ,ith by unusual and of dictatorial methods.
Ears are not ,on by debating societies, rebellions are not suppressed by judicial injunctions,
reemployment of t,elve million jobless citi"ens ,ill not be effected through a scrupulous regard for the
tenets of free enterprise, hardships caused by the eruptions of nature cannot be mitigated letting nature
take its course. he Civil Ear, the depression of &(AA and the recent global conflict ,ere not and could
not have been successfully resolved by governments similar to those of .ames Buchanan, Eilliam
>o,ard aft, or Calvin Coolidge. ;!ossiter, Constitutional Dictatorship H Crisis of 3overnment in the
Modern Democracies, p. 2 G&(J)<.
%%
Ee are ne8t confronted ,ith the insistence of Petitioners that the referendum in #uestion not having
been done inaccordance ,ith the provisions of e8isting election la,s, ,hich only #ualified voters ,ho
are allo,ed to participate, under the supervision of the Commission on /lections, the ne,
Constitution, should therefore be a nullity. -uch an argument is predicated upon an assumption, that
Article D6 of the &(AB Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed ne, Constitution the provisions of the
election la, and those of Article 6 and D of the old Constitution. Ee search in vain for any provision
in the old charter specifically providing for such procedure in the case of a total revision or a re,riting
of the )*ole constitution.
&. here is clearly a distinction bet,een revision and a(en!(ent of an e8isting constitution. !evision
may involve a re,riting of the )*ole constitution. he act of a(en!in+ a constitution, on the other
hand, envisages a change of only specific provisions. he intention of an act to amend is not the
change of the entire constitution but only the i(prove(ent of speci,ic parts of the e8isting constitution
of the addition of provisions deemed essential as a conse#uence of ne, constitutions or the
elimination of parts already considered obsolete or unresponsive to the needs of the times.
1
he &('A
Constitution is not a mere a(en!(ent to the &(AB Constitution. %t is a completely ne, fundamental
charter embodying ne, political, social and economic concepts.
According to an eminent authority on Political +a,, 4he Constitution of the Philippines and that of the
=nited -tates e8pressly provide merely for methods of a(en!(ent. T*e are silent on t*e su#5ect o,
revision. But this is not a fatal omission. here is nothing that can legally prevent a convention from
actually revising the Constitution of the Philippines or of the =nited -tates even ,ere such
conventions called merely for the purpose of proposing and submitting amendments to the people.
1or in the final analysis, it is the approval o, t*e people that +ives vali!it to any proposal of
amendment or revision.4 ;-inco, Philippine Political +a,, p. J(<.
-ince the &(AB Constitution does not specifically provide for the method or procedure for the revision
or for the approval of a ne, constitution, should it no, be held, that the people have placed such
restrictions on themselves that they are not disabled from e8ercising their right as the ultimate source
of political po,er from changing the old constitution ,hich, in their vie,, ,as not responsive to their
needs and in adopting a ne, charter of government to enable them to rid themselves from the
shackles of traditional norms and to pursue ,ith ne, dynamism the reali"ation of their true longings
and aspirations, e8cept in the manner and form provided by Congress for previous plebiscitesI Eas
not the e8pansion of the base of political participation, by the inclusion of the youth in the process of
ratification ,ho after all constitute the preponderant majority more in accord ,ith the spirit and
philosophy of the constitution that political po,er is inherent in the people collectivelyI As clearly
e8pounded by .ustice Makasiar, in his opinion, in all the cases cited ,here the Courts held that the
submission of the proposed amendment ,as illegal due to the absence of substantial compliance
,ith the procedure prescribed by the constitution, the procedure prescribed by the state Constitution,
is so detailed, that specified the (anner in ,hich such submission shall be made, the persons
;uali,ie! to vote for the same, the !ate of election and other definite standards, from ,hich the court
could safely ascertain ,hether or not the submission ,as in accordance ,ith the Constitution. hus
the case of %n re McConaughy ;&&( ?./. J9)< relied upon in one of the dissenting opinions involved in
the application of the provisions of the state Constitution of Minnesota ,hich clearly prescribed in
detail the procedure under ,hich the Constitution may be amended or revised.
4
his is not true ,ith
our Constitution. %n the case of revision there are no 4standards meet for judicial judgment.4
3

he framers of our Constitution ,ere free to provide in the Constitution the method or procedure for
the revision or re,riting of the entire constitution, and if such ,as their intention, they could and
should have so provided. Precedents ,ere not ,anting. he constitutions of the various states of the
American =nion did provide for procedures for their a(en!(ent and methods for their revision.
5

Certainly Ee cannot, under the guise of interpretation, modify, revise, amend, remodel or re,rite the
&(AB Charter. o declare ,hat the la, is, or has been, is a judicial po,er, but to declare ,hat the la,
shall be is not ,ithin 0ur judicial competence and authority.
=pon the other hand, since our fundamental charter has not provided the method or procedure for the
revision or complete change of the Constitution, it is evident that the people have reserved such
po,er in themselves. hey decided to e8ercise it not through their legislature, but through a
Convention e8pressly chosen for that purpose. he Convention as an independent and sovereign
body has drafted not an amendment but a completely ne, Constitution, ,hich decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. %n vie, of the inability of Congress to act, it ,as ,ithin the constitutional po,ers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
la,, to promulgate the necessary measures for the ratification of the proposed ne, Constitution. he
adoption the ne, Charter ,as considered as a necessary basis for all the reforms set in motion under
the ne, society, to root out the causes of unrest. he imperatives of the emergency underscored the
urgency of its adoption. he people in accepting such procedure and in voting over,helmingly for the
approval of the ne, Constitution have, in effect, ratified the method and procedure taken. 4Ehen the
people adopt completely revised or ne, constitution,4 said the Court in Eheeler v. Board of rustees
;A' -/ *nd A**, A*2CAA9<, 4the framing or submission of the instrument is not ,hat gives it binding
force and effect. he fiat of the people, and only the fiat of the people, can breathe life into a
constitution.4
his has to be so because, in our political system, all political po,er is inherent in the people and free
governments are founded on their authority and instituted for their benefit. hus -ection & of Article %%
of the &(AB Constitution declares that7 4-overeignty resides in the people and all government
authority emanate from them.4 /vidently the term people refers to the entire citizenr and not merely
to the electorate, for the latter is only a fraction of the people and is only an organ of government for
the election of government officials.
%%%
he more compelling #uestion, ho,ever is7 >as this Court the authority to nullify an entire
Constitution that is already e,,ective as it has been accepted and ac#uiesced in by the people as
sho,n by their compliance ,ith the decree promulgated thereunder, their cooperation in its
implementation, and is no, maintained by the 3overnment that is in undisputed authority and
dominanceI
0f course it is argued that ac#uiescence by the people can be deduced from their acts of conformity,
because under a regime of martial la, the people are bound to obey and act in conformity ,ith the
orders of the President, and has absolutely no other choice. he fla, of this argument lies in its
application of a mere theoretical assumption based on the e8periences of other nations on an entirely
different factual setting. -uch an assumption flounders on the rock of reality. %t is true that as a
general rule martial la, is the use of military forces to perform the functions of civil government.
-ome courts have vie,ed it as a military regime ,hich can be imposed in emergency situations. %n
other ,ords, martial rule e8ists ,hen the military rises superior to the civil po,er in the e8ercise of
some or all the functions of government. -uch is not the case in this country. he government
functions thru its civilian officials. he supremacy of the civil over the military authority is manifest.
/8cept for the imposition of curfe, hours and other restrictions re#uired for the security of the -tate,
the people are free to pursue their ordinary concerns.
%n short, the e8isting regime in this Country, does not contain the oppressive features, generally
associated ,ith a regime of Martial la, in other countries. 4=pon the other hand the masses of our
people have accepted it, because of its manifold blessings. he once do,ntrodden rice tenant has at
long last been emancipated H a consummation devoutly ,ished by every Philippine President since
the &(A9$s. he laborer no, holds his head high because his rights are amply protected and
respected.4 > A ne, sense of discipline has s,iftly spread beyond the corridors of government into the
social order. !esponding to the challenges of the ?e, -ociety, the people have turned in half a
million loose firearms, paid their ta8es on undeclared goods and income in unprecedented numbers
and amount, lent their labors in massive cooperation H in land reform, in the repair of dikes, irrigation
ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make
ours a cleaner and greener land. 4he entire country is turning into one vast garden gro,ing food for
the body, for thought and for the soul.4 > More important the common man has at long last been freed
from the incubus of fear.
4Martial la, has paved the ,ay for a reCordering of the basic social structure of the Philippines4
reported 1rank 6aleo to the =nited -tates -enate. 4President Marcos has been prompt and sureC
footed in using the po,er of presidential decree under martial la, for this purpose. >e has "eroed in
on areas ,hich have been ,idely recogni"ed as prime sources of the nation$s difficulties H land
tenancy, official corruption, ta8 evasion and abuse of oligarchic economic po,er. Clearly he kno,s
his targets ... t*ere is (ar-e! pu#lic support for his leadership...4 ;Bulletin oday, March A and J,
&('A<..
%n a similar vein, C.+. -ul"berger, a foreign affairs columnist ,rote, in the April && issue of he ?e,
@ork imes7
During his first Presidential term ;&(2BC&(2(<, Mr. Marcos ,as discouraged by the failure of legislators to
approve urgently needed reforms. >e found his second term further frustrated by spread riots, a Maoist
uprising in +u"on and a much more serious Moslem insurrection in the southern islands from Mindanao
across the -ulu archipelago to the frontier regions of Malaysia and %ndonesia. Manila claims this ,ar is
MaoistCcoordinated.
Mr. Marcos has no, in effect taken all the reins of po,er and makes no promise as to ,hen he ,ill
relin#uish them. But, ,hile fettering a free press, terminating Congress and locking up some opponents
;many of ,hom ,ere later amnestied<, *e *as *aule! t*e P*ilippines out o, sta+nation.
-harecropping is being ended as more than three million acres of arable land are redistributed ,ith state
funds. ?e, roads have been started. he educational system is undergoing revision, a corruption is
diminished. %n nonCcommunist Asia it is virtually impossible to ,holly end it and this disagreeable
phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middleCclass to
replace the archaic sharecropperCabsentee landlord relationship. >e is even pushing for a birth control
program ,ith the tacit acceptance of the Catholic Church. >e has started labor reforms and increased
,ages. ;Daily /8press, April &B, &('A<
As e8plained in this ,riter$s opinion of April *J, &('A on the 4Constancia4 and 4Manifestation4 of
counsel for petitioners7
he ne, Constitution is considered e,,ective 4if the norms created in conformity ,ith it are by and
large applied and obeyed. As soon as the old Constitution loses its effectiveness and the ne,
Constitution has become effective, the acts that appear ,ith the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic norm, but by
presupposing the ne, one. he statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authori"ed by the old Constitution no longer competent.4
;Nelsen, Pure heory of +a,, G&(2'H.<
he essentially political nature of the #uestion is at once made manifest by understanding that in the
final analysis, ,hat is assailed is not merely the validity of Proclamation ?o. &&9* of the President,
,hich is merely declaratory of the fact of approval or ratification, but the legitimacy of the government.
%t is addressed more to the frame,ork and political character of this 3overnment ,hich no, functions
under the ne, Charter. %t seeks to nullify a Constitution that is already e,,ective.
%n such a situation, Ee do not see ho, the #uestion posed by petitioners could be judicially decided.
4.udicial po,er presupposes an established government capable of enacting la,s and enforcing their
e8ecution, and of appointing judges to e8pound and administer them. %f it decides at all as a court, it
po,er.4 ;+uther v. Borden, J) =.-. G' >o,.H &, &* +. /d. B().<
%n other ,ords, ,here a complete change in the fundamental la, has been effected through political
action, the Court ,hose e8istence is affected by such change is, in the ,ords of Mr. Melville 1uller
Eeston, 4precluded from passing upon the fact of change by a logical difficulty ,hich is not to be
surmounted.4
5
-uch change in the organic la, relates to the e8istence of a prior point in the Court$s
4chain of title4 to its authority and 4does not relate merely to a #uestion of the hori"ontal distribution of
po,ers.4
:
%t involves in essence a matter ,hich 4the sovereign has entrusted to the soCcalled political
departments of government or has reserved to be settled by its o,n e8tra governmental action.4
7

he nonCjudicial character of such a #uestion has been recogni"ed in American la,. 41rom its earliest
opinions this Court has consistently recogni"ed,4 said .ustice 1rankfurter, in his illuminating dissent in
Baker v. Carr, A2( =.-. &)2, ' +. /d. *d. 2AA, '**, '*2, '*'<, 4a class of controversies ,hich do not
lend themselves to judicial standards and judicial remedies. o classify the various instances as
4political #uestions4 is rather a form of stating this conclusion than revealing of analysis ... he cru8 of
the matter is that courts are not fit instruments of decision ,here ,hat is essentially at stake is the
composition of those large contests of policy traditionally fought out in nonCjudicial forums, by ,hich
governments and the actions of governments are made and unmade.4
he diversity of vie,s contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on 4right4 or 4,rong4 vie,s of the Constitution. %t is one of attitudes and values. 1or
there is scarcely any principle, authority or interpretation ,hich has not been countered by the
opposite. At bottom, it is the degree of one$s faith H in the nation$s leadership and in the maturity of
judgment of our people.
%? 6%/E 01 >/ 10!/30%?3, the dismissal of these five cases, and the conclusion of this Court in its
judgment of March #uestion becomes ,holly moot e8cept for this consideration, that, ,hen the judges as
individuals or as a body of individuals come to decide ,hich king or ,hich constitution they ,ill support
and assert to represent, it may often be good judgment for them to follo, the lead of the men ,ho as a
practical matter are likely to be looked to by the people as more representative of themselves and
conversely are likely to be more directly in touch ,ith popular sentiment. %f, ho,ever, the judges hold too
strong vie,s of their o,n to be able to take this course, they may follo, their o,n leads at their o,n
ha"ard. ?o #uestion of la, is involved. ;Political Puestions, A) >arvard +a, !evie, G&(*JC*BH, pp. A9BC
A9(.<
A&, &('A are fully justified.
"arre!o, 'a-asiar an! Es+uerra, JJ., concur.
APP/?D%D 0 0P%?%0?
;3.!. ?os. +CA2&J*, A2&2J, A2&2B, A2*A2 M A2*)A<
P!06%-%0?- 01 -A/ C0?-%=%0?- -P/C%1%CA++@
P!06%D%?3 10! AM/?DM/? A?D !/6%-%0? R
&. Alaska ;&(B(< H Art. D%%%. 3(en!(ent an! >evision.
-ec. &. 3(en!(ents. Amendments to this constitution may be proposed by a t,oCthirds vote of each
house of the legislature. he secretary of state shall prepare a ballot title and proposition
summari"ing each proposed amendment, and shall place them on the ballot for the ne8t state,ide
election. %f a majority of the votes cast on the proposition favor the a(en!(ent, it becomes effective
thirty days after the certification of the election returns by the secretary of state.
-ec. *. Convention. he legislature may call constitutional conventions at any time.
-ec. A. Call # re,eren!u(. %f during any tenCyear period a constitutional convention has not been
held, the secretary of state shall place on the ballot for the ne8t general election the #uestion7 4-hall
there be a Constitutional ConventionI4 %f a majority of the votes cast on the #uestion are in the
negative, the #uestion need not be placed on the ballot until the end of the ne8t tenCyear period. %f a
majority of the votes cast on the #uestion are in the affirmative, delegates to the convention shall be
chosen at the ne8t regular state,ide election, unless the legislature provides for the election of the
election delegates at a special election. he secretary of state shall issue the call for the convention.
=nless other provisions have been made by la,, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of &(BB, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification of revisions
and ordinances. ... .
-ec. J. Po)ers. Constitutional conventions shall have plenary po,er to amend or revise the
constitution, subject only to ratification by the people. ?o call for a constitutional convention shall limit
these po,ers of the convention.
*. California ;&)'(< H Art. D6%%%. 3(en!in+ an! >evisin+ t*e Constitution.
-ec. &. Constitutional a(en!(ents. Any amendment or amendments to this Constitution may be
proposed in the -enate or Assembly, and if t,oCthirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their .ournals, ,ith the yeas and nays taken thereon: and it shall be the duty of the +egislature to
submit such proposed amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed e8pedient. -hould more amendments than one be
submitted at the same election they shall be so prepared and distinguished, by numbers or other,ise,
that each can be voted on separately. %f the people shall approve and ratify such amendment or
amendments, or any of them, by a majority of the #ualified electors voting thereon such amendment
or amendments shall become a part of this constitution.
-ec. *. Constitutional convention. Ehenever t,oCthirds of the members elected to each branch of the
+egislature shall deem it necessary to revise this Constitution, they shall recommend to the electors
to vote at the ne8t general for or against a Convention for that purpose, and if a majority of the
electors voting at such election on the proposition for a Convention shall vote in favor thereof, the
+egislature shall, at its ne8t session, provide by la, for calling the same. he Convention shall consist
of a number of delegates not to e8ceed that of both branches of the +egislature, ,ho shall be chosen
in the same manner, and have the same #ualifications, as Members of the +egislature. he delegates
so elected shall meet ,ithin three months after their election at such place as the +egislature may
direct. At a special election to be provided for by la,, the Constitution that may be agreed upon by
such Convention s*all #e su#(itte! to t*e people ,or t*eir rati,ication or re5ection, in suc* (anner as
t*e Convention (a !eter(ine. he returns of such election shall, in such manner as the Convention
shall direct, be certified to the /8ecutive of the -tate, ,ho shall call to his assistance the Controller,
reasurer, and -ecretary of -tate, and compare the returns so certified to him: and it shall be the duty
of the /8ecutive to declare, by his proclamation, such Constitution, as may have been ratified by a
majority of all the votes cast at such special election, to be the Constitution of the -tate of California.
A. Colorado ;&)'2< H Art. D%D. 3(en!(ents.
-ec. &. Constitutional convention9 *o) calle!. he general assembly may at any time be a vote of
t,oCthirds of the members elected to each house, recommend to the electors of the state, to vote at
the ne8t general election for or against a convention to revise, alter and a(en! this constitution: and if
a majority of those voting on the #uestion shall declare in favor of such convention, the general
assembly shall, at the ne8t session, provide for the calling thereof. he number of members of the
convention shall be t,ice that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. he general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting: fi8 the pay of its members and officers, and provide
for the payment of the same, together ,ith the necessary e8penses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the =nited -tates, and of
the state of Colorado, and to faithfully discharge their duties as members of the convention. he
#ualifications of members shall be the same as of members of the senate: and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general assembly. -aid convention
shall meet ,ithin three months after such election and prepare such revisions, alterations or
amendments to the constitution as may be deemed necessary: ,hich shall be submitted to the
electors for their ratification or rejection at an election appointe! # t*e convention ,or t*at purpose,
not less than t,o nor more than si8 months after adjournment thereof: and unless so submitted and
approved by a majority of the electors voting at the election, no such revision, alteration or
amendment shall take effect.
-ec. *. 3(en!(ents to constitution9 *o) a!opte!. Any amendment or amendments to this
constitution may be proposed in either house of the general assembly, and if the same shall be voted
for by t,oCthirds of all the members elected to each house, such proposed amendment or
amendments, together ,ith the ayes and noes of each house hereon, shall be entered in full on their
respective journals: the proposed amendment or amendments shall be published ,ith the la,s of that
session of the general assembly, and the secretary of state shall also cause the said amendment or
amendments to be published in full in not more than one ne,spaper of general circulation in each
county, for four successive ,eeks previous to the ne8t general election for members of the general
assembly: and at said election the said amendment or amendments shall be submitted to the
;uali,ie! electors of the state for their approval or rejection, and such as are approved by a majority of
those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment ,as submitted. But the general assembly shall have no po)er
to propose a(en!(ents to (ore t*an si6 articles o, t*is constitution at the same session.
J. Dela,are ;&)('< H Art. D6%. 3(en!(ents an! Conventions.
-ec. &. Proposal o, constitutional a(en!(ents in +eneral asse(#l9 proce!ure. Any amendment or
amendments to this Constitution may be proposed in the -enate or >ouse of !epresentatives: and if
the same shall be agreed to by t,oCthirds of all the members elected to each >ouse, such proposed
amendment or amendments shall be entered on their journals, ,ith the yeas and nays taken thereon,
and the -ecretary of -tate shall cause such proposed amendment or amendments to be published
three months before the ne8t general election in at least three ne,spapers in each County in ,hich
such ne,spaper shall be published: and if in the 3eneral Assembly ne8t after the said election such
proposed amendment or amendments shall upon yea and nay vote #e a+ree! to # t)o4t*ir!s o, all
t*e (e(#ers electe! to eac* Couse, t*e sa(e s*all t*ereupon #eco(e part o, t*e Constitution.
-ec. *. Constitutional conventions9 proce!ure9 co(pensation o, !ele+ates9 ;uoru(9 po)ers an!
!uties9 vacancies. he 3eneral Assembly by a t,oCthirds vote of all the members elected to each
>ouse may from time to time provide for the submission to the #ualified electors of the -tate at the
general election ne8t thereafter the #uestion, 4-hall there be a Convention to revise the Constitution
and amend the sameI:4 and upon such submission, if a majority of those voting on said #uestion
shall decide in favor of a Convention for such purpose, the 3eneral Assembly at its ne8t session shall
provide for the election of delegates to such convention at the ne8t general election. -uch Convention
shall be composed of fortyCone delegates, one of ,hom shall be chosen from each !epresentative
District by the #ualified electors thereof, and t,o of ,hom shall be chosen from ?e, Castle County,
t,o from Nent County and t,o from -usse8 County by the #ualified electors thereof respectively. he
delegates so chosen shall convene at the Capital of the -tate on the first uesday in -eptember ne8t
after their election. /very delegate shall receive for his services such compensation as shall be
provided by la,. A majority of the Convention shall constitute a #uorum for the transaction of
business. he Convention shall have the po,er to appoint such officers, employees and assistants as
it may be deem necessary, and fi8 their compensation, and provide for the printing of its documents,
journals, debates and proceedings. he Convention shall determine the rules of its proceedings, and
be the judge of the elections, returns and #ualifications of its members. Ehenever there shall be a
vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility,
death, resignation or other,ise, a ,rit of election to fill such vacancy shall be issued by the 3overnor,
and such vacancy shall be filled by the #ualified electors of such district or county.
B. 1lorida ;&))'< H Art. D6%%. 3(en!(ents.
-ec. &. 'et*o! o, a(en!in+ constitution. /ither branch of the +egislature, at any regular session, or
at any special or e8traCordinary session thereof called for such purpose either in the governor$s
original call or any amendment thereof, may propose the revision or amendment of any portion or
portions of this Constitution. Any such revision or amendment may relate to one subject or any
number of subjects, but no amendment shall consist of more than one revised article of the
Constitution.
%f the proposed revision or amendment is agreed to by threeCfifths of the members elected to each
house, it shall be entered upon their respective journals ,ith the yeas and nays and published in one
ne,spaper in each county ,here a ne,spaper is published for t,o times, one publication to be made
not earlier than ten ,eeks and the other not later than si8 ,eeks, immediately preceding the election
at ,hich the same is to be voted upon, and thereupon submitted to the electors of the -tate for
approval or rejection at the ne8t general election, provided, ho,ever, that such revision or
a(en!(ent may be submitted for approval or rejection in a special election under the conditions
described in and in the manner provided by -ection A of Article D6%% of the Constitution. %f a majority
of the electors voting upon the amendment adopt such amendment the same shall become a part of
this Constitution.
-ec. *. 'et*o! o, revisin+ constitution. %f at any time the +egislature, by a vote of t,oCthirds of all the
members of both >ouses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective .ournals, ,ith yea$s and nay$s thereon. ?otice of
said action shall be published ,eekly in one ne,spaper in every county in ,hich a ne,spaper is
published, for three months preceding the ne8t general election of !epresentatives, and in those
countries ,here no ne,spaper is published, notice shall be given by posting at the several polling
precincts in such counties for si8 ,eeks ne8t preceding said election. he electors at said election
may vote for or against the revision in #uestion. %f a majority of the electors so voting be in favor of
revision, the +egislature chosen at such election shall provide by la, for a Convention to revise the
Constitution, said Convention to be held ,ithin si8 months after the passage of such la,. he
Convention shall consist of a number e#ual to the membership of the >ouse of !epresentatives, and
shall be apportioned among the several counties in the same manner as members of said >ouse.
2. %daho ;&)(9< H Art. D%D. 3(en!(ents.
-ec. &. Co) a(en!(ents (a #e propose!. Any amendment or amendments to this Constitution
may be proposed in either branch of the legislature, and if the same shall be agreed to by t,oCthirds
of all the members of each of the t,o houses, voting separately, such proposed amendment or
amendments shall, ,ith the yeas and nays thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or amendments to the electors of the state at the
ne8t general election, and cause the same to be published ,ithout delay for at least si8 consecutive
,eeks, prior to said election, in not less than one ne,spaper of the general circulation published in
each county: and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this Constitution.
-ec. A. >evision or a(en!(ents # convention. Ehenever t,oCthirds of the members elected to each
convention, and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall at the ne8t session provide by la, for calling the same: and such
convention shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.
'. %o,a ;&)B'< H Art. D. 3(en!(ents to t*e Constitution.
-ec. A. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the 3eneral Assembly may, by
la,, provide, the #uestion, 4-hall there be a Convention to revise the Constitution, and a(en! the
sameI4 shall be decided by the electors #ualified to vote for members of the 3eneral Assembly: and
in case a majority of the electors so #ualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the 3eneral Assembly, at its ne8t
session, shall provide by la, for the election of delegates to such Convention.
). Michigan ;&(9(< H Art. D6%%. 3(en!(ents an! >evision.
-ec. &. 3(en!(ents to constitution9 proposal # le+islature9 su#(ission to electors. Any amendment
or amendments to this constitution may be proposed in the senate or house of representatives. %f the
same shall be agreed to by *FA of the members elected to each house, such a(en!(ent or
a(en!(ents shall be entered on the journals, respectively, ,ith the yeas and nays taken thereon:
and the same shall be submitted to the electors at the ne8t spring or autumn election thereafter, as
the legislature shall direct: and, if a majority of the electors ;uali,ie! to vote for members of the
legislature voting thereon shall ratify and approve such amendment or amendments, the same shall
become part of the constitution.
-ec. J. General revision9 convention9 proce!ure. At the Biennial -pring /lection to be held in the year
&(2&, in each si8teenth year thereafter and at such times as may be provided by la,, the #uestion of
a General >evision of the Constitution shall be submitted to the /lectors #ualified to vote for
members of the +egislature. %n case a majority of the /lectors voting on the #uestion shall decide in
favor of a Convention for such purpose, at an /lection to be held not later than four months after the
Proposal shall have been certified as approved, the /lectors of each >ouse of !epresentatives
District as then organi"ed shall /lect 0ne Delegate for each /lectors of each -enatorial District as
then organi"ed shall /lect 0ne Delegate for each -tate -enator to ,hich the District is entitled. he
Delegates so elected shall convene at the Capital City on the 1irst uesday in 0ctober ne8t
succeeding such election, and shall continue their sessions until the business of the convention shall
be completed. A majority of the delegates elected shall constitute a #uorum for the transaction of
business. ... ?o propose! constitution or a(en!(ent adopted by such convention shall be submitted
to the electors for approval as hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed
constitution or amendments adopted by such convention shall be submitted to the ;uali,ie! electors in
the manner provided by such convention on the first Monday in April follo,ing the final adjournment
of the convention: but, in case an interval of at least (9 days shall not intervene bet,een such final
adjournment and the date of such election. =pon the approval of such constitution or amendments by
a majority of the #ualified electors voting thereon such constitution or amendments shall take effect
on the first day of .anuary follo,ing the approval thereof.
(. Minnesota ;&)B'< H Art. D%6. 3(en!(ents to t*e Constitution.
-ec. &. 3(en!(ents to constitution9 (a5orit vote o, electors votin+ (a-es a(en!(ent vali!.
Ehenever a majority of both houses of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or a(en!(ents, ,hich proposed amendments shall
be published ,ith the la,s ,hich have been passed at the same session, and said amendments shall
be submitted to the people for their approval or rejection at any general election, and if it shall appear,
in a manner to be provided by la,, that a majority of all the electors voting at said election shall have
voted for and ratified such alterations or amendments, the same shall be valid to all intents and
purposes as a part of this Constitution. %f t,o or more alterations or a(en!(ents shall be submitted
at the same time, it shall be so regulated that the voters shall vote for or against each separately.
-ec. *. >evision o, constitution. Ehenever t,oCthirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the ne8t general election for members of the legislature, for or
against a convention: and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their ne8t session, provide by la, for calling the same. he
convention shall consist of as many members as the >ouse of !epresentatives, ,ho shall be chosen
in the same manner, and shall meet ,ithin three months after their election for the purpose aforesaid.
-ec. A. Su#(ission to people o, revise! constitution !ra,te! at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the -tate
of Minnesota for their approval or rejection at the ne8t general election held not less than (9 days
after the adoption of such revision, and, if it shall appear in the manner provi!e! # la) that threeC
fifths of all the electors voting on the #uestion shall have voted for and ratified such revision, the same
shall constitute a ne, constitution of the -tate of Minnesota. Eithout such submission and ratification,
said revision shall be of no force or effect. -ection ( of Article %6 of the Constitution shall not apply to
election to the convention.
&9. ?evada ;&)2J< H Art. &2. 3(en!(ents.
-ec. &. Constitutional a(en!(ents9 proce!ure. Any amendment or amendments to this Constitution
may be proposed in the -enate or Assembly: and if the same shall be agreed to by a Majority of all
the members elected to each of the t,o houses, such proposed amendment or amendments shall be
entered on their respective journals, ,ith the @eas and ?ays taken thereon, and referred to the
+egislature then ne8t to be chosen, and shall be published for three months ne8t preceding the time
of making such choice. And if in the +egislature ne8t chosen as aforesaid, such proposed amendment
or amendments shall be agreed to by a majority of all the members elected to each house, then it
shall be the duty of the +egislature to submit such proposed amendment or amendments to the
people, in such manner and at such time as the +egislature shall prescribe: and if the people shall
approve and ratify such amendment or amendments by a majority of the electors #ualified to vote for
members of the +egislature voting thereon, such amendment or amendments shall become a part of
the Constitution.
-ec. *. Convention ,or revision o, constitution9 proce!ure. %f at any time the +egislature by a vote of
t,oCthirds of the Members elected to each house, shall determine that it is necessary to cause a
revision of t*is entire Constitution they shall recommend to the electors at the ne8t election for
Members of the +egislature, to vote for or against a convention, and if it shall appear that a majority of
the electors voting at such election, shall have voted in favor of calling a Convention, the +egislature
shall, at its ne8t session provide by la, for calling a Convention to be holden ,ithin si8 months after
the passage of such la,, and such Convention shall consist of a number of Members not less that of
both branches of the legislature. %n determining ,hat is a majority of the electors voting such election,
reference shall be had to the highest number of vote cast at such election for the candidates of any
office or on any #uestion.
&&. ?e, >amspire ;&')J< K
Art. ((. >evision o, constitution provi!e! ,or. %t shall be the duty of the selectmen, and assessors, of
the several to,ns and places in this state, in ,arning the first annual meetings for the choice of
senators, after the e8piration of seven years from the adoption of this constitution, as amended, to
insert e8pressly in the ,arrant this purpose, among the others for the meeting, to ,it, to take the
sense of the #ualified voters on the subject of a revision o, t*e constitution: and, the meeting being
,arned accordingly, and not other,ise, the moderator shall take the sense of the #ualified voters
present as to the necessity of a revision: and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the general court at their then ne8t
session: and if, it shall appear to the general court by such return, that the sense of the people of the
state has taken, and that, in the opinion of the majority of the #ualified voters in the state, present and
voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, other,ise the general court shall direct the sense
of the people to be taken, and then proceed in the manner before mentioned. he delegates to be
chosen in the same manner, and proportioned, as the representatives to the general court: provided
that no alterations shall be made in this constitution, before the same shall be laid before the to,ns
and unincorporated places, and approved by t,o thirds of the #ualified voters present and voting on
the subject.
&*. 0klahoma ;&(9'< H Art. DD%6. Constitutional 3(en!(ents.
-ec. &. 3(en!(ents propose! # le+islature9 a su#(ission to vote. Any a(en!(ent or a(en!(ents
to this Constitution may be proposed in either branch of the +egislature, and if the same shall be
agreed to by a majority of all the members elected to each of the t,o houses, such proposed
amendment or amendments shall, ,ith yeas and nays thereon, be entered in their journals and
referred by the -ecretary of -tate to the people for their approval or rejection, at the ne8t regular
general election, e8cept ,hen the +egislature, by a t,oCthirds vote of each house, shall order a
special election for that purpose. %f a majority of all the electors voting at such election shall vote in
favor of any amendment thereto, it shall thereby become a part of this Constitution.
%f t,o or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.
?o proposal for the amendment or alteration of this Constitution ,hich is submitted to the voters shall
embrace more than one general subject and the voters shall vote separately for or against each
proposal submitted: provided, ho,ever, that in the submission of proposals for the a(en!(ent of this
Constitution by articles, ,hich embrace one general subject, each proposed article shall be deemed a
single proposals or proposition
-ec. *. Constitutional convention to propose a(en!(ents or ne) constitution. ?o convention shall be
called by the +egislature to propose alterations, revisions, or amendments to this Constitution, or to
propose a ne) Constitution, unless the la, providing for such convention shall first be approved by
the people on a referendum vote at a regular or special election, and any amendments, alterations,
revisions, or ne, Constitution, proposed by such convention, shall be submitted to the electors of the
-tate at a general or special election and be approved by a majority of the electors voting thereon,
before the same shall become effective Provided, hat the #uestion of such proposed convention
shall be submitted to the people at least once in every t,enty years.
&A. 0regon ;&)B(< H Art. D6%%. 3(en!(ents an! >evisions.
-ec. &. 'et*o! o, a(en!in+ constitution. Any amendment or amendments to this Constitution may be
proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority
of all the members elected to each of the t,o houses, such proposed amendment or amendments
shall, ,ith the yeas and nays thereon, be entered in their journals and referred by the secretary of
state to the people for their approval or rejection, at the ne8t regular election, e8cept ,hen the
legislative assembly shall order a special election for that purpose. %f a majority of the electors voting
on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution.
he votes for and against such a(en!(ent, or a(en!(ents, severally, ,hether proposed by the
legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the
presence of the governor, and if it shall appear to the governor that the majority of the votes cast at
said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his
duty forth,ith after such canvass, by his proclamation, to declare the said amendment, or
amendments, severally, having received said majority of votes to have been adopted by the people of
0regon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. Ehen t,o or more amendments shall be submitted
in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that
each amendment shall be voted on separately. ?o convention shall be called to amend or propose
amendments to this Constitution, or to propose a ne) Constitution, unless the la, providing for such
convention shall first be approved by the people on a referendum vote at a regular general election.
his article shall not be construed to impair the right of the people to amend this Constitution by vote
upon an initiative petition therefor.
-ec. *. 'et*o! o, revisin+ constitution. ;&< %n addition to the po,er to amend this Constitution granted
by section &, Article %6, and section & of this Article, a revision o, all or part o, t*is Constitution may be
proposed in either house of the +egislative Assembly and, if the proposed revision is agreed to by at
least t,oCthirds of all the members of each house, the proposed revision shall, ,ith the yeas and nays
thereon, be entered in their journals and referred by the -ecretary of -tate to the people for their
approval or rejection, not,ithstanding section &, Article %6 of this Constitution, at the ne8t regular
stateC,ide primary election, e8cept ,hen the +egislative Assembly orders a special election for that
purpose. A proposed revision may deal ,ith more than one subject and shall be voted upon as one
#uestion. he votes for and against the proposed revision shall be canvassed by the -ecretary of
-tate in the presence of the 3overnor and, if it appears to the 3overnor that the majority of the votes
cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly
follo,ing the canvass, declare, by his proclamation, that the proposed revision has received a
majority of votes and has been adopted by the people as the Constitution of the -tate of 0regon, as
the case may be. he revision shall be in effect as the Constitution or as a part of this Constitution
from the date of such proclamation.
&J. =tah ;&)(2< H Art. *A. 3(en!(ents.
-ec. &. 3(en!(ents9 (et*o! o, proposal an! approval. Any amendments to his Constitution may be
proposed in either house of the +egislature, and if t,oCthirds of all the members elected of the t,o
houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on
their respective journals ,ith the yeas and nays taken thereon: and the +egislature shall cause the
same to be published in at least one ne,spaper in every county of the -tate, ,here a ne,spaper is
published, for t,o months immediately preceding the ne8t general election, at ,hich time the said
amendment or amendments shall be submitted to the electors of the -tate, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or
amendments shall become part of this Constitution. %f t,o or more amendments are proposed, they
shall be so submitted as to enable the electors to vote on each of them separately.
-ec. *. >evision o, t*e Constitution # convention. Ehenever t,oCthirds of the members, elected to
each branch of the +egislature, shall deem it necessary to call a convention to revise or a(en! this
convention, and, if a majority of all the electors, voting at such election, shall vote for a convention.
he +egislature, at its ne8t session, shall provide by la, for calling the same. he convention shall
consist of not less than the number of members in both branches of the +egislature.
&B. Eyoming ;&)(9< H Art. DD. 3(en!(ents.
-ec. &. Proce!ure ,or a(en!(ents. Any a(en!(ent or a(en!(ents to this Constitution may be
proposed in either branch of the legislature, and, if the same shall be agreed to by t,oCthirds of all the
members of the t,o houses, voting separately, such proposed amendment or amendments shall, ,ith
the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at the ne8t general election, in at
least one ne,spaper of general circulation, published in each county, and if a majority of the electors
shall ratify the same, such amendment or amendments shall become a part of this constitution.
-ec. *. Co) vote! ,or. %f t,o or more amendments are proposed, they shall be submitted in such
manner that the electors shall vote for or against each of them separately.
-ec. A. Constitutional convention9 provision ,or. Ehenever t,oCthirds of the members elected to each
constitution, they shall recommend to the electors to vote at the ne8t general election for or against a
convention, and if a majority of all the electors voting at such election shall have voted for a
convention, the legislature shall at the ne8t session provide by a la, for calling the same: and such
convention shall consist of a number of members, not less than double that of the most numerous
branch of the legislature.
-ec. J. Ne) constitution. Any constitution adopted by such convention shall have no validity until it
has been submitted to and adopted by the people.
Footot+s
& .ustices Makalintal, Castro, Barredo, Makasiar, Antonio and /sguerra.
* Chief .ustice Concepcion and .ustices 1ernando and eehankee.
A .ustice 5aldivar.
J Case 3.!. ?o. +CA2&2J.
B Case 3.!. ?o. +CA2*A2.
2 Case 3.!. ?o. +CA2*(A.
' Eho ,ithdre, as petitioner on .anuary *B, &('A.
) 0riginally, 3erardo !o8as, Ambrosio Padilla and -alvador >. +aurel. ?o,, after the ,ithdra,al of the latter, the first t,o ;*< only.
( ?amely, .ovito !. -alonga, !amon 6. Mitra, .r. and /va /stradaCNala,.
&9 ?apoleon 6. Dilag, et al. v. /8ecutive -ecretary, et al.
&& Araneta v. Dinglasan, )J Phil. JA&, JA'CJA). -ee, also, 3on"ales v. Commission on /lections,
+C*)&(2 M +C*)**J, ?ov. (, &(2'. /mphasis ours.
&* Art. 6%, sec. *9;&<, Constitution.
&A Art. 6%%, sec. &9;'<, Constitution.
&J /mphasis ours.
&B -ee page J, last paragraph, of his Comment dated 1eb. 2, &('A.
&2 %n re 0pinion of .ustices, &9' Atl. 2'A, B A.+.!. &J&*: Cra,ford v. 3ilchrist, B( -o. !ep. (2A: McAdams v. >enley, *'A -.E. ABB: /gbert
v. City of Dunseith, 'J ?.D. &, &2) A.+.!. 2*&, *J ?.E. *d. (9': -tate e8 rel. +andis, Atty. 3en. v. hompson, &2A -o. !ep. *'9: -t. +ouis
Bre,ing Association v. Moore, 2J +. ed. (J': /llingham v. Dye, (( ?./. !ep. &, &): .ohnson v. Craft, )' -o. !ep. A'B.
&' Mun. of Malabang v. Benito, +C*)&&A, Mar. *), &(2(: ?AEA-A v. Piguing, et al., +CABB'A, 0ct. &&, &(2): 1ernande" v. P. Cuerva M Co.,
+C*&&&J, ?ov. *B, &(2': 3on"ales v. Commission on /lections, +C*)**J, ?ov. *(, &(2': Bara +idasan v. C0M/+/C, +C*)9)(, 0ct. *B,
&(2': Mun. of -an .uan v. ?AEA-A, +C**9J', Aug. A&, &(2': Mun. of -an .oa#uin v. -iva, +C&()'9, Mar. &), &(2': Pelayo v. Auditor
3eneral, +C*A)*B, Dec. *J, &(2B: Philippine Constitution Association v. 3imene", +C*AA*2, Dec. &), &(2B: Mun. of +a Carlota v. ?AEA-A,
+C*9*A*, -ept. A9, &(2J: 3uevara v. %nocentes, +C*BB'', Mar. &B, &(22: 3illera v. 1ernande", +C*9'J&, .an. A&, &(2J: -iguiente v.
-ecretary of .ustice, +C*9A'9, ?ov. *(, &(2A: Mun. of ?aguilian v. ?AEA-A, +C&)BJ9, ?ov. *(, &(2A: >errera v. +i,ag, +C*99'(, -ept. A9,
&(2A: Aytona v. Castillo, +C&(A&A, .an. &(, &(2*: +a Mallorca, etc. v. !amos, et al., +C&BJ'2, -ept. &(, &(2&: an v. De +eon, et al., +C
&B*BJ, -ept. &2, &(2&: Macias v. Commission on /lections, +C&)2)J, -ept. &J, &(2&: Philippine obacco 1lueCCuring M !edrying Corp. v.
-abugo, et al., +C&29&', Aug. A&, &(2&: Miller v. Mardo, +C&B&A), .uly A&, &(2&: Cu Bu +iong v. /strella, et al., +C&J*&*, .uly A&, &(2&:
Pampanga -ugar Development Co., %nc. v. 1uentes, et al., +C&J'A), .uly A&, &(2&: /arnsha, Docks M >onolulu %ron Eorks v. Mardo, et al.,
+C&J'B(, .uly A&, &(2&: +i,anag v. Central A"ucarera Don Pedro, +C&BA'*, .uly A&, &(2&: +ecura v. !egional 0ffice ?o. A, etc., +C&BB)*,
.uly A&, &(2&: Pitogo v. -en Bee rading Co., et al., +C&B2(A, .uly A&, &(2&: Pascual v. -ec. of Public Eorks and Communications, +C&9J9B,
Dec. *(, &(29: Corominas, .r. v. +abor -tandards Commission, +C&J)A', .une A9, &(2&: City of Baguio v. ?AEA-A, +C&*9A*, Aug. A&,
&(B(: City of Cebu v. ?AEA-A, +C&*)(*, April *9,&(29: Montes v. Civil -ervice Board of Appeals, &9& Phil. J(9, !utter v. /steban, (A Phil.
2): Araneta v. Dinglasan, )J Phil. A2): Borromeo v. Mariano, J& Phil. A**.
&) 3.!. ?os. +CAB(*B, +CAB(*(, +CAB(J9, +CAB(J&, +CAB(J*, +CAB(J), +CAB(BA, +CAB(2&,
+CAB(2B and +CAB('(, decided on .anuary **, &('A..
&( +CAA(2J, eodosio +ansang, et al. v. BrigadierC3eneral /duardo M. 3arcia: +CAA(2B, !ogelio 6. Arienda v. -ecretary of ?ational
Defense, et al.: +CAA('A, +u"vimindo David v. 3en. /duardo 3arcia, et al.: +CAA(2*, 1elicidad 3. Prudente v. 3eneral Manuel @an, et al.: +C
AJ99J, Domingo /. de +ara v. BrigadierC3eneral /duardo M. 3arcia: +CAJ9&A, !eynaldo !imando v. Brig. 3en. /duardo M. 3arcia: +C
AJ9A(, Carlos C. !abago v. Brig. 3en. /duardo 3arcia, et al.: +CAJ*2B, Antolin 0reta, .r. v. 3en. /duardo 3arcia, et al.: and +CAJAA(, 3ary
B. 0livar, et al. v. 3en. /duardo 3arcia, et al.
*9 B Phil. )'.
*& (& Phil. ))*.
** 3.!. ?os. +C*)&(2 and +C*)**J, ?ov. (, &(2'.
*A ') Phil. &.
*J Supra.
*B %n re McConaughy, &&( ?.E. J9), J&'.
*2 &9A Phil. &9B&, &92'.
*' &&( ?.E. J9), J&&, J&'.
*) (* Ny. B)(,&) -.E. B**, B*A.
*( Citing Noehler v. >ill, 29 %o,a BJA, &J ?.E. !ep. 'A), and &B ?.E. !ep. 29(: -tate v. ufly, &( ?ev. A(&, &* Pac. !ep. )AB.
A9 Angara v. /lectoral Commission, 2A Phil. &A(, &B'. /mphasis ours.
A& &* +. ed. B)& ;&)J(<.
A* +uther v. Borden, supra, p. B(). /mphasis ours.
AA %n re McConaughy, supra, p. J&2. /mphasis ours.
AJ A2( =.-. &)2, ' +. ed. *d. 22A, )* -. Ct. 2(& ;March *2, &(2*<.
AB A(B =.-. J)2, *A +. ed. *d. J(&, )( -. Ct. &(JJ ;&(2(<.
A2 %n re McConaughy, &&( ?.E. J9), J&B. /mphasis ours. he observation as to the uniformity of authorities on the matter has been
reiterated in Einget v. >olm, *JJ ?.E. A*(, AA*.
A' Baker v. Carr, A2( =.-. &)2, ' +. ed. *d 22A, 2)2, )* -. Ct. 2(&.
A) -ee p. B of the Petition.
A( /mphasis ours.
J9 he 1raming of the Philippine Constitution, by Aruego, 6ol. % p. *&B.
J& he 1raming of the Philippine Constitution, by Aruego, 6ol. % pp. *&B, **&, **'C**).
J* I#i!., pp. ***C**J.
JA I!., pp. **JC**'.
JJ -/C. JA&. ?uali,ications prescri#e! ,or voters. H /very male person ,ho is not a citi"en or subject of a foreign po,er, t,entyCone years
of age or over, ,ho shall have been a resident of the Philippines for one year and of the municipality in ,hich he shall offer to vote for si8
months ne8t preceding the day of voting is entitled to vote in all elections if comprised ,ithin either of the follo,ing three classes7
4;a< hose ,ho, under the la,s in force in the Philippine %slands upon the t,entyCeighth day of August, nineteen hundred and si8teen, ,ere
legal voters and had e8ercised the right of suffrage.
4;b< hose ,ho o,n real property to the value of five hundred pesos, declared in their name for ta8ation purposes for a period not less than
one year prior to the date of the election, or ,ho annually pay thirty pesos or more of the established ta8es.
4;c< hose ,ho are able to read and ,rite either -panish, /nglish, or a native language.
4-/C. JA*. .is;uali,ications. H he follo,ing persons shall be dis#ualified from voting7
4;a< Any person ,ho, since the thirteenth day of August, eighteen hundred and ninetyCeight, has been sentenced by final judgment to suffer
not less than eighteen months of imprisonment, such disability not having been removed by plenary pardon.
4;b< Any person ,ho has violated an oath of allegiance taken by him to the =nited -tates.
4;c< %nsane or feebleCminded persons.
4;d< DeafCmutes ,ho cannot read and ,rite.
4;e< /lectors registered under subsection ;c< of the ne8t preceding section ,ho, after failing to make a s,orn statement to the satisfaction of
the board of inspectors at any of its t,o meetings for registration and revision, that they are incapacitated preparing their ballots due to
permanent physical disability, present themselves at the hour of voting as incapacitated, irrespective ,hether such incapacity be real or
feigned.4
JB +CAJ&B9, 0ctober &2 and ?ovember J, &('&.
J2 41or taking action on any of the above enumerated measures, majority vote of all the barrio assembly (e(#ers registered in the list of the
barrio secretary is necessary.4
J' 4All duly registered barrio assembly members ;uali,ie! to vote may vote in the plebiscite. 6oting procedures may be made either in ,riting
as in regular elections, andFor declaration by the voters to the board of election tellers. he board of election tellers shall be the same board
envisioned by section ), paragraph * of this Act, in case of vacancies in this body, the barrio council may fill the same.4
J) /d,ards v. +esueur, AA -.E. &&A9: .ohnson v. 3rand 1orks County, &&A ?.E. &9'&: /llingham v. Dye ;&(&*<, &') %nd. AA2, (( ?./. &:
-tate v. Marcus, &29 Eis. ABJ, &B* ?.E. J&(.
J( %n Alcantara v. -ecretary of the %nterior, 2& Phil. JB(, this Court held that 4,hen a state constitution enumerates and fi8es the
#ualifications of those )*o (a e6ercise t*e ri+*t o, su,,ra+e, the legislature cannot take from nor add to said #ualifications unless the po,er
to do so is conferred upon it by the constitution itself.4
-ince suffrage, according to Eebster, is a voice given not only in the choice of a man for an office or trust, but, also, in !eci!in+ a
controverte! ;uestion, it follo,s, considering the said ruling in Alcantara, that the constitutional #ualifications for voters apply e#ually to
voters in elections to public office and to voters in a plebiscite.
-imilarly, the !evised /lection Code provides in its section * that all elections of public officers by the people and all votin+s in connection
)it* ple#iscites shall be conducted in conformity ,ith the provisions of said Code.
B9 !epublic Act ?o. 2A)), section &9& of ,hich, in part, provides7
4-/C. &9&. ?uali,ications prescri#e! ,or a voter. H /very citi"en of the Philippines, not other,ise dis#ualified by la,, t,entyCone years of
age or over, able to read and ,rite, ,ho shall have resided in the Philippines for one year and in the city, municipality or municipal district
,herein he proposes to vote for at least si8 months immediately preceding the election, may vote at any election.
888 888 888
B& 4-/C. &9*. .is;uali,ications. H he follo,ing persons shall not be #ualified to vote7
4;a< Any person ,ho has been sentenced by final judgment to suffer an imprisonment of not less than one year, such disability not having
been removed by plenary pardon7 Provi!e!, *o)ever, hat any person dis#ualified to vote under this paragraph shall automatically reac#uire
the right to vote upon e8piration of ten years after service of sentence unless during such period, he shall have been sentenced by final
judgment to suffer an imprisonment of not less than one year.
4;b< Any person ,ho has been adjudged by final judgment by competent court of having violated his allegiance to the !epublic of the
Philippines.
4;c< %nsane or feebleCminded persons.
4;d< Persons ,ho cannot prepare their ballots themselves.4
B* 4-/C. &9. ...
4he follo,ing persons shall not be #ualified to vote7
4a. Any person ,ho has been sentenced by final judgment to suffer one year or more of imprisonment, ,ithin t,o years after service of his
sentence:
4b. Any person ,ho has violated his allegiance to the !epublic of the Philippines: and
4c. %nsane or feebleCminded persons.4
BA *9 C..., &'(C&)&, #uoted in Demetrio v. +ope", B9 Phil. JB, 29. -ee, also, 3architorena v. Crescini, A( Phil. *B).
BJ Baldauf v. 3unson, ) P. *d. *2B. -ee, also, Martin v. Mc3arr, &&' P. A*A, 3lenn v. 3nau, 2J -.E. *d. &2). /mphasis ours.
BB +CAAA*B and +CAJ9JA, December *(, &('&.
B2 >opkins v. City of Duluth, )A ?.E. BA2, BA). /mphasis ours.
B' Maddo8 v. Board of -tate Canvassers, &J( P. *d. &&*, &&B. /mphasis ours.
B) Port of Palm Beach District v. -tate, ** -o. *d. B)&, B)*CB)A. /mphasis ours.
B( Art. D, section & of the &(AB Constitution.
29 en ;&9< years.
2& Art. D, section * of the &(AB Constitution.
2* I#i!.
2A Art. D, section A of the &(AB Constitution.
2J 4-/C. B. Or+anization o, t*e Co((ission on Elections. H he Commission shall adopt its o,n rules of procedure. ,o members of the
Commission shall constitute a ;uorum. he concurrence of t,o members shall be necessary for the pronouncement or issuance of a
decision, order or ruling.
4he Commission shall have an e8ecutive and such other subordinate officers and employees as may be necessary for the efficient
performance of its functions and duties, all of ,hom shall be appointed by the Commission in accordance ,ith the Civil -ervice +a, and
rules.
4he e8ecutive officer of the Commission, under the direction of the Chairman, shall, have charge of the administrative business of the
Commission, shall have the po,er to administer oaths in connection ,ith all matters involving the business of the Commission, and shall
perform such, other duties as may he re#uired of him by the Commission.
4-/C. 2. Po)er o, t*e Co((ission to Investi+ate an! to Cear Controvers an! Issue Su#poena. H he Commission or any of the members
thereof shall, in compliance ,ith the re#uirement of due process, have the po,er to summon the parties to a controversy pending before it,
issue su#poenae and su#poenae !uces tecu( and other,ise take testimony in any investigation or hearing pending before it, and delegate
such po,er to any officer of the Commission ,ho shall be a member of the Philippine Bar. %n case of failure of a ,itness to attend, the
Commission, upon proof of service of the su#poenae to said ,itness, may issue a ,arrant to arrest the ,itness land bring him before the
Commission or officer before ,hom his attendance is re#uired. he Commission shall have the po,er to punish contempts provided for in
the !ules of Court under the controversy submitted to the Commission shall after complaince ,ith the re#uirements of due process be heard
and decided by it ,ithin thirty days after submission of the case.
4he Commission may, ,hen it so re#uires, deputi"ed any member of any national or local la, enforcement agency andFor instrumentality of
the government to e8ecute under its direct and immediate supervision any of its final decisions, orders, instructions or rulings.
4Any decision, order or ruling of the Commission on election controversies may be revie,ed by the -upreme Court by ,rit of a certiorari in
accordance ,ith the !ules of Court or such applicable la,s as may enacted.
4Any violation of any final e8ecutory decision, order or ruling of the Commission shall constitute contempt thereof.4
2B 2J -.E. *d. &2).
22 +CABBA), !oses, et al. v. -ecretary of ?ational Defense, et al.: +CABBA(, Diokno v. >on. /nrile, et al.: +CABBJ9, -oliven, et al. v. -ecretary
of ?ational Defense, et al.: +CABBJ2, A#uino, .r., et al. v. >on. /nrile, et al.: +CABBJ', 3arcia %% v. >on. /nrile, et al.: +CABB2' Doronila, et al. v.
-ecretary of ?ational Defense, et al.: +CABB'A, !andon v. >on. /nrile, et al.
2' 4P!/-%D/?%A+ D/C!// ?0. )2CA
4-!/?3>/?%?3 A?D D/1%?%?3 >/ !0+/ 01
BA!A?3A@- ;C%%5/?- A--/MB+%/-<.
4E>/!/A-, on the basis of preliminary and initial reports from the field as gathered from barangays ;citi"ens assemblies< have so far been
established, the people ,ould like to decide themselves #uestions or issues, both local and national, affecting their day to day lives and their
future.
4E>/!/A-, the barangays ;citi"ens assemblies< ,ould like themselves to be the vehicle for e8pressing the vie,s of the people on important
national issues:
4E>/!/A-, such barangays ;citi"ens assemblies< desire that they be given legal status and due recognition as constituting the genuine,
legitimate and valid e8pression of the popular ,ill: and
4E>/!/A-, the people ,ould like the citi"ens assemblies to conduct immediately a referendum on certain specified #uestions such as the
ratification of the ne, Constitution, continuance of martial la,, the convening of Congress on .anuary **, &('A, and the elections in
?ovember &('A pursuant to the &(AB Constitution.
4?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines, by virtue of the po,ers vested in me by the Constitution as
CommanderCinCChief of all Armed 1orces of the Philippines, do hereby declare as part of the la, of the land the follo,ing.
4&. he present barangays ;citi"ens assemblies< are created under Presidential Decree ?o. )2 dated December A&, &('*, shall constitute
the base for citi"en participation in governmental affairs and their collective vie,s shall be considered in the formulation of national policies or
programs and, ,herever practicable, shall be translated into concrete and specific decision:
4*. -uch barangays ;citi"ens assemblies< shall consider vital national issues no, confronting the country, like the holding of the plebiscite on
the ne, Constitution, the continuation of martial rule, the convening of Congress on .anuary **, &('A, and the holding of elections in
?ovember &('A, and others in the future, ,hich shall serve as +ui!e or #asis ,or action or !ecision # t*e national +overn(ent:
4A. he barangays ;citi"ens assemblies< shall conduct bet,een .anuary &9 and &B, &('A, a referendum on important national issues,
including those specified in paragraph * hereof, and submit the results thereof to the Department of +ocal 3overnments and Community
Development immediately thereafter, pursuant to the e8press ,ill of the people as reflected in the reports gathered from the many thousands
of barangays ;citi"ens assemblies< throughout the country.
4J. his Decree shall take effect immediately.
4Done in the City of Manila, this Bth day of .anuary, in the year of 0ur +ord, nineteen hundred and seventyCthree.4 ;/mphasis ours.<.
2) McNinney v. Baker, &)9 Ny. B*2 *9A -.E. A9A, A9J. /mphasis ours.
2( Art. 6%%, section *, &(AB Constitution.
'9 Michael E. !oche v. +amb, A92 ?.@.-. *d. B&B ;Dec. &', &(2(<: -tate e8 rel. -athre v. Bryne, *B) ?.E. &*&: -tate e8 rel. -hriver v.
>ayes, '2 ?./. *d. )2(: -mith v. Bangham, '2 p *d. &9**. McNim v. Brast, &&' -./. )'B: >ead v. Eood, &9' -o. )BJ: -tate e8 rel. Eatson
v. Pigg, J2 ?./. *d. *A*.
'& -ee cases cited in the preceding footnote. -ee, also, iegs v. Patterson, A&) P. *d. B)): -tate e8 rel. Bro,n v. -t. .oseph Circuit Court,
(B ?./. *d. 2A*: Eilliamson v. -tate /lection Board, JA& P. *d. AB*, Baker v. Con,ay, &9) -o. &): Cohoon v. -,ain, B -./. *d. &: -tate e8
rel. Mitchell v. Ealcott, )A A. *d. '2*: Doyle v. !ies, *)B ?.E. J)9: 3rossglaus v. Board of /lections of -tark County, )) ?./. *d. *JB:
Ealker v. >ughes, A2 A. *d. J': !eese v. Dempsey, &B* P. *d. &B': Dodd v. 3o,er, 2* -.E. *d. &: 3allo,ay v. Bradburn, )* -.E. &9&A:
>agan v. >enry, '2 -.E. *d. ((J.
'* &92 Minn A(*, &&( ?.E. J9), J9(.
'A 2A ?... +a,, *)(, cited in %n re McConaughy, supra.
'J ') Ark. JA(, (2 -.E. A(2, cited in %n re McConaughy, supra.
'B -ee cases listed on pages &9BC&92, footnotes B2, B' and B).
'2 0n December &(, &('*.
'' *J Nansas '99, '&J. -ee, also, -tate e8 rel. Eilliams v. !obb, &)A P. *d. **A, **): >arris v. -hanahan, A)' P. *d. ''&, ')J, ')B.
') A2( =.-. &)2, ' +.ed. *d. 22A, 2)J, citing Chaselton Corp. v. -inclair, *2J =.-. BJA, BJ', BJ), 2) +. ed. )J&, )JA, JJ -. Ct. J9B.
'( Art. 6%%, section &9, paragraph ;&<.
)9 &9& 6a. B*(, JJ -./. 'BJ.
)& Marifos#ue, et al. v. +una, &9& Phil. &**A ;unreported<: A' Am. .ur. 22(: 2* C...-. 'J(C'B9: 3uevara v. %nocentes, +C*BB'', March &B,
&(22.
)* Ehich, in some respects, is regarded as an organ of the Administration, and the ne,s items published therein are indisputably censored
by the Department of Public %nformation.
)A Daily /8press, ?ovember *(, &('*, p. J. /mphasis ours.
)J *A& =.-. *), B) +. ed. &9', &&J, AJ -. Ct. &.
)B Baker v. Carr, A2( =.-. &)2, ' +. ed. *d. 22A, )* -.Ct. 2(&.
)2 .ustice Barredo$s opinion in the plebiscite cases.
)' .oint 0pinion of .ustices Makalintal and Castro, p. &BA.
)) .ustice Barredo$s language.
)( At p. &BA, joint opinion of .ustices Makalintal and Castro.
(9 .oint 0pinion of .ustices Makalintal and Castro, p. &BA.
(& At p. ), I!e(.
A??/D B
Q he undersigned ;.ustice Puerube C. Makalintal< ,ho had reserved his right to do so, filed a separate dissenting opinion ,hen the Court
denied a motion for reconsideration, and voted in favor of the validity of the #uestioned !esolution. Mr. .ustice /nri#ue M. 1ernando joined in
the dissent.
Q hus by Presidential Decree ?o. )2 ,hat the Constitutional Convention itself had proposed unsuccessfully as an amendment to the &(AB
Constitution, reducing the voting age from *& to &), but the submission of ,hich to a plebiscite ,as declared invalid by this Court in olentino
vs. C0M/+/C, became a reality of an even more farCreaching import H since fifteenCyear olds ,ere included in the Citi"ens Assemblies.
Q According to the -olicitor 3eneral (* Congressmen and &B -enators ;both numbers constituting majorities< have e8pressed their option.
Q +uther v. Borden, J) =.-. ;' >a,.< &, &* +. /d. B)& ;&)J(<.
BA!!/D0, .., C0?C=!!%?37
& Charito Planas vs. Comelec, et al., +CAB(*B, .anuary **, &('A: Pablo C. -anidad vs. Comelec,
+CAB(*(, .anuary **, &('A: 3erardo !o8as, etc., et al. vs. Comelec, et al., +CAB(J9, .anuary **, &('A: /ddie B. Monteclaro vs. Comelec, et
al., +CAB(J&, .anuary **, &('A: -edfrey A. 0rdoLe", et al., vs. he ?ational reasurer of the Philippines, et al., +CAB(J*, .anuary **, &('A:
6idal an, et al., vs. Comelec, et al., +CAB(J), .anuary **, &('A: .ose E. Diokno, et al., vs. Comelec,
+CAB(BA, .anuary **, &('A: .acinto .imene" vs. Comelec, et al., +CAB(2&, .anuary **, &('A: !aul M. 3on"ales vs. Comelec, et al., +CAB(2B,
.anuary **, &('A and /rnesto >idalgo vs. Comelec, et al., +CAB('(, .anuary **, &('A.
* /8ecutive Agreements are not included in the corresponding provision of the &(AB Constitution.
A %t Must be recalled that in the olentino case, the Constitutional Convention intended to submit one amendment ,hich ,as to form part of
the Constitution still being prepared by it separately from the rest of the other parts of such constitution still unfinished, and Ee held that a
pieceCmeal submission ,as improper. Ee had no occasion to e8press any vie, as to ho, a ,hole ne, Constitution may be ratified.
Q %n &))9, he also ,rote his 4Constitutional +a,.4 .udge Cooley, ,ho ,as born in Attica, ?e, @ork in &)*J, died in &)(). .udge Cooley ,as
also professor and later dean of the +a, Department of the =niversity of Michigan and .ustice of the -tate -upreme Court of Michigan from
&)2J to &))B, ,hen he failed to ,in reCelection to the court.
/-3=/!!A, .., C0?C=!!%?37
& Charito Planas v. Commission on /lections, et al., +CAB(*B: Pablo C. -anidad v. Commission on /lections, +CAB(*(: 3erardo !o8as, etc.,
et al. v. Commission on /lections, et al., +CAB(J9: /ddie B. Monteclaro v. he Commission on /lections, et al., -edfrey A. 0rdoLe", et al. v.
he ?ational reasurer of Philippines, et al., +CAB(J*: 6idal an, et al. v. Commission on /lections, et al., +CAB(J): .ose E. Diokno, et al. v.
he Commission on /lections, +CAB(BA: .acinto .imene" v. Commission on /lections, et al., +CAB(2&: !aul M. 3on"ales v. he >onorable
Commission on /lections, et al., +CAB(2B: /rnesto >idalgo v. Commission /lections, et al.,
+CAB('(.
* -ee aLada, et al. v. Cuenco, +C&9B*9, 1eb. *), &(B': Baker v. Carr, A2( =.-. &)2 ;&(2*<.
A -ee &2 Am. .ur. *d. p. J2), ?ote &J, and cases cited therein.
J Cooke v. %verson, &9) Minn. A)), &** ?E *B&.
B +CA)&(2, ?ovember (, &(2', *& -C!A ''J.
2 )A Phil. &(B'.
' McConaughy v. -ecretary of -tate, &&( ?.E. J9), J&A: A*A Eords and Phrases p. B&2. -ee also the plebiscite cases, mentioned in
footnote &, ante.
) Cooley, Constitutional +imitation, )th /d., 6ol. %, p. )*.
( A( Phil. *B), *2).
&9 2( Phil. &((, *9J.
&& '9 Phil. *), A&.
1/!?A?D0, .., dissenting7
& Memorandum for !espondents, *.
* According to the &(AB Constitution7 4he Congress in joint session assembled, by a vote of threeCfourths of all the members of the -enate
and of the >ouse of !epresentatives voting separately may propose amendments to this Constitution or call a convention for that purpose.
-uch amendments shall be valid as part of this Constitution ,hen approved by a majority of the votes cast at an election at ,hich the
amendments are submitted to the people for their ratification.4 Art. D6, -ection &.
A +erner, %deas are Eeapons, J*2 ;&(A(<. /arlier, in this collection of essays, +erner made this notCentirelyCinaccurate observation7 4?o
governmental institution that consists of a group of legal technicians appointed for life can ever hope to cope ,ith, much less solve, the
e8igent problems of our polity.4 I#i!, *A&. >e ,as referring of course to the -upreme Court of the =nited -tates.
J 1rankfurter, Mr. .ustice >olmes and the -upreme Court, *BC*2 ;&(A)<.
B Black, he People and the Court ;&(29<.
2 Murphy, /lements of .udicial -trategy ;&(2J<.
' Cf. Angara v. /lectoral Commission, 2A Phil. &A( ;&(A2<: aLada v. Cuenco, &9A Phil. &9B& ;&(B'<: 6era v. Arca, +C*B'*&, May *2, &(2(,
*) -C!A AB&.
) 3on"ales v. Commission on /lections, +C*)&(2, ?ov. (, &(2', *& -C!A ''J.
( olentino v. Commission on /lections, +C*J&B9, 0ct. &2, &('&, J& -C!A '9*.
&9 Planas v. Commission on /lections, +CAB(*B, .an. *B, &('A.
&& *B2 =- A2) ;&(*&<.
&* I#i!, A'JCA'B.
&A +CAA(2J, Dec. &&, &('&, J* -C!A JJ).
&J I#i!, B9JCB9B.
&B Dodd, .udicially ?onenforceable Provisions of Constitutions, in % -elected /ssays on Constitutional +a, ABB, A)' ;&(A)<.
&2 I#i!, A(B.
%' Eeston, Political Puestions, % -elected /ssays an Constitutional +a, J&), J** ;&(A)<..
&) Cf. Bickel, he +east Dangerous Branch ;&(2*<.
&( Cf. 1reund, 0n =nderstanding the -upreme Court ;&(B9<. Also his he -upreme Court of the =nited -tates ;&(2*<.
*9 +aurel, -., 6%% Proceedings of the Philippine Constitutional Convention ;&(AJC&(AB<, Appendi8 +, )99.
*& 2B Phil. B2 ;&(A'<.
** I#i!, (2.
*A 2A Phil. &A( ;&(A2<.
*J +CAB(*B, .anuary **, &('A.
*B !osto,, he Democratic Character of .udicial !evie, in -elected /ssays on Constitutional +a, &(A) &(2*, &, * ;&(2A<.
*2 I#i!.
*' I#i!, A.
*) I#i!, ACJ. he decision of .ustice 1rankfurter referred to is that of !ochin v. People of California, AJ* =- &2B ;&(B*<.
*( Mason, he -upreme Court from aft to Earren, &BJ ;&(2'<. he ,ords of .ustice 1rankfurter found in his opinion in -tein v. ?e, @ork,
AJ2 =- &B2 ;&(BA<.
A9 Nonefsky, he +egacy of >olmes and Brandeis, *(A ;&(B2<.
A& Cor,in, .udicial !evie, in % -elected /ssays on Constitutional +a,, JJ(, JB9 ;&(A)<.
A* & Cranch &A' ;&)9A<.
AA Curtis, +ions =nder the hrone, &* ;&(J'<.
AJ Addresses and Papers of Charles /vans >ughes, &A(C&J9 ;&(9)<.
AB .ackson, !obert >. he -truggle for .udicial -upremacy, A ;&(J(<.
A2 >aines, Charles 3rove, he !ole of the -upreme Court in American 3overnment and Politics, &')(C&)AB, A ;&(29<.
A' A2( =- &)2.
A) A(B =- J)2.
A( A*) =- BJ( ;&(J2<.
J9 I#i!, BB2.
J& Cf. Eesberry v. -anders, A'2 =- &, && + ed *d J)&, )J - Ct. ;&(2J<: Eright v. !ockefeller, A'2 =- B*, && + ed *d B&*, )J - Ct ;&(2J<:
!eynolds v. -ims, A'' =- BAA, &* + ed *d B92, )J - Ct &A2* ;&(2J<: EMCA v. +omen"o, A'' =- 2AA, &* + ed *d B2), )J - Ct. ;&(2J<:
Maryland Committee v. auses, A'' =- 2B2, &* + ed *d B(B, )J - Ct. &JJ* ;&(2J<: Davis v. Mann, A'' =- 2'), &* + ed *d 29(, )J - Ct.
&JBA ;&(2J<: !oman v. -incock, A'' =- 2(B, &* + ed *d 2*9, )J -.Ct. &J2* ;&(2J<: +ucas v. Colorado 3eneral Assembly, A'' =- '&A, + ed
*d 2A*, )J - Ct. &J'* ;&(2J<: 1ortson v. Dorsey, A'( us JAA, &A + ed *d J9&, )B - Ct. J() ;&(2B<: Burns v. !ichardson, A)J =- 'A, &2 + ed
*d A'2, )2 - Ct. &*)2 ;&(22<: -ailors v. Nent Board of /ducation, A)' =- &9B, &) + ed *d 2B9, )' - Ct. &BJ( ;&(2'<: Dusch v. Davis, A)'
=- &&*, &) + ed *d 2B2, )' - Ct. &BBJ ;&(2'<.
J* '' Phil. &(* ;&(J2<.
JA I#i!, B2.
JJ ?e, @ork imes Company v. =nited -tates, *( + ed. )** ;&('&<.
JB Eechsler, o,ard ?eutral Principles of Constitutional +a,, '* >arv. +a, !evie, '' ;&(B(<. %t is the first essay in his Principles, Politics
and 1undamental +a,.
J2 he principal articles are7 Pollak, Constitutional Adjudication7 !elative or Absolute ?eutrality, && .. Pub. +. J) ;&(2*<: !osto,, American
+egal !ealism and the -ense of Profession, AJ !ocky Mt. +. !ev. &*A, &A2CJ2 ;&(2*<: >enkin, -ome !eflections on Current Constitutional
Controversy, &9( =. Pa. +. !ev. 2A' ;&(2&<: >enson, A Criticism of Criticism7 %n re Meaning, *( 1ordham +. !ev. BBA ;&(2&<: Miller, A ?ote
on the Criticism of -upreme Court Decisions, &9 .. Pub. +. &A( ;&(2&<, Eright, he -upreme Court Cannot be ?eutral, J9 e8as +. !ev. B((
;&(2&<: Arnold, Professor >art$s heology, 'A >arv. +. !ev. &*() ;&(29<: Black, he +a,fulness of the -egration Decisions, 2( @ale +. ..
J*& ;&(29<: 3ris,old, 0f ime and Attitudes7 Professor art and .udge Arnold, 'J >arv. +. !ev. )& ;&(29<: Narst, +egislative 1acts in
Constitutional +itigation, &(29 -upreme Court !ev. 'B: Miller and >o,ell he Myth of ?eutrality in Constitutional Adjudication, *'=. Chi. +.
!ev. 22& ;&(29<: Mueller M -ch,art", he Principle of ?eutral Principles, ' =.C.+.A.+. !ev. B'& ;&(29<: >art, 1or,ard, he ime Chart of the
.ustices, 'A >arv. +. !ev. )J ;&(B(<: Pollak, !acial Domination and .udicial %ntegrity7 A !eply to Professor Eechsler, &9) =. Pa. +. !ev. &
;&(B(<.
J' Cahn, -upreme Court and -upreme +a,, J9 ;&(BJ<.
J2 Cf. aLada v. Cuenco, &9A Phil. &9B&, &9)( ;&(B'<.
J( Collier v. 1rierson, &*J Ala. &99 ;&)BJ<: 3reen v. Eeller, A* Miss. 2B9 ;&)B2<: Penn v. ollison, *2 Ark. BJB ;&)'&<: Noehler v. >ill, 29
%o,a BJA, &J ?E 'A) ;&))A<: McMillan v. Blattner, 2' %o,a *)', *B ?E *JB ;&))B<: -tate v. Davis, *D ?eb. **9, &( Pac. )(J ;&)))<: -tate
v. ooker, &B Mont. ), A' Pac. )J9 ;&)(J<: !ussie v. Bra""ell, &*) Mo. (A, A9 -E B*2 ;&)(B<: -tate v. Po,ell, '' Miss. BJA, *' -o. (*'
;&(99<: -tate v. Brookhart, &&A %o,a *B9, )J ?E &92J ;&(9&<: %n re Denny, &B2 %nd. &9J, B( ?/ AB( ;&(9&<: =tter v. Moseley, &2 %daho *'J,
&99 P. &9B) ;&(9(<: Eillis v. Nalbach, &9( 6a. J'B, 2J -/ AJ* ;&(9(<: People e8 rel. -,ift v. +uce, 'J Misc. !ep. BB&, &AA =- ( ;&(&*<:
McCreary v. -peer, &B2 Ny. ')A, &2* -E (( ;&(&J<: -tate v. Donald, &29 Eis. *&, &B& ?E AA& ;&(&B<: -tate v. Marcus, &29 Eis. ABJ, &B*
?E J&( ;&(&B<: -tate v. Campbell, (J 0hio -t. J9A, &&B ?/ *( ;&(&2<: %n re 0pinion of .ustices, **2 Mars. 29', &&B ?/ (*& ;&(&'<: -cott v.
6ouchan, *9* Mich. 2(*, &2) ?E '9( ;&(&)<: >ooper v. -tate, )( -o. B(A, *92 Ala. A'& ;&(*&<: -,it"er v. -tate, &9A 0hio -t. A92, &AA ?/
BB* ;&(*&<: .ohnson v. Craft, )' -o. A'B, *9B Ala. A)2 ;&(*&<: %n re 0pinion of the .ustices, *A' Mars. B)(, &A9 ?/ *9* ;&(*&<: Po,er v.
!obertson, &A9 Miss. &)), (A -o. '2( ;&(**<: >amilton v. Deland, &(& ?E )*(, **& Mich. BJ& ;&(*A<: %n re %nitiative Petition, )( 0kl. &*J,
*&J P. &)2 ;&(*A<: Armstrong v. Ning, *)& Pa. *9', &*2 A. *2A ;&(*J<: McAdams v. >enley, &2( Ark. (', *'A -E ABB ;&(*B<: >einitsh v.
1loyd, &A9 -C JAJ, &*2 -/ AA2 ;&(*B<: -tate v. 5immerman, &)' Eis. &)9, *9J ?E )9A ;&(*B<: Bro,n v. City of ?e, @ork, &*B Misc. !ep.
&, *&9 ?@- ')2 ;&(*2<: -tate e8 rel. Bahns v. City of ?e, 0rleans, &2A +a. ''' -o. '&) ;&(*'<: Duncan v. !ecord Pub. Co., &JB -C &(2,
&JA -/ A& ;&(*)<: +ane v. +ukens, J) %daho B&', *)A P. BA* ;&(*(<: -chool Dist. of City of Pontiac v. City of Pontiac, *2* Mich. AA), *J'
?E J'J ;&(AA<: Collier v. 3ray, &&2 1la. )JB, &B' -o. J9 ;&(AJ<: %n re 0pinion to 3overnor, BB !.%. B2, &') A. JAA ;&(AB<: -tate e8 rel
+andis v. hompson, &*9 1la. )29,&2A -o. *'9 ;&(AB<: ausig v. +a,rence, A*) Pa. J9), &(' A. *AB ;&(A)<: Do,ns v. City of Bromingham,
*J9 Ala. &'', &() -o. *A& ;&(J9<: 3raham v. .ones, &() +a. B9', A -o. *d '2& ;&(J&<: Pearson v. aylor, &B( 1la. ''B, A* -o. *d )*2
;&(J'<: Palmer v. Dunn, *&2 -C BB), B( -/ &B) ;&(B9<.
B9 Cf. Eells v. Bain, 'B Pa. -t. A(, &B Am. !ep. B2A ;&)'J<: -enate 1ile ?o. A&, *B ?eb. )2J, J& ?E ()& ;&))(<: -tate v. 3rey, *& ?ev.
A'), A* Pac. &(9 ;&)(A<: ?esbit v. People, &( Colo. JJ&, A2 Pac. **& ;&)(J<: >ays v. >ays, B %daho &BJ, J' P. 'A* ;&)('<: +ovett v.
1erguson, &9 -D JJ, '& ?E 'B2 ;&)('<: !ussell v. 3rey, &2J Mo. 2(, 2A -E )J( ;&(9&<: 3abbert v. Chicago, !.%. !y. Co. &'& Mo. )J, '9
-E ;&(9*<: People v. -ours, A& Colo. A2(, &9* 'J P. &2' ;&(9A<: People v. +oomis, &AB Mich. BB2, () ?E *2* ;&(9J<: Eest v. -tate, B9
1la. &BJ, A( -o. J&* ;&(9B<: -tate v. Einnett, ') ?eb. A'(, &&9 ?E &&A ;&(9'<: 1arrell v. Port of Columbia, B9 0r. &2(, (A P. *BJ ;&(9)<: %n
re Mcconaughy, &92 Minn. A(*, &&( ?E J9) ;&(9(<: 1letcher v. 3ifford, *9 %daho &), &&B P. )*J ;&(&&<: >ammond v. Clark, &A2 3a. A&A,
'& -/ J'( ;&(&&<, Cra,ford v. 3ilchrist, 2J 1la. J&, B( -o. (2A ;&(&*<: Cudihee v. Phelps, '2 Eash. A&J, &A2 P. A2' ;&(&A<: -tate v.
1airley, '2 Eash. AA*, &A2 P. A'J ;&(&A<: abor v. City of Ealla Ealla, '' Eash. B'(, &A' P. &9J9 ;&(&J<: -tate v. Alderson, J( Mont. A)',
&J* P. *&9 ;&(&J<: !amsey v. Persinger, JA 0kl. J&,&J& P. &A ;&(&J<: Cress v. /stes, JA 0kl. *&A P. J&& ;&(&J<: Cooney v. 1oote, &J* 3a.
2J', )A -/ BA' ;&(&J<: >ildreth v. aylor, &&' Ark. J2B, &'B -E J9 ;&(&B<: .ones v. McDade, *99 Ala. *A9, 'B -o. ()) ;&(&'<: -tate v.
Eet", J9 ?.D. *((, &2) ?E )AB ;&(&)<: /8 Parte Ming, J* ?ev. J'*, &)& P. A&( ;&(&(<: +ee 6. Price, BJ =tah, J'J, &)& P. (J) ;&(&(<,
/r,in v. ?olan, *)9 Mo. J9&, *&' -E 'B* ;&(**<: Boyd v. 0lcott, &9* 0r. A*', *9* P. JA& ;&(*&<: hompson v. +ivingston, &&2 -.C. J&*,
&9' -/ B)& ;&(*&<: hrailkill v. -mith, &92 0hio -t. &, &A) ?/ BA* ;&(**<: Bra,ner v. Curran, &J& %nd. B)2, &&( A. *B9 ;&(**<: 1ahey v.
>ackmann, *(& Mo. AB& -E 'B* ;&(**<: 3oolsby v. -tephens, &BB 3a. B*(, &&' -/ JA( ;&(*A<: Manos v. -tate, () a8. Cr. )', *2A -E
A&9 ;&(*J<: -tate v. 5immermann, &)' Eis. &)9, *9) ?E )9A ;&(*B<: aylor v. Ning, *)J Pa. *AB, &A9 A. J9' ;&(*B<: Board of +i#uidation
of -tate Debt of +ouisiana v. EhitneyCCentral rust and -avings Bank, &2) +a. B29, &** -o. )B9 ;&(*(<: -tate v. Cline, &&) ?eb. &B9, **J
?E 2 ;&(*(<: California eacher$s Ass$n. v. Collins, & Cal. *d *9*, AJ P. *d &AJ ;&(AJ<: Collier v. 3ray, &&2 1la. )JB, &B' -o. J9 ;&(AJ<:
-tate e8 rel. v. -tate Bldg. Commission v. -mith, AAB Mo. )J9, 'J -E *d *' ;&(AJ<: Mayer v. Adams, &)* 3a. B*J, &)2 -/ J*9 ;&(A2<:
Doody v. -tate e8 rel. Mobile County, *AA Ala. *)', &'& -o. B9J ;&(A'<: -,anson v. -tate, &A* ?eb. )*, *'& ?E *2J ;&(A'<: -tonns v.
>eck, *A) Ala. &(2, &(9 -o. ') ;&(A(<: 3raham v. .ones, &() +a. B9', A -o. *d '2& ;&(J&<: %n re %nitiative Petition ?o. **J, &(' 0kl. JA*,
&'* P. *d A*J ;&(J2<: City of .ackson v. ?ims, A&2 Mich. 2(J, *2 ?E *d B2( ;&(J'<: Neenan v. Price, 2) %daho J*A, &(B P. *d 22* ;&(J)<.
B& Common,ealth Act ?o. J(* ;&(A(<.
B* I#i!, -ection A.
BA Common,ealth Act ?o. B&' ;&(J9<.
BJ Article 6% of the &(AB Constitution.
BB Article 6%% of the &(AB Constitution.
B2 %t is to be noted that under Common,ealth Act ?o. 29' ;&(J9<, subse#uently amended by Common,ealth Act ?o. 2B' ;&(J9<, there ,as
a statutory creation of an independent Commission on /lections.
B' -ection A, Common,ealth Act ?o. B&'.
B) !epublic Act ?o. 'A ;&(J2<.
B( -ection A of !epublic Act 'A reads as follo,s7 4he provisions of Common,ealth Act ?umbered hree >undred and fiftyCseven,
other,ise kno,n as the /lection Code, and Common,ealth ?umbered -i8 hundred and fiftyCseven, entitled 4An Act to !eorgani"e the
Commission on /lections,4 is so far as they are not inconsistent here,ith, are hereby made applicable to the election provided for in this Act.4
29 !epublic Act J(&A ;&(2'<.
2& -ection A of !epublic Act J(&A reads thus7 4he provisions of !epublic Act ?umbered 0ne hundred eighty, as amended, insofar as they
are not inconsistent here,ith, are made applicable to the election provided for in this Act.4 %t is to be remembered that in the plebiscite held,
the t,o proposals last. Cf. on this point, 3on"ales v. Commission on /lections, +C*)&(2, ?ov. (, &(2', *& -C!A ''J.
2* he &(AB Constitution provides7 4he Philippines is a republican state. -overeignty resides in the people and all government authority
emanates from them.4 Article %%, -ection &.
2A +aski, 3rammar of Politics, Jth ed., AJ ;&(A'<.
2J Mclver, he Eeb of 3overnment, )J ;&(J'<.
2B Cor,in, he >igher +a, Background of American Constitutional +a,, in & -elected /ssays on Constitutional +a, A ;&(A)<.
22 (* Ny. B)(, &) -E B**.
2' I#i!, B*A.
2) &9& 6a. )*(, JJ -/ 'BJ.
2( I#i!, 'BB. A similar approach may be noted in Arie v. -tate, *A 0kl. &22, &99 P. *A ;&(9(< and >ammond v. Clark, &A2 3a. A&A, '& -/
J'( ;&(&&<.
'9 Araneta v. Dinglasan. )J Phil. A2) ;&(J(<.
'& Cardo"o, he ?ature of the .udicial Process, &J& ;&(*&<.
//>A?N//, .., dissenting7
& -ection &, ,hich is the lone section of Art. D6: emphasis supplied.
* Article D6%%, section &2, proposed Constitution of ?ov. A9,&('*: emphasis supplied.
A All #uotations from respondents$ memo of arguments dated March *, &('A, pp. *CB: emphasis supplied.
J !espondents$ memo dated March *, &('A, p. ): emphasis supplied.
B 3on"ales vs. Comelec, *& -C!A ''J ;?o. (, &(2'<.
2 olentino vs. Comelec, J& -C!A '9* ;0ct. &2, &('&<.
' !esolution on motion for reconsideration in olentino Comelec, +CAJ&B9: dated ?ov. J, &('&, at page A, per Barredo, .. ,ith seven
.ustices concurring: emphasis supplied.
) I!e(, at page J, emphasis supplied.
( .oint opinion of ... Makalintal and Castro, p. &BA.
&9 Article D, sec. & of the Constitution entrusts 4e8clusive charge4 of the conduct of elections to the Comelec. -ee also the /lection Code of
&('&.
&& Araneta vs. Dinglasan ;+C*9JJ<: Araneta vs. Angeles ;+C*'B2<: !odrigue" vs. reasurer
;+CA9BJ<: 3uerrero vs. Commissioner of Customs: and Barredo vs. Comelec ;+CA9B2<, jointly decided and reported in )J Phil. A2).
&* I!e(, at pp. A)JCA)B: emphasis supplied.
&A I!e(, at p. JA'.
&J I!e(, at pp. JABCJA'.
&B I!e(, at p. A)A. .ustice uason further duly noted that 4hese observations, though beyond the issue as formulated in this decision, may,
,e trust, also serve to ans,er the vehement plea that for good of the ?ation, the President should retain his e8traordinary po,ers as long as
turmoil and other ills directly or indirectly traceable to the late ,ar harass the Philippines.4
&2 Petitioner Monteclaro$s notes of oral argument dated 1ebruary *A, &('A, p. *, and Anne8 A thereof.
&' -tate vs. Po,ell, '' Miss. BJA, *' south (*'.
&) Cooley$s Constitutional +imitations, )th /d., 6ol. %, p. )&.
&( Article D6, sec. &, Constitution.
*9 Article 6, sec. &, Constitution.
*& Article D, sec. *, Constitution.
** !espondents$ memo dated March *, &('A, p. B.
*A !espondents$ Comment dated 1eb. A, &('A, p. 2'.
*J I!e(, at p. J2: note in parentheses supplied.
*B & Cranch &A' ;&)9A<.
*2 2A Phil. &AJ ;&(A2<.
*' J Eheaton A&2 ;&)&(<.
*) Dean Pollak$s 4he Constitution and the -upreme Court4, 6ol. &, p. **&.
*( .ustice 1eli8 1rankfurter, 0f +a, and Men ;&(B2<, p. B.
A9 olentino vs. Comelec +CAJ&B9: decision of 0ctober &2, &('&, per Barredo, .. at p. ).
A9a ConCCon !es. ?o. & proposing the urgent lo,ering of the voting age to enfranchise the &)Cyear olds retained the 4permissive4 language
of section &, Art. 6. hus, the proposed amendment read 4-ection &. -uffrage (a be e8ercised by ;male< citi"ens of the Philippines not
other,ise dis#ualified by la,, ,ho are ;t,enty one< /%3>//? years of age or over and are able to read and ,rite ...4
A& !esolution of ?ov. J, &('&, per Barredo, .. at p. &B.
A* Decision of 0ct. &2, &('&, at p. *&.
AA *& -C!A ''J ;?ov. (, &(2'<.
AJ Decision of 0ct. &2, &('&, at p. *J.
AB !eyes, ..B.+. ;no, retired<, 5aldivar, Castro and Makasiar, ...
A2 I!e( at pp. &C*.
A' I!e( at p. A.
A) !esolution of ?ov. J, &('& in Tolentino, per Barredo, ..: pp. ACJ.
A( Decision of 0ct. &2, &('& in Tolentino, per Barredo, .. at p. &(.
J9 All #uotations are from the Chief .ustice$s concurring opinion in Tolentino, pp. JC'.
J& -eparate op. of .. eehankee concurring in !es. of ?o. J, &('& in Tolentino, pp. ), (, &9.
J* his Court thus declared in Tolentino the ConCCon voting age reduction resolution as null and void and prohibited its submittal at the &('&
elections for lack of proper submission since it did not 4provide the voter ... ample basis for an intelligent appraisal of the amendment. 4Dec.
of 0ctober &2, &('&, per Barredo, ..
JA %n reC0pinion of .ustices, &&B ?./. !ep. (**C(*A.
JJ Duncan vs. McCall, &A( =.-. JJ(, AB +. /d. *&(.
JB 4Barrios are units of municipalities or municipal districts in ,hich they are situated ... .4 !ep. Act AB(9, sec. *.
J2 !ep. Act AB(9, sec. 2, par. &.
J' I!e(, par. *.
J) I!e(, par. A and J, emphasis supplied.
J( 0ne barrio lieutenant and si8 barrio councilmen: 46oting shall be by secret ballot. ... .4 I!e(,
sec. ).
B9 I!e(, sec. &9, italics supplied. he same section further dis#ualifies persons convicted by final judgment to suffer one year or more of
imprisonment 4,ithin t,o years after service4 or ,ho have violated their allegiance to the !epublic and insane or feebleCminded persons.
B& Supra, p. *.
B* !i"al, Cavite, Bataan, Camarines -ur and ?egros 0ccidental, petitioners$ manifestation and supplemental rejoinder dated March *&, &('A
in +CA2&2B.
BA !espondents$ rejoinder dated March *9, &('A and surCrejoinder dated March *(, &('A.
BJ =nder Proclamation ?o. &&9A dated .an. &', &('A, it is recited that 4fourteen million nine hundred seventy si8 thousand five hundred si8ty
one ;&J,('2,B2&< members of all the Barangays voted for the adoption of the proposed Constitution, as against seven hundred fortyCthree
thousand eight hundred si8ty nine ;'JA,)2(< ,ho voted for its rejection: but a majority of those ,ho approved the ne, Constitution
conditioned their votes on the demand that the interi( ?ational Assembly provided in its ransitory Provisions should not be convened.4
BB !espondents$ memo dated March *, &('A, supra, p. *.
B2 As restated by Barredo, .. in his separate op. in the plebiscite cases, ,ho, ho,ever, did not look on the same ,ith favor, since the
constitutional point ;that the Comelec has e8clusive charge of the conduct of elections and plebiscites< seems to have been overlooked in
the Assemblies.4
B' Convention Minutes of ?ov. **, &('* submitted as Anne8 A of petitionerCdelegate -edfrey A. 0rdoLe" et. al. in the plebiscite case +C
AB(9J*, par. &* of petition and admitted in par. J of ans,er of therein respondents dated Dec. &B, &('*.
A?0?%0, .., C0?C=!!%?37
Q 1irst decision promulgated by 1irst Division of the -upreme Court.
& 4Ehen a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered
house, or do you have a ne, houseI -ome of the material contained in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have altogether another or a ne, house. Ee conclude that the instrument as
contained in 3a. +. &(JB, pp. ) to )(, inclusive, is not an amendment to the constitution of &)'': but on the contrary it is a completely revised
or ne, Constitution.4 ;Eheeler v. Board of rustees, A' -./. *d A**, A*'<.
4/very proposal ,hich affects a change in a Constitution or adds or takes a,ay from it is an 4amendment$, ,hile a 4revision4 implies a reC
e8amination and statement of the Constitution, or some part of it, in a corrected or improved form.4 ;Const. -ecs. &(2, &(', -taples v.
3ilmer, AA -./. *d J(, BA &)A 6a. 2&A<.
4Amendment4 and 4revision4 of constitution are separate procedures each having a substantial field of application not mere alternative
procedures in the same field.4 ;Mc1adden v. .ordan, &(2 P. *d ')', '(' A* Cal. *d AA9<.
* Cf. -ections & and * of Article D%6, Constitution of Minnesota in Appendi8.
A Baker v. Carr, A2( =.-. &)2: ' +. ed. 22A.
J Cf. -tate Constitutions of Alaska, California, Dela,are, 1lorida, Michigan, Minnesota, ?evada, ?e, >ampshire, 0klahoma, 0regon, =tah
and Eyoming in Appendi8 to this opinion.
Q +eon 0. y, -even Months of Martial +a,, Daily /8press.
Q Panorama, May 2, &('A.
B 4A ,ritten constitution is susceptible of change in t,o ,ays7 by revolution, ,hich implies action not pursuant to any provision of the
constitution itself: and by revision, ,hich implies action pursuant to some procedural provision in the constitution. his distinction is
concerned ,ith the ;uare and not ,ith the ;uantu( of change. %t may be significant, ho,ever, that the alleged alteration does or does not
purport to affect the e8istence of the court itself. %n the nature of things, a revolutionary charge does not admit judicial po,er as such to
determine the fact of its occurrence. %f revolutionary constitution sets up a court differently constituted from the preCrevolutionary court,
neither tribunal is confronted ,ith a substantial problem, for neither can deny the act by ,hich it ,as created ,ithout denying the fact of its
creation. hus the -upreme Court in 0ut*er v. "or!en ;supra< uses language substantially parallel ,ith ,hat has been indicated above as
logical e8planation of the .u-e o, Yor-Ds case. 1or the court to give serious judicial consideration to such a #uestion ,ould present 4the
singular spectacle of a court sitting as a court to declare that ,e are not a court.4 ;Brittle v. People, * ?eb. &(), *&J G&)'AH.< And even the
alleged ne, constitution purports to leave intact the former court and to permit its ,ork to go on ,ithout hiatus, the decision ,hich the judges
must make is still an individual choice to be made by them as a matter of practical politics. ,o commissions are being held out to them, and
if they ,ill act as a court they must assess under ,hich commission they are acting. o put the matter another ,ay, it must be true that in the
first case above H of t,o constitutions purporting to establish t,o different courts, H the men ,ho ,ere judges under the old regime and the
men ,ho are called to be judges under the ne, have each to decide as individuals ,hat they are to do: and it may be that they choose at
grave peril ,ith the factional outcome still uncertain. And, although it is e#ually obvious, the situation is logically identical ,here the same
men are nominated to constitute the court under both the old and ne, constitution, at a time ,hen the alleged change is occurring H if it is
K peaceably and against a placid popular background. Men under such circumstances may ,rite most praise,orthily principles of
statesmanship, upon sovereignty and, its nature modes of action, and upon the bases of government, to justify the choice bet,een the t,o
commissions. hey can assert their choice in the course of purported judicial action. But they cannot decide as a court, for the decision, once
made, by a retroactive hypothesis e8cludes any assumption of controversiality in the premises..
4Ehere the alleged change occurs not through revolutionary measures but through ,hat has been called revision, these logical difficulties
disappear in one aspect, but become far more embarrassing in another. Ehere the alteration purports to be made along the lines of a
procedural method laid do,n in the constitution, there is a standard ,hich the court can apply and, by so doing, it can perceive judicially
,hether or not the change has follo,ed the prescribed lines. %f it has, there is no difficulty in pronouncing as a matter of la, its
accomplishment. 0nly one e8ception is possible, namely, the ease ,here the alteration purports at once to abolish the court or to depose its
personnel. hen, although there ,ould be a #uestion of la, to be decided, it may be ,ondered ,ho there is to decide it. -uppose, ho,ever,
the mode of change has failed in some ,ay to conform to a directory provision of the amending clause of the constitution: is the court to
declare the attempt at alteration unsuccessfulI %t ,ould seem as a matter of la, that it must do so: and yet ,hat is the situation if the
proponents of the change say, 4%t is true that this measure failed under the amending clause, but as a revolutionary measure it ,as a
success and ,e insist upon its recognition.4 Clearly the members of the court are no, more badly than ever entangled in the logical
difficulties ,hich attend a purported judicial pronouncement upon the achievement or nonCachievement of revolutionary change. 1or the
temptation ,ill be great to treat the matter as a legal #uestion. he times are peaceful. he changes probably do no affect the tenure of
many offices of any branch of the government. he popular inertia is likely to allo, the court successfully to assume the #uestion to be one of
la,. he path of fallacy is not too strikingly fallacious to the uncritical observer. %t may lead to just results. he judges$ personal inclinations
,ill be to sho, deference to the e8pression of popular sentiment ,hich has been given. And yet, if they declare the change in force, they are
truly making a personal declaration that they believe the change to be the directly e8pressed ,ill of the sovereign, ,hich ,ill they assert to be
la,, but the fact of e8istence of ,hich ,ill H and this is the real decision H is not ascertainable in the given case by any legal means. %t is
submitted that this is true, and that the conclusions offered in the discussion of revolutionary change are true, also, ,hether the ;uantu( of
change involved be vast or almost negligible.
4he net result of the preceding discussion is this7 that in almost the ,hole field of problems ,hich the .u-e o, Yor-Ds case and the American
constitutional amendment cases present, the court as a court is precluded from passing upon the fact of change by a logical difficulty ,hich
is not to be surmounted. %t follo,s that there is no room for considering ,hether the court ought graciously and deferentially to look to the
e8ecutive or legislative for a decision that a change has or has not taken place.
2 M ' I#i!. pp. A9&, A9B.
APP/?D%D 0 0P%?%0?.
R he inclusion in the Appendi8 of provisions for Amendment and !evision in -tate Constitutions, adopted after &(AB, is only to stress the
fact that the distinction bet,een Amendment and !evision of Constitution, ,hich e8isted at the time of the adoption of the &(AB Constitution,
has continued up to the present.
SUPREME COURT
Manila
EN BANC

G.R. No. L33555: S+(t+78+, 17, 1975
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF $ENIGNO S. AI"INO, JR.,
RAMON MITRA, JR., FRANCISCO RODRIGO, AND NA.OLEON RAMA, petitioners,
vs.
#ON J"AN .ONCE ENRILE, SECRETAR9 OF NATIONAL DEFENSEF GEN. ROMEO ES.INO,
C#IEF OF STAFF, ARMED FORCES OF T#E .#ILI..INESF AND GEN. FIDEL 2. RAMOS,
C#IEF, .#ILI..INE CONSTA$"LAR9, respondents.
G.R. No. L335538 S+(t+78+, 17, 1975
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF JOAI"IN .. ROCES,
TEODORO M. LOCSIN, SR., ROLANDO FAD"L, ROSALINA GALANG, GO ENG G"AN, MA?IMO
2. SOLI2EN, RENATO CONSTANTINO, AND L"IS R. MA"RICIO, petitioners,
vs.
T#E SECRETAR9 OF NATIONAL DEFENSEF T#E C#IEF OF STAFF, ARMED FORCES OF T#E
.#ILI..INESF T#E C#IEF, .#ILI..INE CONSTA$"LAR9, et al., respondents.
G.R. No. L335539 S+(t+78+, 17, 1975
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF JOSE ;. DIO6NO, CARMEN I.
DIO6NO, >1 petitioner,
vs.
J"AN .ONCE ENRILE, T#E SECRETAR9 OF NATIONAL DEFENSEF ROMEO ES.INO, T#E
C#IEF OF STAFF, ARMED FORCES OF T#E .#ILI..INES. respondents.
G.R. No. L335550 S+(t+78+, 17, 1975
MA?IMO 2. SOLI2EN, NA.OLEON G. RAMA, AND JOSE MARI 2ELE1, petitioners,
vs.
#ON. J"AN .ONCE ENRILE, SECRETAR9 OF NATIONAL DEFENSEF #ON. FRANCISCO
TATAD, .RESS SECRETAR9F AND GEN. FIDEL 2. RAMOS, C#IEF, .#ILI..INE
CONSTA$"LAR9, respondents.
G.R. No. L335557 S+(t+78+, 17, 1975 >4
ENRII"E 2OLTAIRE GARCIA II, petitioner,
vs.
$RIG. GEN. FIDEL RAMOS, C#IEF, .#ILI..INE CONSTA$"LAR9F GEN. ROMEO ES.INO,
C#IEF OF STAFF, ARMED FORCES OF T#E .#ILI..INESF AND #ON. J"AN .ONCE ENRILE,
SECRETAR9 OF NATIONAL DEFENSE, respondents.
G.R. No. L33555: S+(t+78+, 17, 1975
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF 2ERONICA L. 9"9IT"NG AND
TAN C#IN #IAN, petitioners,
vs.
J"AN .ONCE ENRILE, SECRETAR9 OF NATIONAL DEFENSEF LIE"T. GEN. ROMEO ES.INO,
C#IEF OF STAFF, ARMED FORCES OF T#E .#ILI..INESF AND $RIG. GEN. FIDEL 2. RAMOS,
C#IEF OF T#E .#ILI..INE CONSTA$"LAR9, respondents.
G.R. No. L3355:7 S+(t+78+, 17, 1975
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF AMANDO DORONILA J"AN L.
MERCADO, #ERNANDO L. A$A9A, ERNESTO GRANADA, L"IS D. $ELTRAN, TAN C#IN #IAN,
$REN G"IAO, R"$EN C"SI.AG, RO$ERTO ORDODE1, MAN"EL ALMARIO AND ;ILLIE
$A"N, petitioners,
vs.
#ON. J"AN .ONCE ENRILE, SECRETAR9 OF NATIONAL DEFENSEF LIE"T. GEN. ROMEO
ES.INO, C#IEF OF STAFF, ARMED FORCES OF T#E .#ILI..INESF AND $RIG. GEN. FIDEL 2.
RAMOS, C#IEF, .#ILI..INE CONSTA$"LAR9, respondents.
G.R. No. L335571 S+(t+78+, 17, 1975. >3
IN T#E MATTER OF T#E .ETITION FOR #A$EAS COR."S OF $REN 1. G"IAO, TERESITA M.
G"IAO, petitioner,
vs.
J"AN .ONCE ENRILE, T#E SECRETAR9 OF NATIONAL DEFENSEF LT. GEN. ROMEO ES.INO,
C#IEF OF STAFF OF T#E ARMED FORCES OF T#E .#ILI..INESJ AND $RIG. GEN. FIDEL 2.
RAMOS, C#IEF OF T#E .#ILI..INE CONSTA$"LAR9, respondents.
G.R. No. L335573 S+(t+78+, 17, 1975
ERNESTO RONDON, petitioner,
vs.
#ON. J"AN .ONCE ENRILE, SECRETAR9 OF NATIONAL DEFENSEF GEN. FIDEL 2. RAMOS,
C#IEF, .#ILI..INE CONSTA$"LAR9F AND MAJOR ROD"LFO MIANA, respondents.

MA6ALINTAL, C.J.:p
hese cases are all petitions for *a#eas corpus, the petitioners having been arrested and detained by
the military by virtue of the President$s Proclamation ?o. &9)&, dated -eptember *&, &('*.
At the outset a ,ord of clarification is in order. his is not the decision of the Court in the sense that a
decision represents a consensus of the re#uired majority of its members not only on the judgment
itself but also on the rationali"ation of the issues and the conclusions arrived at. 0n the final result the
vote is practically unanimous: this is a statement of my individual opinion as ,ell as a summary of the
voting on the major issues. Ehy no particular .ustice has been designated to ,rite just one opinion
for the entire Court ,ill presently be e8plained.
At one point during our deliberations on these cases it ,as suggested that as Chief .ustice % should
,rite that opinion. he impracticability of the suggestion shortly became apparent for a number of
reasons, only t,o of ,hich need be mentioned. 1irst, the discussions, as they began to touch on
particular issues, revealed a lack of agreement among the .ustices as to ,hether some of those
issues should be taken up although it ,as not necessary to do so, they being merely convenient for
the purpose of ventilating ve8ing #uestions of public interest, or ,hether the decision should be
limited to those issues ,hich are really material and decisive in these cases. -imilarly, there ,as no
agreement as to the manner the issues should be treated and developed. he same destination
,ould be reached, so to speak, but through different routes and by means of different vehicles of
approach. he ,riting of separate opinions by individual .ustices ,as thus unavoidable, and
understandably so for still another reason, namely, that although little overt reference to it ,as made
at the time, the future verdict of history ,as very much a factor in the thinking of the members, no
other case of such transcendental significance to the life of the nation having before confronted this
Court. -econd K and this to me ,as the insuperable obstacle K % ,as and am of the opinion, ,hich
,as shared by si8 other .ustices
1
at the time the #uestion ,as voted upon, that petitioner .ose E.
Diokno$s motion of December *), &('A to ,ithdra, his petition ;3.!. ?o. +CABBA(< should be granted,
and therefore % ,as in no position to set do,n the ruling of the Court on each of the arguments raised
by him, e8cept indirectly, insofar as they had been raised like,ise in the other cases.
%t should be e8plained at this point that ,hen the Court voted on Diokno$s motion to ,ithdra, his
petition he ,as still under detention ,ithout charges, and continued to remain so up to the time the
separate opinions of the individual .ustices ,ere put in final form preparatory to their promulgation on
-eptember &*, ,hich ,as the last day of .ustice 5aldivars tenure in the Court.
4
Before they could be
promulgated, ho,ever, a major development supervened7 petitioner Diokno ,as released by the
President in the morning of -eptember &&, &('J. %n vie, thereof all the members of this Court e8cept
.ustice Castro agreed to dismiss Diokno$s petition on the ground that it had become moot, ,ith those
,ho originally voted to grant the motion for ,ithdra,al citing said motion as an additional ground for
such dismissal.
he petitioners in the other cases, e8cept Benigno A#uino, .r. ;3.!. ?o. +CABBJ2<, either have been
permitted to ,ithdra, their petitions or have been released from detention subject to certain
restrictions.
3
%n the case of A#uino, formal charges of murder, subversion and illegal possession of
firearms ,ere lodged against him ,ith a Military Commission on August &&, &('A: and on the
follo,ing August *A he challenged the jurisdiction of said Commission as ,ell as his continued
detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court ;3.!.
?o.
+CA'A2J<. he #uestion came up as to ,hether or not A#uino$s petition for *a#eas corpus should be
dismissed on the ground that the case as to him should more appropriately be resolved in this ne,
petition. 0f the t,elve .ustices, ho,ever, eight voted against such dismissal and chose to consider
the case on the merits.
5

0n Diokno$s motion to ,ithdra, his petition % voted in favor of granting it for t,o reasons. %n the first
place such ,ithdra,al ,ould not emasculate the decisive and fundamental issues of public interest
that demanded to be resolved, for they ,ere also raised in the other cases ,hich still remained
pending. -econdly, since it ,as this petitioner$s personal liberty that ,as at stake, % believed he had
the right to renounce the application for *a#eas corpus he initiated. /ven if that right ,ere not
absolute % still ,ould respect his choice to remove the case from this Court$s cogni"ance, regardless
of the fact that % disagreed ,ith many of his reasons for so doing. % could not escape a sense of irony
in this Court$s turning do,n the plea to ,ithdra, on the ground, so he alleges among others, that this
is no longer the Court to ,hich he originally applied for relief because its members have taken ne,
oaths of office under the &('A Constitution, and then ruling adversely to him on the merits of his
petition.
%t is true that some of the statements in the motion are an affront to the dignity of this Court and
therefore should not be allo,ed to pass unans,ered. Any ans,er, ho,ever, ,ould not be foreclosed
by allo,ing the ,ithdra,al. 1or my part, since most of those statements are of a subjective character,
being matters of personal belief and opinion, % see no point in refuting them in these cases. %ndeed
my impression is that they ,ere beamed less at this Court than at the ,orld outside and designed to
make political capital of his personal situation, as the publicity given to them by some segments of the
foreign press and by local underground propaganda ne,s sheets subse#uently confirmed. %t ,as in
fact from that perspective that % deemed it proper to respond in kind, that is, from a nonCjudicial forum,
in an address % delivered on 1ebruary &(, &('J before the +AEA-%A, the Philippine Bar Association
and the Philippine +a,yers$ Association. .ustice eehankee, it may be stated, is of the opinion that a
simple majority of seven votes out of t,elve is legally sufficient to make the ,ithdra,al of Diokno$s
petition effective, on the theory that the re#uirement of a majority of eight votes applies only to a
decision on the merits.
%n any event, as it turned out, after petitioner Diokno ,as released by the President on -eptember &&
all the members of this Court e8cept .ustice Castro ,ere agreed that his petition had become moot
and therefore should no longer be considered on the merits. his not,ithstanding, some of the
opinions of the individual members, particularly .ustices Castro and eehankee, should be taken in
the time setting in ,hich they ,ere prepared, that is, before the order for the release of Diokno ,as
issued.
T*e Cases.
he events ,hich form the background of these nine petitions are related, either briefly or in great
detail, in the separate opinions filed by the individual .ustices. he petitioners ,ere arrested and held
pursuant to 3eneral 0rder ?o. * of the President ;-eptember **, &('*<, 4for being participants or for
having given aid and comfort in the conspiracy to sei"e political and state po,er in the country and to
take over the 3overnment by force ...4
3eneral 0rder ?o. * ,as issued by the President in the e8ercise of the po,ers he assumed by virtue
of Proclamation ?o. &9)& ;-eptember *&, &('*< placing the entire country under martial la,. he
portions of the proclamation immediately in point read as follo,s7
888 888 888
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines by virtue of the po,ers
vested upon me by Article 6%%, -ection &9, Paragraph ;*< of the Constitution, do hereby place the entire
Philippines as defined in Article %, -ection & of the Constitution under martial la, and, in my capacity as
their CommanderCinCChief, do hereby command the Armed 1orces of the Philippines, to maintain la, and
order throughout the Philippines, prevent or suppress all forms of la,less violence as ,ell as any act of
insurrection or rebellion and to enforce obedience to all the la,s and decrees, orders and regulations
promulgated by me personally or upon my direction.
%n addition, % do hereby order that all persons presently detained, as ,ell as all others ,ho may hereafter
be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in connection there,ith, for
crimes against national security and the la, of nations, crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by
public officers, and for such other crimes as ,ill be enumerated in orders that % shall subse#uently
promulgate, as ,ell as crimes as a conse#uence of any violation of any decree, order or regulation
promulgated by me personally or promulgated upon my direction shall be kept under detention until
other,ise ordered released by me or by my duly designated representative.
he provision of the &(AB Constitution referred to in the proclamation reads7 4the President shall be
commanderCinCchief of all armed forces of the Philippines and, ,henever it becomes necessary, he
may call out such armed forces to prevent or suppress la,less violence, invasion, insurrection, or
rebellion. %n case of invasion, insurrection, or rebellion, or imminent danger thereof, ,hen the public
safety re#uires it, he may suspend the privilege of the ,rit of *a#eas corpus, or place the Philippines
or any part thereof under martial la,.4
&. he first major issue raised by the parties is ,hether this Court may in#uire into the validity of
Proclamation ?o. &9)&. -tated more concretely, is the e8istence of conditions claimed to justify the
e8ercise of the po,er to declare martial la, subject to judicial in#uiryI %s the #uestion political or
justiciable in characterI
.ustices Makasiar, Antonio, /sguerra, 1ernande" and A#uino hold that the #uestion is political and
therefore its determination is beyond the jurisdiction of this Court. he reasons are given at length in
the separate opinions they have respectively signed. .ustice 1ernande" adds that as a member of the
Convention that drafted the &('A Constitution he believes that 4the Convention put an i(pri(atur on
the proposition that the validity of a martial la, proclamation and its continuation is political and nonC
justiciable in character.4
.ustice Barredo, on the other hand, believes that political #uestions are not per se beyond the Court$s
jurisdiction, the judicial po,er vested in it by the Constitution being plenary and allCembracing, but
that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering
,ith the /8ecutive$s Proclamation, dealing as it does ,ith national security, for ,hich the
responsibility is vested by the charter in him alone. But the Court should act, .ustice Barredo opines,
,hen its abstention from acting ,ould result in manifest and palpable transgression of the
Constitution proven by facts of judicial notice, no reception of evidence being contemplated for
purposes of such judicial action.
%t may be noted that the postulate of nonCjusticiability as discussed in those opinions involves
disparate methods of approach. .ustice /sguerra maintains that the findings of the President on the
e8istence of the grounds for the declaration of martial la, are final and conclusive upon the Courts.
>e disagrees vehemently ,ith the ruling in 0ansan+ vs. Garcia, J* -C!A JJ), December &&, &('&,
and advocates a return to "arcelon vs. "a-er, B Phil. )' ;&(9B<, and 'ontene+ro vs. CastaAe!a, (&
Phil. ))* ;&(B*<. .ustice Barredo, for his part, holds that +ansang need not be overturned, indeed
does not control in these cases. >e dra,s a distinction bet,een the po,er of the President to
suspend the privilege of the ,rit of *a#eas corpus, ,hich ,as the issue in +ansang, and his po,er to
proclaim martial la,, calling attention to the fact that ,hile the Bill of !ights prohibits suspension of
the privilege e8cept in the instances specified therein, it places no such prohibition or #ualification
,ith respect to the declaration of martial la,.
.ustice Antonio, ,ith ,hom .ustices Makasiar, 1ernande" and A#uino concur, finds that there is no
dispute as to the e8istence of a state of rebellion in the country, and on that premise emphasi"es the
factor of necessit for the e8ercise by the President of his po,er under the Constitution to declare
martial la,, holding that the decision as to ,hether or not there is such necessit is )*oll confided to
him and therefore is not subject to judicial in#uiry, his responsibility being directly to the people.
Arrayed on the side of justiciability are .ustices Castro, 1ernando, eehankee and MuLo" Palma.
hey hold that the constitutional sufficiency of the proclamation may be in#uired into by the Court,
and ,ould thus apply the principle laid do,n in +ansang although that case refers to the po,er of the
President to suspend the privilege of the ,rit of *a#eas corpus. he recognition of justiciability
accorded to the #uestion in +ansang, it should be emphasi"ed, is there e8pressly distinguished from
the po,er of judicial revie, in ordinary civil or criminal cases, and is limited to ascertaining 4merely
,hether he ;the President< has gone beyond the constitutional limits of his jurisdiction, not to e8ercise
the po,er vested in him or to determine the ,isdom of his act.4 he test is not ,hether the
President$s decision is correct but ,hether, in suspending the ,rit, he did or did not act ar#itraril.
Applying this test, the finding by the .ustices just mentioned is that there ,as no arbitrariness in the
President$s proclamation of martial la, pursuant to the &(AB Constitution: and % concur ,ith them in
that finding. he factual bases for the suspension of the privilege of the ,rit of *a#eas corpus,
particularl in regard to the e8istence of a state of rebellion in the country, had not disappeared,
indeed had been e8acerbated, as events shortly before said proclamation clearly demonstrated. 0n
this Point the Court is practically unanimous: .ustice eehankee merely refrained from discussing it.
%nsofar as my o,n opinion is concerned the cleavage in the Court on the issue of justiciability is of not
much more than academic interest for purposes of arriving at a judgment. % am not unduly e8ercised
by Americas decisions on the subject ,ritten in another age and political clime, or by theories of
foreign authors in political science. he present state of martial la, in the Philippines is peculiarly
1ilipino and fits into no traditional patterns or judicial precedents.
%n the first place % am convinced ;as are the other .ustices<, ,ithout need of receiving evidence as in
an ordinary adversary court proceeding, that a state of rebellion e8isted in the country ,hen
Proclamation ?o. &9)& ,as issued. %t ,as a matter of contemporary history ,ithin the cogni"ance not
only of the courts but of all observant people residing here at the time. Many of the facts and events
recited in detail in the different 4Ehereases4 of the proclamation are of common kno,ledge. he state
of rebellion continues up to the present. he argument that ,hile armed hostilities go on in several
provinces in Mindanao there are none in other regions e8cept in isolated pockets in +u"on, and that
therefore there is no need to maintain martial la, all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modern setting. %t does not consist simply of armed clashes
bet,een organi"ed and identifiable groups on fields of their o,n choosing. %t includes subversion of
the most subtle kind, necessarily clandestine and operating precisely ,here there is no actual
fighting. =nderground propaganda, through printed ne,s sheets or rumors disseminated in ,hispers:
recruitment of armed and ideological adherents, raising of funds, procurement of arms and material,
fifthCcolumn activities including sabotage and intelligence K all these are part of the rebellion ,hich
by their nature are usually conducted far from the battle fronts. hey cannot be counteracted
effectively unless recogni"ed and dealt ,ith in that conte8t.
-econdly, my vie,, ,hich coincides ,ith that of other members of the Court as stated in their
opinions, is that the #uestion of validity of Proclamation ?o. &9)& has been foreclosed by the
transitory provision of the &('A Constitution GArt. D6%%, -ec. A;*<H that 4all proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part
of the la, of the land and shall remain valid, legal, binding and effective even after ... the ratification
of this Constitution ...4 o be sure, there is an attempt in these cases to resuscitate the issue of the
effectivity of the ne, Constitution. All that, ho,ever, is behind us no,. he #uestion has been laid to
rest by our decision in Javellana vs. E6ecutive Secretar ;+CA2&J*, B9 -C!A A9, March A&, &('A<,
and of course by the e8isting political realities both in the conduct of national affairs and in our
relations ,ith other countries.
0n the effect of the transitory provision .ustice MuLo" Palma ,ithholds her assent to any s,eeping
statement that the same in effect validated, in the constitutional sense, all 4such proclamations,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President.4 All that she
concedes is that the transitory provision merely gives them 4the i(pri(atur of a la, but not of a
constitutional mandate,4 and as such therefore 4are subject to judicial revie, ,hen proper under the
Constitution.
1inally, the politicalCorCjusticiable #uestion controversy indeed, any in#uiry by this Court in the present
cases into the constitutional sufficiency of the factual bases for the proclamation of martial la, K has
become moot and purposeless as a conse#uence of the general referendum of .uly *'C*), &('A. he
#uestion propounded to the voters ,as7 4=nder the ;&('A< Constitution, the President, if he so
desires, can continue in office beyond &('A. Do you ,ant President Marcos to continue beyond &('A
and finish the reforms he initiated under Martial +a,I4 he over,helming majority of those ,ho cast
their ballots, including citi"ens bet,een &B and &) years, voted affirmatively on the proposal. he
#uestion ,as thereby removed from the area of presidential po,er under the Constitution and
transferred to the seat of sovereignty itself. Ehatever may be the nature of the e8ercise of that po,er
by the President in the beginning K ,hether or not purely political and therefore nonCjusticiable K
this Court is precluded from applying its judicial yardstick to the act of the sovereign.
*. Eith respect to the petitioners ,ho have been released from detention but have not ,ithdra,n their
petitions because they are still subject to certain restrictions,
5
the ruling of the Court is that the
petitions should be dismissed. he po,er to detain persons even ,ithout charges for acts related to
the situation ,hich justifies the proclamation of martial la,, such as the e8istence of a state of
rebellion, necessarily implies the po,er ;subject, in the opinion of the .ustices ,ho consider +ansang
applicable, to the same test of arbitrariness laid do,n therein<, to impose upon the released
detainees conditions or restrictions ,hich are germane to and necessary to carry out the purposes of
the proclamation. .ustice 1ernando, ho,ever, 4is for easing the restrictions on the right to travel of
petitioner !odrigo4 and others similarly situated and so to this e8tent dissents from the ruling of the
majority: ,hile .ustice eehankee believes that those restrictions do not constitute deprivation of
physical liberty ,ithin the meaning of the constitutional provision on the privilege of the ,rit of *a#eas
corpus.
%t need only be added that, to my mind, implicit in a state of martial la, is the suspension of the said
privilege ,ith respect to persons arrested or detained for acts related to the basic objective of the
proclamation, ,hich is to suppress invasion, insurrection, or rebellion, or to safeguard public safety
against imminent danger thereof. he preservation of society and national survival take precedence.
0n this particular point, that is, that the proclamation of martial la, automatically suspends the
privilege of the ,rit as to the persons referred to, the Court is practically unanimous. .ustice
1ernando, ho,ever, says that to him that is still an open #uestion: and .ustice MuLo" Palma
#ualifiedly dissents from the majority in her separate opinion, but for the reasons she discusses
therein votes for the dismissal of the petitions.
%? 6%/E 01 A++ >/ 10!/30%?3 A?D 10! >/ !/A-0?- -A/D B@ >/ M/MB/!- 01
>/ C0=! %? >/%! -/PA!A/ 0P%?%0?-, .=D3M/? %- >/!/B@ !/?D/!/D D%-M%--%?3
A++ >/ P/%%0?-, /DC/P >0-/ E>%C> >A6/ B//? P!/6%0=-+@ E%>D!AE? B@ >/
!/-P/C%6/ P/%%0?/!- E%> >/ APP!06A+ 01 >%- C0=!, A- >/!/%?AB06/
M/?%0?/D. ?0 C0--.
'a-asiar, Es+uerra, Fernan!ez, 'uAoz Pal(a an! 3;uino, JJ., concur.
Pre,ator Note
;,ritten on -eptember &*, &('J<
My separate opinion belo, in the nine cases at bar ,as handed to Chief .ustice Puerube C.
Makalintal on Monday, -eptember (, &('J, for promulgation ;together ,ith the individual opinions of
the Chief .ustice and the other .ustices< on -eptember &* ;today< as agreed upon by the Court.
0n -eptember && the petitioner .ose E. Diokno ,as released from military custody. he implications
of this supervening event ,ere lengthily discussed by the Court in its deliberations in the afternoon.
/leven members thereafter voted to dismiss Diokno$s petition as being 4moot and academic:4 I cast
t*e lone !issentin+ vote. Although perhaps in the strictest technical sense that accords ,ith
conventional legal ,isdom, the petition has become 4moot4 because Diokno has been freed from
physical confinement, % am nonetheless persuaded that the grave issues of la, he has posed and the
highly insulting and derogatory imputations made by him against the Court and its members
constitute an inescapable residue of #uestions of transcendental dimension to the entire nation and
its destiny and to the future of the Court K #uestions that cannot and should not be allo,ed to remain
unresolved and unans,ered.
% have thus not found it needful nor even advisable to recast my separate opinion or change a ,ord of
it.
% invite the reader to assess my A)Cpage separate opinion ,hich immediately follo,s, in the light of
the foregoing conte8t and factual setting.
1!/D !=%5 CA-!0
Associate .ustice.
SEP3>3TE OPINION
;,ritten before -ept. (, &('J<
+CABBA(, +CABBJ2, +CABBA), +CABBJ9, +CABB2', +CABBB2,
+CABB'&, +CABB'A, and +CABBJ'

S+(a,at+ O(%%os

CASTRO, J.:
%
hese nine cases are applications for ,rits of *a#eas corpus. he petitions aver in substance that on
-eptember *&, &('* the President of the Philippines placed the country under martial la,
;Proclamation &9)&<: that on various dates from -eptember ** to -eptember A9, &('*, the petitioners
or the persons in ,hose behalf the applications ,ere made ,ere arrested by the military authorities
and detained, some at 1ort Bonifacio in Makati, !i"al, others at Camp Aguinaldo and still others at
Camp Crame, both in Pue"on City: and that the arrest and detention of the petitioners ,ere illegal,
having been effected ,ithout a valid order of a competent court of justice.
Erits of *a#eas corpuz ,ere issued by the Court directing the respondents -ecretary of ?ational
Defense, Chief of -taff of the Armed 1orces of the Philippines, and Chief of the Philippine
Constabulary, to produce the bodies of the petitioners in Court on designated dates and to make
returns to the ,rits. %n due time the respondents, through the -olicitor 3eneral, filed their returns to
the ,rits and ans,ers to the petitions. Admitting that the petitioners had been arrested and detained,
the respondents nevertheless justified such arrest and detention as having been legally ordered by
the President of the Philippines pursuant to his proclamation of martial la,, the petitioners being
regarded as participants or as having given aid and comfort 4in the conspiracy to sei"e political and
state po,er and to take over the government by force.4 he respondents traversed the petitioners$
contention that their arrest and detention ,ere unconstitutional.
>earings ,ere held on -eptember *2 and *( and 0ctober 2, &('*, at ,hich the petitioners ,ere
produced in Court. hereafter the parties filed memoranda.
Mean,hile, some of the petitioners, ,ith leave of Court, ,ithdre, their petitions:
1
others, ,ithout
doing so, ,ere subse#uently released from custody under certain restrictive conditions.
4
/nri#ue
6oltaire 3arcia %%, the sole petitioner in +CABBJ' and one of those released, having died shortly after
his release, the action ,as deemed abated as to him.
As of this date only .ose E. Diokno, in ,hose behalf the petition in +CABBA( ,as filed, and Benigno -.
A#uino, .r. in +ABBJ2, are still in military custody.
0n August *A, &('A the petitioner A#uino filed an action for certiorari and prohibition ,ith this Court
alleging that on August &&, &('A charges of murder, subversion and illegal possession of firearms
,ere filed against him ,ith a military commission: that his trial by the military court ,hich ,as to be
held on August *', *( and A&, &('A ,as illegal because the proclamation of martial la, ,as
unconstitutional: and that he could not e8pect a fair trial because the President of the Philippines,
having prejudged his case, could reverse any judgment of ac#uittal by the military court and sentence
him to death. hat action, docketed as +CA'A2J and entitled 4"eni+no S. 3;uino, Jr. vs. 'ilitar
Co((ission ?o. *,4 is still pending consideration and decision.
0n the other hand, .ose E. Diokno, on December *), &('A, filed a motion to ,ithdra, the petition
filed in his behalf, imputing delay in the disposition of his case, and asseverating that because of the
decision of the Court in the !atification Cases
3
and the action of the members of the Court in taking
an oath to support the ne, Constitution, he cannot 4reasonably e8pect to get justice in this case.4 he
respondents oppose the motion on the grounds that there is a public interest in the decision of these
cases and that the reasons given for the motion to ,ithdra, are untrue, unfair and contemptuous.
%%
he threshold #uestion is ,hether to allo, the ,ithdra,al of the petition in
+CABBA( filed in behalf of Diokno. %n his letter to his counsel, ,hich is the basis of the motion to
,ithdra,, Diokno states the follo,ing considerations7 ,irst, the delay in the disposition of his case:
secon!, the dismissal of the petitions in the !atification Cases, contrary to the Court$s ruling that the
&('A Constitution ,as not validly ratified: and t*ir!, the action of the members of the Court in taking
an oath of allegiance to the ne, Constitution. Diokno asserts that 4a conscience that allo,s a man to
rot behind bars for more than one year and three months ,ithout trial K of course, ,ithout any
charges at all K is a conscience that has become stunted, if not stultified4 and that 4in s,earing to
support the ne, $Constitution,$ the five members of the Court ,ho had held that it had not been validly
ratified, have not fulfilled our e8pectations.4 >e goes on to say7 4% do not blame them. % do not kno,
,hat % ,ould have done in their place. But, at the same time, % can not continue to entrust my case to
them: and % have become thoroughly convinced that our #uest for justice in my case is futile.4
As already noted, the -olicitor 3eneral, in behalf of the respondents, opposes the ,ithdra,al of the
petition on the ground of public interest, adding that the motion to ,ithdra, cannot be granted by the
Court ,ithout in effect admitting the 4unfair, untrue and contemptuous4 statements contained therein.
Eithout passing on the liability of any party in this case for contemptuous statements made, the Court
;by a vote of B to '< denied the motion.
% voted for the denial of the motion to ,ithdra, for inescapable reasons that % no, proceed to
e8pound.
he general rule is that in the absence of a statute e8pressly or impliedly prohibiting the ,ithdra,al of
an action, the party bringing such action may dismiss it even ,ithout the consent of the defendant or
respondent ,here the latter ,ill not be prejudiced, although it may be necessary to obtain leave of
court. But there are recogni"ed e8ceptions7 ,hen the pu#lic interest or ;uestions o, pu#lic i(portance
are involved.
5
1or e8ample, the fact that a final determination of a #uestion involved in an action is
needed or ,ill be useful as a guide for the conduct of public officers or tribunals is a sufficient reason
for retaining an action ,hich ,ould or should other,ise be dismissed. +ike,ise, appeals may be
retained if the #uestions involved are likely to arise fre#uently in the future unless they are settled by
a court of last resort.
hus, in Gonzales vs. Co((ission on Elections,
:
an action for declaratory judgment impugning the
validity of !epublic Act ?o. J))9 ,hich prohibits the early nomination of candidates for elective
offices and early election campaigns or partisan political activities became moot by reason of the
holding of the &(2' elections before decision could be rendered. ?onetheless the Court treated the
petition as one for prohibition and rendered judgment in vie, of 4the paramount public interest and
the undeniable necessity for a ruling, the national elections Gof &(2(H being barely si8 months a,ay.
%n Griven-o vs. >e+ister o, .ee!s,
7
the Court denied the petition to ,ithdra,, an appeal in vie, of the
public importance of the #uestions involved, and lest 4the constitutional mandate Gproscribing the sale
of lands to aliensH ... be ignored or misconceived ,ith all the harmful conse#uences ... upon the
national economy.4
he petitioner Diokno has made allegations to the effect that the President has 4arrogated4 unto
himself the po,ers of government by 4usurping4 the po,ers of Congress and 4ousting4 the courts of
their jurisdiction, thus establishing in this country a 4virtual dictatorship.4 Diokno and his Counsel have
in fact stressed that the present trend of events in this country since the proclamation of martial la,
bears a resemblance to the trend of events that led to the establishment of a dictatorship in 3ermany
under >itler. here is thus a profound public interest in the resolution of the #uestions raised in the
cases at bar, #uestions that, in the phrase of Chief .ustice Marshall in 'ar#ur vs. 'a!ison,
8
are
4deeply interesting to the nation.4 % apprehend that in vie, of the import of the allegations made by
Diokno and his counsel, incalculable harm or, in the very least, great disservice may be caused to the
national interest if these cases are not decided on the merits. As the -olicitor 3eneral has observed,4
petitioner$s GDiokno$sH arrest and detention have been so e8ploited in the hate campaign that the only
,ay to protect the integrity of the government is to insist on a decision of this case in the forum in
,hich the petitioner had chosen to bring them. 0ther,ise, like festering sores, the issues stirred up by
this litigation ,ill continue to agitate the nation.4
Prescinding from the policy considerations just discussed, % am gladdened that the Court has not
shunted aside ,hat % regard as the inescapable moral constraints in the petitioner Diokno$s motion to
,ithdra, his petition for *a#eas corpus.
9
he Court repudiated the facile recourse of avoiding
resolution of the issues on the prete8t that Diokno insists on ,ithdra,ing his petition. %t is thus not a
mere happenstance that, not,ithstanding that seven members of the Court are of the vie, that
Diokno has an absolute right to ,ithdra, his petition, the Court has confronted the issues posed by
him, and no, resolves them s#uarely, definitively and courageously. ?o respectable legal historian or
responsible chronicler of the nation$s destiny ,ill therefore have any reason to level the indictment
that once upon a grave national crisis the Court abdicated its constitutional prerogative of adjudication
and fors,ore the sacred trust reposed in it as the nation$s ultimate arbiter on transcendental, farC
reaching justiciable #uestions.
Eith respect to the reasons given for the motion to ,ithdra,, the Court is mindful that it has taken
some time to resolve these cases. %n e8planation let it be said that the issues presented for resolution
in these cases are of the utmost gravity and delicateness. ?o #uestion of the a,esome magnitude of
those here presented has ever confronted the Court in all its history. % am not a,are that any other
court, e8cept possibly the Circuit Court in E6 parte 'err(an,
10
has decided like #uestions during the
period of the emergency that called for the proclamation of martial la,.
But then in 'err(an the Court there held that under the =.-. 1ederal Constitution the President did
not have po,er to suspend the privilege of the ,rit of *a#eas corpus. 0ther,ise, ,here the #uestion
involved not po,er but rather the e8ercise of po,er, courts have declined to rule against the duly
lasted. As Court 3lendon -chubert noted, the =.-. -upreme Court 4,as un,illing to Gdo soH until the
,ar ,as over and +incoln ,as dead.4
hus, in E6 parte 'illi+an,
11
the decision voiding the petitioner$s trial by a military court ,as not
announced until December &J, &)22, after the Civil Ear ,as over. he Civil Ear began on May A,
&)2& ,ith the capture of 1ort -umter by Confederate forces. +ambdin Milligan ,as charged before a
military commission ,ith aiding rebels, inciting insurrection, disloyal practices and violation of the la,s
of ,ar. >is trial ran from -eptember to December &)2*: he ,as convicted on 0ctober *&, &)2J and
ordered e8ecuted on May &(, &)2B. 0n May &9, &)2B he applied for a ,rit of *a#eas corpus from the
Circuit Court of %ndianapolis. 0n May &&, .ustice Davis and .udge McDonald certified that they
differed in opinion and, therefore, pursuant to the statute of &)9*, elevated their #uestions to the
-upreme Court. 0n .une A, &)2B the death sentence ,as commuted to life imprisonment by
President .ohnson ,ho had succeeded to the Presidency after the assassination of +incoln. he
-upreme Court heard the parties$ arguments for eight days, on March B, 2, ', ), (, &* and &A, and
April A, &)22. 0n December &J, &)22 the decision of the -upreme Court voiding Milligans trial ,as
announced.
%n In >e 'oer,
14
martial rule ,as proclaimed in Colorado on March *A, &(9J. Application for a ,rit of
*a#eas corpus ,as filed ,ith the -tate -upreme Court on April &J, &(9J, seeking the release of
Moyer ,ho had been detained under the Colorado governor$s proclamation. 0n .une 2, &(9J the
complaint ,as dismissed and the petitioner ,as remanded to the custody of the military authorities.
he Court held that as an incident to the proclamation of martial la,, the petitioner$s arrest and
detention ,ere la,ful. Moyer subse#uently brought an action for damages for his imprisonment from
March A9 to .une &B, &(9J. he complaint ,as dismissed by the Circuit Court. 0n ,rit of error, the
=.-. -upreme Court affirmed, holding that 4-o long as such arrests are made in good faith and in the
honest belief that they are needed in order to head the insurrection off, the governor is the final judge
and cannot be subjected to an action after he is out of office, on the ground that he had no
reasonable ground for his belief.4
13

1inally, in .uncan vs. Ga*ana(o-u,
15
>a,aii ,as placed under martial rule on December ', &(J&,
after the .apanese sneak attack on Pearl >arbor. he petitioner Duncan ,as tried by a provost court
on March *, &(JJ, and found guilty on April &A of assault on t,o marine sentries. he other petitioner,
Ehite, ,as charged on August *B, &(J*, also before a provost court, ,ith embe""ling stocks
belonging to another civilian. Ehite and Duncan #uestioned the po,er of the military tribunals in
petitions for *a#eas corpus filed ,ith the District Court of >a,aii on March &J and April &J, &(JJ,
respectively. Erits ,ere granted on May *, &(JJ, and after trial the District Court held the military
trials void and ordered the release of Duncan and Ehite. 0n 0ctober *J, &(JJ the privilege of the ,rit
of *a#eas corpus ,as restored and martial la, ,as terminated in >a,aii. 0n appeal, the decision of
the District Court ,as reversed.
15
Certiorari ,as granted by the =.-. -upreme Court on 1ebruary &*,
&(JB. &2 0n 1ebruary *B, &(J2 the Court held that the trials of Ehite and Duncan by the military
tribunals ,ere void.
%n truth, as the Court in 'illi+an recogni"ed, its decision could not have been made ,hile the Civil
Ear lasted. .ustice Davis ,rote7
During the Eicked !ebellion, the temper of the times did not allo, that calmness in deliberation and
discussion so necessary to a correct conclusion of a purely judicial #uestion. hen, considerations of
safety ,ere mingled ,ith the e8ercise of po,er: and feelings and interests prevailed ,hich are happily
terminated. ?o, that the public safety is assured, this #uestion as ,ell as all others, can be discussed
and decided ,ithout passion or the admi8ture of an clement not re#uired to form a legal judgment. Ee
approached the investigation of this case fully sensible of the magnitude of the in#uiry and the of full and
cautious deliberation.
17

?o doubt there is a point, although controversial, in the observation that in the instances just
e8amined a successful challenge ,as possible only retroactively, after the cessation of the hostilities
,hich ,ould under any circumstances have justified the judgment of the military.
18

?or did it offend against principle or ethics for the members of this Court to take an oath to support
the &('A Constitution. After this Court declared that, ,ith the dismissal of the petitions #uestioning the
validity of the ratification of the ne, Constitution, there ,as 4no longer any judicial obstacle to the ne,
Constitution being considered in force and effect,4
19
it became the duty of the members of the Court,
let alone all other government functionaries, to take an oath to support the ne, Constitution. Ehile it
is true that a majority of si8 justices declared that the &('A Constitution ,as not validly ratified, it is
e#ually true that a majority of si8 justices held that the issue of its e,,ectivit ,as a political #uestion,
,hich the Court ,as not e#uipped to determine, depending as it did on factors for ,hich the judicial
process ,as not fit to resolve. !esolution of this #uestion ,as dispositive of all the issues presented
in the !atification Cases. %t thus became untenable for the members of the Court ,ho held contrary
opinions to press their opposition beyond the decision of those cases. 1undamental respect for the
rule of la, dictated that the members of the Court take an oath to uphold the ne, Constitution. here
is nothing in that solemn oath that debases their individual personal integrity or renders them
un,orthy or incapable of doing justice in these cases. ?or did the environmental milieu of their
adjuration in any manner demean their high offices or detract from the legitimacy of the Court as the
highest judicial collegium of the land.
%%%
1rom its AngloC-a8on origin and throughout its slo, evolution, the concept, scope and boundaries,
application, limitations and other facets of martial la, have been the subject of misunderstanding,
controversy and debate.
40
o the legal scholar interested in set legal principles and precise
distinctions, martial la, could be a frustrating subject. 0n the matter of its definition alone, it is kno,n
to have as many definitions as there are numerous authors and court decision s ;not to discount the
dissenting opinions< on the subject. he doctrinal development of martial la, has relied mainly on
case la,,
41
and there have been relatively fe, trul !istinctive types of occasions ,here martial la,,
being the e8traordinary remedy that it is, has been resorted to.
%n the Philippines, the only other notable instance ,hen martial la, ,as declared ,as on -eptember
**, &(JJ, per Proclamation ?o. *( promulgated by President .ose P. +aurel. But this ,as pursuant to
the constitution of the shortClived .apanese 0ccupation !epublic, and the event has not been kno,n
to be productive of any jurisprudential pronouncements emanating from the high court of the land.
?ot,ithstanding the confused state of jurisprudence on the subject of martial la, in /ngland and in
the =nited -tates, and, conse#uently, in the Philippines, a useful kno,ledge of the la, on the subject
can fairly be had from a study of its historical background and its rationale, its doctrinal development,
applicable constitutional and statutory provisions, and authoritative court decisions and
commentaries.
+egal scholars trace the genesis of martial la, to /ngland starting from the age of the udors and the
-tuarts in the &Jth century ,hen it ,as first utili"ed for the suppression of rebellions and disorders. %t
later came to be employed in the British colonies and dominions ,here its fre#uent e8ercise against
British subjects gave rise to the criticism that it ,as being e8ploited as a ,eapon to enhance British
imperialism.
44

%n the =nited -tates, martial la, ,as declared on numerous occasions from the revolutionary period
to the Civil Ear, and after the turn of the century. 0ne of the earliest instances in American history
,as the declaration of martial la, by 3en. Andre, .ackson before the Battle of ?e, 0rleans in &)&J.
1earing that the ?e, 0rleans legislature might capitulate to the British, he placed the -tate under
4strict martial la,4 and forbade the -tate legislature to convene. Martial la, ,as lifted after the
American victory over British arms. he Civil Ear period sa, the declaration of martial la, on many
occasions by both the Confederate and the =nion authorities. %t has also been resorted to in cases of
insurrection and rebellion, as e8emplified by the Ehiskey rebellion ;&'(J in Pennsylvania and
6irginia< and the Dorr$s rebellion ;&)J* in !hode %sland<. Martial la, has also been utili"ed during
periods of disaster, such as the -an 1rancisco earth#uake and fire of &(92, and in industrial disputes
involving violence and disorder. %t has like,ise been variously instituted to police elections, to take
charge of ticket sales at a football game, to prevent the foreclosure of mortgages to close a race
track. %n an e8treme case, the governor of 3eorgia proclaimed martial la, around a government
building to e8clude from its premises a public official ,hom he ,as enjoined from removing.
43

At the close of the Eorld Ear %, the term 4martial la,4 ,as erroneously employed to refer to the la,
administered in enemy territory occupied by the allied forces pending the armistice . *& Eilliam
Einthrop states that the earlier confusion regarding the concept of martial la,, resulting partly from
the ,rong definition of the term by the Duke of Eellington ,ho had said that 4it is nothing more nor
less than the ,ill of the general,4 had misled even the -upreme Court of the =nited -tates.
45
%n the
leading case of E6 Parte 'illi+an,
4:
ho,ever, Chief .ustice Chase, in his dissenting opinion, clarified
and laid do,n the classic distinctions bet,een the types of (ilitar 5uris!iction in relation to the terms
4martial la,,4 4military la,4 and 4military government,4 ,hich to a great e8tent cleared the confusion in
the application of these terms.
hese distinctions ,ere later incorporated in the Manual for CourtsCMartial of the =nited -tates Army,
47
after ,hich the Manual for CourtsCMartial of the Armed 1orces of the Philippines, promulgated on
December &', &(A) pursuant to /8ecutive 0rder ?o. &'), ,as patterned. %n essence, these
distinctions are as follo,s7
a. Military jurisdiction in relation to the term (ilitar la) is that e8ercised by a government 4in the
e8ecution of that branch of its municipal la, ,hich regulates its military establishment.4 ;%n the =.-. and
the Philippines, this refers principally to the statutes ,hich embody the rules of conduct and discipline of
members of their respective armed forces. %n the Philippines ,e have for this purpose Common,ealth Act
?o. J9), as amended, other,ise kno,n as 4he Article of Ear4<.
b. Military jurisdiction in relation to the term (artial la) is that e8ercised in time of rebellion and civil ,ar
by a government temporarily governing the civil population of a locality through its military forces, ,ithout
the authority of ,ritten la,, as necessity may re#uire.
48

c. Military jurisdiction in relation to the ter( (ilitar +overn(ent is that 4e8ercised by a belligerent
occupying an enemy$s territory.4
49
;A familiar e8ample of a military government ,as, of course, that
established and administered by the .apanese armed forces in the Philippines from &(J* to &(JB<.
Ehat is the universally accepted fundamental justification of martial la,I Eiener in 3 Practical
'anual 'artial 0a),
30
ventures this justification7 4Martial +a, is the public la, of necessity. ?ecessity
calls it forth, necessity justifies its e8istence, and necessity measures the e8tent and degree to ,hich
it may be employed.4
Martial la, is founded upon the principle that the state has a right to protect itself against those ,ho
,ould destroy it, and has therefore been likened to the right of the individual to selfCdefense.
31
%t is
invoked as an e8treme measure, and rests upon the basic principle that every state has the po,er of
selfCpreservation, a po,er inherent in all states, because neither the state nor society ,ould e8ist
,ithout it.
34

%6
% no, proceed to discuss the issues posed in these cases.
%n Proclamation &9)&, dated -eptember *&, &('*, the President of the Philippines declared that
la,less elements, supported by a foreign po,er, ,ere in 4armed insurrection and rebellion against the
3overnment of the Philippines in order to forcibly sei"e political and state po,er, overthro, the duly
constituted government and supplant our e8isting political, social, economic and legal order ,ith an
entirely ne, one ... based on the Mar8istC+eninistCMaoist teachings and beliefs.4 >e enumerated
many and varied acts of violence committed in pursuance of the insurrection and rebellion. >e
therefore placed the Philippines under martial la,, commanded the armed forces to suppress the
insurrection and rebellion, enforce obedience to his decrees, orders and regulations, and arrest and
detain those engaged in the insurrection and rebellion or in other crimes 4in furtherance or on the
occasion thereof, or incident thereto or in connection there,ith.4 he President invoked his po,ers
under article 6%% section &9;*< of the &(AB Constitution 4to save the !epublic and reform our society.4
33

By 3eneral 0rder ?o. * the President directed the -ecretary of ?ational Defense to 4forth,ith arrest
or cause the arrest ... the individuals named in the attached lists for being participants or for having
given aid and comfort in the conspiracy to sei"e political and state po,er in the country and to take
over the government by force ... in order to prevent them from further committing acts that are inimical
or injurious ...4 he -ecretary ,as directed to hold in custody the individuals so arrested 4until
other,ise so ordered by me or by my duly designated representative.4 he arrest and detention of the
petitioners in these cases appear to have been made pursuant to this order.
% cannot blink a,ay the stark fact of a continuing Communist rebellion in the Philippines. he Court
has repeatedly taken cogni"ance of this fact in several eases decided by it. %n &('&, in 0ansan+ vs.
Garcia,
35
the Court, after revie,ing the history of the Communist movement in the country since the
&(A9s, concluded7 4Ee entertain, therefore, no doubts about the e8istence of a si"eable group of men
,ho have publicly risen in arms to overthro, the government and have thus been and still are
engaged in rebellion against the 3overnment of the Philippines.4 %t affirmed this finding in &('* AB in
sustaining the validity of the AntiC-ubversion Act ;!epublic Act &'99<. he Act is itself a
congressional recognition and acute a,areness of the continuing threat of Communist subversion to
democratic institutions in this country. /nacted in &(B', it has remained in the statute books despite
periodic agitation in many #uarters for its total e8cision.
At times the rebellion re#uired no more than ordinary police action, coupled ,ith criminal
prosecutions. hus the &(A* Communist trials resulted in the conviction of the ,ellCkno,n
Communists of the day7 Crisanto /vangelista, .acinto 3. Manahan, Dominador .. Ambrosio,
3uillermo Capadocia, %gnacio ?abong and .uan 1eleo, among others, for crimes ranging from illegal
association to rebellion and sedition.
3:

he end of Eorld Ear %% sa, the resurgence of the Communist rebellion. ?o, ,ith an army forged
out of the former >ukbalahaps ;the armed resistance against the .apanese< and renamed Cu-#on+
'apa+palaa n+ "aan or >MB, the threat to the security of the state became so malevolent that on
0ctober **, &(B9, President /lpidio Puirino ,as impelled to suspend the privilege of the ,rit of
*a#eas corpus. his enabled the 3overnment to effect the apprehension of top Communist Party
leaders 3uillermo Capadocia, 1lavio ?ava, Amado 6. >ernande", .esus +ava, .ose +ava, Angel
Baking and -imeon !odrigue", among others.
37
Ehen challenged by one of those detained under the
Presidential proclamation the suspension of the privilege of the ,rit of *a#eas corpus ,as sustained
by the Court.
38

he beginning of the &('9s ,as marked by the rise of student activism. his phenomenon s,ept
around the globe, and did not spare our o,n colleges and universities. -oon the campuses became
staging grounds for student demonstrations that generally ended in bloody and not infre#uently lethal
street riots.
%n Navarro vs. @ille+as,
39
in upholding the po,er of the Mayor of Manila to determine the place and
time for the holding of public assemblies, this Court noted K
hat e8periences in connection ,ith present assemblies and demonstrations do not ,arrant the Court$s
disbelieving respondent Mayor$s appraisal that a public rally at Pla"a Miranda, as compared to one at the
-unken 3ardens as he suggested, poses a clearer and more imminent danger of public disorders,
breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and
petitioner has manifested that it has no means of preventing such disorders:
hat, conse#uently, every time that such assemblies are announced, the community is placed in such a
state of fear and tension that offices are closed early and employees dismissed storefronts boarded up,
classes suspended, and transportation disrupted to the general detriment of the public.
!iding on the crest of student unrest, the Communist rebellion gained momentum. As the Court noted
in 0ansan+ vs. Garcia,
50

GHhe reorgani"ed Communist Party of the Philippines has, moreover, adopted Mao$s concept of
protracted people$s ,ar, aimed at the paraly"ation of the ,ill to resist of the government, of the political,
economic and intellectual leadership, and of the people themselves: that conformably to such concept the
Party has placed special emphasis upon most e8tensive and intensive program of subversion by the
establishment of front organi"ations in urban centers, the organi"ation of armed city partisans and the
infiltration in student groups, labor unions, and farmer and professional groups: that the CPP has
managed to infiltrate or establish and control nine ;(< major labor organi"ations: that it has e8ploited the
youth movement and succeeded in making Communist fronts of eleven ;&&< major student or youth
organi"ations: that there are, accordingly, about thirty ;A9< mass organi"ations actively advancing the
CPP interests, among ,hich are the Malayang -amahan ng Magsasaka ;MA-ANA< the Nabataang
Makabayan ;NM<, the Movement for the Advancement of ?ationalism ;MA?<, the -amahang Demokratiko
ng Nabataan ;-DN<, the -amahang Molave ;-M<, and the Malayang Pagkakaisa ng Nabataang Pilipino
;MPNP<: that, as of August, &('&, the NM had t,o hundred fortyCfive ;*JB< operational chapters
throughout the Philippines, of ,hich seventyCthree ;'A< ,ere in the 3reater Manila Area, si8ty ;29< in
?orthern +u"on, fortyCnine ;J(< in Central +u"on, fortyCt,o ;J*< in the 6isayas and t,entyCone ;*&< in
Mindanao and -ulu: that in &('9, the Party had recorded t,o hundred fiftyCeight ;*B)< major
demonstrations, of ,hich about thirtyCthree iAA< ended in violence, resulting in fifteen ;&B< killed and over
five hundred ;B99< injured: that most of these actions ,ere organi"ed, coordinated or led by the
aforementioned front organi"ations: that the violent demonstrations ,ere generally instigated by a small,
but ,ellCtrained group of armed agitators: that the number of demonstrations heretofore staked in &('&
has already e8ceeded those in &('9: and that t,entyCfour ;*J< of these demonstrations ,ere violent, and
resulted in the death of fifteen ;&B< persons and the injury of many more.
he mounting level of violence necessitated the suspension, for the second time, of the privilege of
the ,rit of *a#eas corpus on August *&, &('&. he 3overnment$s action ,as #uestioned in 0ansan+
vs. Garcia. his Court found that the intensification and spread of Communist insurgency imperiled
the state. he events after the suspension of the privilege of the ,rit confirmed the alarming e8tent of
the danger to public safety7
-ubse#uent events K as reported K have also proven that petitioner$s counsel have underestimated the
threat to public safety posed by the ?e, People$s Army. %ndeed, it appears that, since 3u+ust 2$, $%7$, it
had in ?orthern +u"on si8 ;2< encounters and staged one ;&< raid, in conse#uence of ,hich seven ;'<
soldiers lost their lives and t,o ;*< others ,ere ,ounded, ,hereas the insurgents suffered five ;B<
casualties: that on August *2, &('&, a ,ellCarmed group of ?PA, trained by defector +t. 6ictor Corpus,
attacked the very command post of 1 +AE%? in %sabela, destroying t,o ;*< helicopters and one ;&<
plane, and ,ounding one ;&< soldier: that the ?PA had in Central +u"on a total of four ;J< encounters, ,ith
t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one ;&< NMC-DN leader, an
unidentified dissident, and Commander Panchito, leader of dissident group, ,ere killed: that on August
*2, &('&, there ,as an encounter in the Barrio of -an Pedro, %riga City, Camarines -ur, bet,een the PC
and the ?PA, in ,hich a PC and t,o ;*< NM members ,ere killed: that the current disturbances in
Cotabato and the +anao provinces have been rendered more comple8 by the involvement of the
CPPF?PA for, in midC&('&, a NM group headed by .ovencio /sparago"a, contacted the >igaConan tribes,
in their settlement in Magsaysay, Misamis 0riental, and offered them books, pamphlets and brochures of
Mao se ung, as ,ell as conducted teachCins in the reservation: that /sparago"a ,as reportedly killed
on -eptember **, &('&, in an operation of the PC in said reservation: and that there are no, t,o ;*< ?PA
cadres in Mindanao.
%t should, also, be noted that adherents of the CPP and its front organi"ation are accordingly to
intelligence findings, definitely capable of preparing po,erful e8plosives out of locally available materials:
that the bomb used in the Constitutional Convention >all ,as a $clay more$ mine, a po,erful e8plosive
device used by the =.-. Arm believed to have been one of many pilfered from the -ubic ?aval Base a
fe, days before: that the President had received intelligence information to the effect that there ,as a
.ulyCAugust Plan involving a ,ave of assassinations, kidnappings, terrorism and miss destruction of
property and that an e8traordinary occurrence ,ould signal the beginning of said event: that the rather
serious condition of peace and order in Mindanao, particularly in Cotabato and +anao, demanded the
presence therein of forces sufficient to cope ,ith the situation: that a si"eable part of our armed forces
discharges other functions: and that the e8pansion of the CPP activities from Central +u"on to other parts
of the country particularly Manila and its suburbs the Cagayan 6alley, %fugao, 5ambales, +aguna, Pue"on
and Bicol !egion, re#uired that the rest of our armed forces be spread thin over a ,ide area.
51

By virtue of these findings, the Court, led by Chief .ustice !oberto Concepcion, unanimously upheld
the suspension of the privilege of the ,rit of *a#eas corpus. he Court said7
Considering that the President ,as in possession of the above data K e8cept those related to events that
happened after August *&, &('& K ,hen the Pla"a Miranda prompting, took place, the Court is not
prepared to held that the /8ecutive had acted arbitrarily or gravely abused his discretion ,hen he then
concluded that public safety and national security re#uired the suspension of the privilege of the ,rit,
particularly if the ?PA ,ere to strike simultaneously ,ith violent demonstrations staged by the t,o
hundred fortyCfive ;*JB< NM chapters, all over the Philippines, ,ith the assistance and cooperation of the
do"ens of CPP front organi"ations, and the bombing of ,ater mains and conduits, as ,ell as electric
po,er plants and installations K a possibility ,hich, no matter ho, remote, he ,as bound to forestall,
and a danger he ,as under obligation to anticipate and at rest.
>e had consulted his advisers and sought their vie,s. >e had reason to feel that the situation ,as critical
K as, indeed, it ,as K and demanded immediate action. his he took believing in good faith that public
safety re#uired it. And, in the light of the circumstances adverted to above, he had substantial grounds to
entertain such belief.4
54

he suspension of the privilege of the ,rit ,as lifted on .anuary ', &('*, but soon thereafter chaos
engulfed the nation again. A large area of the country ,as in open rebellion. he authority of the
3overnment ,as frontally challenged by a coalition of forces. %t ,as against this backdrop of violence
and anarchy that martial la, ,as proclaimed on -eptember *&, &('*.
Personally % take notice of this condition, in addition to ,hat the Court has found in cases that have
come to it for decision, and there is no cogent reason for me to say as a matter of la, that the
President e8ceeded his po,ers in declaring martial la,. ?or do % believe that the -olicitor 3eneral$s
manifestation of May &A, &('J to the effect that ,hile on the ,hole the military challenge to the
!epublic has been overcome there are still large areas of conflict ,hich ,arrant the continued
imposition of la,, can be satisfactorily controverted by or by any perceptive observer of the national
scene.
As % ,ill point out in this opinion, the fact that courts are open be accepted as proof that the rebellion
and ,hich compellingly called for the declaration of martial la,, no longer imperil the public safety.
?or are the many surface indicia adverted to by the petitioners ;the increase in the number of tourists,
the choice of Manila as the conferences and of an international beauty contest< to be regarded as
evidence that the threat to public safe has abated. here is actual armed combat, attended by the
somber panoply ,ar, raging in -ulu and Cotabato, not to not mention the region and Cagayan 6alley.
53
% am hard put to say, therefore, that the 3overnment$s claim is baseless.
% am not insensitive to the plea made here in the name of individual liberty. But to paraphrase E6
parte 'oer,
55
if it ,ere the liberty alone of the petitioner Diokno that is. in issue ,e ,ould probably
resolve the doubt in his favor and grant his application. But the -olicitor 3eneral, ,ho must be
deemed to represent the President and the /8ecutive Department in this case,
55
has manifested that
in the President$s judgment peace and tran#uility cannot be speedily restored in the country unless
the petitioners and others like them meantime remain in military custody. 1or, indeed, the central
matter involved is not merely the liberty of isolated individuals, but the collective peace, tran#uility and
security of the entire nation. 6.
he &(AB Constitution committed to the President the determination of the public e8igency or
e8igencies re#uiring the proclamation of martial la,. %t provided in article 6%%, section &9;*< that K
he President shall be commanderCinCchief of all armed forces of the Philippines and, ,henever it
becomes necessary, he may call out such armed forces to prevent or suppress la,less violence,
5:

invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or eminent danger
thereof, ,hen the public safety re#uires it, he may suspend the privileges of the ,rit of *a#eas corpus, or
place the Philippines or any part thereof under martial la,.
57

%n the &(AJ Constitutional Convention it ,as proposed to vest the po,er to suspend the privilege of
the ,rit of *a#eas corpus in the ?ational Assembly. he proposal, sponsored by Delegate Araneta,
,ould give this po,er to the President only in cases ,here the Assembly ,as not in session and then
only ,ith the consent of the -upreme Court. But the majority of the delegates entertained the fear that
the 3overnment ,ould be po,erless in the face of danger.
58
hey rejected the Araneta proposal and
adopted instead the provisions of the .ones +a, of &(&2. he framers of the Constitution reali"ed the
need for a strong /8ecutive, and therefore chose to retain the provisions of the former organic acts,
59

,hich, adapted to the e8igencies of colonial administration , naturally made the 3overnor 3eneral a
strong /8ecutive.
Construing a similar provision of the Philippine Bill of &(9* ,hich authori"ed the 3overnor 3eneral,
,ith the approval of the Philippine Commission, to suspend the privilege of the ,rit of *a#eas corpus
4,hen in cases of rebellion, insurrection, or invasion the public safety may re#uire it,4 this Court held
that the 3overnor 3eneral$s finding as to the necessity for such action ,as 4conclusive and final4 on
the judicial department.
50
his ruling ,as affirmed in &(B* in 'ontene+ro vs. CastaAe!a,
51
this Court
stating that K
the authority to decide ,hether the e8igency has arisen re#uiring, the suspension belongs to the
President and $his decision is final and conclusive$ upon the courts and upon all other persons.
%t is true that in 0ansan+ vs. Garcia
54
there is language that appears to detract from the uniform
course of judicial construction of the CommanderCinCChief Clause. But a close reading of the opinion
in that case sho,s that in the main there ,as adherence to precedents. o be sure, the Court there
asserted the po,er to in#uire into the 4e8istence of the factual bases Gfor the suspension of the
privilege of the ,rit of *a#eas corpusH in order to determine the sufficiency thereof,4 But this broad
assertion of po,er is #ualified by the Court$s unambiguous statement that 4the function of the Court
is, merely to check not to K supplant K the /8ecutive, or to ascertain (erel )*et*er *e *as +one
#eon! the constitutional limits of his jurisdiction, not to e6ercise t*e po)er veste! in *i( or to
determine the ,isdom of his act.4 1or this reason this Court announced that the test ,as not ,hether
the President acted correctl but ,hether he acted arbitrarily. %n fact this Court read "arcelon and
'ontene+ro as authori"ing judicial in#uiry into 4,hether or not there really ,as a rebellion, as stated
in the proclamation therein contested.4
0f course the judicial department can determine the e6istence of the conditions for the e8ercise of the
President$s po,ers and is not bound by the recitals of his proclamation. But ,hether in the
circumstances obtaining public safety re#uires the suspension of the privilege of the ,rit of *a#eas
corpus or the proclamation of martial la, is initially for the President to decide. Considerations of
commitment of the po,er to the e8ecutive branch of the 3overnment and the lack of accepted
standards for dealing ,ith incommensurable factors, suggest the ,isdom of considering the
President$s finding as to necessit persuasive upon the courts. his conclusion results from the
nature of the po,er vested in the President and from the evident object contemplated. 1or that po,er
is intended to enable the 3overnment to cope ,ith sudden emergencies and meet great occasions of
state under circumstances that may be crucial to the life of the nation.
53

he fact that courts are open and in the unobstructed discharge of their functions is pointed to as
proof of the absence of any justification for martial la,. he ruling in 'illi+an
55
and .uncan
55
is
invoked. %n both cases the =.-. -upreme Court reversed convictions by military commissions. %n
Milligan the Court stated that 4martial la, cannot arise from a threatened invasion. he necessity
must be actual and present, the invasion real, such as effectually closes the courts and deposes the
civil administration.4 %n .uncan a similar e8pression ,as made7 4he phrase $martial la,$ ... ,hile
intended to authori"e the military to act vigorously for the maintenance of an orderly civil government
and for the defense of the %slands against actual or threatened rebellion or invasion, ,as not intended
to authori"e the supplanting of courts by military tribunals.4
But 'illi+an and .uncan ,ere decided on the basis of a ,idely disparate constitutional provision.
Ehat is more, to the e8tent that they may be regarded as embodying ,hat the petitioners call an
4open court4 theory, they are of doubtful applicability in the conte8t of present4!a su#version.
=nlike the detailed provision of our Constitution, the =.-. 1ederal Constitution does not e8plicitly
authori"e the =.-. President to proclaim martial la,. %t simply states in its article %%, section * that 4the
President shall be CommanderCinCChief of the Army and ?avy of the =nited -tates, and of the Militia
of the several -tates, ,hen called into the actual -ervice of the =nited -tates. ...4 0n the other hand,
our Constitution authori"es the proclamation of martial la, in cases not only of actual invasion,
insurrection or rebellion but also of 4imminent danger4 thereof.
%t is true that in .uncan the =.-. -upreme Court dealt ,ith a =.-. statute that in terms ,as similar to
the Philippine Constitution. -ection 2' of the >a,aiian 0rganic Act provided that 4Gthe erritorial
3overnorH may, in case of invasion, or imminent danger thereof, ,hen public safety re#uires it,
suspend the privilege of the ,rit of *a#eas corpus, or place the erritory, or any part thereof under
martial la, until communication can be had ,ith the President Gof the =nited -tatesH and his decision
thereof made kno,n.4 %n fact the >a,aiian 0rganic Act, that of Puerto !ico, and the .ones la, of
&(&2, from ,hich latter la,, as % have earlier noted, the CommanderCinCChief Clause of our
Constitution ,as adopted, ,ere part of the legislation of the =.-. Congress during the colonial period.
But again, unlike the .ones +a,, the >a,aiian 0rganic Act also provided in its section B that the =.-.
1ederal Constitution 4shall have the same force and effect in the territory Gof >a,aiiH as else,here in
the =nited -tates. 1or this reason it ,as held in .uncan that 4imminent danger4 of invasion or
rebellion ,as not a ground for authori"ing the trial of civilians by a military tribunal. >ad .uncan been
decided solely on the basis of section 2' of the >a,aiian 0rganic Act and had the petitioners in that
case been tried for offenses connected ,ith the prosecution of the ,ar,
5:
the prison sentences
imposed by the military tribunals ,ould in all probability had been upheld. As a matter of fact those
,ho argued in .uncan that the po,er of the >a,aiian governor to proclaim martial la,
comprehended not only actual rebellion or invasion but also 4imminent danger thereof4 ,ere faced
,ith the problem of reconciling, the t,o parts of the >a,aiian 0rganic Act. hey contended that 4if
any paint of section 2' ,ould other,ise be unconstitutional section B must be construed as e8tending
the G=.-.H Constitution to >a,aii subject to the #ualifications or limitations contained in section 2'.4
57

1orsooth, if the po,er to proclaim martial la, is at all recogni"ed in American federal constitutional
la,, it is only by implication from the necessity of selfCpreservation and then subject to the narro,est
possible construction.
?or is there any -tate Constitution in the =nited -tates, as the appended list indicates ;see
3ppen!i6<, ,hich in scope and e8plicitness can compare ,ith the CommanderCinCChief Clause of our
Constitution. he Alaska Constitution, for e8ample, authori"es the governor to proclaim martial la,
,hen the public safety re#uires it in case of rebellion or actual or imminent invasion. But even then it
also provides that martial la, shall not last longer than t,enty days unless approved by a majority of
the legislature in joint session. 0n the other hand, the present Constitution of >a,aii does not grant to
the -tate governor the po,er to suspend the ,rit of *a#eas corpus or to proclaim martial la, as did
its 0rganic Act before its admission as a -tate to the American =nion.
An uncritical reading of 'illi+an and .uncan is likely to overlook these crucial differences in te8tual
concepts bet,een the Philippine Constitution, on the one hand, and the 1ederal and -tate
Constitutions of the =nited -tates, on the other. %n our case then the inclusion of the 4imminent
danger4 phrase as a ground for the suspension of the privilege of the ,rit of *a#eas corpus and for
the proclamation of martial la, ,as a matter of deliberate choice and renders the language of Milligan
;4martial la, cannot arise from a t*reatene! invasion4< inapposite and therefore inapplicable.
he Philippine Bill of &(9* provided in its section *, paragraph ' K
that the privilege of the ,rit of *a#eas corpus shall not be suspended unless ,hen in cases of rebellion,
insurrection, or invasion the public safety may re#uire it, in either of ,hich events the same may be
suspended by the President, or by the 3overnor 3eneral ,ith the approval of the Philippine Commission,
,herever during such period the necessity for such suspension shall e8ist.
he .ones +a, of &(&2 substantially reenacted this provision. hus section A, paragraph ' thereof
provided7
hat the privilege of the ,rit of *a#eas corpus shall not be suspended, unless ,hen in cases of rebellion,
suspended by the President or by the 3overnor 3eneral, ,herever during such period the necessity for
such suspension shall e8ist.
%n addition, the .ones +a, provided in its section *& that K
... Ghe 3overnor 3eneralH may, in case of rebellion or invasion, or imminent danger thereof, ,hen the
public safety re#uires it, suspend the privileges of the ,rit of *a#eas corpus or place the %slands, or any
part thereof, under martial la,7 Provi!e! hat ,henever the 3overnor 3eneral shall e8ercise this
authority, he shall at once notify the President of the =nited -tates thereof, together ,ith the attending
facts and circumstances, and the President shall have po,er to modify or vacate the action of the
3overnor 3eneral.
?ote that ,ith respect to the suspension of the privilege of the ,rit of *a#eas corpus, section *&
mentions, as ground therefor, 4imminent danger4 of invasion or rebellion. Ehen the Constitution ,as
drafted in &(AJ, its framers, as % have already noted, decided to adopt these provisions of the .ones
+a,. Ehat ,as section A, paragraph ', in the .ones +a, became section &;&J< of article %%% ;Bill of
!ights< of the Constitution: and ,hat ,as section *& became article 6%%, section &9;*< ;CommanderC
inCChief Clause<. hus, the Bill of !ights provision reads7
he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, or rebellion, ,hen the public safety re#uires it, in any of $,hich events the same may be
suspended ,herever during such period the necessity for such suspension shall e8ist.
0n the other hand, the CommanderCinCChief Clause states7
invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or imminent danger
he attention of the &(AJ Convention ,as dra,n to the apparent inconsistency bet,een the Bill of
!ights provision and the CommanderCinCChief Clause. -ome delegates tried to harmoni"e the t,o
provisions by inserting the phrase 4imminent danger thereof4 in the Bill of !ights provision, but on
reconsideration the Convention deleted the phrase from the draft of the Bill of !ights provision, at the
same time retaining it in the CommanderCin Chief Clause.
Ehen this apparent inconsistency ,as raised in a suit
58
#uestioning the validity of President Puirino
suspension of the privilege of the ,rit of *a#eas corpus, this Court sustained the President$s po,er to
suspend the privilege of the ,rit even on the ground of imminent danger of invasion, insurrection or
rebellion. %t held that as the CommanderCinCChief Clause ,as last in the order of time and local
position it should be deemed controlling. his rationali"ation has evoked the criticism that the
Constitution ,as approved as a ,hole and not in parts, but in result the decision in that case is
certainly consistent ,ith the conception of a strong /8ecutive to ,hich the &(AJ Constitutional
Convention ,as committed.
he &('A Constitution like,ise authori"es the suspension of the privilege of the ,rit of *a#eas corpus
on the ground of imminent danger of invasion, insurrection and rebellion.
he soCcalled 4open court4 theory does not apply to the Philippine situation because our &(AB and
&('A Constitutions e8pressly authori"e the declaration of martial la, even ,here the danger to public
safety arises merely from the imminence of invasion, insurrection, or rebellion. Moreover, the theory
is too simplistic for our day, )*at )it* t*e universall reco+nize! insi!ious nature o, Co((unist
su#version an! its covert operations.
%ndeed the theory has been dismissed as unrealistic by perceptive students of Presidential po,ers.
Charles 1airman says7
hese measures are unprecedented but so is the danger that called them into being. 0f course ,e are
not ,ithout la,, even in time of crisis. @et the cases to ,hich one is cited in the digests disclose such
confusion of doctrine as to perple8 a la,yer ,ho suddenly tries to find his bearings. >asty recollection of
E6 parte 'illi+an recalls the dictum that $Martial rule cannot arise from a threatened invasion. he
necessity must be actual and present: the invasion real, such as effectually closes the courts and
deposes the civil administration.$ ?ot even the aerial attack upon Pearl >arbor closed the courts or of its
o,n force deposed the civil administration: yet it ,ould be the common understanding of men that those
agencies ,hich are charged ,ith the national defense surely must have authority to take on the spot
some measures ,hich in normal times ,ould be ultra vires. And ,hilst college sophomores are taught
that the case stands as a constitutional landmark, the hard fact is that of late governors have fre#uently
declared $martial la,$ and $,ar$ and have been judicially sustained in their measures. =ndoubtedly, many
of these cases involving the suspension of strikers ,ent much too far. But just as certainly K so it ,ill be
argued here K the doctrine of the majority in /8 parte 'illi+an does not go far enough to meet the
conditions of modern ,ar.
59

Clinton !ossiter ,rites7
%t is simply not true that $martial la, cannot arise from a threatened invasion,$ or that martial rule can
never e8ist ,here the courts are open.$ hese statements do not present an accurate definition of the
allo,able limits of the martial po,ers of the President and Congress in the face of alien threats of internal
disorder. ?or ,as Davis$ dictum on the specific po,er of Congress in this matter any more accurate. And,
ho,ever elo#uent #uotable his ,ords on the untouchability of the Constitution in time of actual crisis, and
did not then, e8press the realities of American constitutional la,.
:0

Eilliam Einthrop makes these thoughtful observations7
%t has been declared by the -upreme Court in E6 parte 'illi+an that martial la,$ is confined to the locality
of actual ,ar,$ and also that it $can never e8ist ,hen the courts are open and in the proper and
unobstructed e8ercise of their 5uris!iction.$ But this ruling ,as made by a bare majority K five K of the
court, at a time of great political e8citement and the opinion of the four other members, as delivered by
the Chief .ustice, ,as to the effect that martial la, is not necessarily limited to time of ,ar, but may be
e8ercised at other periods of $public danger,$ and that t*e ,act t*at t*e civil courts are open is not
controllin+ a+ainst suc* e6ercise, since they $might be open and undisturbed in the e8ecution of their
functions and yet ,holly incompetent to avert threatened danger or to punish ,ith ade#uate promptitude
and certainty the guilty.$ %t is the opinion of the author that the of t*e vie) o, t*e (inorit o, t*e court is t*e
soun!er an! (ore reasona#le one, and that the dictum of the majority ,as influenced by a confusing of
martial la, proper ,ith that (ilitar +overn(ent ,hich e8ists only at a time and on the theater of ,ar, and
,hich ,as clearly distinguished from martial la, by the Chief .ustice in the dissenting opinion K the first
complete judicial definition of the subject.
:1
;emphasis supplied<
%n ?ueen vs. "e--er ;on the occasion of the Boer Ear< .ustice Maasdorp categorically affirmed that
4the e8istence of civil courts is no proof that martial la, has become unnecessary.
:4

6%
3iven then the validity of the proclamation of martial la,, the arrest and detention of those reasonably
believed to be engaged in the disorder or in formenting it is ,ell nigh beyond #uestioning. ?egate the
po,er to make such arrest and detention, and martial la, ,ould be 4mere parade, and rather
encourage attack than repel it.4
:3
hus, in 'oer vs. Pea#o!,
:5
the Court sustained the authority of a
-tate governor to hold temporarily in custody one ,hom he believed to be engaged in formenting
trouble, and denied recovery against the governor for the imprisonment. %t ,as said that, as the
governor 4may kill persons ,ho resist,4 he may use the milder measure of sei"ing the bodies of those
,hom he considers in the ,ay of restoring peace. -uch arrests are not necessarily for punishment,
but are by ,ay of precaution to prevent the e8ercise of hostile po,er. -o long as such arrests are
made in good faith and in the honest belief that they are needed in order to head the insurrection off,
the 3overnor is the final judge and cannot be subjected to an action after he is out of office on the
ground that he had no reasonable ground for his belief.4
%t is true that in Sterlin+ vs. Contantin
:5
the same Court set aside the action of a -tate governor taken
under martial la,. But the decision in that case rested on the ground that the action set aside had no
direct relation to the #uelling of the uprising. here the governor of e8as issued a proclamation
stating that certain counties ,ere in a state of insurrection and declaring martial la, in that territory.
he proclamation recited that there ,as an organi"ed group of oil and gas producers in insurrection
against conservation la,s of the -tate and that this condition had brought such a state of public
feeling that if the -tate government could not protect the public$s interest they ,ould take the la, into
their o,n hands. he proclamation further recited that it ,as necessary that the !ailroad Commission
be given time to make orders regarding oil production. Ehen the Commission issued an order limiting
oil production, the complainants brought suit iii the District Court ,hich issued restraining orders,
,hereupon 3overnor -terling ordered 3eneral Eolters of the e8as ?ational 3uards to enforce a
limit on oil production. %t ,as this order of the -tate governor that the District Court enjoined. 0n
appeal the =.-. -upreme Court affirmed. After assuming that the governor had the po,er to declare
martial la,, the Court held that the order restricting oil production ,as not justified by the e8igencies
of the situation.
... 1undamentally, the #uestion here is not the po,er of the governor to proclaim that a state of
insurrection, or tumult or riot, or breach of the peace e8ists, and that it is necessary to call military force to
the aid of the civil po,er. ?or does the #uestion relate to the #uelling of disturbance and the overcoming
of unla,ful resistance to civil authority. he #uestion before us is simply ,ith respect to the 3overnor$s
attempt to regulate by e8ecutive order the la,ful use of complainants$ properties in the production of oil.
%nstead of affording them protection in the e8ercise of their rights as determined by the courts, he sought,
by his e8ecutive orders, to make that e8ercise impossible.
0n the other hand, ,hat is involved here is the validity of the detention order under ,hich the
petitioners ,ere ordered arrested. -uch order is, as % have already stated, a valid incident of martial
la,. Eith respect to such #uestion Constantin held that 4measures, conceived in good faith, in the
face of the emergency and directly related to the #uelling of the disorder or the prevention of its
continuance, fall ,ithin the discretion of the /8ecutive in the e8ercise of his authority to maintain
peace.4
%n the cases at bar, the respondents have justified the arrest and detention of the petitioners on the
ground of reasonable belief in their complicity in the rebellion and insurrection. /8cept Diokno and
A#uino, all the petitioners have been released from custody, although subject to defined restrictions
regarding personal movement and e8pression of vie,s. As the danger to public safety has not
abated, % cannot say that the continued detention of Diokno and A#uino and the restrictions on the
personal freedoms of the other petitioners are arbitrary, just as % am not prepared to say that the
continued imposition of martial rule is unjustified.
As the Colorado -upreme Court stated in denying the ,rit of *a#eas corpus in 'oer=
::

>is arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a
continuation of the conditions ,hich the governor, in the discharge of his official duties and in the e8ercise
of the authority conferred by la,, is endeavoring to suppress.
6%%
Ehile courts may in#uire into or take judicial notice of the e6istence of conditions claimed to justify the
e8ercise of the po,er to declare martial la,,
:7
the determination of the necessit for the e8ercise of
such po,er is ,ithin the periphery of the constitutional domain of the President: and as long as the
measures he takes are reasonably related to the occasion involved, interference by the courts is
officious.
% am confirmed in this construction of Presidential po,ers by the consensus of the &('& Constitutional
Convention to strengthen the concept of a strong /8ecutive and by the confirmation of the validity of
acts taken or done after the proclamation of martial la, in this country. he &('A Constitution
e8pressly authori"es the suspension of the privilege of the ,rit of *a#eas corpus as ,ell as the
imposition of martial la, not only on the occasion of actual invasion, insurrection or rebellion, but also
,here the danger thereof is imminent. 2) Acrimonious discussion on this matter has thus become
pointless and should therefore cease.
he ne, Constitution as ,ell provides that K
President shall be part of the la, of the land, and shall remain valid, legal, binding, and effective even
after lifting of martial la, or the ratification of this constitution, unless modified, revoked, or superseded by
unless e8pressly aid e8plicitly modified or repealed by the regular ?ational Assembly.
:9

he effectivity of the ne, Constitution is no, beyond all manner of debate in vie, of the Court$s
decision in the !atification Cases '9 as ,ell as the demonstrated ac#uiescence therein by the
1ilipino people in the historic .uly &('A national referendum.
6%%%
%t is thus evident that suspension of the privile+e of the ,rit of *a#eas corpus is unavoidable
subsumed in a declaration of martial la,, since one basic objective of martial rule is to neutrali"e
effectively K by arrest and continued detention ;and possibly trial at the proper and opportune time<
K those ,ho are reasonably believed to be in complicity or are particeps cri(inis in the insurrection
or rebellion. hat this is so and should be so is ineluctable to deny this postulate is to negate the very
fundamental of martial la,7 the preservation of society and the survival of the state. o recogni"e the
imperativeness and reality of martial la, and at the same time dissipate its efficacy by ,ithdra,ing
from its ambit the suspension of the privilege of the ,rit of *a#eas corpus is a proposition % regard as
fatuous and therefore repudiate.
%nvasion and insurrection, both of them conditions of violence, are the factual prere#uisites of martial
la, ... he rights of person and property present no obstruction to the authorities acting under such a
regime, if the acts ,hich encroach upon them are necessary to the preservation or restoration of public
order and safety. Princeps et res pu#lica e6 5usta causa possunt re( (ea( au,erre. All the procedures
,hich are recogni"ed adjuncts of e8ecutive crisis government ... are open to the persons ,ho bear official
authority under martial la,. he government may ,ield arbitrary po,ers of police to allay disorder, arrest
and detain ,ithout trial all citi"ens taking part in this disorder and even punish them ;in ot*er )or!s,
suspen! t*e Mprivile+e o, t*eN )rit o, *a#eas corpus<, institute searches and sei"ures ,ithout ,arrant,
forbid public assemblies, set curfe, hours, suppress all freedom of e8pression, institute courts martial for
the summary trial of crimes perpetrated in the course of this regime and calculated to defeat its
purposes ...
71
;emphasis supplied<
he point here is ,hether martial la, is simply a shorthand e8pression denoting the suspension of the
,rit, or ,hether martial la, involves not only the suspension of the ,rit but much more besides. ... he
latter vie, is probably sounder because martial la, certainly in the present state of its development, is not
at all dependent on a suspension of the ,rit of *a#eas corpus. ... Ehere there has been violence or
disorder in fact, continued detention of offenders by the military is so far proper as to result in a denial by
the courts of ,rits releasing those detained. ...
74

%D.
Although the respondents, in their returns to the ,rits and in their ans,ers to the several petitions,
have insisted on a disclaimer of the jurisdiction of this Court, on the basis of 3eneral 0rders ?os. A
and ACA,
73
their subse#uent manifestations urging decision of these cases amount to an
abandonment of this defense. %n point of fact President Marco has ,ritten, in unmistakable phrase,
that 40ur martial la, is uni#ue in that it is based on the supremacy of the civilian authority over the
military and on complete submission of the decision of the -upreme Court. ... 1or ,ho is the dictator
,ho ,ould submit himself to a higher body like the -upreme Court on the #uestion of the
constitutionality or validity of his actionsI4
75
Construing this avo,al of the President and the repeated
urgings of the respondents in the light of the above#uoted provision of the &('A Constitution ;Art.
D6%%, sec. A;*<<, it is my submission that 3eneral 0rders ?os. A and ACA must be deemed revoked in
so far as they tended to oust the judiciary of jurisdiction over cases involving the constitutionality of
proclamations, decrees, orders or acts issued or done by the President.
D
%n sum and substance, % firmly adhere to these vie,s7 ;&< that the proclamation of martial la, in
-eptember &('* by the President ,as ,ell ,ithin the aegis of the &(AB Constitution: ;*< that because
the Communist rebellion had not abated and instead the evil ferment of subversion had proliferated
throughout the archipelago and in many places had e8ploded into the roar of armed and searing
conflict ,ith all the sophisticated panoply of ,ar, the imposition of martial la, ,as an 4imperative of
national survival:4 ;A< that the arrest and detention of persons ,ho ,ere 4participants or gave aid and
comfort in the conspiracy to sei"e political and state po,er and to take over the government by force,4
,ere not unconstitutional nor arbitrary: ;J< that subsumed in the declaration of martial la, is the
suspension of the privile+e of the ,rit of *a#eas corpus: ;B< that the fact that the regular courts of
justice are open cannot be accepted as proof that the rebellion. and insurrection, ,hich compellingly
called for the declaration of martial la,, no longer imperil the public safety: ;2< that actual armed
combat has been and still is raging in Cotabato, +anao, -ulu and 5amboanga, not to mention the
Bicol !egion and Cagayan 6alley, and nation,ide Communist subversion continues unabated: ;'<
that the host of doubts that had plagued this Court ,ith respect to the validity of the ratification and
conse#uent effectivity of the &('A Constitution has been completely dispelled by every rational
evaluation of the national referendum of .uly &('A, at ,hich the people conclusively albeit #uietly,
demonstrated nation,ide ac#uiescence in. the ne, Constitution: and ;)< that the issue of the validity
and constitutionality of the arrest and detention of all the petitioners and of the restrictions imposed
upon those ,ho ,ere subse#uently freed, is no, foreclosed by the transitory provision of the &('A
Constitution ;Art, D6%%. -ec. A;*<< ,hich efficaciously validates all acts made, done or taken by the
President, or by others upon his instructions, under the regime of martial la,, prior to the ratification
of the said Constitution.
D%
%t is not a mere surreal suspicion on the part of the petitioner Diokno that the incumbent members of
this highest ribunal of the land have removed themselves from a level of conscience to pass
judgment upon his petition for *a#eas corpus or afford him relief from his predicament. >e has
actually articulated it as a formal indictment. % venture to say that his obsessional preoccupation on
the ability of this Court to reach a fair judgment in relation to him has been, in no small measure,
engendered by his melancholy and bitter and even perhaps traumatic detention. And even as he
makes this serious indictment, he at the same time ,ould ,ithdra, his petition for *a#eas corpus K
hoping thereby to achieve martyrdom, albeit dubious and amorphous. As a commentary on this
indictment, % here that for my part K and % am persuaded that all the other members of this Court are
situated similarly K % avo, fealt to the full intendment and meaning of the oath % have taken as a
judicial magistrate. =tili"ing the modest endo,ments that 3od has granted me, % have endeavored in
the past eighteen years of my judicial career K and in the future ,ill al,ays endeavor K to discharge
faithfully the responsibilities appurtenant to my high office, never fearing, ,avering or hesitating to
reach judgments that accord ,ith my conscience.
ACC0!D%?3+@, % vote to dismiss all the petitions.
APP/?D%D to -eparate 0pinion of
.ustice 1red !ui" Castro
ST3TE CONSTITETION30 P>O@ISIONS
>EG3>.ING '3>TI30 03K
A+A-NA C0?-., art. %%%, sec. *97
-ec. *9. 'artial 0a). he governor may proclaim martial la, ,hen the public safety re#uires it in
case of rebellion or actual or imminent invasion. Martial la, shall not continue for longer than t,enty
days ,ithout the approval of a majority of the members of the legislature in joint session.
MA%?/ C0?-., art. %, sec. &J7
-ec. &J. Corporal punis*(ent un!er (ilitar la). ?o person shall be subject to corporal punishment
under military la,, e8cept such as are employed in the army or navy, or in the militia ,hen in actual
service in time of ,ar or public danger.
MA!@+A?D C0?-., art. A*7
Art. A*. 'artial 0a). hat no person e8cept regular soldiers, marines, and mariners in the service of
this -tate, or militia, ,hen in actual service, ought in any case, to be subject to, or punishable by
Martial +a,.
MA--AC>=-/- C0?-., art. DD6%%%7
Art. DD6%%%. Citizens e6e(pt ,ro( la) (artial. ?o person can in any case be subjected to la, martial,
or to any penalties or pains, by virtue of that la,, e8cept those employed in the army or navy, and
e8cept the militia in actual service, but by authority of the legislature.
?/E >AMP->%!/, Pt %%, arts. AJ and B&7
Art. AJth. 'artial la) li(ite!. ?o person can, in any case, be subjected to la, martial, or to any pains
or penalties by virtue of that la,, e8cept those employed in the army or navy, and e8cept the militia in
actual service, but by authority of the legislature.
Art. B&st. Po)ers an! !uties o, +overnor as co((an!er4in4c*ie,9 li(itation. he governor of this state
for the time being. shall be commanderCinCchief of the army and navy, and all the military forces of the
state by sea and land: and shall have full po,er by himself, or by any chief commander, or other
officer, or officers, from time to time, to train, instruct, e8ercise and govern the militia and navy: and
for the special defense and safety of this state, to assemble in martial array, and put in ,arClike
posture, the inhabitants thereof, and to lead and conduct them, and ,ith them to encounter, repulse,
repel resist and pursue by force of arms, as ,ell by sea as by land, ,ithin and ,ithout the limits of this
state7 and also kill, slay. destroy, if necessary, and con#uer by all fitting ,ays, enterprise and means,
all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or
enterprise the destruction, invasion, detriment or annoyance of this state: and to use and e8ercise
over the army and navy, and over the militia in actual service, the la, martial in time of ,ar invasion,
and also in rebellion, declared by the legislature to e8ist, as occasion shall necessarily re#uire7 And
surprise, by all ,ays and means ,hatsoever, all and every such person or persons, ,ith their ships,
arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading,
con#uering or annoying this state: and in fine the governor hereby is entrusted ,ith all other po,ers
incident to the office of the captainCgeneral and commanderCinCchief, and admiral, to be e8ercised
agreeably to the rules and regulations of the constitution, and the la,s of the land: provided, that the
3overnor shall not, at any time hereafter, by virtue of any po,er by this constitution granted, or
hereafter to be granted to him by the legislature, transport any of the inhabitants of this state, or
oblige them to march out of the limits of the same, ,ithout their free and voluntary consent, or the
consent of the general court, nor grant commissions for e8ercising the la, martial in any case,
,ithout the advise and the consent of the council.
!>0D/ %-+A?D C0?-., art. %, sec. &)7 .
-ec. &). 'ilitar su#or!inate9 (artial la). he military shall be held in strict subordination to the civil
authority. And the la, martial shall be used and e8ercised in such cases only as occasion shall
necessarily re#uire.
/??/--// C0?-., art. &, sec. *B7
-ec. *B. Punis*(ent un!er (artial an! (ilitar la). hat no citi"en of this -tate, e8cept such as are
employed in the army of the =nited -tates, or militia in actual service, shall be subjected to
punishment under the martial or military la,. hat martial la,, in the sense of the unrestricted po,er
of military officers, or others, to dispose of the persons, liberties or property of the citi"en, is
inconsistent ,ith the principles of free government, and is not confided to any department of the
government of this -tate.
@E>'ONT CONST., c*. $, art. $7=
3rt. $7t*. 'artial la) restricte!. hat no person in this state can in any case be subjected to la,
martial, or to any penalties or pains by virtue of that la, e8cept those employed in the army and the
militia in actual service.
E/- 6%!3%?%A, art, %%%, sec. &*7
Art. %%%, sec. &*. 'ilitar su#or!inate to civil po)er. -tanding armies, in time of peace, should be
avoided as dangerous to liberty. he military shall be subordinate to the civil po,er: and no citi"en,
unless engaged in the military service of the -tate, shall be tried or punished by any military court, for
any offense that is cogni"able by the civil courts of the -tate. ?o soldier shall, in time of peace, be
#uartered in any house, ,ithout the consent of the o,ner, nor in time of ,ar, e8cept in the manner to
be prescribed by la,. .

he issue involved in these *a#eas corpus petitions is the preCeminent problem of the times K the
primacy to be accorded the claims of liberty during periods of crisis. here is much that is novel in
,hat confronts the Court. A traditional orientation may not suffice. he approach taken cannot be
characteri"ed by rigidity and infle8ibility. here is room, plenty of it, for novelty and innovation.
Doctrines deeply rooted in the past, that have stood the test of time and circumstance, must be made
adaptable to present needs and, hopefully, serviceable to an unkno,n future, the events of ,hich, to
recall -tory, are locked tip in the inscrutable designs of a merciful Providence. %t is essential then that
in the consideration of the petitions before us there be objectivity, calmness, and understanding. he
deeper the disturbance in the atmosphere of security, the more compelling is the need for tran#uility
of mind, if reason is to prevail. ?o legal carrier is to be interposed to th,art the efforts of the
/8ecutive to restore normalcy. >e is not to be denied the po,er to take that for him may be
necessary measures to meet emergency conditions. -o the realities of the situation dictate. here
should be on the part of the judiciary then, sensitivity to the social forces at ,ork, creating conditions
of grave unrest and turbulence and threatening the very stability not to say e8istence, of the political
order. %t is in that setting that the crucial issue posed by these petitions is to be appraised. %t may be
that this clash bet,een the primacy of liberty and the legitimate defense of authority is not susceptible
of an definite, clearCcut solution. ?onetheless, an attempt has to be made. Eith all due recognition of
the merit apparent in the e8haustive, scholarly and elo#uent dissertations of .ustice Barredo and my
other brethren as ,ell as the ease and lucidity ,ith ,hich the Chief .ustice clarified the comple8
issues and the vie,s of members of the Court, % ,ould like to give a brief e8pression to my thoughts
to render clear the points on ,hich % find myself, ,ith regret, unable to be of the same persuasion.
% concur in the dismissal of the *a#eas corpus petition of Benigno -. A#uino, .r. solely on the ground
that charges had been filed and dissent in part in the dismissal of the petition of 1rancisco !odrigo
and others, > ,ho joined him in his plea for the removal of the conditions on their release, on the vie,
that as far as freedom of travel is concerned, it should be, on principle, left unrestricted. As originally
prepared, this opinion like,ise e8plained his dissent in the denial of the motion to ,ithdra, in the
petition filed on behalf of .ose E. Diokno, a matter no, moot and academic.
&. Ee have to pass on *a#eas corpus petitions. he great ,rit of liberty is involved. !ightfully, it is
latitudinarian in scope. %t is ,ideCranging and allCembracing in its reach. %t can dig deep into the facts
to assure that there be no toleration of illegal restraint. Detention must be for a cause recogni"ed by
la,. he ,rit imposes on the judiciary the grave responsibility of ascertaining ,hether a deprivation of
physical freedom is ,arranted. he party ,ho is keeping a person in custody has to produce him in
court as soon as possible. Ehat is more, he must justify the action taken. 0nly if it can be
demonstrated that there has been no violation of one$s right to liberty ,ill he be absolved from
responsibility. 1ailing that, the confinement must thereby cease. ?or does it suffice that there be a
court process, order, or decision on ,hich it is made to rest. %f there be a sho,ing of a violation of
constitutional rights, the jurisdiction of the tribunal issuing it is ousted. Moreover, even if there be a
valid sentence, it cannot, even for a moment, be e8tended beyond the period provided for by la,.
Ehen that time comes, he is entitled to be released. %t is in that sense then, as so ,ell put by >olmes,
that this great ,rit 4is the usual remedy for unla,ful imprisonment.4
1
%t does afford to borro, from the
language of Birkenhead 4a s,ift and imperative remedy in all cases of illegal restraint or
confinement.4
4
?ot that there is need for actual incarceration. A custody for ,hich there is no support
in la, suffices for its invocation. he party proceeded against is usually a public official, the runCofC
theCmill petitions often coming from individuals ,ho for one reason or another have run afoul of the
penal la,s. Confinement could like,ise come about because of contempt citations,
3
,hether from the
judiciary or from the legislature. %t could also be due to statutory commands, ,hether addressed to
cultural minorities
5
or to persons diseased.
5
hen, too, this proceeding could be availed of by citi"ens
subjected to military discipline
:
as ,ell as aliens seeking entry into or to be deported from the country.
7
/ven those outside the government service may be made to account for their action as in the case
of ,ives restrained by their husbands or children ,ithheld from the proper parent or guardian.
8
%t is
thus apparent that any deviation from the legal norms calls for the restoration of freedom. %t cannot be
other,ise. %t ,ould be sheer mockery of all that such a legal order stands for, if any person$s right to
live and ,ork ,here he is minded to, to move about freely, and to be rid of any un,arranted fears that
he ,ould just be picked up and detained, is not accorded full respect. he significance of the ,rit then
for a regime of liberty cannot be overemphasi"ed.
9

*. ?or does the fact that, at the time of the filing of these petitions martial la, had been declared, call
for a different conclusion. here is of course imparted to the matter a higher degree of comple8ity. 1or
it cannot be gainsaid that the reasonable assumption is that the President e8ercised such an
a,esome po,er, one granted admittedly to cope ,ith an emergency or crisis situation, because in his
judgment the situation as thus revealed to him left him ,ith no choice. Ehat the President did
attested to an e8ecutive determination of the e8istence of the conditions that called for such a move.
here ,as, in his opinion, an insurrection or rebellion of such magnitude that public safety did re#uire
placing the country under martial la,. hat decision ,as his to make it: it is not for the judiciary. he
assessment thus made, for all the sympathetic consideration it is entitled to, is not, ho,ever,
impressed ,ith finality. his Court has a limited sphere of authority. hat, for me, is the teaching of
+ansang.
10
he judicial role is difficult, but it is unavoidable. he ,rit of liberty has been invoked by
petitioners. hey must be heard, and ,e must rule on their petitions.
A. his Court has to act then. he liberty enshrined in the Constitution, for the protection of ,hich
*a#eas corpus is the appropriate remedy, imposes that obligation. %ts task is clear. %t must be
performed. hat is a trust to ,hich it cannot be recreant Ehenever the grievance complained of is
deprivation of liberty, it is its responsibility to in#uire into the matter and to render the decision
appropriate under the circumstances. Precisely, a *a#eas corpus petition calls for that response. 1or
the significance of liberty in a constitutional regime cannot be sufficiently stressed. Eitness these
,ords from the then .ustice, later Chief .ustice, Concepcion7 41urthermore, individual freedom is too
basic, to be denied upon mere general principles and abstract consideration of public safety. %ndeed,
the preservation of liberty is such a major preoccupation of our political system that, not satisfied ,ith
guaranteeing its enjoyment in the very first paragraph of section ;&< of the Bill of !ights, the framers
of our Constitution devoted Gt,elve otherH paragraphs GthereofH to the protection of several aspect of
freedom.4
11
A similar sentiment ,as given e8pression by the then .ustice, later Chief .ustice,
Beng"on7 4+et the rebels have no reason to apprehend that their comrades no, under custody are
being railroaded into Muntinlupa ,ithout benefit of those fundamental privileges ,hich the e8perience
of the ages has deemed essential for the protection of all persons accused of crime before the
tribunals of justice. 3ive them the assurance that the judiciary, ever mindful of its sacred mission ,ill
not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of 3overnmental po,er
in diminution of individual rights, but ,ill al,ays cling to the principle uttered long ago by Chief .ustice
Marshall that ,hen in doubt as to the construction of the Constitution, $the Courts ,ill favor personal
liberty$ ....4
14
he pertinence of the above e8cerpt becomes #uite manifest ,hen it is recalled that its
utterance ,as in connection ,ith a certiorari proceeding ,here the precise point at issue ,as ,hether
or not the right to bail could be availed of ,hen the privilege of the ,rit of *a#eas corpus ,as
suspended. here ,as no decisive outcome, although there ,ere five votes in favor of an affirmative
ans,er to only four against.
13
-uch pronouncements in cases arising under the &(AB Constitution
should occasion. no surprise. hey merely underscore ,hat ,as so vigorously emphasi"ed by the
then Delegate .ose P. +aurel, Chairman of the Committee on the Bill of !ights, in his sponsorship
address of the draft provisions. hus7 4he history of the ,orld is the history of man and his ardous
struggle for liberty. ... %t is the history of those brave and able souls ,ho, in the ages that are past,
have labored, fought and bled that the government of the lash K that symbol of slavery and
despotism C might endure no more. %t is the history of those great selfCsacrificing men ,ho lived and
suffered in an age of cruelty, pain and desolation so that every man might stand, under the protection
of great rights and privileges, the e#ual of every other man.
15
-o should it be under the present
Constitution. ?o less a person than President Marcos during the early months of the &('&
Constitutional Convention categorically affirmed in his To!as >evolution7 Democracy7 4Eithout
freedom, the ,hole concept of democracy falls apart.4
15
-uch a vie, has support in history. A
statement from Dr. !i"al has a contemporary ring7 43ive liberties, so that no one may have a right to
conspire.4
1:
Mabini listed as an accomplishment of the illCfated revolution against the Americans the
manifestation of 4our love of freedom guaranteeing to each citi"en the e8ercise of certain rights ,hich
make our communal life less constricted, ....4
17

J. /#ually so, the decisive issue is one of liberty not only because of the nature of the petitions but
also because that is the mandate of the Constitution. hat is its philosophy. %t is a regime of liberty to
,hich our people are so deeply and firmly committed.
18
he fate of the individual petitioners hangs in
the balance. hat is of great concern. Ehat is at stake ho,ever, is more than that K much more.
here is a paramount public interest involved. he momentous #uestion is ho, far in times of stress
fidelity can be manifested to the claims of liberty. -o it is ordained by the Constitution, and it is the
highest la,. %t must be obeyed. ?or does it make a crucial difference, to my mind, that martial la,
e8ists. %t may call for a more cautious approach. he simplicity of constitutional fundamentalism may
not suffice for the comple8 problems of the day. -till the duty remains to assure that the supremacy of
the Constitution is upheld. Ehether in good times or bad, it must be accorded the utmost respect and
deference. hat is ,hat constitutionalism connotes. %t is its distinctive characteristic. 3reater restraints
may of course be imposed. Detention, to cite the obvious e8ample, is not ruled out under martial la,,
but even the very proclamation thereof is dependent on public safety making it imperative. he
po,ers, rather e8pansive, perhaps at times even latitudinarian, allo,able the administration under its
aegis, ,ith the conse#uent diminution of the sphere of liberty, are justified only under the assumption
that thereby the beleaguered state is in a better position to protect, defend and preserve itself. hey
are hardly impressed ,ith the element of permanence. hey cannot endure longer than the
emergency that called for the e8ecutive having to make use of this e8traordinary prerogative. Ehen it
is a thing of the past, martial la, must be at an end. %t has no more reason for being. %f its
proclamation is open to objection, or its continuance no longer ,arranted, there is all the more
reason, to follo, +aski, to respect the traditional limitation of legal authority that freedom demands.
19

Eith these *a#eas corpus petitions precisely rendering peremptory action by this Court, there is the
opportunity for the assessment of liberty considered in a concrete social conte8t. Eith full
appreciation then of the comple8ities of this era of turmoil and dis#uiet, it can hopefully contribute to
the delineation of constitutional boundaries. %t may even be able to demonstrate that la, can be
timeless and yet timely.
B. here are relevant #uestions that still remain to be ans,ered. Does not the proclamation of martial
la, carry ,ith it the suspension of the privilege of the ,rit of *a#eas corpusI %f so, should not the
principle above enunciated be subjected to further refinementI % am not too certain that the first
#uery. necessarily calls for an affirmative ans,er. Preventive detention is of course allo,able.
%ndividuals ,ho are linked ,ith invasion or rebellion may pose a danger to the public be safety. here
is nothing inherently unreasonable in their being confined. Moreover, ,here it is the President
himself, as in the case of these petitioners, ,ho personally directed that they be taken in, it is not
easy to impute arbitrariness. %t may happen though that officers of lesser stature not impressed ,ith
the high sense of responsibility ,ould utili"e the situation to cause the apprehension of persons
,ithout sufficient justification. Certainly it ,ould be, to my mind, to sanction oppressive acts if the
validity of such detention cannot be in#uired into through *a#eas corpus petitions. %t is more than just
desirable therefore that if such be the intent, there be a specific decree concerning the suspension of
the privilege of the ,rit of *a#eas corpus. /ven then, ho,ever, such proclamation could be
challenged. %f vitiated by constitutional infirmity, the release may be ordered. /ven if it ,ere
other,ise, the applicant may not be among those as to ,hom the privilege of the ,rit has been
suspended. %t is pertinent to note in this connection that Proclamation ?o. &9)& specifically states
4that all persons presently detained as ,ell as all others ,ho may hereafter be similarly detained for
the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or
on the occasion thereof, or incident thereto, or in connection there,ith, for crimes against national
security and the la, of nations, crime against the fundamental la,s of the -tate, crimes against public
order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as ,ill be enumerated in
0rders that % shall subse#uently promulgate, as ,ell as crimes as a conse#uence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction shall
be kept under detention until other,ise ordered released by me or by duly designated
representative.4
40
he implication appears at unless the individual detained is included among those
to ,hom any of the above crime or offense may be imputed, he is entitled to judicial protection.
+astly, the #uestion of ,hether or not there is ,arrant for the vie, that martial la, is at an end may be
deemed proper not only in the light of radically altered conditions but also because of certain
e8ecutive acts clearly incompatible ,ith its continued e8istence. =nder such circumstances, an
element of a justiciable controversy may be discerned.
2. hat brings me to the political #uestion doctrine. %ts accepted signification is that ,here the matter
involved is left to a decision by the people acting in their sovereign capacity or to the sole
determination by either or both the legislative or e8ecutive branch of the government, it is beyond
judicial cogni"ance.
41
hus it ,as that in suits ,here the party proceeded against ,as either the
President or Congress, or any of its branches for that matter, the courts refused to act.
44
=nless such
be the case, the action taken by any or both the political branches ,hether in the form of a legislative
act or an e8ecutive order could be tested in court. Ehere private rights are affected, the judiciary has
the duty to look into its validity. here is this further implication of the doctrine. A sho,ing that plenary
po,er is granted either department of government may not be an obstacle to judicial in#uiry. %ts
improvident e8ercise or the abuse thereof may give rise to a justiciable controversy.
43
Ehat is more, a
constitutional grant of authority is not usually unrestricted.
45
+imitations are provided for as to ,hat
may be done and ho, it is to he accomplished. ?ecessarily then, it becomes the responsibility of the
courts to ascertain ,hether the t,o coordinate branches have adhered to the mandate of the
fundamental la,. he #uestion thus posed is judicial rather than political.
'. !eference at this point to the epochal opinion in the aforecited 0ansan+ v. Garcia decision, ,here
the validity of the suspension of the privilege of the ,rit of *a#eas corpus ,as sustained by this Court,
is not amiss. 1or in both in the &(AB and in the present Constitutions, the po,er to declare martial la,
is embraced in the same provision ,ith the grant of authority to suspend the privilege of the ,rit of
*a#eas corpus, ,ith the same limits to be observed in the e8ercise thereof.
45
%t ,ould follo,,
therefore, that a similar approach commends itself on the #uestion of ,hether or not the finding made
by the President in Proclamation ?o. &9)& as to the e8istence of 4rebellion and armed action
undertaken by these la,less elements of the communist and other armed aggrupations organi"ed to
overthro, the !epublic of the Philippines by armed violence and force Gimpressed ,ith theH
magnitude of an actual state of ,ar against GtheH people and the !epublic ...4
4:
is open to judicial
in#uiry. !eference to the opinion of Chief .ustice Concepcion ,ould prove illuminating7 4%ndeed, the
grant of po,er to suspend the privilege is neither absolute nor un#ualified. he authority conferred by
the Constitution, both under the Bill of !ights and under the /8ecutive Department, is limited and
conditional. he precept in the Bill of !ights establishes a general rule, as ,ell as an e8ception
thereto. Ehat is more, it postulates the former in the negative, evidently to stress its importance, by
providing that $;t<he privilege of the ,rit of *a#eas corpus shall not be suspended. ....$ %t is only by ,ay
of e8ception that it permits the suspension of the privilege $in cases of invasion, insurrection, or
rebellion$ K or, under Art. 6%% of the Constitution, 4imminent danger thereof4 K $,hen the public safety
re#uires it, in any of ,hich events the same may be suspended ,herever during such period the
necessity for such suspension shall e8ist.$ 1ar from being full and plenary, the authority to suspend
the privilege of the ,rit is thus circumscribed, confined and restricted not only by the prescribed
setting or the conditions essential to its e8istence, but also as regards the time ,hen and the place
,here it may be e8ercised. hese factors and the aforementioned setting or conditions mark,
establish and define the e8tent, the confines and the limits of said po,er, beyond ,hich it does not
e8ist. And, like the limitations and restrictions imposed by the 1undamental +a, upon the legislative
department, adherence thereto and compliance there,ith may, ,ithin proper bounds, be in#uired into
by courts of justice. 0ther,ise, the e8plicit constitutional provisions thereon ,ould be meaningless.
-urely, the framers of our Constitution could not have intended to engage in such a ,asteful e8ercise
in futility.4
47
-uch a vie, ,as fortified by the high estate accorded individual freedom as made clear in
the succeeding paragraph of his opinion7 4Much less may the assumption be indulged in ,hen ,e
bear in mind that our political system is essentially democratic and republican in character and that
the suspension of the privilege affects the most fundamental element of that system, namely,
individual freedom. %ndeed, such freedom includes and connotes, as ,ell as demands, the right of
every single member of our citi"enry to freely discuss and dissent from, as ,ell as critici"e and
denounce, the vie,s, the policies and the practices of the government and the party in po,er that he
deems un,ise, improper or inimical to the common,ealth, regardless of ,hether his o,n opinion is
objectively correct or not. he untrammelled enjoyment and e8ercise of such right K ,hich, under
certain conditions, may be a civic duty of the highest order K is vital to the democratic system and
essential to its successful operation and ,holesome gro,th and development.4
48

he ,riter ,rote a concurring and dissenting opinion. >e ,as fully in agreement ,ith the rest of his
brethren as to the lack of conclusiveness attached to the presidential determination. hus7 4he
doctrine announced in 'ontene+ro v. CastaAe!a that such a #uestion is political has thus been laid to
rest. %t is about time too. %t o,ed its e8istence to the compulsion e8erted by "arcelon v. "a-er, a &(9B
decision. his Court ,as partly misled by an undue reliance in the latter case on ,hat is considered
to be authoritative pronouncement from such illustrious American jurists as Marshall, -tory, and
aney. hat is to misread ,hat ,as said by them. his is most evident in the case of Chief .ustice
Marshall, ,hose epochal 'ar#ur v. 'a!ison ,as cited. Ehy that ,as so is difficult to understand.
1or it speaks to the contrary. %t ,as by virtue of this decision that the function of judicial revie, o,es
its origin not,ithstanding the absence of any e8plicit provision in the American Constitution
empo,ering the courts to do so. hus7 $%t is emphatically the province and duty of the judicial
department to say ,hat the la, is. hose ,ho apply the rule to particular cases, must of necessity
e8pound and interpret that rule. %f t,o la,s conflict ,ith each other, the courts must decide on the
operation of each. -o if a la, be in opposition to the constitution: if both the la, and the constitution
apply to a particular case, so that the court must either decide that case conformably to the la,
disregarding the constitution: or conformably to the constitution, disregarding the la,, the court must
determine ,hich of these conflicting rules governs the case. his is of the very essence of judicial
duty. %f, then, the courts are to regard the constitution, and the constitution is superior to any ordinary
act of legislature, the constitution, and not such ordinary act, must govern the case to ,hich they both
apply.4
49

). o refer to +ansang ane,, this Court sustained the presidential proclamation suspending the
privilege of the ,rit of *a#eas corpus as there ,as no sho,ing of arbitrariness in the e8ercise of a
prerogative belonging to the e8ecutive, the judiciary merely acting as a check on the e8ercise of such
authority. -o Chief .ustice Concepcion made clear in this portion of his opinion7 4Article 6%% of the
Constitution vests in the /8ecutive po,er to suspend the privilege of the ,rit of habeas c under
specified conditions. Pursuant to the principle of separation of po,ers underlying our system of
government, the /8ecutive is supreme ,ithin his o,n sphere. >o,ever, the separation of po,ers,
under the Constitution, is not absolute. Ehat is more, it goes hand in hand ,ith the system of checks
and balances, under ,hich the /8ecutive is supreme, as regards the suspension of the privilege, but
only if and ,hen he acts ,ithin the sphere allotted to him by the Basic +a,, and the authority to
determine ,hether or not he has so acted is vested in the .udicial Department, ,hich, in t*is respect,
is, in turn, constitutionally supre(e. %n the e8ercise of such authority, the function of the Court is
merely to check not to supplant K the /8ecutive, or to ascertain (erel )*et*er *e *as +one #eon!
the constitutional limits of his jurisdiction, not to e6ercise t*e po)er veste! in *i( or to determine the
,isdom of his act. o be sure, the po,er of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable ,ith, its po,er over ordinary civil or
criminal cases elevated thereto by ordinary appeal from inferior courts, in ,hich cases the appellate
court has all of the po,ers of the court of origin.4
30
he test then to determine ,hether the
presidential action should be nullified according to the -upreme Court is that of arbitrariness. Absent
such a sho,ing, there is no justification for annulling the presidential proclamation.
0n this point, the ,riter, in a separate opinion, had this to say7 4Eith such presidential determination
of the e8istence of the conditions re#uired by the Constitution to justify a suspension of the privilege
of the ,rit no longer conclusive on the other branches, this Court may thus legitimately in#uire into its
validity. he #uestion before us, it bears repeating, is ,hether or not Proclamation ?o. ))( as it no,
stands, not as it ,as originally issued, is valid. he starting point must be a recognition that the po,er
to suspend the privilege of the ,rit belongs to the /8ecutive, subject to limitations. -o the Constitution
provides, and it is to be respected. he range of permissible in#uiry to be conducted by this ribunal
is necessarily limited then to the ascertainment of ,hether or not such a suspension, in the light of the
credible information furnished the President, ,as arbitrary. -uch a test met ,ith the approval of the
chief counsel for petitioners, -enator .ose E. Diokno. o paraphrase 1rankfurter, the #uestion before
the judiciary is not the correctness but the reasonableness of the action taken. 0ne ,ho is not the
/8ecutive but e#ually kno,ledgeable may entertain a different vie,, but the decision rests ,ith the
occupant of the office. As ,ould be immediately apparent even from a cursory perusal of the data
furnished the President, so impressively summari"ed in the opinion of the Chief .ustice, the
imputation of arbitrariness ,ould be difficult to sustain. Moreover, the steps taken by him to limit the
area ,here the suspension operates as ,ell as his instructions attested to a firm resolve on his part
to keep strictly ,ithin the bounds of his authority. =nder the circumstances, the decision reached by
the Court that no finding of unconstitutionality is ,arranted commends itself for approval. he most
that can be said is that there ,as a manifestation of presidential po,er ,ellCnigh touching the
e8treme borders of his conceded competence, beyond ,hich a forbidden domain lies. he re#uisite
sho,ing of either improvidence or abuse has not been made.4
31

(. he +ansang doctrine for me is decisive on the various issues raised in this case, my discussion
being confined to petitioner !odrigo, as ,ell as others similarly situated, for under my vie, that the
petition in A#uino should be dismissed because charges had been filed, and the petition in Diokno
should be considered ,ithdra,n, there need be no further in#uiry as to the merits of their respective
contentions.
?o,, first as to the validity of the proclamation itself. %t ,ould seem that it is beyond #uestion in the
light of this particular transitory provision in the present Constitution7 4All proclamations, orders,
of the la, of the land, and shall remain valid, legal, binding, and effective even after lifting of martial
la, or the ratification of this Constitution, unless modified, revoked, or superseded by subse#uent
proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless
e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.4
34
%ndependently of
such provision, such presidential proclamation could not be characteri"ed as arbitrary under the
standard set forth in the +ansang decision. >e did act 4on the basis of carefully evaluated and verified
information, G,hichH definitely established that la,less elements ,ho are moved by a common or
similar ideological conviction, design strategy and goal and enjoying the active moral and material
support of a foreign po,er and being guided and directed by intensely devoted, ,ellCtrained,
determined and ruthless groups of men and seeking refuge +inder the protection of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and
banded their resources and forces together for the prime purpose of, and in fact they have been and
are actually staging, undertaking and ,aging an armed insurrection and rebellion against the
3overnment of the !epublic of the Philippines in order to forcibly sei"e political state po,er in the
country overthro, the duly constituted and supplant our e8isting political, social, economic, and legal
order ,ith an entirely ne, one ,hose form of government, ,hose system of la,s, ,hose conception
of 3od and religion, ,hose notion of individual rights and family relations, and ,hose political, social,
economic, legal and moral precepts are based on the Mar8istC+eninistCMaoist teachings and
beliefs: ....4
33

-ubse#uent events did confirm the validity of such appraisal. /ven no,, from the pleadings of the
-olicitor 3eneral, the assumption that the situation has not in certain places radically changed for the
better cannot be stigmati"ed as devoid of factual foundation. As of the present, even on the vie, that
the courts may declare that the crisis conditions have ended and public safety does not re#uire the
continuance of martial la,, there is not enough evidence to ,arrant such a judicial declaration. his is
not to deny that in an appropriate case ,ith the proper parties, and, in the language of .ustice +aurel,
,ith such issue being the very lis (ota, they may be compelled to assume such an a,esome
responsibility. A sense of realism as ,ell as sound 5uristic theory ,ould place such delicate task on
the shoulders of this ribunal, the only constitutional court. -o % ,ould read >utter v. Este#an.
35

here, ,hile the Moratorium Act
35
,as at first assumed to be valid, ,ith this Court in such suit being
persuaded that its 4continued operation and enforcement4 under circumstances that developed later,
became 4unreasonable and oppressive,4 and should not be prolonged a minute longer, ... Git ,asH
4declared null and void and ,ithout effect.4
3:
%t goes ,ithout saying that before it should take such a
step, e8treme care should be taken lest the maintenance of public peace and order, the primary duty
of the /8ecutive, be attended ,ith e8treme difficult . %t is like,ise essential that the evidence of public
safety no longer re#uiring martial la, be of the clearest and most satisfactory character. %t cannot be
too strongly stressed that ,hile liberty is a prime objective and the judiciary is charged ,ith the duty of
safeguarding it, on a matter of such gravity during periods of emergency, the e8ecutive appraisal of
the situation is deserving of the utmost credence. %t suffices to recall the stress laid by Chief .ustice
Concepcion in +ansang that its function 4is merely to c*ec- K not to supplant4 the latter. he
allocation of authority in the Constitution made by the people themselves to the three departments of
government must be respected. here is to be no intrusion by any one into the sphere that belongs to
another. Precisely because of such fundamental postulate in those cases, and there may be such,
but perhaps rather rare, it could amount to judicial abdication if no in#uiry ,ere deemed permissible
and the #uestion considered political.
he last point is, ,hile the detention of petitioners could have been validly ordered, as dictated by the
very proclamation itself, if it continued for an unreasonable length of time, then his release may be
sought in a *a#eas corpus proceeding. his contention is not devoid of plausibility. /ven in times of
stress, it cannot just be assumed that the indefinite restraint of certain individuals as a preventive
measure is unavoidable. %t is not to be denied that ,here such a state of affairs could be traced to the
,ishes of the President himself, it carries ,ith it the presumption of validity. he test is again
arbitrariness as defined in +ansang. %t may happen that the continued confinement may be at the
instance merely of a military official, in ,hich case there is more lee,ay for judicial scrutiny.
&9. A ,ord more on the ,ithdra,al of a *a#eas corpus petition. 0n the basic assumption that
precisely the great ,rit of liberty is available to a person subjected to restraint so that he could
challenge its validity, % find it difficult not to yield assent to a plea by the applicant himself that he is no
longer desirous or pursuing such remedy. >e had a choice of ,hether or not to go to court. >e ,as
free to act either ,ay. he fact that at first he did so, but that later he ,as of a different mind, does
not, in my opinion, alter the situation. he matter, for me, is still one left to his free and unfettered ,ill.
he conclusion then for me at least, is that a court must accede to his ,ishes. %t could like,ise be
based on his belief that the realities of the situation compel the conclusion that relief could come from
the /8ecutive. hat decision ,as his to make. %t must be respected. Moreover, if only because of
humanitarian considerations, considering the illCeffects of confinement on his state of health, there is
e#ually legal support for the vie, that his conditional release as in the case of the other detainees
,ould not be inappropriate.
%f his motion for ,ithdra,al contained phraseology that is offensive to the dignity of the court, then
perhaps the corresponding disciplinary action may be taken. 1or that purpose, and for that purpose
alone, the petition may be considered as still ,ithin judicial cogni"ance. %t is true in certain cases that
the issues raised may be so transcendental that there is ,isdom in continuing the proceeding. he
,ithdra,al, even then, for me, is not fraught ,ith pernicious conse#uences. %f the matter ,ere that
significant or important, the probability is that the #uestion ,ill soon be ventilated in another petition.
here is, to deal briefly ,ith another point, the matter of the rather harsh and bitter language in ,hich
the motion for ,ithdra,al ,as couched. hat is a matter of taste. /ven if it ,ent beyond the bounds of
the permissible, the ,ithdra,al should be granted. his for me is the principle that should obtain. he
rather uncharitable vie, e8pressed concerning the ability of certain members of the Court to act justly
on the matter should not give rise, in my opinion, to undue concern. hat is one$s belief, and one is
entitled to it. %t does not follo, that thereby the person thus unjustifiably maligned should suffer any
loss of selfCesteem. After all, it is a truism to say that a man on the bench is accountable only to his
conscience and, in the ultimate analysis, to his Maker. here is all the more reason then not to be
unduly bothered by the remarks in #uestion. Moreover, they emanated from a source suffering from
the pangs of desperation born of his continued detention. %t could very ,ell be that the disappointment
of e8pectations and frustration of hopes did lead to such an intemperate outburst. here is, for meat
least, relevance to this e8cerpt from an opinion by .ustice 1rankfurter7 4-ince courts, although
representing the la,, ... are also sitting in judgment, as it ,ere, on their o,n function in e8ercising
their po,er to punish for contempt, it should be used only in flagrant cases and ,ith the utmost
forbearance. %t is al,ays better to err on the side of tolerance and even of disdainful indifference.4
37

&&. here is novelty in the #uestion raised by petitioner !odrigo. ?or is that the only reason ,hy it
matters. %t is fraught ,ith significance not only for him but also for #uite a number of others in a like
predicament. hey belong to a group released from confinement. hey are no longer detained.
0rdinarily that should suffice to preclude resort to the remedy of *a#eas corpus. 0ffhand, it may be
plausibly asserted that the need no longer e8ists. he prison ,all, to paraphrase Chafee is no longer
there: it has on function in e8ercising their po,er to punish for contempt, it should be used only in
flagrant cases and ,ith the utmost forbearance. %t is al,ays better to err on the side of tolerance and
even of disdainful indifference.4
37

there: it has fallen do,n. Ehat is there to penetrateI hat is just the point, petitioner !odrigo
complains. hat is not really true, or only true partially. here are physical as ,ell as intellectual
restraints on his freedom. >is release is conditional. here are things he cannot say places he cannot
go. hat is not liberty in a meaningful sense. his great ,rit then has not lost its significance for him,
as ,ell as for others similarly situated. he ,ay he developed his argument calls to mind Cardo"o$s
,arning that in a ,orld of reality, a juridical concept may not al,ays be pressed to the limit of its logic.
here are countervailing considerations. he fact that he ,as among those ,hose detention ,as
ordered by the President is one of them. here ,as then an e8ecutive determination on the highest
level that the state of affairs marked by rebellious activities did call for certain individuals being
confined as a preventive measure. =nless there is a sho,ing of the arbitrariness of such a move, the
judiciary has to respect the actuation. %t must be assumed that ,hat ,as to be done ,ith them
thereafter must have been given some attention. At one e8treme, their preventive detention could be
terminated and their full freedom restored. At the other, it could be continued if circumstances did so
,arrant. >ere, there ,as a middle ,ay chosen. Petitioner !odrigo as ,ell as several others ,ere
released subject to conditions. %t cannot be dogmatically maintained that such a solution ,as an
affront to reason. ?ot only for the person locked up, but perhaps even more so for his family, the end
of the incarceration ,as an eagerly a,aited and highly ,elcome event. hat is #uite understandable.
%t did justify petitioner$s assertion that in so agreeing to the conditions imposed, he ,as not acting of
his o,n free ,ill. !ealistically, be had no choice or one minimal at most. ?onetheless, it cannot be
denied that he ,as a recipient of ,hat at the very least ,as a clear manifestation of the Philippine
brand of martial la, being impressed ,ith a mild character.
his being a *a#eas corpus petition, the appropriate #uestion for judicial in#uiry is the validity of the
limits set to the conditional release of petitioner !odrigo. he guiding principle is supplied by this
ringing affirmation of .ustice Malcolm7 4Any restraint ,hich ,ill preclude freedom of action is
sufficient.4
38
he implication for me is that there may be instances of the propriety of the invocation of
the ,rit even ,ithout actual incarceration. his is one of them. %t is heartening that the Court so vie,
it. %t is, to my mind, regrettable though that there appears to be full acceptance of the po,er of the
military to impose restrictions on petitioner !odrigo$s physical liberty. here is need, it ,ould seem to
me, for a more discriminating appraisal, especially ,here it could be sho,n that the order to that
effect proceeds from a source lo,er than the President. he e8tremely high respect justifiably
accorded to the action taken by the highest official of the land, ,ho by himself is a separate and
independent department, not to mention the one constitutional official authori"ed to proclaim martial
la,, is not indicated. here should be, of course, no casual or unreasoned disregard for ,hat the
military may deem to be the appropriate measure under the circumstances. his reflection, though,
gives me pause. Petitioner !odrigo and others similarly situated ,ere released. hat step ,ould not
have been taken if circumstances did not justify it. %t seems then reasonable to assume that full,
rather than restricted, freedom ,as ,arranted. he matter may be put forth more categorically, but %
refrain from doing so. he reason is practical. o insist that it should be thus may curb ,hat appears
to be the commendable tendency to put an end to the preventive detention of those in actual
confinement. As for restraints on intellectual liberty embraced in freedom of speech and of press, of
assembly, and of association, deference to controlling authorities compel me to say that the ,rit of
*a#eas corpus is not the proper case for assailing them. %t does not mean that judicial in#uiry is
foreclosed. 1ar from it. All that is intended to be conveyed is that this remedy does not lend itself to
that purpose. %n so advocating this approach, % am not unmindful that it might be looked upon as lack
of a,areness for the mischief that may be caused by irresponsible elements, not to say the rebels
themselves. he ,ords of Eilloughby, ,hose vie, on martial la, is the most sympathetic to the
primacy of liberty, furnish the antidote7 4As long as the emergency lasts then, they must upon pain of
arrest and subse#uent punishment refrain from committing acts that ,ill render more difficult the
restoration of a state of normalcy and the enforcement of la,.
39

&*. !eliance, as is #uite evident from the foregoing, is ,ellnigh solely placed on Philippine authorities.
Ehile the persuasive character of American Constitutional la, doctrines is not entirely a thing of the
past, still, the novelty of the #uestion before us, compels in my vie, deference to the trend indicated
by our past decisions, read in the light not only of specific holdings but also of the broader principles
on ,hich they are based. /ven if they do not precisely control, they do furnish a guide. Moreover,
there seems to be a dearth of =nited -tates -upreme Court pronouncements on the subject of
martial la,, due no doubt to absence in the American Constitution of any provision concerning it. %t is
understandable ,hy no reference ,as made to such subject in the earliest classic on American
constitutional la, ,ritten by .ustice -tory.
50
Ehen the landmark &)22 Milligan case
51
made its
appearance, and much more so after -terling
54
follo,ed in &(A* and Duncan
53
in &(J2, a discussion
thereof became unavoidable. -o it is evident from subse#uent commentaries and case books.
55

Cooley though, in his e#ually famous ,ork that ,as first published in &)2) contented himself ,ith
footnote references to Milligan.
55
Eatson vie,ed it in connection ,ith the suspension of the privilege
of the ,rit of *a#eas corpus.
5:
%n the nineteen t,enties, there ,as a fuller treatment of the #uestion of
martial la,. Burdick anticipated Eilloughby ,ith this appraisal7 4-oCcalled martial la,, e8cept in
occupied territory of an enemy, is merely the calling in of the aid of military forces by the e8ecutive,
,ho is charged ,ith the enforcement of the la,, ,ith or ,ithout special authori"ation by the
enforce the la, is simply part of the police po,er. %t is only justified ,hen it reasonably appears
necessary, and only justifies such acts as reasonably appear necessary to meet the e8igency,
including the arrest, or in e8treme cases the killing of those ,ho create the disorder or oppose the
liable for acts done beyond the scope of reasonable necessity. Ehen honestly and reasonably coping
riot, be free by ,rit of *a#eas corpus.
57

Eilloughby, as already noted, ,as partial to the claims of liberty. his is #uite evident in this e8cerpt
in his opus7 4here is, then, strictly speaking, no such thing in American la, as a declaration of
martial la, ,hereby military la, is substituted for civil la,. -oCcalled declarations of martial la, are,
indeed, often made but their legal effect goes no further than to ,arn citi"ens that the military po,ers
have been called upon by the e8ecutive to assist him in the maintenance of la, and order, and that,
,hile the emergency lasts, they must, upon pain of arrest and punishment not commit any acts ,hich
,ill in any ,ay render more difficult the restoration of order and the enforcement of la,. -ome of the
authorities stating substantially this doctrine are #uoted in the footnote belo,.4
58
Eillis spoke similarly7
4Martial la, proper, that is, military la, in case of insurrection, riots, and invasions, is not a substitute
for the civil la,, but is rather an aid to the e8ecution of civil la,. Declarations of martial la, go no
further than to ,arn citi"ens that the e8ecutive has called upon the military po,er to assist him in the
maintenance of la, and order. Ehile martial la, is in force, no ne, po,ers are given to the e8ecutive
and no civil rights of the individual, other than the ,rit of *a#eas corpus, are suspended. he relations
bet,een the citi"en and his state are unchanged.4
59

%t is readily evident that even ,hen Milligan supplied the only authoritative doctrine, Burdick and
Eilloughby did not ignore the primacy of civil liberties. Eillis ,rote after -terling. %t ,ould indeed be
surprising if his opinion ,ere other,ise. After Duncan, such an approach becomes even more
strongly fortified. -ch,art", ,hose treatise is the latest to be published, has this summary of ,hat he
considers the present state of American la,7 4he 'illi+an and .uncan cases sho, plainly that
martial la, is the public la, of necessity. ?ecessity alone calls it forth: necessity justifies its e8ercise:
and necessity measures the e8tent and degree to ,hich it may be employed. %t is, the high Court has
are concerned, may never be pushed beyond ,hat the e8igency re#uires. %f martial rule survives the
necessity on ,hich alone it rests, for even a single minute, it becomes a mere e8ercise of la,less
violence.4
50
1urther7 4Sterlin+ v. Constantin is of basic importance. Before it, a number of decisions,
including one by the highest Court, ,ent on the theory that the e8ecutive had a free hand in taking
martialCla, measures. =nder them, it had been ,idely supposed that a martialCla, proclamation ,as
so far conclusive that any action taken under it ,as immune from judicial scrutiny. Sterlin+ v.
Constantin, definitely discredits these earlier decisions and the doctrine of conclusiveness derived
from them. =nder Sterlin+ v. Constantin, ,here martial la, measures impinge upon personal or
property rights K normally beyond the scope of military po,er, ,hose intervention is la,ful only
because an abnormal situation has made it necessary K the e8ecutive$s ipse di8it is not of itself
conclusive of the necessity.4
51

%t is not to be lost sight of that the basis for the declaration of martial la, in the Philippines is not mere
necessity but an e8plicit constitutional provision. 0n the other hand, Milligan, ,hich furnished the
foundation for -terling
54
and Duncan
53
had its roots in the /nglish common la,. here is pertinence
therefore in ascertaining its significance under that system. According to the noted /nglish author,
Dicey7 4 $Martial la,,$ in the proper sense of that term, in ,hich it means the suspension of ordinary
la, and the temporary government of a country or parts of it by military tribunals, is unkno,n to the
la, of /ngland. Ee have nothing e#uivalent to ,hat is called in 1rance the $Declaration of the -tate of
-iege,$ under ,hich the authority ordinarily vested in the civil po,er for the maintenance of order and
police passes entirely to the army ;autorite militaire<. his is an unmistakable proof of the permanent
supremacy of the la, under our constitution.4
55
here ,as this #ualification7 4Martial la, is sometimes
employed as a name for the common la, right of the Cro,n and its servants to repel force by force in
the case of invasion, insurrection, riot, or generally of any violent resistance to the la,. his right, or
po,er, is essential to the very e8istence of orderly government, and is most assuredly recogni"ed in
the most ample manner by the la, of /ngland. %t is a po,er ,hich has in itself no special connection
,ith the e8istence of an armed force. he Cro,n has the right to put do,n breaches of the peace.
/very subject, ,hether a civilian or a soldier, ,hether ,hat is called a $servant of the government,$
such for e8ample as a policeman, or a person in no ,ay connected ,ith the administration, not only
has the right, but is, as a matter of legal duty, bound to assist in putting do,n breaches of the peace.
?o doubt policemen or soldiers are the persons ,ho, 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.4
55

he picture ,ould be incomplete, of course, if no reference ,ere made to !ossiter. %n his ,ork on
Constitutional Dictatorship, ,here he discussed crisis governments in the 1rench !epublic, in 3reat
Britain and in the =nited -tate he spoke of martial rule. 1or him, it 4is an emergency device designed
for use in the crises of invasion or rebellion. %t may be most precisely defined as an e8tension of
military government to the civilian population, the substitution of the ,ill of a military commander for
the ,ill of the people$s elected government. %n the event of an actual or imminent invasion b a hostile
po,er, a constitutional government may declare martial rule in the menaced area. he result is the
transfer of all effective po,ers of government from the civil authorities to the military, or often merely
the assumption of such po,ers by the latter ,hen the regular government has ceased to function. %n
the event of a rebellion its initiation amounts to a governmental declaration of ,ar on those citi"ens in
insurrection against the state. %n either case it means military dictatorship K government by the army,
courtsCmartial, suspension of civil liberties, and the ,hole range of dictatorial action of an e8ecutive
nature. %n the modern democracies the military e8ercises such dictatorship ,hile remaining
subordinate and responsible to the e8ecutive head of the civil government. Martial rule has a variety
of forms and pseudonyms, the most important of ,hich are (artial la), as it is kno,n in the civil la,
countries of the British /mpire and the =nited -tates, and the state o, sie+e, as it is kno,n in the civil
la, countries of continental /urope and +atin America. he state of siege and martial la, are t,o
edges to the same s,ord, and in action they can hardly be distinguished. he institution of martial
rule is a recognition that there are times in the lives of all communities ,hen crisis has so completely
disrupted the normal ,orkings of government that the military is the only po,er remaining that can
restore public order and secure the e8ecution of the la,s.
5:

>appily for the Philippines, the declaration of martial la, lends itself to the interpretation that the
relevance. %t cannot be said that the martial rule concept of !ossiter, latitudinarian in scope, has been
on the Constitution and that the validity of acts taken thereunder could be passed upon by the
-upreme Court. 1or me, that is #uite reassuring, persuaded as % am like,ise that the vie, of !ossiter
is opposed to the fundamental concept of our polity, ,hich puts a premium on freedom. ?o undue
concern need then be felt as to the continuing reliance on 'oer v. Pea#o!,
57
,here .ustice >olmes
speaking for the Court, stated that the test of the validity of e8ecutive arrest is that they be made 4in
good faith and in the honest belief that they are needed in order to head the insurrection off ...4
58
>e
did state like,ise7 4Ehen it comes to a decision by the head of the state upon a matter involving its
life, the ordinary rights of individuals must yield to ,hat he deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. -ee Geel v.
San!ers, (( =- JJ&, JJ2, *B + ed. A*', A*), his ,as admitted ,ith regard to killing men in the
actual clash of arms and ,e think it obvious, although it ,as disputed, that the same is true of
temporary detention to prevent apprehended harm.4
59
?or ,as this to manifest less than full regard
for civil liberties. >is other opinions indicated the contrary. More specifically, it ,as from his pen, in
C*astleton Corporation v. Sinclair,
:0
,here the doctrine that the judiciary may in#uire into ,hether the
emergency ,as at an end, ,as given e8pression. hus7 4Ee repeat ,hat ,as stated in "loc- v.
Cirs*, ..., as to the respect due to a declaration of this kind by the legislature so far as it relates to
present facts. But, even as to them, a court is not a liberty to shut its eyes to an obvious mistake,
,hen the validity of the la, depends upon the truth of ,hat is declared. ... And still more obviously, so
far as this declaration looks to the future, it can be no more than prophecy, and is liable to be
controlled by events. A la, depending upon the e8istence of an emergency or other certain state of
facts to uphold it may cease to operate if the emergency ceases or the facts change, even though
valid ,hen passed.4
:1

&A. %t may safely be concluded therefore that the role of American courts concerning the legality of
acts taken during a period of martial la, is far from minimal. Ehy it must he so ,as e8plained by
Dean !osto, in this ,ise7 4=nless the courts re#uire a sho,ing, in cases like these, of an intelligible
relationship bet,een means and ends, society has lost its basic protection against the abuse of
military po,er. he general$s good intention must be irrelevant. here should be evidence in court
that his military judgment had a suitable basis in fact. As Colonel 1airman, a strong proponent of
,idened military discretion, points out7 $Ehen the e8ecutive fails or is unable to satisfy the court of the
evident necessity for the e8traordinary measures it has taken, it can hardly e8pect the court to
assume it on faith.4
:4
his is the ,ay +ass,ell ,ould summari"e the matter7 40n the ,hole, ,e can
conclude that the courts of this country have a body of ancient principles and recent precedents that
can be used to keep at a minimum unnecessary encroachments upon private rights by the e8ecutive,
civil or military. he vigor and sensitiveness ,ith ,hich the due process clause has been affirmed in
the last t,o decades is, in particular, an important development.4
:3

&J. %t may be that the approach follo,ed may for some be indicative of lack of full a,areness of
today$s stern realities. %t is my submission that to so vie, the transcendental issues before us is to
adhere as closely as possible to the ideal envisioned in /8 parte Milligan7 4he Constitution is a la,
for rulers and for people e#ually in ,ar and peace and covers ,ith the shield of its protection all
classes of men at all times and under all circumstances.4
:5
%t is ever timely to reiterate that at the core
of constitutionalism is a robust concern for individual rights. his is not to deny that the judicial
process does not take place in a social void. he #uestions that call for decision are to be e8amined
in the total social conte8t ,ith full appreciation of the environmental facts, ,hether vie,ed in its
temporal or other relevant aspects. hey have to reconcile timeCtested principles to contemporary
problems. +egal norms cannot al,ays stand up against the pressure of events. he great
un#uestioned verities may thus prove to be less than ade#uate. -o much is conceded. ?onetheless,
even ,ith the additional difficulty that the Court today is compelled to enter terrain ,ith boundaries not
so clearly defined, carrying ,ith it the risk of e8ceeding the normal limits of judicial imprecision, % find
myself unable to resist the compulsion of constitutional history and traditional doctrines. he facts and
issues of the petitions before us and the mandates of the fundamental la,, as % vie, them in the light
of accepted concepts, blunt the edge of ,hat other,ise could be considerations of decisive impact. %
find myself troubled by the thought that, ,ere it other,ise, it ,ould amount to free"ing the flu8 of the
turbulent present ,ith its grave and critical problems in the icy permanence of juristic doctrines. As of
no,, such an uncomfortable thought intrudes. >ence this brief concurring and dissenting opinion.
Q he other petitioners are .oa#uin P. !oces, eodoro M. +ocsin, !olando 1adul, !osalina 3alang,
3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !. Mauricio, ?apoleon 3. !ama, .ose
Mari 6ele", !amon 6. Mitra, .uan +. Mercado, !oberto 0rdoLe", Manuel Almario, and /rnesto
!ondon.

TEE#AN6EE, J.:
Pre,ator state(ent7 his separate opinion ,as prepared and scheduled to be promulgated ,ith the
judgment of the Court ;penned by the Chief .ustice< on -eptember &*, &('J. -uch promulgation ,as
ho,ever overtaken by the ,elcome ne,s of the release from detention on -eptember &&, &('J of
petitioner .ose E. Diokno upon the order of President 1erdinand /. Marcos, and the Court then
resolved to defer promulgation until the follo,ing ,eek. >ence, Part % of this opinion dealing ,ith the
Diokno petition should be read in such time conte8t.
he t,o other parts thereof dealing ,ith the A#uino and !odrigo cases are to be read as of the actual
date of promulgation, since they reiterate a main theme of the opinion that the Court should adhere to
the ,ellCgrounded principle of not ruling on constitutional issues e8cept ,hen necessary in an
appropriate case. %n the ,riter$s vie,, the gratifying development in the Diokno case ,hich rendered
his petition moot by virtue of his release once more demonstrates the validity of this principle.
%. On t*e .io-no petition7 % vote for the granting of petitioner .ose E. Diokno$s motion of December
*(, &('A to ,ithdra, the petition for *a#eas corpus filed on -eptember *A, &('* on his behalf and
the supplemental petition and motions for immediate release and for oral argument of .une *(, &('A
and August &J, &('A filed in support thereof, as prayed for.
&. he present action is one of *a#eas corpus and the detainee$s o,n ,ithdra,al of his petition is
decisive. %f the detainee himself ,ithdra,s his petition and no longer ,ishes this Court to pass upon
the legality of his detention and cites the other pending *a#eas corpus cases ,hich have not been
,ithdra,n and ,herein the Court can rule on the constitutional issues if so minded,
1
such ,ithdra,al
of a *a#eas corpus petition should be granted practically as a matter of absolute right ;,hatever be
the motivations therefor< in the same manner that the ,ithdra,al motions of the petitioners in the
otherC cases ,ere previously granted by the Court.
4

-ince there ,ere seven ;'< members of the Court ,ho voted for granting the ,ithdra,al motion as
against five ;B< members ,ho voted for denying the same and rendering a decision,
3
submit that this
majority of seven ;'< out of the Court$s membership of t,elve ;&*< is a sufficient majority for granting
the )it*!ra)al prayed for. A simple majority of seven is legally sufficient for the granting of a
,ithdra,al of a petition, since it does not involve the rendition of a !ecision, on the merits. %t is only
,here a decision is to be rendered on the merits by the Court en #anc that the &('A Constitution
re#uires the concurrence of at least eight ;)< members.
5

% therefore dissent from the majority$s adhering to the fiveCmember minority vie, that the majority of
seven members is not legally sufficient for granting ,ithdra,al and that a decision on the merits be
rendered not,ithstanding the ,ithdra,al of the petition.
*. he granting of the ,ithdra,al of the petition is but in consonance ,ith the fundamental principle
on the e8ercise of judicial po,er ,hich, in the ,ords of the -olicitorC3eneral, 4as .ustice +aurel
emphasi"ed, is justifiable only as a necessity for the resolution of an actual case and controversy and
therefore should be confined to the very lis mota presented.4
5

-uch ,ithdra,al is furthermore in accord ,ith the respondents$ stand from the beginning urging the
Court not to take cogni"ance ;for ,ant of jurisdiction or as a matter of judicial restraint citing Brandeis$
injunction that 4he most important thing ,e decide is ,hat not to decide4
:
< or that 4at the very least,
this Court should postpone consideration of this case until the present emergency is over.4
7

Many of the other petitioners in the *a#eas corpus cases at bar ,ere granted leave to ,ithdra, their
petitions. Petitioner Diokno$s ,ithdra,al motion should like,ise be granted in line ,ith the ,ellC
established doctrine that the Court ,ill not rule on constitutional issues e8cept ,hen necessary in an
appropriate case.
A. But the -olicitorC3eneral no, objects to the ,ithdra,al on the ground of public interest and that
4this ribunal ... has been used as the open forum for underground propaganda by those ,ho have
political a8es to grind4 ,ith the circulation of the ,ithdra,al motion and that this Court ,ould be
4putting the seal of approval4 and in effect admit the 4unfair, untrue and contemptuous4 statements
made in the ,ithdra,al motion should this Court grant the ,ithdra,al.
8
% see no point in the position
taken by the -olicitorC3eneral of urging the Court to deny the ,ithdra,al motion only to render a
decision that ,ould after all dismiss the petition and sustain respondents$ defense of political ;uestion
and have the Court declare itself )it*out 5uris!iction to adjudicate the constitutional issues presented
9
and asking the Court to embrace the 4pragmatic method4 of Eilliam .ames ,hich 4rejects ... the a
priori assumption that there are immutable principles of justice. %t tests a proposition by its practical
conse#uences.4
10
he objections are untenable.
he public interest objection is met by the fact that there are still pending. other cases ;principally the
prohibition case of petitioner Benigno -. A#uino, .r. in another case, +CA'A2J #uestioning the filing of
grave charges under the AntiC-ubversion Act, etc. against him ,ith a military commission
11
and ,hich
is not yet submitted for decision< ,here the same constitutional issues may be resolved.
he other objections are tenuous7 he -olicitorC3eneral refutes his o,n objections in his closing
statement in his comment that 4for their part, respondents are confident that in the end they ,ould be
upheld in their defense, as indeed petitioner and counsel have practically con,esse! 5u!+(ent in this
case.4
14

he propaganda objection is not a valid ground for denying the ,ithdra,al of the petition and should
not be held against petitioner ,ho had nothing ,hatsoever to do ,ith it. he objection that granting
the ,ithdra,al motion ,ould amount to an admission of the 4unfair, untrue and contemptuous
statements4 made therein is untenable since it is patent that granting the ,ithdra,al motion per se
;regardless of petitioner$s reasons< does not amount to an admission of the truth or validity of such
reasons and as conceded by the -olicitorC3eneral, neither ,ill denying the ,ithdra,al motion per se
disprove the reasons.
13
he untruth, unfairness or costumacy of such reasons may best be dealt ,ith,
clarified or e8pounded by the Court and its members in the Court$s resolution granting ,ithdra,al or
in the separate opinions of the individual .ustices ;as has actually been done and ,hich the ,riter ,ill
no, proceed to do<.
J. Petitioner$s first reason for ,ithdra,al is subjective. After mentioning various factors, particularly,
the fact that five of the si8 .ustices ;including the ,riter< ,ho held in the !atification cases
15
that the
&('A Constitution had not been validly ratified had taken on 0ctober *(, &('A an oath to import and
defend the ne, Constitution, he e8presses his feeling that 4;%< cannot reasonably e8pect either right
or reason, la, or justice, to prevail in my case,4 that 4the unusual length of the struggle also indicates
that its conscience is losing the battle4 and that 4since % do not ,ish to be Va party to an % adverse
decision, % must renounce every possibility of favorable judgment.4
15
A party$s subjective evaluation of
the Court$s action is actually of no moment, for it has al,ays been recogni"ed that this Court,
possessed of neither the s,ord nor the purse, must ultimately and objectively rest its authority on
sustained public confidence in the truth, justice, integrity and moral force of its judgments.4
1:

Petitioner$s second reason for ,ithdra,al reads7 4;-<econd, in vie, of the ne, oath that its members
have taken, the present -upreme Court is a ne, Court functioning under a ne, $Constitution,$
different from the Court and the Constitution under ,hich % applied for my release. % ,as ,illing to be
judged by the old Court under the old Constitution, but not by the ne, Court under the ne,
Constitution, ....4
17

Petitioner is in error in his assumption that this Court is 4ne, Court functioning under a ne,
Constitution different from the Court and the Constitution under ,hich GheH applied for GhisH release.4
he same -upreme Court has continued save that it no, operates under Article D of the &('A
Constitution ,hich inter alia increased its component membership from eleven to fifteen and
transferred to it administrative supervision over all courts and personnel thereof ,ith the po,er of
discipline and dismissal over judges of inferior courts, in the same manner that the same !epublic of
the Philippines ;of ,hich the -upreme Court is but a part< has continued in e8istence but no,
operates under the &('A Constitution.
18

During the period of ninety days that the !atification cases ,ere pending before the Court until its
dismissal of the cases per its resolution of March A&, &('A became final on April &', &('A, the
/8ecutive Department ,as operating under the &('A Constitution in accordance ,ith President
1erdinand /. Marcos$ Proclamation ?o. &&9* on .anuary &', &('A announcing the ratification and
corning into effect of the &('A Constitution ,hile this Court as the only other governmental
department continued to operate tinder the &(AB Constitution pending its final resolution on the said
cases challenging the validity of Proclamation ?o. &&9* and enforcement of the ne, Constitution. ;As
per the Court resolution of .anuary *A, &('A, it declined to take over from the Department of .ustice
the administrative supervision over all inferior courts e8pressing its sense that 4it is best that the
status ;uo be maintained until the case aforementioned ;.avellana vs. /8ec. -ecretary< shall have
been finally resolved...4<
-uch a situation could not long endure ,herein the only t,o great departments of government, the
/8ecutive and the .udicial,
19
for a period of three months ,ere operating under t,o different
Constitutions ;presidential and parliamentary<. Ehen this Court$s resolution of dismissal of the
!atification cases by a majority of si8 to four .ustices became final and ,as entered on April &), &('A
4,ith the result that there ;,ere< not enough votes to declare that the ne, Constitution is not in force,4
40
the Court and particularly the remaining three dissenting .ustices ;not,ithstanding their vote ,ith
three others that the ne, Constitution had not been validly ratified
41
had to abide under the !ule of
+a, by the decision of the majority dismissing the cases brought to enjoin the enforcement by the
/8ecutive of the ne, Constitution and had to operate under it as the fundamental charter of the
government, unless they ,ere to turn from legitimate dissent to internecine dissidence for ,hich they
have neither the inclination nor the capability.
he Court as the head of the .udicial Department thenceforth assumed the po,er of administrative
supervision over all courts and all other functions and liabilities imposed on it under the ne,
Constitution. Accordingly, this and all other e8isting inferior courts continue to discharge their judicial
function and to hear and determine all pending cases under the old ;&(AB<Constitution
44
as ,ell as
ne, cases under the ne, ;&('A< Constitution ,ith the full support of the members of the %ntegrated
Bar of the Philippines ;none of ,hom has made petitioner$s claim that this is a 4ne, Court4 different
from the 4old Court4<.
A major liability imposed upon all members of the Court and all other officials and employees ,as that
under Article D6%%, section ( of the ransitory Provisions
43
,hich ,as destructive of their tenure and
called upon them 4to vacate their respective offices upon the appointment and #ualification of their
successors.4 heir taking the oath on 0ctober *(, &('A 4to preserve and defend the ne,
Constitution4 by virtue of their 4having been continued in office4
45
on the occasion of the oathCtaking of
three ne, members of the Court
45
pursuant to Article D6, section J
4:
,as meant to assure their
4continuity of tenure4 by ,ay of the President having e8ercised the po,er of replacement under the
cited provision and in effect replaced them ,ith themselves as members of the Court ,ith the same
order of seniority.
47

B. he ,ithdra,al in effect gives cause for judicial abstention and further opportunity ;pending
submittal for decision of the A#uino prohibition case in +CA'A2J< to ponder and deliberate upon the
host of grave and fundamental constitutional #uestions involved ,hich have thereby been rendered
unnecessary to resolve here and no,.
%n the benchmark case of 0ansan+ vs. Garcia
48
,hen the Court declared that the President did not
act arbitrarily in issuing in August, &('& Proclamation ?o. ))(, as amended, suspending the privilege
of the ,rit of *a#eas corpus for persons detained for the crimes of insurrection or rebellion and other
overt acts committed by them in furtherance thereof, the Court held through then Chief .ustice
Concepcion that 4our ne8t step ,ould have been the follo,ing7 he Court, or a commissioner
designated by it, ,ould have received evidence on ,hether K as stated in respondents$ $Ans,er and
!eturn$ K said petitioners had been apprehended and detained $on reasonable belief$ that they had
$participated in the crime of insurrection or rebellion.$
;>o,ever, since in the interval of t,o months during the pendency of the case, criminal complaints
had been filed in court against the petitionersCdetainees ;+u"vimindo David, 3ary 0livar, et al.<, the
Court found that 4it is best to let said preliminary e8amination andFor investigation be completed, so
that petitioners$ release could be ordered by the court of first instance, should it find that there is no
probable cause against them, or a ,arrant for their arrest could be issued should a probable cause
be established against them .4
49
he Court accordingly ordered the trial court 4to act ,ith utmost
dispatch4 in conducting the preliminary investigation for violation of the AntiC-ubversion Act and 4to
issue the corresponding ,arrants of arrest, if probable cause is found to e8ist against them, or
other,ise, to order their release.4<
Can such a procedure for reception of evidence on the controverted allegations concerning the
detention as indicated in 0ansan+ be like,ise applied to petitioner$s case considering his prolonged
detention for almost t,o years no, ,ithout chargesI
30
%t should also be considered that it is
conceded that even though the privilege of the ,rit of *a#eas corpus has been suspended, it is
suspended only as to certain specific crimes and the 4ans,er and return4 of the respondents ,ho
hold the petitioner under detention is not conclusive upon the courts ,hich may receive evidence and
determine as held in 0ansan+ ;and as also provided in the AntiC-ubversion Act G!epublic Act &'99H<
,hether a petitioner has been in ,act apprehended and detained arbitrarily or 4on reasonable belief4
that he has 4participated in the crime of insurrection or rebellion4 or other related offenses as may be
enumerated in the proclamation suspending the privilege of the ,rit.
Pertinent to this #uestion is the Court$s adoption in 0ansan+ of the doctrine of Sterlin+ vs. Constantin
31
enunciated through =.-. Chief .ustice >ughes that even ,hen the state has been placed under
martial la, 4... ;E<hen there is a su#stantial s*o)in+ t*at t*e e6ertion o, state po)er *as overri!!en
private ri+*ts secured by that Constitution, the subject is necessaril one ,or 5u!icial in;uir in an
appropriate proceeding directed against the individuals charged ,ith the transgression. o such a
case the 1ederal judicial po,er e8tends ;Art. A, sec. *< and, so e8tending, t*e court *as all t*e
aut*orit appropriate to its e6ercise. ...
/#ually pertinent is the Court$s statement therein announcing the members$ unanimous conviction
that 4it has the authority to in#uire into the e8istence of said factual bases Gstated in the proclamation
suspending the privilege of the ,rit of *a#eas corpus or placing the country under martial la, as the
case may be, since the re#uirements for the e8ercise of these po,ers are the same and are provided
in the very same clauseH in order to determine the constitutional sufficiency thereof.4
34
he Court
stressed therein that 4indeed, the grant of po,er to suspend the privilege is neither absolute nor
un#ualified. he authority conferred upon by the Constitution, both under the Bill of !ights and under
the /8ecutive Department, is limited and conditional. he precept in the Bill of !ights establishes a
general rule, as ,ell as an e8ception thereto. ,hat is more, it postulates the former in the ne+ative,
evidently to stress its importance, by providing that $;t<he privilege of the ,rit of *a#eas corpus shall
not be suspended ....$ %t is only by ,ay of e6ception that it permits the suspension of the privilege $in
cases of invasion, insurrection, or rebellion$ K or under Art. 6%% of the Constitution, $imminent danger
thereof$ K $,hen the public safety re#uires it, in any of ,hich events the same may be suspended
,herever during such period the necessity for such suspension shall e8ist.$ 1ar from being full and
plenary, the authority to suspend the privilege of the ,rit is thus circumscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its e8istence, but also, as
regards the time ,hen and the place ,here it may be e8ercised. hese factors and the
aforementioned setting or conditions mark, establish and define the e8tent, the confines and the limits
of said po,er, beyond ,hich it does not e8ist. And, like the limitations and restrictions imposed by the
1undamental +a, upon the legislative department, adherence thereto and compliance there,ith may,
,ithin proper bounds, be in#uired into by the courts of justice. 0ther,ise, the e8plicit constitutional
provisions thereon ,ould be meaningless. -urely, the frames of our Constitution could not have
intended to engage in such a ,asteful e8ercise in futility.4
33

Ehile a state of martial la, may bar such judicial in#uiries under the ,rit of *a#eas corpus in the
actual theater of ,ar, ,ould the proscription apply ,hen martial la, is maintained as an instrument of
social reform and the civil courts ;as ,ell as military commissions< are open and freely functioningI
Ehat is the e8tent and scope of the validating provision of Article D6%%, section A ;*< of the ransitory
Provisions of the &('A ConstitutionI
35

3ranting the validation of the initial preventive detention, ,ould the validating provision cover
indefinite detention thereafter or may in#uiry be made as to its reasonable relation to meeting the
emergency situationI
Ehat rights under the Bill of !ights, e.g. the rights to due process and to 4speedy, impartial and public
trial4
35
may be invoked under the present state of martial la,I
%s the e8ercise of martial la, po,ers for the institutionali"ation of reforms incompatible ,ith
recogni"ing the fundamental liberties granted in the Bill of !ightsI
he President is ,ell a,are of the layman$s vie, of the 4central problem of constitutionalism in our
contemporary society ... ,hether or not the Constitution remains an efficient instrument for the
moderation of conflict ,ithin society. here are t,o aspects of this problem. 0ne is the regulation of
freedom in order to prevent anarchy. he other is the limitation of po,er in order to prevent tyranny.4
3:

>ence, he has declared that 4he ?e, -ociety looks to individual rights as a matter of paramount
concern, removed from the vicissitudes of political controversy and beyond the reach of majorities.
Ee are pledged to uphold the Bill of !ights and as the e8igencies may so allo,, ,e are determined
that each provision shall be e8ecuted to the fullest,4
37
and has ackno,ledged that 4martial la,
necessarily creates a command society ... GandH is a te(porar constitutional e8pedient of
safeguarding the republic ...4
38

>e has thus described the proclamation of martial la, and 4the setting up of a corresponding crisis
government4 as constitutional authoritarianism,4 ,hich is a recognition that ,hile his government is
authoritarian it is essentially constitutional and recogni"es the supremacy of the ne, Constitution.
>e has further declared that 4martial la, should have legally terminated on .anuary &', &('A ,hen
the ne, Constitution ,as ratified4 but that 4the Popular clamor manifested in the referendum G,asH
that the ?ational Assembly he temporarily suspended4 and the reaction in the .uly, &('A referendum
4,as violently against stopping the use of martial la, po,ers,4 adding that 4% intend to submit this
matter at least notice a year to the people, and ,hen they say ,e should shift to the normal functions
of government, then ,e ,ill do so.4
39

he reali"ation of the prospects for restoration of normalcy and full implementation of each and every
provision of the Bill of !ights as pledged by the President ,ould then hopefully come sooner rather
than later and provides an additional ,eighty reason for the e8ercise of judicial abstention under the
environmental circumstances and for the granting of the ,ithdra,al motion.
%%. In t*e 3;uino case7 % maintain my original vote as first unanimously agreed by the Court for
dismissal of the *a#eas corpus petition of Benigno -. A#uino, .r. on the ground that grave charges
against him for violation of the AntiC-ubversion Act ;!epublic Act &'99<, etc. ,ere filed in August,
&('A and hence the present petition has been superseded by the prohibition case then filed by him
#uestioning the filing of the charges against him ,ith a military commission rather than ,ith the civil
courts ;,hich case is not yet submitted for decision<.
he said prohibition case involves the same constitutional issues raised in the Diokno case and more,
concerning the constitutionality of having him tried by a military commission for offenses allegedly
committed by him long before the declaration of martial la,. his is evident from the special and
affirmative defenses raised in respondents$ ans,er ,hich filed just last August *&, &('J by the
-olicitor ,hich reiterate the same defenses in his ans,er to the petition at bar. >ence, the same
constitutional issues may ,ell be resolved if necessary in the decision yet to be rendered by the Court
in said prohibition case.
% therefore dissent from the subse#uent vote of the majority to instead pass upon and resolve in
advance the said constitutional issues unnecessarily in the present case.
%%%. In t*e >o!ri+o case7 % submit that the *a#eas corpus petition of 1rancisco 4-oc4 !odrigo as ,ell as
the petitions of those others similarly released should be dismissed for having been rendered moot
and academic by virtue of their release from physical confinement and detention. hat their release
has been made subject to certain conditions ;e.g. not being allo,ed to leave the 3reater Manila area
,ithout specific authori"ation of the military authorities< does not mean that their action ,ould survive,
since 4;<he restraint of liberty ,hich ,ould justify the issuance of the ,rit must be more than a mere
moral restraint: it must be actual or physical .4
50
hey may have some other judicial recourse for the
removal of such restraints but their action for *a#eas corpus cannot survive since they are no longer
deprived of their physical liberty. 1or these reasons and those already e8pounded hereinabove, %
dissent from the majority vote to pass upon and resolve in advance the constitutional issues
unnecessarily in the present case.

%t is to my mind very unfortunate that, for reasons % cannot comprehend or do not deem convincing,
the majority of the Court has agreed that no main opinion be prepared for the decision in these,
cases. >onestly, % feel that the grounds given by the Chief .ustice do not justify a deviation from the
regular practice of a main opinion being prepared by one .ustice even ,hen the members of the
Court are not all agreed as to the grounds of the judgment as long as at least a substantial number of
.ustices concur in the basic ones and there are enough other .ustices concurring in the result to form
the re#uired majority. % do not see such varying substantial disparity in the vie,s of the members of
the Court regarding the different issues here as to call for a summari"ation like the one that ,as
done, ,ith controversial conse#uences, in .avellana. > Actually, the summari"ation made by the Chief
.ustice does not in my opinion portray accurately the spectrum of our vie,s, if one is to assay the
doctrinal value of this decision. he divergence$s stated are % think more apparent than real.
%n any event, it is my considered vie, that a historical decision like this, one likely to be sui +eneris, at
the same time that it is of utmost transcendental importance because it revolves around the proper
construction of the constitutional provisions securing individual rights as they may be, affected by
those empo,ering the 3overnment to defend itself against the threat of internal and e8ternal
aggression, as these are actually operating in the setting of the 0fficial proclamation of the /8ecutive
that rebellion endangering public safety actually e8ists, deserves better treatment from the Court.
%ndeed, % believe that our points of seeming variance respecting the #uestions before us could have
been threshed out, if only enough effort in that direction had been e8erted by all. he trouble is that
from the very beginning many members of the Court, myself included, announced our desire to have
our vie,s recorded for history, hence, individuali"ation rather than consensus became the order of
the day. %n conse#uence, the convenient solution ,as forged that as long as there ,ould be enough
votes to support a legally binding judgment, there need not be any opinion of the Court, everyone
could give his o,n vie,s and the Chief .ustice ,ould just try to analy"e the opinions of those ,ho
,ould care to prepare one and then make a certification of the final result of the voting. %t ,as only at
the last minute that, at my suggestion, supported by .ustice Castro, the Chief$s prepared certification
,as modified to assume the form of a judgment, thereby giving this decision a better semblance of
respectability.
As ,ill be seen, this separate opinion of concurrence is not due to any irreconcilable conflict of
conviction bet,een me and any other member of the Court. ruth to tell, at the early stages of our
efforts to decide these but after the Court had more or less already arrived at a consensus as to the
result, % ,as made to understand that % could prepare the opinion for the Court. Apparently, ho,ever,
for one reason or another, some of our colleagues felt that it is unnecessary to touch on certain
matters contained in the draft % had submitted, incomplete and unedited as it ,as, hence, the plan
,as abandoned. My e8planation that a decision of this import should be addressed in part to the
future and should attempt to ans,er, as best ,e can, not only the #uestions raised by the parties but
also the relevant ones that ,e are certain are bothering many of our countrymen, not to speak of
those ,ho are interested in the correct juridical implications of the unusual political developments
being ,itnessed in the Philippines these days, failed to persuade them. % still feel very strongly,
ho,ever, the need for articulating the thoughts that ,ill enable the ,hole ,orld to visuali"e and
comprehend the e8act length, breath and depth of the juridical foundations of the current
constitutional order and thus be better positioned to render its verdict thereon.
he follo,ing then is the draft of the opinion % prepared for the Court. % feel % need not adjust it to give
it the tenor of an individual opinion. -omething inside me dictates that % should let it stand as % had
originally prepared it. % am emboldened to do this by the conviction that actually, ,hen properly
analy"ed, it ,ill be reali"ed that ,hatever differences there might be in the various opinions ,e are
submitting individually, such differences lie only in the distinctive methods of approach ,e have each
preferred to adopt rather than in any basically substantial and irreconcilable disagreement. %f ,e had
only striven a little more, % am confident, ,e could have even found a common mode of approach. %
am referring, of course, only to those of us ,ho sincerely feel the urgency of resolving the
fundamental issues herein, regardless of purely technical and strained reasons there might be to
apparently justify an attitude of indifference, if not concealed antagonism, to the need for authoritative
judicial clarification of the juridical aspects of the ?e, -ociety in the Philippines.
0n -eptember &&, &('J, petitioner Diokno ,as released by the order of the President, 4under e8isting
rules and regulations.4 he Court has, therefore, resolved that his particular case has become moot
and academic, but this development has not affected the issues insofar as the other petitioners,
particularly -enator A#uino, are concerned. And inasmuch as the principal arguments of petitioner
Diokno, although presented only in the pleadings filed on his behalf, apply ,ith more or less e#ual
force to the other petitioners, % feel that my reference to and discussion of said arguments in my draft
may ,ell be preserved, if only to maintain the purported comprehensiveness of my treatment of all
the important aspects of these cases.
Before proceeding any further, % ,ould like to e8plain ,hy % am saying ,e have no basic
disagreements.
/8cept for .ustices Makasiar and /sguerra ,ho consider the recitals in the Proclamation to be
absolutely conclusive upon the courts and of .ustice eehankee ,ho considers it unnecessary to
e8press any opinion on the matter at this point, the rest or eight of us have actually in#uired into the
constitutional sufficiency of the Proclamation. Ehere ,e have differed is only as to the e8tent and
basis of the in#uiry. Eithout committing themselves e8pressly as to ,hether the issue is justiciable or
other,ise, the Chief .ustice and .ustice Castro unmistakably appear to have actually conducted an
in#uiry ,hich as far as % can see is based on facts ,hich are uncontradicted in the record plus
additional facts of judicial notice. ?o independent evidence has been considered, nor is any reference
made to the evidence on ,hich the President had acted. 0n their part, .ustices Antonio, 1ernande"
and A#uino are of the vie, that the Proclamation is not subject to in#uiry by the courts, but assuming
it is, they are of the conviction that the record amply supports the reasonableness, or lack of
arbitrariness, of the President$s action. Again, in arriving at this latter conclusion, they have relied
e8clusively on the same factual bases utili"ed by the Chief .ustice and .ustice Castro. .ustices
1ernando and MuLo" Palma categorically hold that the issue is justiciable and, on that premise, they
made their o,n in#uiry, but ,ith no other basis than the same undisputed facts in the record and facts
of judicial notice from ,hich the others have dra,n their conclusions. 1or myself, % am just making it
very clear that the in#uiry ,hich the Constitution contemplates for the determination of the
constitutional sufficiency of a proclamation of martial la, by the President should not go beyond facts
of judicial notice and those that may be stated in the proclamation, if these are by their very nature
capable of un#uestionable demonstration. %n other ,ords, eight of us virtually hold that the
/8ecutive$s Proclamation is not absolutely conclusive K but it is not to be interfered ,ith ,henever it
,ith facts undisputed in the record as ,ell as those of judicial notice or capable of un#uest
demonstration. hus, it is obvious that although ,e are split bet,een upholding justiciability or nonC
justiciability, those ,ho believe in the latter have nonetheless conducted an in#uiry, ,hile those ,ho
adhere to the former theory, insisting on follo,ing +ansang, have limited their in#uiry to the
uncontroverted facts and facts of judicial notice. %ndeed, the truth is that no one has asked for in#uiry
into the evidence before the President ,hich is ,hat the real import of justiciability means. %n the final
analysis, none of us has gone beyond ,hat in my humble opinion the Constitution permits in the
premises. %n other ,ords, ,hile a declaration of martial la, is not absolutely conclusive, the Court$s
in#uiry into its constitutional sufficiency may not, contrary to ,hat is implied in +ansang, involve the
reception of evidence to be ,eighed against those on ,hich the President has acted, nor may it
e8tend to the investigation of ,hat evidence the President had before him. -uch in#uiry must be
limited to ,hat is undisputed in the record and to ,hat accords or does not accord ,ith facts of
judicial notice.
1ollo,ing no, is my separate concurring opinion ,hich as % have said is the draft % submitted to the
Court$s approval7
his is a cluster of petitions for *a#eas corpus seeking the release of petitioners from detention, upon
the main ground that, allegedly, Proclamation &9)& issued by President 1erdinand /. Marcos on
-eptember *&, &('* placing the ,hole country under martial la, as ,ell as the general orders
subse#uently issued also by the President by virtue of the said proclamation, pursuant to ,hich
petitioners have been apprehended and detained, t,o of them until the present, ,hile the rest have
been released conditionally, are unconstitutional and null and void, hence their arrest and detention
have no legal basis.
he petitioners in 3. !. ?o. +CABBA) are all journalists, namely, .oa#uin P. !oces, eodoro M.
+ocsin, !olando 1adul, !osalind 3alang, 3o /ng 3uan, Ma8imo M. -oliven, !enato Constantino and
+uis !. Mauricio. heir petition ,as filed at about noon of -eptember *A, &('*.
Almost three hours later of the same day, the petition in 3. !. ?o. +CABBA( ,as filed, ,ith Carmen %.
Diokno, as petitioner, acting on behalf of her husband, .ose E. Diokno, a senator, ,ho is one of
those still detained.
,o days later, early in the morning of -eptember *B, &('*, the petition of Ma8imo 6. -oliven,
?apoleon 3. !ama and .ose Mari 6ele", all media men, ,as docketed as 3. !. ?o. +CABBJ9. he
last t,o ,ere also delegates to the Constitutional Convention of &('&.
%n all the three foregoing cases, the proper ,rits of *a#eas corpus ,ere issued returnable not later
than J799 p.m. of -eptember *B, &('*, and hearing of the petitions ,as held on -eptember *2, &('*.

1

+ate in the afternoon of -eptember *B, &('*, another petition ,as filed on behalf of -enators Benigno
-. A#uino, .r. and !amon 6. Mitra, .r., and former -enator 1rancisco 4-oc4 !odrigo, also a 6
commentator. ;Delegate ?apoleon !ama also appears as petitioner in this case.< %t ,as docketed as
3. !. ?o. +CABBJ2.
he ne8t day, -eptember *2, &('*, a petition ,as filed by 6oltaire 3arcia %%, another delegate to the
Constitutional Convention, as 3. !. ?o. +C ABBJ'.
4

%n this t,o cases the ,rits prayed for ,ere also issued and the petitions ,ere heard together on
-eptember *(, &('*.
%n 3. !. ?o. +CABBB2, the petition ,as filed by an Chin >ian and 6eronica +. @uyitung on -eptember
*', &('*, but the same ,as ,ithdra,n by the latter on 0ctober 2, &('* and the former on 0ctober (,
&('*, since they ,ere released from custody on -eptember A9, &('* and 0ctober (, &('*,
respectively. he Court allo,ed the ,ithdra,als by resolution on 0ctober &&, &('*.
0n 0ctober *, &('*, the petition of journalists Amando Doronila, .uan +. Mercado, >ernando ..
Abaya, /rnesto 3ranada, +uis Beltran, an Chin >ian, ;already a petitioner in 3. !. ?o. +CABBB2<
Bren 3uiao, ;for ,hom a subse#uent petition ,as also filed by his ,ife in 3. !. ?o. +CABB'&, but both
petitions on his behalf ,ere immediately ,ithdra,n ,ith the approval of the Court ,hich ,as given by
resolution on 0ctober &&, &('*< !uben Cusipag, !oberto 0rdoLe", Manuel Almario and Eillie Baun
,as filed in 3. !. ?o.
+CABB2'. All these petitioners, e8cept .uan +. Mercado, Manuel Almario, and !oberto 0rdoLe"
,ithdre, their petition and the Court allo,ed the ,ithdra,als by resolution of 0ctober A, &('*.
And on 0ctober A, &('*, /rnesto !ondon, also a delegate to the Constitutional Convention and a
radio commentator, filed his petition in 3. !. ?o.
+CABB'A.
Again, in all these last four cases, 3. !. ?os., +CABBB2, ABB2', ABB'& and ABB'A, the corresponding
,rits ,ere issued and a joint hearing of the petition ,as held 0ctober 2, &('*, e8cept as to the
petitioners ,ho had as of then announced the ,ithdra,al of their respective petitions.
he returns and ans,ers of the -olicitor 3eneral in all these nine cases, filed on behalf of the
principal respondents, the secretary of ?ational Defense, >on. .uan Ponce /nrile, the Chief of -taff
of the Armed 1orces of the Philippines, 3eneral !omeo /spino, and the Chief of the Philippine
Constabulary, 3eneral 1idel 6. !amos, ,ere practically identical as follo,s7
>ETE>N TO K>IT
an!
3NSKE> TO TCE PETITION
C0M/ ?0E respondents, by the undersigned counsel, and appearing before this >onorable Court
only for purposes of this action, as hereunder set forth, hereby state by ,ay of return to the ,rit and
ans,er to the petition, as follo,s7
3.'ISSIONSL.ENI30S
&. hey ADM% the allegation in paragraphs % and 6 of the Petition:
*. hey ADM% the allegations in paragraph %% of the Petition that the petitioners ,ere arrested on
-eptember **, &('* and are presently detained at 1ort Bonifacio, Makati, !i"al, but -P/C%1%CA++@
D/?@ the allegation that their detention is illegal, the truth being that stated in -pecial and Affirmative
Defenses of this Ans,er and !eturn:
A. hey -P/C%1%CA++@ D/?@ the allegations in paragraphs %%%, %6, 6% and 6%%, of the Petition, the truth of
the matter being that stated in the -pecial and Affirmative Defenses of this Ans,er and !eturn.
!espondents state by ,ay of
SPECI30 3N. 3FFI>'3TI@E .EFENSES
J. 0n -eptember *&, &('*, the President of the Philippines, in the e8ercise of the po,ers vested in him
by Article 6%%, section &9, paragraph * of the Constitution, issued Proclamation ?o. &9)& placing the entire
Philippines under martial la,:
B. Pursuant to said Proclamation , the President issued 3eneral 0rders ?os. &, *, A, ACA, J, B, 2, and '
and +etters of %nstruction ?os. &, * and A. rue copies of these documents are hereto attached and made
integral parts hereof as Anne8es *, A, J, B, 2, ', ), (, &9 and &&. A copy of the President$s statement to
the country on -eptember *A, &('* is also attached as Anne8 &*:
2. 1inally, the petition states no cause of action.
P > 3 Y E >
%? 6%/E E>/!/01, it is respectfully prayed of this >onorable -upreme Court that the petition be
dismissed.
Manila, Philippines, -eptember *', &('*.
At the hearings, the follo,ing ,ellCkno,n and distinguished members of the bar appeared and argued
for the petitioners7 Petitioner Diokno argued on his o,n behalf to supplement the arguments of his
counsel of record: Attys. .oker D. Arroyo appeared and argued for the petitioners in +CABBA) and
+ABB2': 1rancis /. 3architorena, assisted by 0scar Diokno Pere", appeared and argued for the
petitioner in +CABBA(: !amon A. 3on"ales, assisted by Manuel B. %mbong appeared and argued for
the petitioners in
+CABBJ9: -enators 3erardo !o8as and .ovito !. -alonga, assisted by Attys. Pedro +. @ap, -edfrey
A. 0rdoLe", Custodio 0. Parlade, +eopoldo +. Africa, 1rancisco !odrigo .r., Magdaleno Palacol and
Dakila 1. Castro, appeared and argued for the petitioners in
+CABBJ2: Atty. /. 6oltaire 3arcia -r. appeared and argued in behalf of his petitioner son in +CABBJ':
Attys. !aul %. 3oco and eodulo !. Dino appeared for the petitioners in
+CABBB2: Atty. !oberto P. olentino appeared for the petitioner in +CABB'&: and Atty. A#uilino
Pimentel .r. assisted by Atty. Modesto !. 3alias .r. appeared and argued for the petitioner in +C
ABB').
0n 0ctober A&, &('*, former -enator +oren"o M. aLada, together ,ith his la,yerCsons, Attorneys
!enato and Eigberto aLada, entered their appearance as counsel for all the petitioners in 3. !. ?o.
+CABBA), e8cept 1adul, 3alang and 3o /ng 3uan, for petitioner Diokno in 3. !. ?o. +CABBA( and for
petitioners A#uino, Mitra, !odrigo and !ama in 3. !. ?o. +ABBJ2.
1or the respondents, -olicitor 3eneral /stelito P. Mendo"a, Assistant -olicitors 3eneral Bernardo P.
Pardo and !osalio A. de +eon ;both of ,hom are judges no,<, -olicitor !eynato -. Puno ;no,
Assistant -olicitor 3eneral< and -olicitors .ose A. !. Melo and .ose A. .anolo appeared in all the
cases, but only the -olicitor 3eneral argued. +ater, Assistant -olicitor 3eneral 6icente 6. Mendo"a
also appeared and coCsigned all the subse#uent pleadings and memoranda for respondents.
After the hearings of -eptember *2 and *( and 0ctober 2, &('*, the parties ,ere re#uired to file their
respective memoranda. 0n ?ovember (, &('* petitioners in all the filed their consolidated &9(Cpage
memorandum, together ,ith the ans,ers, contained in )2 pages, to some AA #uestions posed by the
Court in its resolution of -eptember *(, &('*, and later, on December &, &('*, an ))Cpage reply to
the memorandum of respondents, ,ith anne8es. %n a separate Manifestation of Compliance and
-ubmission filed simultaneously ,ith their reply, petitioners stressed that7
J. hat undersigned counsel for Petitioners did not ask for any e8tension of the period ,ithin ,hich to file
the !eply Memorandum for Petitioners, despite over,helming pressure of ,ork, because K
a. every day of delay ,ould mean one day more of indescribable misery and anguish on the part of
Petitioners and their families: .
b. any further delay ,ould only diminish ,hatever time is left K more than a month$s time K ,ithin ,hich
this Court can deliberate on and decide these petitions, having in mind some irreversible events ,hich
may plunge this nation into an entirely ne, constitutional order, namely, the approval of the draft of the
proposed Constitution by the Constitutional Convention and the $plebiscite$ ,as scheduled on .anuary &B,
&('A:
c. the proposed Constitution, if $ratified$ might prejudice these petitions, in vie, of the follo,ing transitory
provision7
All proclamations, orders, decrees , instructions, and acts promulgated, issued, or done by the incumbent
after the lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or
superseded by subse#uent proclamations, decrees, instructions, or other acts of the incumbent President,
or unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly. ;Article D6%%,
sec. A, par. * of the proposed Constitution<.
B. %n vie, of the fact that they ,ere arrested and detained allegedly in keeping ,ith the e8isting
Constitution, it is only humane and just that these petitions K to be accorded preference under !ule **,
section & of the !ules of Court K be disposed of ,hile there is still time left, in accordance ,ith the
present Constitution and not in accordance ,ith a ne, constitutional order being ushered in, under the
aegis of a martial rule, the constitutionality and validity of ,hich is the very point at issue in the instant
petitions:
2. -ince, according to the unanimous vie, of the authorities, as cited in their Memorandum, K the
overriding purpose of martial la, is K and cannot go beyond K the preservation of the constitutional
status ;uo, and not to alter it or hasten its alteration, it ,ould be e8tremely unjust and inhuman, to say the
least, to allo, these petitions for the great ,rit of liberty to be imperiled, by virtue of a ne, Constitution K
$submission$ and $ratification of ,hich are being pressed under martial la, K that ,ould purportedly ratify
all /8ecutive edicts issued and acts done under said regime something that has never been done as far
as is kno,n in the entire history of the AngloCAmerican legal system: ;pp. J&JCJ&2, !ollo, +CABBA(.<
At this juncture, it may be stated that as of 0ctober &&, &('*, the follo,ing petitioners had already
,ithdra,n7 Amando Doronila, >ernando .. Abaya, /rnesto 3ranada, +uis Beltran, Bren 3uiao,
!uben Cusipag, Eillie Baun, an Chin >ian and 6eronica +. @uyitung: hence, of the original nine
cases ,ith a total of A* petitioners,
3
only the si8 aboveCentitled cases remain ,ith &) petitioners.
5
he
remaining petitioners are7 .oa#uin P. !oces, eodoro M. +ocsin, -r., !olando 1adul, !osalind
3alang, 3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !. Mauricio, .ose E. Diokno
thru Carmen Diokno, ?apoleon 3. !ama, .ose Mari 6ele", Benigno -. A#uino, !amon 6. Mitra, .r.,
1rancisco -. !odrigo, .uan +. Mercado, !oberto 0rdoLe", Manuel Almario and /rnesto !ondon but
only -enators Diokno and A#uino are still in confinement, the rest having been released under
conditions hereinafter to be discussed. he case of petitioner 3arcia in 3. !. ?o. +CABBJ' is deemed
abated on account of his death.
0ver the opposition of these remaining petitioners, respondents$ counsel ,as given several
e8tensions of their period to file their memorandum, and it ,as not until .anuary &9, &('A that they
,ere able to file their reply of AB pages. Previously, their memorandum of '' pages ,as filed on
?ovember &', &('*. hus, the cases ,ere declared submitted for decision only on 1ebruary *2,
&('A, per resolution of even date, only to be reopened later, as ,ill be stated anon.
%n the mean,hile, practically the same counsel for petitioners in these cases engaged the
government la,yers in another and separate transcendental judicial tussle of t,o stages relative to
the ?e, Constitution. 0n December ', &('*, the first of the soCcalled Plebiscite Cases ;3. !. ?o. +C
AB(*B, Charito Planas vs. Comelec, 3. !. ?o.
+CAB(*(, Pablo C. -anidad vs. Comelec, 3. !. ?o. +CAB(J9, 3erardo !o8as et al. vs. Comelec, 3. !.
?o. +CAB(J&, /ddie B. Monteclaro vs. Comelec, 3. !. ?o. +CAB(J*, -edfrey A. 0rdoLe" vs.
reasurer, 3. !. ?o. +CAB(J), 6idal an vs. Comelec, 3. !. ?o. +CAB(BA, .ose E. Diokno et als. vs.
Comelec, 3. !. ?o. +CAB(2&, .acinto .imene" vs. Comelec, 3. !. ?o. +CAB(2B, !aul M. 3on"ales vs.
Comelec and 3. !. ?o. +CAB('(, /rnesto >idalgo vs. Comelec< ,as filed. hese cases took most of
the time of the Court until .anuary **, &('A, ,hen they ,ere declared moot and academic because
of the issuance of Proclamation &&9* on .anuary &', &('A, but on .anuary *9, &('A, as a se#uel to
the Plebiscite Cases, .osue .avellana filed Case ?o. 3. !. ?o. +CA2&J* against the /8ecutive
-ecretary and the -ecretaries of ?ational Defense, .ustice and 1inance. his started the second
series of cases kno,n as the !atification Cases, namely, said 3. !. ?o. +A2&J* and 3. !. ?o. +C
A2&2J, @i!al Tan vs. T*e E6ecutive Secretar et al., 3. !. ?o.
+CA2&2B, Gerar!o >o6as et al. vs. 3le5an!ro 'elc*or etc. et al., 3. !. ?o. +CA2*A2, E!!ie ".
'onteclaro vs. T*e E6ecutive Secretar, and 3. !. ?o. +CA2*)A, Napoleon @. .ila+ vs. T*e
Conora#le E6ecutive Secretar. he main thrust of these petitions ,as that the ?e, Constitution had
not been validly ratified, hence the 0ld Constitution continued in force and, therefore, ,hatever
provisions the ?e, Constitution might contain tending to validate the proclamations, orders, decrees,
and acts of the incumbent President ,hich are being relied upon for the apprehension and detention
of petitioners, have no legal effect. %n any event, the advent of a ne, constitution naturally entailed
the conse#uence that any #uestion as to the legality of the continued detention of petitioners or of any
restraint of their liberties may not be resolved ,ithout taking into account in one ,ay or another the
pertinent provisions of the ne, charter. Accordingly, the resolution of these t,o series of cases
became a prejudicial matter ,hich the Court had to resolve first. %t ,as not until March A&, &('A that
they ,ere decided adversely to the petitioners therein and it ,as only on April &', &('A that entry of
final judgment ,as made therein.
1rom April &), &('A, the membership of the Court ,as depleted to nine, in vie, of the retirement,
effective on said date, of then Chief .ustice !oberto Concepcion. Eith its nine remaining members,
doubts ,ere e8pressed as to ,hether or not the Court could act on constitutional matters of the
nature and magnitude of those raised in these cases, the re#uired #uorum for the resolution of issues
of unconstitutionality under the ?e, Constitution being ten members. ;-ection * ;*<, Article %D,
Constitution of the Philippines of &('A<. Prescinding from this point, it is a fact that even if it is not
re#uired e8pressly by the Constitution, by the Court$s o,n policy ,hich the Constitution authori"es it
to adopt, all cases involving constitutional #uestions are beard en #anc in ,hich the #uorum and at
the same time the binding vote is of eight .ustices. Eith only nine members out of a possible
membership of fifteen, it ,as not e8actly fair for all concerned that the court should act, particularly in
a case ,hich in truth does not involve only those ,ho are actual parties therein but the ,hole people
as ,ell as the 3overnment of the Philippines. -o, the Court, even as it ,ent on informally discussing
these cases from time to time, preferred to ,ait for the appointment and #ualification of ne,
members, ,hich took place only on 0ctober *(, &('A, ,hen .ustices /stanislao 1ernande", Cecilia
MuLo" Palma and !amon A#uino joined the Court.
Meantime, subse#uent to the resolution of 1ebruary *2, &('A, declaring these cases submitted for
decision, or, more particularly on .une *(, &('A, counsel for petitioner Carmen %. Diokno in 3. !. ?o.
filed a ((Cpage -upplemental Petition and Motion for %mmediate !elease ,hich the Court had to refer
to the respondents, on ,hose behalf, the -olicitor 3eneral filed an ans,er on .uly A9, &(,'A. 0n
August &J, &('A, counsel for petitioner Diokno filed a motion asking that the said petition and motion
be set for hearing, ,hich the Court could not do, in vie, precisely of the #uestion of #uorum. As a
matter of fact, in the related case of "eni+no S. 3;uino, Jr. vs. 'ilitar Co((ission ?o. * et al., 3. !.
?o. +CA'A2J, further reference to ,hich ,ill be made later, a preliminary hearing had to be held by the
Court on -unday, August *J, &('A, on the sole #uestion of ,hether or not ,ith its membership of
nine then, the Court could act on issues of constitutionality of the acts of the President.
At this point, it may be mentioned incidentally that thru several repeated manifestations and motions,
Counsel 1rancis /. 3architorena of Petitioner Diokno invited the attention of the Court not only to
alleged denial to his client of 4the essential access of and freedom to confer and communicate ,ith
counsel4 but also to alleged deplorable subChuman conditions surrounding his detention. And in
relation to said manifestations and motions, on 1ebruary &(,&('A, said petitioner, Diokno, together
,ith petitioner Benigno -. A#uino and joined by their common counsel, -enator +oren"o M. aLada
filed ,ith this Court a petition for mandamus praying that respondents be commanded 4to permit
petitioner aLada to visit and confer freely and actively ,ith petitioners Diokno and A#uino at
reasonable hours pursuant to the provisions of !A )B' and !A &9)A and in pursuance of such
decision, ;to direct said respondents< ;&< to clear the conference room of petitioners of all
representatives of the Armed 1orces and all un,anted third persons, and prohibit their presence: ;*<
to remove or cause the removal of all listening devices and other similar electronic e#uipment from
the conference room of petitioners, ,ith the further direction that no such instruments be hereafter
installed, and ;A< to desist from the practice of e8amining ;a< the notes taken by petitioner aLada of
his conferences ,ith petitioners Diokno and A#uino: and ;b< such other legal documents as petitioner
aLada may bring ,ith him for discussion ,ith said petitioners.4 ;3. !. ?o. +CA2A&B<. 1or obvious
reasons, said petition ,ill be resolved in a separate decision. %t may be stated here, ho,ever, that in
said 3. !. ?o. +CA2A&B, in attention to the complaint made by -enator aLada in his !eply dated
April *, &('A, that Mesdames Diokno and A#uino ,ere not being allo,ed to visit their husbands, and,
,orse, their very ,hereabouts ,ere not being made kno,n to them, on April 2, &('A, after hearing
the e8planations of counsel for therein respondents, the Court issued the follo,ing resolution7
=pon humanitarian considerations the Court !/-0+6/D unanimously to grant, pending further action by
this Court, that portion of the prayer in petitioners$ -upplement andFor Amendment to Petition$ filed on
April 2, &('A that the ,ives and minor children of petitioners Diokno and A#uino be allo,ed to visit them,
subject to such precautions as respondents may deem necessary.
Ee have taken pains to recite all the circumstances surrounding the progress of these cases from
their inception in order to correct the impression conveyed by the pleadings of petitioner Diokno, that
their disposition has been unnecessarily, it not deliberately, delayed. he Court cannot yield to
anyone in being concerned that individual rights and liberties guaranteed by the fundamental la, of
the land are duly protected and safeguarded. %t is fully cogni"ant of ho, important not only to the
petitioners but also to the maintainance of the rule of la, is the issue of legality of the continued
constraints on the freedoms of petitioners. =nder ordinary circumstances, it does not really take the
Court much time to determine ,hether a deprivation of personal liberty is legal or illegal. But, aside
from the unusual procedural setbacks related above, it just happens that the basic issues to resolve
here do not affect only the individual rights of petitioners. %ndeed, the importance of these cases
transcends the interests of those ,ho, like petitioners, have come to the Court. Actually, ,hat is
directly involved here is the issue of the legality of the e8isting government itself. Accordingly, Ee
have to act ,ith utmost care. Besides, in a sense, the legality of the Court$s o,n e8istence is also
involved here, and Ee do not ,ant anyone to even suspect Ee have hurried precipitately to uphold
0urselves.
%n addition to these considerations, it must be borne in mind that there are thousands of other cases
in the Court needing its continued attention. Eith its clogged docket. the Court, could ill afford to give
petitioners any preference that. ,ould entail corresponding injustice to other litigants before it.
Ehat is more, under the ?e, Constitution, the administrative jurisdiction overall lo,er courts,
including the Court Appeals, has been transferred from the Department of .ustice to the -upreme
Court, and because that Department refrained from attending to any administrative function over the
courts since .anuary &', &('A, on April &), &('A, after the !atification Cases became final, Ee found
in 0ur hands a vast accumulation of administrative matters ,hich had to be acted upon ,ithout
further delay, if the smooth and orderly functioning of the courts had to be maintained. And, of course.
the Court has to continuously attend to its ne, administrative ,ork from day to day, ,hat ,ith all
kinds of complaints and charges being filed daily against judges, clerks of court and other officers and
employees of the different courts all over the country, ,hich the Court en #anc has to tackle. %t should
not be surprising at all that a great portion of our sessions en #anc has to be devoted to the
consideration and disposition of such administrative matters.
1urthermore, in this same connection, account must also be taken of the fact that the transfer of the
administrative functions of the Department to the Court naturally entailed problems and difficulties
,hich consumed 0ur time, if only because some of the personnel had to ac#uaint themselves ,ith
the ne, functions entrusted to them, ,hile corresponding adjustments had to be made in the duties
and functions of the personnel affected by the transfer.
P!/+%M%?A!@ %--=/-
?o,, before proceeding to the discussion and resolution of the issues in the pending petitions, t,o
preliminary matters call for disposition, namely, first, the motion of petitioner .ose E. Diokno, thru
counsel -enator aLada, to be allo,ed to ,ithdra, his basic petition and second, the objection of
petitioner, 1rancisco 4-oc4 !odrigo, to the Court$s considering his petition as moot and academic as a
conse#uence of his having been released from his place of confinement in 1ort Bonifacio. !elated to
the latter is the e8press manifestation of the other petitioners7 .oa#uin P. !oces, eodoro M. +ocsin,
-r., !olando 1adul, !osalind 3alang, 3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !.
Mauricio, ?apoleon 3. !ama, .ose Mari 6ele". !amon 6. Mitra, .r., .uan +. Mercado, !oberto
0rdoLe", Manuel Almario and /rnesto !ondon to the effect that they remain as petitioners,
not,ithstanding their having been released ;under the same conditions as those imposed on
petitioner !odrigo thereby implying that they are not ,ithdra,ing, as, in fact, they have not ,ithdra,al
their petitions and ,ould ,ish them resolved on their merits.;Manifestation of counsel for petitioners
dated March &B, &('J.<
%
Anent petitioner Diokno$s motion to ,ithdra,, only seven members of the Court, namely, Chief
.ustice Makalintal and .ustices 5aldivar, 1ernando, eehankee, MuLo" Palma, A#uino and the ,riter
of this opinion, voted to grant the same. -aid number being short of the eight votes re#uired for
binding action of the Court en #anc even in an incident, pursuant to -ection && of !ule B2, the said
motion is denied, ,ithout prejudice to the right of each member of the Court to render his individual
opinion in regard to said motion.
5

0ne of the reason vigorously advanced by petitioner Diokno in his motion to ,ithdra, is that he
cannot submit his case to the -upreme Court as it is presently constituted, because it is different from
the one in ,hich he filed his petition, and that, furthermore, he is invoking, not the present or ?e,
Constitution of the Philippines the incumbent .ustices have no, s,orn to protect and defend but the
Constitution of &(AB
:
under ,hich they ,ere serving before. %ndeed, in the 4Manifestation of
Compliance and -ubmission4 filed by his counsel as early as December &, &('A, a similar feeling ,as
already indicated, as may be gathered from the portions thereof #uoted earlier in this opinion.
>ad petitioner reiterated and insisted on the position asserted by him in said manifestation shortly
after the ratification of the ?e, Constitution on .anuary &', &('A or even later, after the decision of
this Court in the !atification Cases became final on April &', &('A, perhaps, there could have been
some kind of justification for 0ur then and there declaring his petition moot and academic,
considering his personal attitude of refusing to recogni"e the passing out of the &(AB constitution and
of the -upreme Court under it. But the fact is that as late as .une *(, &('A, more than si8 months
after the ratification of the ?e, Constitution and more than t,o months after this Court had declared
that 4there is no more judicial obstacle to the ?e, Constitution being considered as in force and
effect4, petitioner Diokno, thru counsel aLada, riled a 4-upplemental Petition and Motion for
%mmediate !elease4 ,herein nary a ,ord may be found suggesting the point that both the
Constitution he is invoking and the Court he has submitted his petition to have already passed into
ine8istence. 0n the contrary, he insisted in this last motion that 4an order be issued ;by this Court<
directing respondents to immediately file charges against him if they have evidence supporting the
same.4 Be it noted, in this connection, that by resolution of the Court of .une &, &('A, it had already
implemented the provisions on the .udiciary of the ?e, Constitution and had constituted itself ,ith its
nine members into the 1irst Division, thereby making it unmistakably clear that it ,as already
operating as the -upreme Court under the ?e, Constitution. he fact no, capitali"ed by petitioner
that the .ustices took the oath only on 0ctober *(, &('A is of no signer, the truth being that neither
the .ustices$ continuation in office after the ?e, Constitution took effect nor the validity or propriety of
the Court$s resolution of .une &, &('A just mentioned ,ere #uestioned by him before. Accordingly,
the Motion in his motion to ,ithdra, relative to the ?e, Constitution and the present -upreme Court
appear to be obvious afterthoughts intended only to tend color to his refusal to have the issue of
alleged illegality of his detention duly resolved, reali"ing perchance the untenability thereof and the
inevitability of the denial of his petition, albeit none of this ,ill ever be admitted, as may be gathered
from his manifestation that he ,ould not ,ant to have anything to do ,ith any ruling of the Court
adverse to his pretensions. .ust the same, the ne, oaths of the .ustices and the applicability hereto
of the 0ld and the ?e, Constitution ,ill be discussed in another part of this opinion, if only to satisfy
the curiosity of petitioner.
Although the other petitioners have not joined the subject ,ithdra,al motion, it might just as ,ell be
stated, for ,hatever relevant purpose it may serve, that, ,ith particular reference to petitioner
!odrigo, as late as ?ovember *',&('A, after three ne, justices ,ere added to the membership of the
Court in partial obedience to the mandate of the ?e, Constitution increasing its total membership to
fifteen, and after the Court had, by resolution of ?ovember &B, &('A, already constituted itself into t,o
divisions of si8 .ustices each, said petitioner filed a Manifestation 4for the purpose of sho,ing that,
insofar as ;he< herein petitioner is concerned, his petition for *a#eas corpus is not moot and
academic.4 ?otably, this manifestation deals specifically ,ith the matter of his 4conditional release4 as
being still a ground for *a#eas corpus but does not even suggest the fundamental change of
circumstances relied upon in petitioner Diokno$s motion to ,ithdra,. 0n the contrary, said
manifestation indicates unconditional submission of said petitioner to the jurisdiction of this Court as
presently constituted. 0f similar tenor is the manifestation of counsel for the remaining petitioners in
these cases dated March &B, &('J. %n other ,ords, it appears #uite clearly that petitioners should be
deemed as having submitted to the jurisdiction of the -upreme Court as it is presently constituted in
order that it may resolve their petitions for *a#eas corpus even in the light of the provisions of the
?e, Constitution.
%%
Coming no, to the conditions attached to the release of the petitioners other than -enators Diokno
and A#uino, it is to be noted that they ,ere all given identical release papers reading as follo,s7
>/ADP=A!/!-
B> M%+%A!@ %?/++%3/?C/ 3!0=P, %-A1P
Camp 3eneral /milio Aguinaldo
Pue"on City
MB2P B December &('*
-=B./C7 Conditional !elease
07 1rancisco -oc !odrigo
&. After having been arrested and detained for subversion pursuant to Proclamation ?o. &9)& of the
President of the Philippines in his capacity as CommanderCinCChief of the Armed 1orces of the
Philippines, dated *& -eptember &('*, you are hereby conditionally released.
*. @ou are advised to abide strictly ,ith the provisions of Proclamation ?o. &9)& and the ensuing +9%s.
Any violation of these provisions ,ould subject you to immediate arrest and confinement.
A. @our investigation ,ill continue follo,ing a schedule ,hich you ,ill later on be informed. @ou are
advised to follo, this schedule strictly.
J. @ou are not allo,ed to leave the confines of 3reater Manila Area unless specifically authori"ed by this
0ffice indicating the provincial address and e8pected duration of stay thereat. Contact this 0ffice through
telephone ?o. ('C&'CB2 ,hen necessary.
B. @ou are prohibited from giving or participating in any intervie, conducted by any local or foreign mass
media representative for purpose of publication andFor radioF6 broadcast.
2. Be guided accordingly.
;-3D.< MA!%A?0 3. M%!A?DA
+t. Colonel PA
3roup Commander
P 0 E . G E
>%- %- 0 C/!%1@ that % have read and understood the foregoing conditional release.
% >/!/B@ P+/D3/ to conduct myself accordingly and ,ill not engage in any subversive activity. %
,ill immediately report any subversive activity that ,ill come to my kno,ledge.
;-3D.< 1. !0D!%30
Address7 29 .uana !odrigue"
Pue"on City
el ?o. '9C*BC22: '9J(C*9
'9C*'CBB
%t is the submission of these petitioners that their release under the foregoing conditions is not
absolute, hence their present cases before the Court have not become moot and academic and
should not be dismissed ,ithout consideration of the merits thereof. hey claim that in truth they have
not been freed, because actually, ,hat has been done to them is only to enlarge or e8pand the area
of their confinement in order to include the ,hole 3reater Manila area instead of being limited by the
boundaries of the army camps ,herein they ,ere previously detained. hey say that although they
are allo,ed to go else,here, they can do so only if e8pressly and specifically permitted by the army
authorities, and this is nothing ne,, since they could also go out of the camps before ,ith proper
passes. hey maintain that they never accepted the above conditions voluntarily. %n other ,ords, it is
their position that they are in actual fact being still so detained and restrained of their liberty against
their ,ill as to entitle them in la, to the remedy of *a#eas corpus.
Ee find merit in this particular submittal regarding the reach of *a#eas corpus. Ee readily agree that
the fundamental la, of the land does not countenance the diminution or restriction of the individual
freedoms of any person in the Philippines ,ithout due process of la,. ?o one in this country may
suffer, against his ,ill, any kind or degree of constraint upon his right to go to any place not prohibited
by la,, ,ithout being entitled to this great ,rit of liberty, for it has not been designed only against
illegal and involuntary detention in jails, prisons and concentration camps, but for all forms and
degrees of restraint, ,ithout authority of la, or the consent of the person concerned, upon his
freedom to move freely, irrespective of ,hether the area ,ithin ,hich he is confined is small or large,
as long as it is not coCe8tensive ,ith that ,hich may be freely reached by anybody else, given the
desire and the means. More than half a century ago in &(&(, this Court already dre, the broad and
allCencompassing scope of *a#eas corpus in these une#uivocal ,ords7 4A prime specification of an
application for a ,rit of *a#eas corpus is restraint of liberty. he essential object and purpose of the
,rit of *a#eas corpus is to in#uire into all manners of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint ,hich ,ill
preclude freedom of action is sufficient.4
:
> here is no reason at all at this time, hopefully there ,ill
never be any in the future, to detract a ,hit from this noble attitude. Definitely, the conditions under
,hich petitioners have been released fall short of restoring to them the freedom to ,hich they are
constitutionally entitled. 0nly a sho,ing that the imposition of said conditions is authori"ed by la, can
stand in the ,ay of an order that they be immediately and completely ,ithdra,n by the proper
authorities so that the petitioners may again be free men as ,e are.
And so, Ee come to the basic #uestion in these cases7 Are petitioners being detained or other,ise
restrained of liberty, evidently against their ,ill, ,ithout authority of la, and due processI
TCE F3CTS
Aside from those already made reference to above, the other background facts of these cases are as
follo,s7
0n -eptember *&, &('*, President 1erdinand /. Marcos
7
signed the follo,ing proclamation7
P>OC03'3TION NO. $F&$
P!0C+A%M%?3 A -A/ 01 MA!%A+ +AE
%? >/ P>%+%PP%?/-
E>/!/A-, on the basis of carefully evaluated and verified information, it is definitely established that
la,less elements ,ho are moved by a common or similar ideological conviction, design, strategy and goal
and enjoying the active moral and material support of a foreign po,er and being guided and directed by
intensely devoted, ,ell trained, determined and ruthless groups of men and seeking refuge under the
protection of our constitutional liberties to promote and attain their ends, have entered into a conspiracy
and have in fact joined and banded their resources and forces together for the prime purpose of, and in
fact they have been and are actually staging, undertaking and ,aging an armed insurrection and rebellion
against the 3overnment of the !epublic of the Philippines in order to forcibly sei"e political and state
po,er in this country, overthro, the duly constituted 3overnment, and supplant our e8isting political,
social, economic and legal order ,ith an entirely ne, one ,hose form of government, ,hose system of
la,s, ,hose conception of 3od and religion, ,hose notion of individual rights and family relations, and
,hose political, social, economic, legal and moral precepts are based on the Mar8istC+eninistCMaoist
teachings and beliefs:
E>/!/A-, these la,less elements, acting in concert through seemingly innocent and harmless,
although actually destructive, front organi"ations ,hich have been infiltrated or deliberately formed by
them, have continuously and systematically strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of ne, adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such sustained and careful
recruitment and enlistment have succeeded in spreading and e8panding their control and influence over
almost every segment and level of our society throughout the land in their ceaseless effort to erode and
,eaken the political, social, economic, legal and moral foundations of our e8isting 3overnment, and to
influence, manipulate and move peasant, labor, student and terroristic organi"ations under their influence
or control to commit, as in fact they have committed and still are committing, acts of violence,
depredations, sabotage and injuries against our duly constituted authorities, against the members of our
la, enforcement agencies, and ,orst of all, against the peaceful members of our society:
E>/!/A-, in the fanatical pursuit of their conspiracy and ,idespread acts of violence, depredations,
sabotage and injuries against our people, and in order to provide the essential instrument to direct and
carry out their criminal design and unla,ful activities, and to achieve their ultimate sinister objectives,
these la,less elements have in fact organi"ed, established and are no, maintaining a Central
Committee, composed of young and dedicated radical students and intellectuals, ,hich is charged ,ith
guiding and directing the armed struggle and propaganda assaults against our duly constituted
3overnment, and this Central Committee is no, imposing its ,ill and asserting its sham authority on
certain segments of our population, especially in the rural areas, through varied means of subterfuge,
deceit, coercion, threats, intimidation$s, machinations, treachery, violence and other modes of terror, and
has been and is illegally e8acting financial and other forms of contributes from our people to raise funds
and material resources to support its insurrectionary and propaganda activities against our duly
constituted 3overnment and against our peaceCloving people:
E>/!/A-, in order to carry out, as in fact they have carried out, their premeditated plan to stage,
undertake and ,age a full scale armed insurrection and rebellion in this country, these la,less elements
have organi"ed, established and are no, maintaining a ,ell trained, ,ell armed and highly indoctrinated
and greatly e8panded insurrectionary force, popularly kno,n as the $?e, People$s Army$ ,hich has since
vigorously pursued and still is vigorously pursuing a relentless and ruthless armed struggle against our
duly constituted 3overnment and ,hose unmitigated forays, raids, ambuscades assaults and reign of
terror and acts of la,lessness in the rural areas and in our urban centers brought about the treacherous
and coldCblooded assassination of innocent civilians, military personnel of the 3overnment and local
public officials in many parts of the country, notably in the Cagayan 6alley, in Central +u"on, in the
-outhern agalog !egion, in the Bicol Area, in the 6isayas and in Mindanao and ,hose daring and
,anton guerrilla activities have generated and fear and panic among our people, have created a climate
of chaos and disorder, produced a state of political, social, psychological and economic instability in our
land, and have inflicted great suffering and irreparable injury to persons and property in our society:
E>/!/A-, these la,less elements, their cadres, fello,men, friends, sympathi"ers and supporters have
for many years up to the present time been mounting sustained, massive and destructive propaganda
assaults against our duly constituted 3overnment its intrumentalities, agencies and officials, and also
against our social, political, economic and religious institutions, through the publications, broadcasts and
dissemination$s of deliberately slanted and overly e8aggerated ne,s stories and ne,s commentaries as
,ell as false , vile, foul and scurrilous statements, utterances, ,ritings and pictures through the pressC
radioCtelevision media and through leaflets, college campus ne,spapers and some ne,spapers
published and still being published by these la,less elements, notably the $Ang Bayan,$ $Pulang Bandila$
and the $Ang Nomunista,$ all of ,hich are clearly ,ellCconceived, intended and calculated to malign and
discredit our duly constituted 3overnment, its instrumentalities, agencies and officials before our people,
and thus undermine and destroy the faith and loyalty and allegiance of our people in and alienate their
support for their duly constituted 3overnment, its instrumentalities, agencies and officials, and thereby
gradually erode and ,eaken as in fact they had so eroded and ,eakened the ,ill of our people to sustain
and defend our 3overnment and our democratic ,ay of life:
E>/!/A-, these la,less elements having taken up arms against our duly constituted 3overnment and
against our people, and having committed and are still committing acts of armed insurrection and
rebellion consisting of armed raids, forays, sorties, ambushes, ,anton acts of murders, spoilage, plunder,
looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless
civilian lives and property, all of ,hich activities have seriously endangered and continue to endanger
public order and safety and the security of the nation, and acting ,ith cunning and manifest precision and
deliberation and ,ithout regard to the health, safety and ,ellCbeing of the people, are no, implementing
their plan to cause ,ide spread, massive and systematic destruction and paraly"ation of vital public
utilities and service particularly ,ater systems, sources of electrical po,er, communication and
transportation facilities, to the great detriment, suffering, injury and prejudice of our people and the nation
and to generate a deep psychological fear and panic among our people:
E>/!/A-, the -upreme Court in the cases brought before it, docketed as 3. !. ?os. +CAA(2J, +CAA(2B,
+CAA('A, +CAA()*, +CAJ99J, +CAJ9&A, +CAJ9A(, +CAJ*2B, and +CAJAA(, as a conse#uence of the
suspension of the privilege of the ,rit of *a#eas corpus by me as President of the Philippines in my
Proclamation ?o. ))(, dated August *&, &('&, as amended, has found that in truth and in fact there e8ists
an actual insurrection and rebellion in the country by a si"eable group of men ,ho have publicly risen in
arms to overthro, the 3overnment. >ere is ,hat the -upreme Court said in its decision promulgated on
December &&, &('&7
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in
Manila, from the late t,enties to the early thirties, then aimed principally at incitement to sedition or
rebellion, as the immediate objective. =pon the establishment of the Common,ealth of the
Philippines, the movement seemed to have ,arned notably: but, the outbreak of Eorld Ear %% in the
Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms
concomitant ,ith the military occupation of the Philippines and its subse#uent liberation, brought
about, in the late forties, a resurgence of the Communist threat, ,ith such vigor as to be able to
organi"e and operate in Central +u"on an army K called >=NBA+A>AP, during the occupation, and
renamed >ukbong Mapagpalaya ng Bayan ;>MB< after liberation K ,hich clashed several times ,ith
the Armed 1orces of the !epublic. his prompted then President Puirino to issue Proclamation ?o.
*&9, dated 0ctober **, &(B9, suspending the privilege of the ,rit of *a#eas corpus the validity of
,hich ,as upheld in 'ontene+ro v. CastaAe!a. Days before the promulgation of said Proclamation,
or on 0ctober &), &(B9, members of the Communist Politburo in the Philippines ,ere apprehended in
Manila. -ubse#uently accused and convicted of the crime of rebellion, they served their respective
sentences.
he fifties sa, a comparative lull in Communist activities, insofar as peace and order ,ere concerned.
-till, on .une *9, &(B', !epublic Act ?o. &'99, other,ise kno,n as the AntiC-ubversion Act, ,as
approved, upon the grounds stated in the very preamble of said statute K that
... the Communist Party of the Philippines, although purportedly a political party, is in fact an organi"ed
conspiracy to overthro, the 3overnment of the !epublic of the Philippines, not only by force and violence
but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a
totalitarian regime subject to alien domination and control,
... the continued e8istence and activities of the Communist Party of the Philippines constitutes a clear,
present and grave danger to the security of the Philippines: and
... in the face of the organi"ed, systematic and persistent subversion, national in scope but international in
direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for
special legislation to cope ,ith this continuing menace to the freedom and security of the country ....
%n the language of the !eport on Central +u"on, submitted, on -eptember J, &('&, by the -enate Ad >oc
Committee of -even K copy of ,hich !eport ,as filed in these cases by the petitioners herein K
he years follo,ing &(2A sa, the successive emergence in the country of several mass organi"ations,
notably the +apiang Manggaga,a ;no, the -ocialist Party of the Philippines< among the ,orkers, the
Malayang -amahan ng mga Magsasaka ;MA-ANA< among the peasantry: the Nabataang Makabayan
;NM< among the youthFstudents: and the Movement for the Advancement of ?ationalism ;MA?< among
the intellectualsFprofessionals, the PNP has e8erted allCout effort to infiltrate, influence and utili"e these
organi"ations in promoting its radical brand of nationalism.
Mean,hile, the Communist leaders in the Philippines had been split into t,o ;*< groups, one of ,hich K
composed mainly of young radicals, constituting the Maoist faction K reorgani"ed the Communist Party
of the Philippines early in &(2( and established a ?e, People$s Army. his faction adheres to the Maoist
concept of the $Protracted People$s Ear$ or $Ear of ?ational +iberation.$ %ts $Programme for a People$s
Democratic !evolution states, inter alia7
he Communist Party of the Philippines is determined to implement its general programme for a people$s
democratic revolution. All 1ilipino communists are ready to sacrifice their lives for the ,orthy cause of
achieving the ne, type of democracy, of building a ne, Philippines that is genuinely and completely
independent, democratic, united, just and prosperous ...
he central task of any revolutionary movement is to sei"e political po,er. he Communist Party of the
Philippines assumes this task at a time that both the international and national situations are favorable, to
taking the road of armed
revolution ...
%n the year &(2(, the ?PA had K according to the records of the Department of ?ational Defense K
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over *A9, in
,hich it inflicted J9J casualties, and, in turn, suffered *JA losses. %n &('9, its record of violent incidents
,as about the same, but the ?PA casualties more than doubled.
At any rate, t,o ;*< facts are undeniable7 ;a< all Communists, ,hether they belong to the traditional group
or to the Maoist faction, believe that force and violence are indispensable to the attainment of their main
and ultimate objective, and act in accordance ,ith such belief, although they disagree on the means to be
used at a given time and in a particular place: and ;b< there is a ?e, People$s Army, other, of course,
than the Armed 1orces of the !epublic and antagonistic thereto. -uch ?e, People$s Army is per se proof
of the e8istence of the rebellion, especially considering that its establishment ,as announced publicly by
the reorgani"ed CPP. -uch announcement is in the nature of a public challenge to the duly constitution
Authorities and may be likened to a declaration of ,ar, sufficient to establish a ,ar status or a condition of
belligerency even before the actual commencement of hostilities.
Ee entertain therefore, no doubts about the e8istence of a si"eable group of men ,ho have publicly risen
in arms to overthro, the 3overnment and have thus been and still are engage in rebellion against the
3overnment of the Philippines.
E>/!/A-, these la,less elements have to a considerable e8tent succeeded in impeding our duly
constituted authorities from performing their functions and discharging their duties and responsibilities in
accordance ,ith our la,s and our Constitution to the great damage, prejudice and detriment of the people
and the nation:
E>/!/A-, it is evident that there is throughout the land a state of anarchy and la,lessness, chaos and
disorder, turmoil and destruction of a magnitude e#uivalent to an actual ,ar bet,een the forces of our
duly constituted 3overnment and the ?e, People$s Army and their satellite organi"ations because of the
unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror,
deceits, coercions, threats, intimidation$s, treachery, machinations, arsons, plunders and depredations
committed and being committed by the aforesaid la,less elements ,ho have pledged to the ,hole nation
that they ,ill not stop their dastardly effort and scheme until and unless they have fully attained their
primary and ultimate purpose of forcibly sei"ing political and state po,er in this country by overthro,ing
our present duly constituted 3overnment, by destroying our democratic ,ay of life and our established
secular and religious institutions and beliefs, and by supplanting our e8isting political, social, economic,
legal and moral order ,ith an entirely ne, one ,hose form of government, ,hose motion of individual
rights and family relations, and ,hose political, social, economic and moral precepts are based on the
Mar8istC+eninistCMaoist teachings and beliefs:
E>/!/A-, the -upreme Court in its said decision concluded that the unla,ful activities of the aforesaid
la,less elements actually pose a clear, present and grave danger to public safety and the security of the
nation and in support of that conclusion found that7
... the /8ecutive had information and reports K subse#uently confirmed, in many by the aboveCmentioned
!eport of the -enate Ad >oc Committee of -even C to the effect that the Communist Party of the
Philippines does not merely adhere to +enin$s idea of a s,ift armed uprising that it has, also, adopted >o
Chi Minh$s terrorist tactics and resorted to the assassination of uncooperative local officials that, in line
,ith this policy, the insurgents have killed B mayors, *9 barrio captains and A chiefs of police: that there
,ere fourteen ;&J< meaningful bombing incidents in the 3reater Manila Area in &('9: that the
Constitutional Convention >all ,as bombed on .une &*, &('&: that, soon after the Pla"a Miranda
incident, the ?AEA-A main pipe at the Pue"on CityC-an .uan boundary ,as bombed: that this ,as
follo,ed closely by the bombing of the Manila City >all, the C0M/+/C Building, the Congress Building
and the M/!A+C0 subCstation at Cubao, Pue"on City: and that the respective residences of -enator
.ose .. !oy and Congressman /duardo Cojuangco ,ere, like,ise, bombed, as ,ere the M/!A+C0
main office premises, along 0rtigas Avenue, and the Doctor$s Pharmaceuticals, %nc. Building, in Caloocan
City.
... the reorgani"ed Communist Party of the Philippines has, moreover, adopted Mao$s concept of
protracted people$s ,ar, aimed at the paraly"ation of the ,ill to resist of the 3overnment, of the political,
economic and intellectual leadership, and of the people themselves: that conformably to such concept,
the Party has placed special emphasis upon a most e8tensive and intensive program of subversion be the
CPP interests, among ,hich are the Malayang -amahan ng Magsasaka;MA-ANA<, the Nabataang
ng Nabataan ;-DN<, the -amahang Molave ;-M< and the Malayang Pagkakaisa ng Nabataang Pilipino
throughout the Philippines of ,hich seventyCthree ;'A< ,ere in the 3reater Manila Area, si8ty ;29< in
demonstrations, of ,hich about thirtyCthree ;AA< ended in violence, resulting in fifteen ;&B< killed and over
but ,ellCtrained group of armed agitators: that the number of demonstrations heretofore staged in &('&
has already e8ceeded those of &('9: and that t,entyCfour ;*J< of these demonstrations ,ere violent, and
-ubse#uent events ... have also proven ... the threat to public safety posed by the ?e, People$s Army.
%ndeed, it appears that, since August *&, &('&, it had in ?orthern +u"on si8 ;2< encounters and staged
one ;&< raid, in conse#uences of ,hich seven soldiers lost their lives and t,o ;*< others ,ere ,ounded,
,hereas the insurgents suffered five ;B< casualties: that on August *2, &('&, a ,ellCarmed group of ?PA,
trained by defector +t. 6ictor Corpus, attacked the very command post of 1 +AE%? in %sabela, destroying
t,o ;*< helicopters and one ;&< plane, and ,ounding one ;&< soldier: that the ?PA had in Central +u"on a
total of four ;J< encounters, ,ith t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one
;&< B-D= killed and three ;A< NM-DN leader, an unidentified dissident, and Commander Panchito, leader
of the dissident group ,ere killed that on August *2, &('&, there ,as an encounter in the barrio of -an
Pedro, %riga City, Camarines -ur, bet,een the PC and the ?PA, in ,hich a PC and t,o ;*< NM members
,ere killed: that the current disturbances in Cotabato and the +anao provinces have been rendered more
comple8 by the involvement of the CPPF?PA, for, in midC&('&, a NM group, headed by .ovencio
/sparago"a, contacted the >igaonan tribes, in their settlement in Magsaysay, Misamis 0riental, and
offered them books, pamphlets and brochures of Mao se ung, as ,ell as conducted teachCins in the
reservation: that /sparago"a ,as reportedly killed on -eptember **, &('&, in an operation of the PC in
said reservation: and that there are no, t,o ;*< ?PA cadres in Mindanao.
%t should, also be noted that adherents of the CPP and its front organi"ations are, according to
that the bomb used in the Constitutional Convention >all ,as a $Claymore$ mine, a po,erful e8plosive
device used by the =.-. Army, believed to have been one of many pilfered from the -ubic ?aval Base a
.ulyCAugust Plan involving a ,ave of assassinations, kidnappings, terrorism and mass destruction of
discharges other functions, and that the e8pansion of the CPP activities from Central +u"on to other parts
of the country, particularly Manila and its suburbs, the Cagayan 6alley, %fugao, 5ambales, +aguna,
Pue"on and the Bicol !egion, re#uired that the rest of our armed forces be spread thin over a ,ide area.
E>/!/A-, in the un,avering prosecution of their revolutionary ,ar against the 1ilipino people and their
duly constituted 3overnment, the aforesaid la,less elements have, in the months of May, .une and .uly,
&('*, succeeded in bringing and introducing into the country at Digoyo Point, Palanan, %sabela and at
other undetermined points along the Pacific coastline of +u"on, a substantial #uantity of ,ar material
consisting of MC&J rifles estimated to be some A,B99 pieces, several do"ens of J9 mm rocket launchers
,hich are said to be Chicom copies of a !ussian prototype rocket launcher, large #uantities of )9 mm
rockets and ammunitions, and other combat paraphernalia, of ,hich ,ar material some had been
discovered and captured by government military forces, and the bringing and introduction of such #uantity
and type of ,ar material into the country is a mute but elo#uent proof of the sinister plan of the aforesaid
la,yers elements to hasten the escalation of their present revolutionary ,ar against the 1ilipino people
and their legitimate 3overnment:
E>/!/A-, in the e8ecution of their overall revolutionary plan, the aforesaid la,less elements have
prepared and released to their various field commanders and Party ,orkers a document captioned
$!/3%0?A+ P!03!AM 01 AC%0? &('*,$ a copy of ,hich ,as captured by elements of the &&2th and
&&(th Philippine Constabulary Companies on .une &), &('* at Barrio aringsing, Cordon, %sabela, the
te8t of ,hich reads as follo,s7
!/3%0?A+ P!03!AM 01 AC%0? &('*
he follo,ing !egional Program of Action &('* is prepared to be carried out as part of the overall
plan of the party to foment discontent and precipitate the tide of nation,ide mass revolution. he
fascist Marcos and his reactionary of Congress is e8pected to prepare themselves for the &('A
hence7
.anuary K .une7
&. %ntensify recruitment of ne, party members especially from the ,orkersCfarmers class. Cadres are
being trained in order to organi"e the different regional bureaus. hese bureaus must concentrate on
mass action and organi"ation to advancement of the mass revolutionary movement. !eference is to the
$Borador ng Programa sa Pagkilos at =lat ng Panlipunang Pagsisiyasat$ as approved by the Central
Committee.
*. !ecruit and train armed city partisans and urban guerrillas and organi"e them into units under Party
cadres and activities of mass organi"ations. hese units must undergo speciali"ed training on e8plosives
and demolition and other and other forms of sabotage.
A. %ntensify recruitment and training of ne, members for the ?e, People$s Army in preparation for limited
offensive in selected areas in the regions.
J. -upport a more aggressive program of agitation and proraganda against the reactionary armed forces
and against the ConCCon.
.uly K August7
During this period the Party e8pects the puppet Marcos government to allo, increase in bus rates thus
aggravating further the plight of students, ,orkers and the farmers.
&. All !egional Party Committees must plan for a general strike movement. he !egional 0perational
Commands must plan for armed support if the fascist forces of Marcos ,ill try to intimidate the oppressed
1ilipino masses.
*. Conduct sabotage against schools, colleges and universities hiking tuition fees.
A. Conduct sabotage and agitation against puppet judges and courts hearing cases against top party
leaders.
J. Create regional chaos and disorder to dramati"e the inability of the fascist Marcos 3overnment to keep
and maintain peace and order thru7
a< !obbery and holdCup of banks controlled by American imperialists and those belonging
to the enemies of the people.
b< Attack military camps, =- bases and to,ns.
c< More violent strikes and demonstrations.
-eptember K 0ctober7
%ncrease intensity of violence, disorder and confusion7
&. %ntensify sabotage and bombing of government buildings and embassies and other utilities7
a< Congress.
b< -upreme Court.
c< ConCCon.
d< City >all.
e< =- /mbassy.
f< 1acilities of =- Bases.
g< Provincial Capitols.
h< Po,er Plants.
i< P+D.
j< !adio -tations.
*. -poradic attacks on camps, to,ns and cities.
A. Assassinate high 3overnment officials of Congress, .udiciary, ConCCon and private individuals
sympathetic to puppet Marcos.
J. /stablish provisional revolutionary government in to,ns and cities ,ith the support of the masses.
B. Eith the sympathetic support of our allies, establish provisional provincial revolutionary governments.
C/?!A+ C0MM%//
C0MM=?%- PA!@ 01 >/
P>%+%PP%?/-
E>/!/A-, in line ,ith their $!/3%0?A+ P!03!AM 01 AC%0? &('*,$ the aforesaid la,less elements
have of late been conducting intensified acts of violence and terrorism$s during the current year in the
3reater Manila Area such as the bombing of the Arca building at aft Avenue, Pasay City, on March &B:
of the 1ilipinas 0rient Air,ays board room at Domestic !oad, Pasay City on April *A: of the 6ietnamese
/mbassy on May A9: of the Court of %ndustrial !elations on .une *A: of the Philippine rust Company
branch office in Cubao, Pue"on City on .une *J: of the Philamlife building at =nited ?ations Avenue,
Manila, on .uly A: of the abacalera Cigar M Cigarette 1actory Compound at Mar#ue" de Comillas,
Manila on .uly *': of the P+D e8change office at /ast Avenue, Pue"on City, and of the Philippine -ugar
%nstitute building at ?orth Avenue, Diliman, Pue"on City, both on August &B: of the Department of -ocial
Eelfare building at -an !afael -treet, -ampaloc, Manila, on August &': of a ,ater main on Aurora
Boulevard and Madison Avenue, Pue"on City on August &(: of the Philamlife building again on August
A9: this time causing severe destruction on the 1ar /ast Bank and rust Company building nearby of the
armored car and building of the Philippine Banking Corporation as ,ell as the buildings of the %nvestment
Development, %nc. and the Daily -tar Publications ,hen another e8plosion took place on !ailroad -treet,
Port Area, Manila also on August A9: of .oe$s Department -tore on Cariedo -treet, Puiapo, Manila, on
-eptember B, causing death to one ,oman and injuries to some A) individuals: and of the City >all of
Manila on -eptember ): of the ,ater mains in -an .uan, !i"al on -eptember &*: of the -an Miguel
Building in Makati, !i"al on -eptember &J: and of the Pue"on City >all on -eptember &), &('*, as ,ell
as the attempted bombing of the Congress Building on .uly &), ,hen an une8ploded bomb ,as found in
the -enate Publication Division and the attempted bombing of the Department of 1oreign Affairs on
August A9:
E>/!/A-, in line ,ith the same $!/3%0?A+ P!03!AM 01 AC%0? &('*,$ the aforesaid la,less
elements have also fielded in the 3reater Manila area several of their $-parro, =nits$ or $-imbad =nits$ to
undertake li#uidation missions against ranking government officials, military personnel and prominent
citi"ens and to further heighten the destruction$s and depredations already inflicted by them upon our
innocent people, all of ,hich are being deliberately done to so, terror, fear and chaos amongst our
population and to make the 3overnment look so helpless and incapable of protecting the lives and
property of our people:
E>/!/A-, in addition to the aboveCdescribed social disorder, there is also the e#ually serious disorder
in Mindanao and -ulu resulting from the unsettled conflict bet,een certain elements of the Christian and
Muslim population of Mindanao and -ulu, bet,een the Christian $%lagas$ and the Muslim $Barracudas,$ and
bet,een our 3overnment troops, and certain la,less organi"ations such as the Mindanao %ndependence
Movement:
E>/!/A-, the Mindanao %ndependence Movement ,ith the active material and financial assistance of
foreign political and economic interests, is engaged in an open and unconcealed attempt to establish by
violence and force a separate and independent political state out of the islands of Mindanao and -ulu
,hich are historically, politically and by la, parts of the territories and ,ithin the jurisdiction and
sovereignty of the !epublic of the Philippines:
E>/!/A-, because of the aforesaid disorder resulting from armed clashes, killings, massacres, arsons,
rapes, pillages, destruction of ,hole villages and to,ns and the inevitable cessation of agricultural and
industrial operations, all of ,hich have been brought about by the violence inflicted by the Christians, the
Muslims, the $%lagas,$ the $Barracudas,$ and the Mindanao %ndependence Movement against each other
and against our government troops, a great many parts of the islands of Mindanao and -ulu are virtually
no, in a state of actual ,ar:
E>/!/A-, the violent disorder in Mindanao and -ulu has to date resulted in the killing of over &,999
civilians and about *,999 armed Muslims and Christians, not to mention the more than five hundred
thousand of injured displaced and homeless persons as ,ell as the great number of casualties among our
government troops, and the paraly"ation of the economy of Mindanao and -ulu:
E>/!/A-, because of the foregoing acts of armed insurrection, ,anton destruction of human and lives
and property, unabated and unrestrained propaganda attacks against the 3overnment and its institutions,
instrumentalities, agencies and officials, and the rapidly e8panding ranks of the aforesaid la,less
elements, and because of the spreading la,lessness and anarchy throughout the land all of ,hich
prevented the 3overnment to e8ercise its authority, e8tend its citi"enry the protection of its la,s and in
general e8ercise its sovereignty overall of its territories, caused serious demorali"ation among our people
and have made the apprehensive and fearful, and finally because public order and safety and the security
of this nation demand that immediate, s,ift, decisive and effective action be taken to protect and insure
the peace, order and security of the country and its population and to maintain the authority of the
3overnment:
E>/!/A-, in cases of invasion, insurrection or rebellion or imminent danger thereof, %, as President of
the Philippines, have under the Constitution, three course of action open to me, namely7 ;a< call out the
armed forces to suppress the present la,less violence: ;b< suspend the privilege of the ,rit of *a#eas
corpus to make the arrest and apprehension of these la,less elements easier and more effective: or ;c<
place the Philippines or any part thereof under martial la,:
E>/!/A-, % have already utili"ed the first t,o courses of action, first, by calling upon the armed forces to
suppress the aforesaid la,less violence, committing to that specific job almost B9S of the entire armed
forces of the country and creating several task forces for that purpose such as ask 1orce -aranay, ask
1orce Palanan, ask 1orce %sarog, ask 1orce Pagkakaisa and ask 1orce +ancaf and, second, by
suspending the privilege of the ,rit of *a#eas corpus on August *&, &('& up to .anuary &&, &('*, but in
spite of all that, both courses of action ,ere found inade#uate and ineffective to contain, much less solve,
the present rebellion and la,lessness in the country as sho,n by the fact that7
&. he radical left has increased the number and area of operation of its front organi"ations and has
intensified the recruitment and training of ne, adherents in the urban and rural areas especially from
among the youth:
*. he Nabataang Makabayan ;NM<, the most militant and outspoken front organi"ation of the radical left,
has increased the number of its chapters from *99 as of the end of &('9 to A&' as of .uly A&, &('* and
its membership from &9,999 as of the end of &('9 to &B,999 as of the end of .uly, &('*, sho,ing very
clearly the rapid gro,th of the communist movement in this country:
A. he -amahang Demokratiko ng Nabataan ;-DN<, another militant and outspoken front organi"ation of
the radical left, has also increased the number of its chapters from an insignificant number at the end of
&('9 to &B( as of the end of .uly, &('* and has no, a membership of some &,J(B highly indoctrinated,
intensely committed and almost fanatically devoted individuals:
J. he ?e, People$s Army, the most active and the most violent and ruthless military arm of the radical
left, has increased its total strength from an estimated 2,B99 composed of B29 regulars, &,B99 combat
support and J,J99 service support< as of .anuary &, &('* to about ',(99 ;composed of &,9*) regulars,
&,)99 combat support and B,9*B service support< as of .uly A&, &('*, sho,ing a marked increase in its
regular troops of over &99S in such a short period of si8 months:
B. he establishment of sanctuaries for the insurgents in %sabela, in 5ambales, in Camarines -ur, and in
some parts of Mindanao, a development heretofore unkno,n in our campaign against subversion and
insurgency in this country:
2. he disappearance and dropping out of school of some A,999 high school and college students and
,ho are reported to have joined ,ith the insurgents for training in the handling of firearms and e8plosives:
'. he bringing and introduction into the country of substantial ,ar material consisting of military hard,are
and supplies through the M6 Naragatan at Digoyo Point, Palanan, %sabela, and the fact that many of
these military hard,are and supplies are no, in the hands of the insurgents and are being used against
our 3overnment troops:
). he infiltration and control of the media by persons ,ho are sympathetic to the insurgents and the
conse#uent intensification of their propaganda assault against the 3overnment and the military
establishment of the 3overnment:
(. he formation at the grassCroot level of $political po,er organs,$ heretofore unkno,n in the history of the
Communist movement in this country, composed of Barrio 0rgani"ing Committees ;B0Cs< to mobili"e the
barrio people for active involvement in the revolution: the Barrio !evolutionary Committees ;B!Cs< to act
as $local governments in barrios considered as CPPF?PA baili,icks: the Eorkers 0rgani"ing Committees
;E0Cs< to organi"e ,orkers from all sectors: the -chool 0rgani"ing Committees ;-0Cs< to conduct
agitation and propaganda activities and help in the e8pansion of front groups among the studentry: and
the Community 0rgani"ing Committees ;C0Cs< ,hich operate in the urban areas in the same manner as
the ;B0Cs<:
E>/!/A-, the rebellion and armed action undertaken by these la,less elements of the communist and
other armed aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and
force have assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines:
Done in the City of Manila, this *&st day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o,
;-3D.< 1/!D%?A?D /. MA!C0-
President
!epublic of the Philippines
0n -eptember **, &('* at ( o$clock in the evening, clearance for the implementation of the
proclamation ,as granted, and for ,ith, the follo,ing general order, among others, ,as issued7
GENE>30 O>.E> NO. 2
;0!D/!%?3 >/ -/C!/A!@ 01 ?A%0?A+ D/1/?-/ 0 A!!/- >/ P/!-0?- ?AM/D %?
>/ AAC>/D +%-, A- E/++ A- 0>/! P/!-0?- E>0 MA@ >A6/ C0MM%/D C!%M/- A?D
011/?-/- /?=M/!A/D %? >/ 0!D/!<.
Pursuant to Proclamation ?o. &9)&, dated -eptember *&, &('*, in my capacity as CommanderCinCChief
of all the Armed 1orces of the Philippines and for being active participants in the conspiracy and state
po,er in the country and to take over the 3overnment by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against our people and their legitimate 3overnment and in order to prevent
them from further committing acts that are inimical or injurious to our people, the 3overnment and our
national interest, % hereby order you as -ecretary of ?ational Defense to for ,ith arrest or cause the arrest
and take into your custody the individuals named in the attached list and to hold them until other,ise so
ordered by me or by my duly designated representative.
+ike,ise, % do hereby order you to arrest and take into custody and to hold them until other,ise ordered
released by me or by my duly authori"ed representative, such persons as may have committed crimes
and offenses in furtherance or on the occasion of or incident to or in connection ,ith the crimes of
insurrection or rebellion, as ,ell as persons ,ho have committed crimes against national security and the
la, of nations, crimes against the fundamental la,s of the state, crimes against public order, crimes
involving usurpation of authority, title, improper use of name, uniform and insignia, including persons
guilty of crimes as public officers, as ,ell as those persons ,ho may have violated any decree or order
promulgated by me personally or promulgated upon my direction.
Done in the City of Manila, this **nd day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o.
;-3D.< 1/!D%?A?D /. MA!C0- P!/-%D/?
!/P=B+%C 01 >/ P>%+%PP%?/-
%n the list referred to in this order ,ere the names, among others, of all the petitioners herein. hus,
from shortly after midnight of -eptember **, &('* until they ,ere all apprehended, petitioners ,ere
taken one by one, either from their homes or places of ,ork, by officers and men of the Armed 1orces
of the Philippines, ,ithout the usual ,arrant of arrest, and only upon orders of the respondent
-ecretary of ?ational Defense directed to his coCrespondent, the Chief of -taff of the Armed 1orces.
hey have been since then confined either at Camp Bonifacio, Camp Crame or some other military
camp, until, as earlier adverted to, they ,ere released subject to certain conditions, ,ith the e8ception
of petitioners Diokno and A#uino, ,ho are still in custody up to the present.
T*e particular case o,
petitioner, 3;uino.
As regards petitioner A#uino, it appears from his allegations in his petition and supplemental petition
for prohibition in 3. !. ?o. +CA'A2J, already referred to earlier, ;&< that on August &&, &('A, si8
criminal charges, for illegal possession of firearms, etc., murder and violation of !A &'99 or the AntiC
-ubversion Act, ,ere filed against him ,ith Military Commission ?o. *, created under 3eneral 0rders
?os. ), &* and A(, ;*< that on August *), &('A, the President created, thru Administrative 0rder ?o.
ABB, a special committee to undertake the preliminary investigation or reinvestigation of said charges,
and ;A< that he #uestions the legality of his prosecution in a military commission instead of in a
regular civilian court as ,ell as the creation of the special committee, not only because of alleged
invalidity of Proclamation &9)& and 3eneral 0rder ?o. * and the orders authori"ing the creation of
military commissions but also because Administrative 0rder ?o. ABB constitutes allegedly a denial of
the e#ual protection of the la,s to him and to the others affected thereby.
1rom the procedural standpoint, these developments did not ,arrant the filing of a separate petition.
A supplemental petition in 3.!. ?o. +CABBJ2, ,herein he is one of the petitioners, ,ould have
sufficed. But inasmuch as petitioner A#uino has chosen to file an independent special civil action for
prohibition in said 3.!. ?o. +CA'A2J ,ithout ,ithdra,ing his petition for *a#eas corpus in 3.!. ?o. +C
ABBJ2, Ee ,ish to make it clear that in this decision, the Court is going to resolve, for purposes of the
*a#eas corpus petition of said petitioner, only the issues he has raised that are common ,ith those of
the rest of the petitioners in all these cases, thereby leaving for resolution in 3.!. ?o. +CA'A2J all the
issues that are peculiar only to him. %n other ,ords, insofar as petitioner A#uino is concerned, the
Court ,ill resolve in this decision the #uestion of legality of his detention by virtue of Proclamation
&9)& and 3eneral 0rder ?o. *, such that in 3.!. ?o. +CA'A2J, ,hat ,ill be resolved ,ill be only the
constitutional issues related to the filing of charges against him ,ith Military Commission ?o. *,
premised already on ,hatever ,ill be the Court$s resolution in the instant cases regarding
Proclamation &9)& and 3eneral 0rder
?o. *.
Eith respect to the other petitioners, none of them stands charged ,ith any offense before any court
or military commission. %n fact, they all contend that they have not committed any act for ,hich they
can be held criminally liable.
3oing back to the facts, it may be mentioned, at this juncture, that on the day Proclamation &9)& ,as
signed, the Congress of the Philippines ,as actually holding a special session scheduled to end on
-eptember **, &('*. %t had been in uninterrupted session since its regular opening in .anuary, &('*.
%ts regular session ,as adjourned on May &), &('*, follo,ed by three special session of thirty days
each,
8
from May &( to .une **, .une *A to .uly *' and .uly *) to August A&, and one special session
of t,enty days, from -eptember & to -eptember **. As a matter of fact, petitioner A#uino ,as in a
conference of a joint committee of the -enate and the >ouse of !epresentatives ,hen he ,as
arrested in one of the rooms of the >ilton >otel in Manila.
%t must also be stated at this point that on ?ovember A9, &('*, the Constitutional Convention of &('&,
,hich convened on .une &, &('& and had been in continuous session since then, approved a ?e,
Constitution: that on .anuary &', &('A, Proclamation &&9* ,as issued proclaiming the ratification
thereof: and that in the !atification Cases aforementioned, the -upreme Court rendered on March A&,
&('A, a judgment holding that 4there is no further judicial obstacle to the ?e, Constitution being
considered in force and effect.4 Among the pertinent provisions of the ?e, Constitution is -ection A
;*< of Article D6%% ,hich reads thus7
;*< All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the la, of the land, and shall remain valid legal, binding, and
President, or unless e8pressly and e8plicitly modified or repeated by the regular ?ational Assembly.
Before closing this narration of facts, it is relevant to state that relative to petitioner Diokno$s motion to
,ithdra,, respondent filed under date of May &A, &('J the follo,ing Manifestation7
C0M/ ?0E respondents, by the undersigned counsel, and to this >onorable Court respectfully
submit this manifestation7
&. %n a Motion dated December *(, &('A petitioner, through counsel, prayed for the ,ithdra,al of the
aboveCentitled case, more particularly the pleadings filed therein, !espondents$ Comments dated .anuary
&', &('J, petitioners$ !eply dated March ', &('J, and respondents$ !ejoinder dated March *', &('J ,ere
subse#uently submitted to this >onorable Court7
*. he motion to ,ithdra, has been used for propaganda purposes against the 3overnment, including
the -upreme. Court +ately, the propaganda has been intensified and the detention of petitioner and the
pendency of his case in this Court have been e8ploited:
A. Ee are a,are that the issues raised in this case are of the utmost gravity and delicacy. his is the
reason ,e said that the decision in these cases should be postponed until the emergency, ,hich called
for the proclamation of martial la,, is over. Ehile this position is amply supported by precedents and is
based on sound policy considerations, ,e no, feel that to protect the integrity of government institutions,
including this Court, from scurrilous propaganda no, being ,aged ,ith relentlessness, it ,ould be in the
greater interest of the ?ation to have the motion to ,ithdra, resolved and if denied, to have the petition
itself decided:
J. his is not to say that the emergency is over, but only to e8press a judgment that in vie, of recent
tactics employed in the propaganda against the 3overnment, it is preferable in the national interest to
have the issues stirred by this litigation settled in this forum. 1or, indeed, ,e must state and reiterate that7
a. Pursuant to the President$s constitutional po,ers, functions, and responsibilities in a
state of martial la,, he periodically re#uires to be conducted a continuing assessment of
the factual situation ,hich necessitated the promulgation of Proclamation ?o. &9)& on
-eptember *&, &('* and the continuation of martial la, through Proclamation ?o. &&9J,
dated .anuary &', &('A:
b. he 3overnment$s current and latest assessment of the situation, including evidence of
the subversive activities of various groups and individuals, indicates that there are still
pockets of actual armed insurrection and rebellion in certain parts of the country. Ehile in
the major areas of the active rebellion the military challenge to the !epublic and its duly
constituted 3overnment has been overcome and effective steps have been and are
being taken to redress the centuriesCold and deepCseated causes upon ,hich the fires of
insurrection and rebellion have fed, the essential process of rehabilitation and
renascence is a slo, and delicate process. 0n the basis of said current assessment and
of consultations ,ith the people, the President believes that the e8igencies of the
situation, the continued threat to peace, order, and security, the dangers to stable
government and to democratic processes and institutions, the re#uirements of public
safety, and the actual and imminent danger of insurrection and rebellion all re#uire the
continuation of the e8ercise of po,ers incident to martial la,:
c. he majority of persons ,ho had to be detained upon the proclamation of martial la,
have been released and are no, engaged in their normal pursuits. >o,ever, the
President has deemed that, considering the overall situation described above and in vie,
of ade#uate evidence ,hich can not no, be declassified, the continued detention of
certain individuals ,ithout the filing of formal charges in court for subversive and other
criminal acts is necessary in the interest of national security and defense to enable the
3overnment to successfully meet the grave threats of rebellion and insurrection. %n this
regard, the -ecretary of ?ational Defense and his authori"ed representatives have acted
in accordance ,ith guidelines relating to national security ,hich the President has
prescribed.
!espectfully submitted.
Manila, Philippines, May &A, &('J.
;6ol. %%, !ollo, +CABBA(.<
and that earlier, in connection ,ith the issue of jurisdiction of the -upreme Court over the instant
cases, the respondents invoked 3eneral 0rders ?os. A and ACA reading, as follo,s7
GENE>30 O>.E> NO. 7
E>/!/A-, martial la, having been declared under Proclamation ?o. &9)&, dated -eptember *&, &('*
and is no, in effect throughout the land:
E>/!/A-, martial la,, having been declared because of ,anton destruction of lives and property,
,idespread la,lessness and anarchy and chaos and disorder no, prevailing throughout the country,
,hich condition has been brought about by groups of men ,ho are actively engaged in a criminal
conspiracy to sei"e political and state po,er in the Philippines in order to take over the 3overnment by
force and violence, they e8tent of ,hich has no, assumed the proportion of an actual ,ar against our
people and their legitimate 3overnment: and
E>/!/A-, in order to make more effective the implementation of the aforesaid Proclamation ?o. &9)&
,ithout unduly affecting the operations of the 3overnment, and in order to end the present national
emergency ,ithin the shortest possible time:
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, CommanderCinCChief of all the Armed 1orces of the
Philippines, and pursuant to Proclamation ?o. &9)&, dated -eptember *&, &('*, do hereby order that
henceforth all e8ecutive departments, bureaus, offices, agencies and instrumentalities of the ?ational
3overnment, governmentCo,ed or controlled corporations, as ,ell as all governments of all the provinces,
cities, municipalities and barrios throughout the land shall continue to function under their present officers
and employees and in accordance ,ith e8isting la,s, until other,ise ordered by me or by my duly
designated representative.
% do hereby further order that the .udiciary shall continue to function in accordance ,ith its present
organi"ation and personnel, and shall try and decide in accordance ,ith e8isting la,s all criminal and civil
cases, e8cept the follo,ing cases7
&. hose involving the validity, legality or constitutionality of any decree, order or acts issued, promulgated
or performed by me or by my duly designated representative pursuant to Proclamation ?o. &9)&, dated
-eptember *&, &('*.
*. hose involving the validity or constitutionality of any rules, orders, or acts issued, promulgated or
performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated
by me or by my duly designated representative pursuant to Proclamation ?o. &9)&, dated -eptember *&,
&('*.
A. hose involving crimes against national security and the la, of nations.
J. hose involving crimes against the fundamental la,s of the -tate.
B. hose involving crimes against public order.
2. hose crimes involving usurpation of authority, rank, title, and improper use of names, uniforms, and
insignia.
'. hose involving crimes committed by public officers.
Done in the City of Manila, this **nd day of -eptember, in the year of 0ur +ord, nineteen hundred
and seventyCt,o.
;-3D.< 1/!D%?A?D /. MA!C0- President !epublic of the Philippines
GENE>30 O>.E> NO. 743 .
-ubCparagraph & of the second paragraph of the dispositive portion of 3eneral 0rder ?o. A, dated
-eptember **, &('*, is hereby amended to read as follo,s7
888 888 888
&. hose involving the validity, legality, or constitutionality of Proclamation ?o. &9)&, dated -eptember *&,
&('*, or of any decree, order or acts issued, promulgated or performed by me or by my duly designated
representative pursuant thereto.
888 888 888
Done in the City of Manila, this *Jth day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o.
;-3D.< 1/!D%?A?D /. MA!C0- President
+ike,ise relevant are the issuance by the President on .anuary &', &('A of Proclamation &&9J
reading thus7
P>OC03'3TION NO. $$FJ
D/C+A!%?3 >/ C0?%?=A%0? 01 MA!%A+ +AE.
E>/!/A-, Barangays ;Citi"ens Assemblies< ,ere created in barrios in municipalities and in
districtsF,ards in chartered cities pursuant to Presidential Decree ?o. )2, dated December A&, &('*,
composed of all persons ,ho are residents of the barrio, district or ,ard for at least si8 months, fifteen
years of age or over, citi"ens of the Philippines and ,ho are registered in the list of Citi"en Assembly
members kept by the barrio, district or ,ard secretary:
E>/!/A-, the said Barangays ,ere established precisely to broaden the base of citi"en participation in
the democratic process and to afford ample opportunities for the citi"enry to e8press their vie,s on
E>/!/A-, pursuant to Presidential Decree ?o. )2CA, dated .anuary B, &('A and Presidential Decree
?o. )2CB, dated .anuary ', &('A, the #uestion ,as posed before the Barangays7 Do you ,ant martial la,
to continueI
E>/!/A-, fifteen million t,o hundred t,entyCfour thousand five hundred eighteen ;&B,**J,B&)< voted
for the continuation of martial la, as against only eight hundred fortyCthree thousand fiftyCone ;)JA,9B&<
,ho voted against it:
me vested by the Constitution, do hereby declare that martial la, shall continue in accordance ,ith the
needs of the time and the desire of the 1ilipino people.
seventyCthree.
and the holding of a referendum on .uly *'C*), &('A ,hich as evidenced by the C0M/+/C
proclamation of August A, &('A resulted in the follo,ing7
=nder the present constitution the President, if he so desires, can continue in office beyond &('A.
Do you ,ant President Marcos to continue beyond &('A and finish the reforms he has initiated under
Martial +a,I
&),9B*,9&2 C @/-
&,)B2,'JJ C ?0
;Phil. Daily /8press, August J, &('A<
TCE FEN.3'ENT30 ISSEES
1irst of all, petitioners challenge the factual premises and constitutional sufficiency of Proclamation
&9)&. %nvoking the Constitution of &(AB under ,hich it ,as issued, they vigorously maintain that
4,hile there may be rebellion in some remote as in %sabela, there is no basis for the nation,ide
imposition of martial la,, since7 ;a< no large scale rebellion or insurrection e8ists in the Philippines: ;b<
public safety does not re#uire it, inasmuch as no department of the civil government K is sho,n to
have been unable to open or function because of or due to, the activities of the la,less elements
described in the Proclamation: ;c< the /8ecutive has given the nation to understand K and there
e8ists no evidence to the contrary K that the armed forces can handle the situation ,ithout $utili"ing
the e8traordinary of the President etc.$: and ;d< the problem in the 3reater Manila Area ... ,here
petitioners ,ere sei"ed and arrested ,as, at the time martial la, ,as, plain la,lessness and
criminality.4 ;pp. 2(C'9 Petitioners$ Memorandum<. %n his supplemental petition, petitioner Diokno
individually posits that especially these days, ,ith the improved conditions of peace and order, there
is no more constitutional justification for the continuance of martial la,. %n other ,ords, petitioners
#uestion not only the constitutional sufficiency both in fact and in la, of the proclamation but also the
legality of their detention and constraints, independently of any finding of validity of the proclamation,
,hile in his supplemental petition petitioner Diokno individually submits that the Court should declare
that it has already become illegal to continue the present martial la, regime because the emergency
for ,hich it ,as proclaimed, if it ever e8isted, has already ceased, as attested by various public and
official declaration of no less than the President himself. 0n the other hand, respondents ,ould ,ant
the Court to lay its hands off the instant petitions, claiming that under 3eneral 0rders ?os. A and ACA,
afore#uoted, the President has ordered that the .udiciary shall not try and decide cases 4involving the
validity, legality or constitutionality4 of Proclamation &9)& and any order, decree or acts issued or
done pursuant to said Proclamation. hey contend most vehemently that this Court has no jurisdiction
to in#uire into the factual bases of the proclamation, any #uestion as to the propriety or constitutional
sufficiency of its issuance being, according to them, political and nonCjusticiable. hey point out, in
this connection, that in the aboveCmentioned referendum of .anuary &9C&B, &('A and more so in that
of .uly *'C*), &('A, the sovereign people impressed their seal of approval on the continuation of
martial la, for as long as the President may deem it ,ise to maintain the same. And on the
assumption the Court can make an in#uiry into the factual bases of the Proclamation, they claim there
,as more than efficient justification for its issuance, in the light of the criterion of arbitrariness
sanctioned by =s in 0ansan+ vs. Garcia, J* -C!A JJ). !espondents further maintain that it is only
by another official proclamation by the President, not by a declaration, that martial la, may be lifted.
Additionally, in their ans,er of .uly *2, &('A to petitioner Diokno$s supplemental petition, respondents
contend that the e8press provisions of the aboveC#uoted transitory provision of the ?e, Constitution,
have made indubitable that Proclamation &9)& as ,ell as all the impugned 3eneral 0rders are
constitutional and valid.
hus, the fundamental #uestions presented for the Court$s resolution are7
&. Does the -upreme Court have jurisdiction to resolve the merits of the instant petitionsI Put
differently, are not the issues herein related to the propriety or constitutional sufficiency of the
issuance of the Proclamation purely political, ,hich are not for the judiciary, but for the people and the
political departments of the government to determineI And vie,ed from e8isting jurisprudence in the
Philippines, is not the doctrine laid do,n by this Court in 0ansan+ vs. Garcia, supra, applicable to
these casesI
*. /ven assuming +ansang to be applicable, and on the basis of the criterion of arbitrariness
sanctioned therein, can it be said that the President acted arbitrarily, capriciously or ,himsically in
issuing Proclamation &9)&I
A. /ven assuming also that said proclamation ,as constitutionally issued, may not the -upreme
Court declare upon the facts of record and those judicially kno,n to it no, that the necessity for
martial la, originally found by the President to e8ist has already ceased so as to make further
continuance of the present martial la, regime unconstitutionalI
J. /ven assuming again that the placing of the country under martial la, is constitutional until the
President himself declares other,ise, is there any legal justification for the arrest and detention as
,ell as the other constraints upon the individual liberties of the petitioners, and, in the affirmative,
does such justification continue up to the present, almost t,o years from the time of their
apprehension, there being no criminal charges of any kind against them nor any ,arrants of arrest for
their apprehension duly issued pursuant to the procedure prescribed by la,I
B. 1inally, can there still be any doubt regarding the constitutionality of the issuance of Proclamation
&9)& and all the other proclamations and orders, decrees, instructions and acts of the President
issued or done by him pursuant to said Proclamation, considering that by the terms of -ection A ;*< of
Article D6%% of the Constitution of the Philippines of &('A, 4all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the incumbent President shall be part of the la,
of the land, and shall remain valid, legal, binding and effective4 until revoked or superseded by the
incumbent President himself or by the regular ?ational Assembly established under the same
ConstitutionI
%
TCE ISSEE OF JE>IS.ICTION
By its very nature, the issue of jurisdiction vigorously urged by the -olicitor 3eneral calls for prior
resolution. %ndeed, ,henever the authority of the Court to act is seriously challenged, it should not
proceed any further until that authority is clearly established. And it goes ,ithout saying that such
authority may be found only in the e8isting la,s andFor the Constitution.
1or a moment, ho,ever, there ,as a feeling among some members of the Court that the import of the
transitory provisions of the ?e, Constitution referred to in the fifth above has made the issue of
jurisdiction posed by the #uestion respondents of secondary importance, if not entirely academic.
=ntil, upon further reflection, a consensus emerged that for =s to declare that the transitory provision
invoked has rendered moot and academic any controversy as to the legality of the impugned acts of
the President is to assume that the issue is justiciable, thereby bypassing the very issue of
jurisdiction. Ee are asked to resolve. Ee feel that ,hile perhaps, such reliance on the transitory
provision referred to may legally suffice to dispose of the cases at bar, it cannot ans,er persistent
#ueries regarding the po,ers of the -upreme Court in a martial la, situation. %t ,ould still leave
unsettled a host of controversies related to the continued e8ercise of e8traordinary po,ers by the
President. Eithal, such assumption of justiciability ,ould leave the Court open to successive petitions
asking that martial la, be lifted, ,ithout 0ur having resolved first the correctness of such assumption.
%ndeed, nothing short of a categorical and definite ruling of this Court is imperative regarding the
pretended nonCjusticiability of the issues herein, if the people are to kno,, as they must, ,hether the
present governmental order has legitimate constitutional foundations or it is supported by nothing
more than naked force and selfCcreated stilts to keep it above the murky ,aters of unconstitutionality.
hus, it is but proper that Ee tackle first the #uestions about the authority of the Court to entertain
and decide these cases before discussing the materiality and effects of the transitory provision relied
upon by respondents.
As a matter of fact, it is not alone the matter of jurisdiction that Ee should decide. Beyond the purely
legal issues placed before =s by the parties, more fundamental problems are involved in these
proceedings. here are allCimportant matters ,hich a historical decision like this cannot ignore on the
prete8t that 0ur duty in the premises is e8clusively judicial. Ehether all the members of the Court like
it or not, the Court has to play its indispensable and decisive role in resolving the problems
confronting our people in the critical circumstances in ,hich they find themselves. After all, ,e cannot
dissociate ourselves from them, for ,e are 1ilipinos ,ho must share the common fate to ,hich the
denouement of the current situation ,ill consign our nation. he priority issue before =s is ,hether
Ee ,ill subject the assailed acts of the President to judicial scrutiny as to its factual bases or Ee ,ill
defer to his findings predicated on evidence ,hich are in the very nature of things officially available
only to him, but in either case, our people must kno, that 0ur decision has democratic foundations
and conforms ,ith the great principles for ,hich our nation e8ists.
he ?e, Constitution itself is in a large sense a product of the political convulsion no, shaking
precariously the unity of the nation. =pon the other hand, that those presently in authority had a hand
in one ,ay or another in its formulation, approval and ratification can hardly be denied. o justify,
therefore, the restraint upon the liberties of petitioners through an e8clusive reliance on the mandates
of the ne, charter, albeit logically and technically tenable, may not suffice to keep our people united
in the faith that there is genuine democracy in the e8isting order and that the rule of la, still prevails
in our land. -omeho, the disturbing thought may keep lingering ,ith some, if not ,ith many, of our
countrymen that by predicating 0ur decision on the basis alone of ,hat the ?e, Constitution ordains,
Ee are in effect allo,ing those presently in authority the dubious privilege of legali"ing their acts and
e8culpating themselves from their supposed constitutional transgressions through a device ,hich
might yet have been of their o,n furtive making.
Besides, Ee should not be as naive as to ignore that in troublous times like the present, simplistic
solutions, ho,ever solidly based, of constitutional controversies likely to have grave political
conse#uences ,ould not sound cogent enough unless they ring in complete harmony ,ith the tune
set by the founders of our nation ,hen they solemnly consecrated it to the ideology they considered
best conducive to the contentment and prosperity of all our people. And the commitment of the
Philippines to the ideals of democracy and freedom is ever evident and indubitable. %t is ,rit in the
martyrdom of our revolutionary forbears ,hen they violently overthro, the yoke of -panish dispotism.
%t is an indelible part of the history of our passionate and "ealous observance of democratic principles
and practices during the more than four decades that America ,as ,ith us. %t is reaffirmed in bright
crimson in the blood and the lives of the countless 1ilipinos ,ho fought and died in order that our
country may not be subjugated under the militarism and totalitarianism of the .apanese then, ,ho
,ere even enticing us ,ith the idea of a 3reater /ast Asia CoCProsperity -phere. And today, that our
people are sho,ing considerable disposition to suffer the imposition of martial la, can only be
e8plained by their belief that it is the last recourse to save themselves from the inroads of ideologies
antithetic to those they cherish and uphold.
Eithal, the eyes of all the peoples of the ,orld on both sides of the bamboo and iron curtains are
focused on ,hat has been happening in our country since -eptember *&, &('*. Martial la, in any
country has such a,esome implications that any nation under it is naturally an interesting study
subject for the rest of mankind. hose ,ho consider themselves to be our ideological allies must be
keeping apprehensive ,atch on ho, steadfastly ,e shall remain living and cherishing our common
fundamental political tenets and ,ays of life, ,hereas those of the opposite ideology must be eagerly
anticipating ho, soon ,e ,ill join them in the conviction that, after all, real progress and development
cannot be achieved ,ithout giving up individual freedom and liberty and unless there is concentration
of po,er in the e8ercise of government authority. %t is true the Philippines continues to enjoy
recognition of all the states ,ith ,hom it had diplomatic relations before martial la, ,as proclaimed
but it is not difficult to imagine that soon as it has became definite or any,ay apparent to those
concerned that the Philippines has ceased to adhere to the immutable concepts of freedom and
democracy enshrined in its o,n fundamental la, corresponding reactions ,ould manifest themselves
in the treatment that ,ill be given us by these states.
%n our chosen form of government, the -upreme Court is the department that most authoritatively
speaks the language of the Constitution. >ence, ho, the present martial la, and the constraints upon
the liberties of petitioners can be justified under our Constitution ,hich provides for a republican
democratic government ,ill be read by the ,hole ,orld in the considerations of this decision. 1rom
them they ,ill kno, ,hither ,e are going as a nation. More importantly, by the same token, history
and the future generations of 1ilipinos ,ill render their o,n judgment on all of us ,ho by the ,ill of
Divine Providence have to play our respective roles in this epochal chapter of our national life. By this
decision, everyone concerned ,ill determine ho, truly or other,ise, the Philippines of today is
keeping faith ,ith the fundamental precepts of democracy and liberty to ,hich the nation has been
irrevocably committed by our heroes and martyrs since its birth.
And ,e should not gloss over the fact that petitioners have come to this Court for the protection of
their rights under the provisions of the 0ld Charter that have remained unaltered by the ?e,
Constitution. %t ,ould not be fair to them, if the provisions invoked by them still mean ,hat they had
al,ays meant before, to determine the fate of their petitions on the basis merely of a transitory
provision ,hose consistency ,ith democratic principles they vigorously challenge.
%n this delicate period of our national life, ,hen faith in each other and unity among all of the
component elements of our people are indispensable, Ee cannot treat the attitude and feelings of the
petitioners, especially -enator Diokno > ,ho is still under detention ,ithout formal charges, ,ith
apathy and indifferent unconcern. heir pleadings evince #uite distinctly an apprehensive, nay a fast
d,indling faith in the capacity of this Court to render them justice. Bluntly put, their pose is that the
justice they seek may be found only in the correct construction of the &(AB Constitution, and they
make no secret of their fears that because the incumbent members of the Court have taken an oath
to defend and protect the ?e, Constitution, their hopes of due protection under the Bill of !ights of
the 0ld Charter may fall on deaf ears. Petitioner Diokno, in particular, ,ith the undisguised
concurrence of his chief counsel, former -enator aLada, despairingly be,ails that although they are
4convinced beyond any nagging doubt that ;they are< on the side of right and reason and la, and
justice, ;they are< e#ually convinced that ;they< cannot reasonably e8pect either right or reason, la,
or justice, to prevail in ;these< case;s<.4
o be sure, Ee do not feel bound to soothe the subjective despondency nor to cool do,n the
infuriated feelings of litigants and la,yers by means other than the sheer objectiveness and
demonstrated technical accuracy of our decisions. =nder the peculiar milieu of these cases, ho,ever,
it is perhaps best that Ee do not spare any effort to make everyone see that in discharging the grave
responsibility incumbent upon =s in the best light that 3od has given =s to see it, Ee have e8plored
every angle the parties have indicated and that Ee have e8hausted all jurisprudential resources
,ithin our command before arriving at our conclusions and rendering our verdict. %n a ,ay, it could
indeed be part of the nobility that should never be lost in any court of justice that no party before it is
left sulking ,ith the thought that he lost because not all his important arguments in ,hich he sincerely
believes have been duly considered or ,eighed in the balance.
But, of course, petitioners$ emotional misgivings are manifestly baseless. %t is too evident for anyone
to ignore that the provisions of the 0ld Constitution petitioners are invoking remain unaltered in the
?e, Constitution and that ,hen it comes to the basic precepts underlying the main portions of both
fundamental la,s, there is no disparity, much less any antagonism bet,een them, for in truth, they
are the same identical tenets to ,hich our country, our government and our people have al,ays been
ineradicably committed. %nsofar, therefore, as said provisions and their underlying principles are
concerned, the ne, oath taken by the members of the Court must be understood, not in the
disturbing sense petitioners take them, but rather as a continuing guarantee of the .ustices$
uns,erving fealty and steadfast adherence to the selfCsame tenets and ideals of democracy and
liberty embodied in the oaths of loyalty they took ,ith reference to the &(AB Constitution.
Contrary to ,hat is obviously the erroneous impression of petitioner Diokno, the fundamental reason
that impelled the members of the Court to take the ne, oaths that are causing him un,arranted
agony ,as precisely to regain their independence from the /8ecutive, inasmuch as the transitory
provisions of the &('A Constitution had, as a matter of course, subjected the judiciary to the usual
rules attendant in the reorgani"ation of governments under a ne, charter. =nder -ections ( and &9 of
Article D6%%, 4incumbent members of the .udiciary may continue in office until they reach the age of
seventy years unless sooner replaced4 by the President, but 4all officials ,hose appointments are by
this Constitution vested in the ;President< shall vacate their offices upon the appointment and
#ualification of their successors.4 %n other ,ords, under said provisions, the .ustices ceased to be
permanent. And that is precisely ,hy our ne, oaths containing the phrase 4na pinagpapatuloy sa
panunungkulan4, ,hich petitioner Diokno uncharitably ridicules ignoring its real import, ,as prepared
by the -ecretary of .ustice in consultation ,ith the Court, and not by the President or any other
subordinate in the /8ecutive office, purposely to make sure that the oath taking ceremony ,hich ,as
to be presided by the President himself ,ould connote and signify that thereby, in fact and in
contemplation of la,, the President has already e8ercised the po,er conferred upon him by the
afore#uoted transitory constitutional provisions to replace anyone of us ,ith a successor at anytime.
here ,as no Presidential edict at all for the .ustices to take such an oath. he President informed
the Court that he ,as determined to restore the permanence of the respective tenures of its
members, but there ,as a feeling that to e8tend ne, appointments to them as successors to
themselves ,ould sound someho, absurd, And so, in a conference among the President, the
-ecretary of .ustice and all the .ustices, a mutually acceptable construction of the pertinent transitory
provision ,as adopted to the effect that an official public announcement ,as to be made that the
incumbent .ustices ,ould be continued in their respective offices ,ithout any ne, appointment, but
they ,ould take a fittingly ,orded oath the te8t of ,hich ,as to be prepared in consultation bet,een
the -ecretary of .ustice and the Court. hus, by that oath taking, all the members of the Court, other
than the Chief .ustice and the three ne, Associate .ustices, ,ho because of their ne, appointment
are not affected by the transitory provisions, are no, e#ually permanent ,ith them in their
constitutional tenures, as officially and publicly announced by the President himself on that occasion.
0ther,ise stated, the reorgani"ation of the -upreme Court contemplated in the transitory provisions
referred to, ,hich, incidentally ,as also a feature of the transitory provisions of the &(AB Constitution,
albeit, limited then e8pressly to one year, ;-ection J, Article D6%< has already been accomplished,
and all the .ustices are no, unreachably beyond the presidential prerogative either e8plicit or implicit
in the terms of the ne, transitory provisions.
%t is, therefore, in these faith and spirit and ,ith this understanding, supported ,ith prayers for
guidance of Divine Providence, that Ee have deliberated and voted on the issues in these cases K
certainly, ,ithout any claim of monopoly of ,isdom and patriotism and of loyalty to all that is sacred to
the Philippines and the 1ilipino people.
%%
As already stated, the 3overnment$s insistent posture that the -upreme Court should abstain from
in#uiring into the constitutional sufficiency of Proclamation &9)& is predicated on t,o fundamental
grounds, namely, ;&< that under 3eneral 0rder ?o. A, as amended by 3eneral 0rder ?o. ACA, 4the
.udiciary;,hich includes the -upreme Court< shall continue to function in accordance ,ith its present
organi"ation and personnel, and shall try and decide in accordance ,ith e8isting la,s all criminal and
civil cases, e8cept the follo,ing7 &. hose involving the validity, legality or constitutionality of
Proclamation &9)& dated -eptember *&, &('* or of any decree, order or acts issued, promulgated or
performed by ;the President< or by ;his< duly designated representative pursuant thereto,4 and ;*< the
#uestions involved in these cases are political and nonCjusticiable and, therefore, outside the domain
of judicial in#uiry.
K A K
3/?/!A+ 0!D/!- ?0-. A A?D ACA >A6/ C/A-/D 0 B/ 0P/!A%6/ %?-01A! A- >/@
/?.0%? >/ .=D%C%A!@ 01 .=!%-D%C%0? 06/! CA-/- %?60+6%?3 >/ 6A+%D%@ 01 >/
P!0C+AMA%0?-, 0!D/!- 0! AC- 01 >/ P!/-%D/?.
Anent the first ground thus invoked by the respondents, it is not ,ithout importance to note that the
-olicitor 3eneral relies barely on the provisions of the general orders cited ,ithout elaborating as to
ho, the -upreme Court can be bound thereby. Considering that the totality of the judicial po,er is
vested in the Court by no less than the Constitution, both the 0ld and the ?e,, the absence of any
independent sho,ing of ho, the President may by his o,n fiat constitutionally declare or order
other,ise is certainly significant. %t may be that the -olicitor 3eneral considered it more prudent to
tone do,n any possible frontal clash ,ith the Court, but as Ee see it, the simplistic tenor of the
-olicitor 3eneral$s defense must be due to the fact too ,ell kno,n to re#uire any evidential proof that
by the President$s o,n acts, publici"ed here and abroad, he had made it plainly understood that
3eneral 0rders ?os. A and ACA are no longer operative insofar as they ,ere intended to divest the
.udiciary of jurisdiction to pass on the validity, legality or constitutionality of his acts under the aegis of
martial la,. %n fact, according to the President, it ,as upon his instructions given as early as
-eptember *J, &('*, soon after the filing of the present petitions, that the -olicitor 3eneral submitted
his return and ans,er to the ,rits Ee have issued herein. %t is a matter of public kno,ledge that the
president$s repeated avo,al of the 3overnment$s submission to the Court is being proudly acclaimed
as the distinctive characteristic of the soCcalled 4martial la, K Philippine style4, since such attitude
endo,es it ,ith the democratic flavor so dismally absent in the martial la, prevailing in other
countries of the ,orld.
Accordingly, even if it ,ere to be assumed at this juncture that by virtue of the transitory provision of
the ?e, Constitution making all orders of the incumbent President part of the la, of the land, 3eneral
0rders ?os. A and ACA are valid, the position of the respondents on the present issue of jurisdiction
based on said orders has been rendered untenable by the very acts of the President, ,hich in the
,ords of the same transitory provision have 4modified, revoked or superseded4 them. And in this
connection, it is important to note that the transitory provision just referred to te8tually says that the
acts of the incumbent President shall 4remain valid, legal, binding and effective ... unless modified,
revoked or superseded by subse#uent proclamations, orders, decrees, instructions or other acts of
the incumbent President, or unless e8pressly and e8plicitly modified, or repealed by the regular
?ational Assembly4, thereby implying that the modificatory or revocatory acts of the president need
not be as e8press and e8plicit as in the case of the ?ational Assembly. %n other ,ords, ,hen it comes
to acts of the President, mere demonstrated inconsistency of his posterior acts ,ith earlier ones
,ould be enough for implied modification or revocation to be effective, even if no statement is made
by him to such effect.
!ationali"ing his attitude in regard to the -upreme Court during martial la,, President Marcos has the
follo,ing to say in his book entitled 4?otes on the ?e, -ociety of the Philippines47
0ur martial la, is uni#ue in that it is based on the supremacy of the civilian authority over the military and
on complete submission to the decision of the -upreme Court, and most important of all, the people. ...
;p. &9A<.
888 888 888
hus, upon the approval by the Constitutional Convention of a ne, Constitution, % organi"ed the
barangays or village councils or citi"ens assemblies in the barrios ;a barrio is the smallest political unit in
the Philippines<. % directed the ne, Constitution to be submitted to the barangays or citi"ens assemblies in
a formal plebiscite from .anuary &9 to &B, &('A. he barangays voted almost unanimously to ratify the
Constitution, continue ,ith martial la, and ,ith the reforms of the ?e, -ociety.
his action ,as #uestioned in a petition filed before our -upreme Court in the cases entitled Javellana vs.
E6ecutive Secretar et al, 3.!. ?o. +CA2&JA,A2&2J, A2&2B, A2*A2 and A2*)A. he issue raised ,as
,hether % had the po,er to call a plebiscite: ,hether % could proclaim the ratification of the ne,
Constitution. %n raising this issue, the petitioners ;,ho, incidentally, ,ere +iberals or political opposition
leaders< raised the fundamental issue of the po,er of the President under a proclamation of martial la, to
issue decrees.
%nasmuch as the issues in turn raised the #uestion of the legitimacy of the entire 3overnment and also to
meet the insistent suggestion that, in the event of an adverse decision, % proclaim a revolutionary
government, % decided to submit to tile jurisdiction of the -upreme Court as % had done in the 0ansan+ vs.
Garcia case ;already #uoted< in &('& ,hen almost the same parties in interest #uestioned my po,ers as
President to suspend the privilege of the ,rit of *a#eas corpus. ;!efer to pp. &AC&'.<
his ,ould, at the same time, calm the fears of every cynic ,ho had any misgivings about my intentions
and claimed that % ,as ready to set up a dictatorship. 1or ,ho is the dictator ,ho ,ould submit himself to
a higher body like the -upreme Court on the #uestion of the constitutionality or validity of his actionsI ;pp.
&9AC&9J.<
888 888 888
%t ,ill be noted that % had submitted myself to the jurisdiction of the -upreme Court in all cases
#uestioning my authority in &('& in the case of 0ansan+ vs. Garcia on the #uestion of the suspension of
the privilege of the ,rit of *a#eas corpus and in the case just cited on the proclamation of martial la, as
,ell as the other related cases. ;pp. &9BC&92.<
?othing could be more indicative, than these ,ords of the President himself, of his resolute intent to
render 3eneral 0rders ?os. A and ACA inoperative insofar as the -upreme Court$s jurisdiction over
cases involving the validity, legality or constitutionality of his acts are concerned. Actually, the tenor
and purpose of the said general orders are standard in martial la, proclamations, and the President$s
attitude is more of an e8ception to the general practice. Be that as it may, ,ith this development,
petitioners have no reason to charge that there is a 4disrobing4 of the -upreme Court. But even as the
President une#uivocally reaffirms, over and above martial la,, his respect for the -upreme Court$s
constitutionally assigned role as the guardian of the Constitution and as the final authority as to its
correct interpretation and construction, it is entirely up to the Court to determine and define its o,n
constitutional prerogatives visCaCvis the proclamation and the e8isting martial la, situation, given the
reasons for the declaration and its avo,ed objectives. .
K B K
MA@ >/ -=P!/M/ C0=! %?P=%!/ %?0 >/ 1AC=A+ BA-/- 01 >/ %--=A?C/ 01
P!0C+AMA%0? &9)& 0 D//!M%?/ %- C0?-%=%0?A+ -=11%C%/?C@I
he second ground vigorously urged by the -olicitor 3eneral is more fundamental, since, prescinding
from the force of the general orders just discussed, it strikes at the very core of the judicial po,er
vested in the Court by the people thru the Constitution. %t is claimed that insofar as the instant
petitions impugn the issuance of Proclamation &9)& as having been issued by the President in
e8cess of his constitutional authority, they raise a political #uestion not subject to in#uiry by the
courts. And ,ith reference to the plea of the petitioners that their arrest, detention and other
restraints, ,ithout any charges or ,arrants duly issued by the proper judge, constitute clear violations
of their rights guaranteed by the fundamental la,, the stand of the respondents is that the privilege of
the ,rit of *a#eas corpus has been suspended automatically in conse#uence of the imposition of
martial la,, the propriety of ,hich is left by the Constitution to the e8clusive discretion of the
President, such that for the proper e8ercise of that discretion he is accountable only to the sovereign
people, either directly at the polls or thru their representatives by impeachment.
?ever before has the -upreme Court of the Philippines been confronted ,ith a problem of such
transcendental conse#uences and implications as the present one entails. here is here an e8ertion
of e8treme state po,er involving the proclaimed assumption of the totality of government authority by
the /8ecutive, predicated on his o,n declaration that a state of rebellion assuming 4the magnitude of
an actual state of ,ar against our people and the !epublic of the Philippines4 e8ists ;**nd ,hereas of
Proclamation &9)&< and that 4the public order and safety and the security of this nation demand that
immediate, s,ift, decisive and effective action be taken to protect and insure the peace, order and
security of the country and its population and to maintain the authority of the government.4 ;&(th
,hereas, i!.< =pon the other hand, petitioners deny the factual bases of the Proclamation and insist
that it is incumbent upon the Court, in the name of democracy, liberty and the constitution, to in#uire
into the veracity thereof and to declare, upon finding them to be untrue, that the proclamation is
unconstitutional and void. !espondents counter ho,ever, that the very nature of the proclamation
demands but the court should refrain from making any such in#uiry, considering that, as already
stated, the discretion as to ,hether or not martial la, should be imposed is lodged by the Constitution
in the President e8clusively.
As Ee enter the e8tremely delicate task of resolving the grave issues thus thrust upon =s, Ee are
them is that the Constitution
9
is the supreme la, of the land. his means among others things all the
po,ers of the government and of all its officials from the President do,n to the lo,est emanate from
it. ?one of them may e8ercise any po,er unless it can be traced thereto either te8tually or by natural
and logical implication.
he second is that it is settled that the .udiciary provisions of the Constitution point to the -upreme
Court as the ultimate arbiter of all conflicts as to ,hat the Constitution or any part thereof means.
Ehile the other Departments may adopt their o,n construction thereof, ,hen such construction is
he third is that in the same ,ay that the -upreme Court is the designated guardian of the
Constitution, the President is the specifically assigned protector of the safety, tran#uility and territorial
integrity of the nation. his responsibility of the President is his alone and may not be shared by any
other Department.
he fourth is that, to the end just stated, the Constitution e8pressly provides that 4in case of invasion,
insurrection or rebellion or imminent danger thereof, ,hen the public safety re#uires it, he ;the
/8ecutive< 4may ;as a last resort< ... place the Philippines or any part thereof under martial la,4.
10

Constitution is complete, total and unlimited, so also, the judicial po,er vested in the -upreme Court
and the inferior courts, is the very ,hole of that po,er, ,ithout any limitation or #ualification.
he si8th is that although the Bill of !ights in the Constitution strictly ordains that 4no person shall be
deprived of life, liberty or property ,ithout due process of la,4,
11
even this basic guarantee of
protection readily reveals that the Constitution$s concern for individual rights and liberties is not
entirely above that for the national interests, since the deprivation it enjoins is only that ,hich is
,ithout due process of la,, and la,s are al,ays enacted in the national interest or to promote and
safeguard the general ,elfare. 0f course, it is understood that the la, thus passed, ,hether
procedural or substantive, must afford the party concerned the basic elements of justice, such as the
right to be heard, confrontation, and counsel, inter alia.
And the seventh is that ,hereas the Bill of !ights of the &(AB Constitution e8plicitly enjoins that
4;<he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, or rebellion, ,hen the public safety re#uires it, in any of ,hich events the same may be
suspended ,herever during such period the necessity for such suspension shall e8ist4,
14
there is no
similar injunction ,hether e8pressed or implied against the declaration of martial la,.
reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a
conflict as to the correct construction of the Constitution, that is not contemplated to be ,ithin the
judicial authority of the courts to hear and decide. he judicial po,er of the courts being unlimited and
un#ualified, it e8tends over all situations that call for the ascertainment and protection of the rights of
any party allegedly violated, even ,hen the alleged violator is the highest official of the land or the
government itself. %t is, therefore, evident that the Court$s jurisdiction to take cogni"ance of and to
decide the instant petitions on their merits is beyond challenge.
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. %t is ingrained in the distribution of po,ers in the
fundamental la, that hand in hand ,ith the vesting of the judicial po,er 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, ,hen to refrain from imposing judicial
solutions and instead defer to the judgment of the latter. %t is in the very nature of republican
governments that certain matters are left in the residual po,er 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, ,hen one
studiously considers the basic junctions and responsibilities entrusted by the charter to each of the
great Departments of the government. o cite an obvious e8ample, the protection, defense and
preservation of the state against internal or e8ternal aggression threatening its veiny e8istence is far
from being ,ithin the ambit of judicial responsibility. he distinct role then of the -upreme 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 ,ay to the ultimate prerogative of the
people articulated thru suffrage or thru the acts of their political representatives they have elected for
the purpose.
attractive or popular opposite, judicial activism, ,hich is the fullest e8ertion of judicial po,er upon the
Court in varied forms and modes of projection in several momentous instances in the past,
13
and it is
the main support of the stand of the -olicitor 3eneral on the issue of jurisdiction in the case at bar. %t
is also referred to as the doctrine of judicial selfCrestraint or abstention. But as the nomenclatures
themselves imply, activism and selfCrestraint are both subjective attitudes, not inherent imperatives.
considered opinion is ,hat the Constitution envisions should be done in order to accomplish the
is secondary, respect for the acts of a coordinate, coCe#ual and coCindependent Department being the
alleged abuse of a Department$s o,n basic prerogatives.
%n the final analysis, therefore, Ee need not indulge in any further discussion as to ,hether or not the
Court has jurisdiction over the merits of the instant petitions. %t is definite that it has. !ather, the real
#uestion before =s is ,hether or not the Court should act on them. -tated differently, do Ee have
here that appropriate occasion for activism on the part of the Court, or, do the imperatives of the
situation demand, in the light of the reservations in the fundamental la, just discussed, that Ee defer
to the political decision of the /8ecutiveI After mature deliberation, and taking all relevant
circumstances into account, Ee are convinced that the Court should abstain in regard to ,hat is in all
probability the most important issue raised in them, namely, ,hether or not the Court should in#uire
into the constitutional sufficiency of Proclamation &9)& by receiving evidence tending to belie the
factual premises thereof. %t is 0ur considered vie, that under the Constitution, the discretion to
determine ultimately ,hether or not the Philippines or any part thereof should be placed under martial
la, and for ho, long is lodged e8clusively in the /8ecutive, and for this reason, it is best that Ee
defer to his judgment as regards the e8istence of the grounds therefor, since, after all, it is not
e8pected that the -upreme Court should share ,ith him the delicate constitutional responsibility of
defending the safety, security, tran#uility and territorial integrity of the nation in the face of a rebellion
or invasion. his is not abdication of judicial po,er, much less a violation of 0ur oaths 4to support and
defend the Constitution4: rather, this is deference to an act of the /8ecutive ,hich, in 0ur ,ellC
considered vie,, the Constitution contemplates the Court should refrain from revie,ing or interfering
,ith. o 0ur mind, the follo,ing considerations, inter alia, impel no other conclusion7
K & K
%t has been said that martial la, has no generally accepted definition, much less a precise meaning.
But as Ee see it, no matter ho, variously it has been described, a common element is plainly
recogni"able in ,hatever has been said about it K it does not involve e8ecutive po,er alone. o be
more e8act, martial la, is state po,er ,hich involves the totality of government authority, irrespective
of the Department or official by ,hom it is administered. his is because, as admitted by all, martial
la, is every government$s substitute for the established governmental machinery rendered
inoperative by the emergency that brings it forth, in order to maintain ,hatever legal and social order
is possible during the period of emergency, ,hile the government is engaged in battle ,ith the
enemy. 0ther,ise, ,ith the breakdo,n of the regular government authority or the inability of the usual
offices and officials to perform their functions ,ithout endangering the safety of all concerned,
anarchy and chaos are bound to prevail and protection of life and property ,ould be nil. Ehat is
,orse, the confusion and disorder ,ould detract the defense efforts. %t is indispensable therefore that
some kind of government must go on, and martial la, appears to be the logical alternative. >ence,
from the point of vie, of safeguarding the people against possible governmental abuses, it is not the
declaration of martial la, and ,ho actually administers it that is of supreme importance. -omeone
has of necessity to be in command as surrogate of the ,hole embattled government. %t is ,hat is
actually done by the administrator affecting individual rights and liberties that must pass constitutional
standards, even as these are correspondingly adjusted to suit the necessities of the situation. But this
is not to say that redress of constitutional offenses ,ould immediately and necessarily be available,
for even the procedure for securing redress, its form and time must depend on ,hat such necessities
,ill permit. 6ie,ed in depth, this is all that can be visuali"ed as contemplated in the supposedly
fundamental principle invoked by petitioners to the effect that necessity and necessity alone is the
justification and the measure of the po,ers that may be e8ercised under martial la,.
K * K
%n countries ,here there is no constitutional provision sanctioning the imposition of martial la,, the
po,er to declare or proclaim the same is nevertheless conceded to be the most vital inherent
prerogative of the state because it is a8iomatic that the right of the state to defend itself against
disintegration or subjugation by another cannot be less than an individual$s natural right of selfC
defense. he resulting repression or restraint of individual rights is therefore justified as the natural
contribution that the individual o,es to the state, so that the government under ,hich he lives may
survive. After all, such subordination to the general interest is supposed to be temporary, coincident
only ,ith the re#uirements of the emergency.
At the same time, under the general practice in those countries, it is considered as nothing but logical
that the declaration or proclamation should be made by the /8ecutive. -o it is that none of the cases
cited by petitioners, including those of Cearon vs. Calus &)A, -./. *J and 3llen vs. O-la*o(a Cit, B*
Pac. !ep. *nd -eries, pp. &9BJC&9B(, may be deemed as a binding precedent sustaining definitely
that it is in the po,er of the courts to declare an /8ecutive$s proclamation or declaration of martial la,
in case of rebellion or insurrection to be unconstitutional and unauthori"ed. 0ur o,n research has not
yielded any jurisprudence upholding the contention of petitioners on this point. Ehat is clear and
incontrovertible from all the cases cited by both parties is that the po,er of the /8ecutive to proclaim
martial la, in case of rebellion has never been challenged, not to say outla,ed. %t has al,ays been
assumed, even if the e8tent of the authority that may be e8ercise under it has been subjected to the
applicable provision of the constitution, ,ith some courts holding that the enforceability of the
fundamental la, ,ithin the area of the martial la, regime is un#ualified, and the others maintaining
that such enforceability must be commensurate ,ith the demands of the emergency situation. %n
other ,ords, there is actually no authoritative jurisprudential rule for =s to follo, in respect to the
specific #uestion of ,hether or not the /8ecutive$s determination of the necessity to impose martial
la, during a rebellion is revie,able by the judiciary. %f Ee have to go via the precedential route, the
most that Ee can find is that the legality of an /8ecutive$s e8ercise of the po,er to proclaim martial
la, has never been passed upon by any court in a categorical manner so as to leave no room for
doubt or speculation.
K A K
%n the Philippines, Ee do not have to resort to assumptions regarding any inherent po,er of the
government to proclaim a state of martial la,. Ehat is an implied inherent prerogative of the
government in other countries is e8plicitly conferred by our people to the government in une#uivocal
terms in the fundamental la,. More importantly in this connection, it is to the /8ecutive that the
authority is specifically granted 4in cases of invasion, insurrection or rebellion, ,hen public safety
re#uires it4, to 4place the Philippines or any part thereof under Martial +a,4. o be sure, petitioners
admit that much. But they insist on trying to sho, that the factual premises of the Proclamation are
not entirely true and are, in any event, constitutionally insufficient. hey urge the Court to pass on the
merits of this particular proposition of fact and of la, in their petitions and to order thereafter the
nullification and setting aside thereof.
Ee do not believe the Court should interfere.
he pertinent constitutional provision is e8plicit and une#uivocal. %t reads as follo,s7
;*< he President shall be commanderCinCchief of all armed forces of the Philippines and, ,henever it
place the Philippines or any part thereof under martial la, ;-ection &9;*<, Article 6%%, &(AB Constitution.<
;A< -/C. &*. he prime Minister shall be commanderCinCchief of all armed forces of the Philippines and,
,henever it becomes necessary, he may call out such armed forces to prevent or suppress la,less
violence, invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or imminent
danger thereof, ,hen the public safety re#uires it, he may suspend the privilege of the ,rit of *a#eas
corpus or place the Philippines or any part thereof under martial ;-ection &*, Article %D, &('A
Constitution.<
/8cept for the reference to the Prime Minister in the ?e, Constitution instead of to the President as in
the 0ld, the ,ording of the provision has remained unaltered ipssissi(is ver#is Accordingly, the t,o
Constitutions cannot vary in meaning, they should be construed and applied in the light of e8actly the
same considerations. %n this sense at least, petitioners$ invocation of the &(AB Constitution has not
been rendered academic by the enforcement of the ne, charter. 1or the purposes of these cases,
Ee ,ill in the main consider their arguments as if there has been no .avellana decision.
?o,, since in those countries ,here martial la, is an e8traCconstitutional concept, the /8ecutive$s
proclamation thereof, as observed above, has never been considered as offensive to the fundamental
la,, ,hether ,ritten or un,ritten, and, in fact, not even challenged, ,hat reason can there be that
here in the Philippines, ,herein the Constitution directly and definitely commits the po,er to the
/8ecutive, another rule should obtainI Are ,e 1ilipinos so incapable of electing an /8ecutive ,e can
trust not to unceremoniously cast aside his constitutionally ,orded oath solemnly and emphatically
imposing upon him the duty 4to defend and protect the Constitution4I 0r is the Court to be persuaded
by possible partisan prejudice or the subjective rationali"ation informing personal ambitionsI
!eserving for further discussion the effect of +ansang upon the compelling force of the opinions in
"arcelon vs. "a-er, B Phil. )' and 'ontene+ro vs. CastaAe!a, (& Phil. )2*, relative to the issue at
hand, Ee cannot lightly disregard the ponderous reasons discussed in said opinions supporting the
vie, that the /8ecutive$s choice of means in dealing ,ith a f rebellion should be conclusive. %n
Barcelon, this Court said7
hus the #uestion is s#uarely presented ,hether or not the judicial department of the 3overnment may
investigate the facts upon ,hich the legislative and e8ecutive branches of the 3overnment acted in
providing for the suspension and in actually suspending the privilege of the ,rit of *a#eas corpus in said
provinces. >as the 3overnorC3eneral, ,ith the consent of the Commission, the right to suspend the
privilege of the ,rit of *a#eas corpusI %f so, did the 3overnorC3eneral suspend the ,rit of *a#eas corpus
in the Provinces of Cavite and Batangas in accordance ,ith such authorityI
A paragraph of section B of the act of Congress of .uly &, &(9*, provides7
suspended by the President, or by the 3overnorC3eneral ,ith the approval of the Philippine Commission,
,henever during such period the necessity for such suspension shall e8ist.
his provision of the act of Congress is the only provision giving the 3overnorC3eneral and the Philippine
Commission authority to suspend the privilege of the ,rit of *a#eas corpus. ?o #uestion has been raised
,ith reference to the authority of Congress to confer this authority upon the President or the 3overnorC
3eneral of these %slands, ,ith the approval of the Philippine Commission.
his provision of the act of Congress makes t,o conditions necessary in order that the President or the
3overnorC3eneral ,ith the approval of the Philippine Commission may suspend the privilege of the ,rit of
*a#eas corpus. hey are as follo,s7
;&< Ehen there e8ists rebellion, insurrection, or invasion: and
;*< Ehen public safety may re#uire it.
%n other ,ords, in order that the privilege of the ,rit of *a#eas corpus may be suspended, there must e8ist
rebellion, insurrection, or invasion, and the public safety must re#uire it. his fact is admitted, but the
#uestion is, Eho shall determine ,hether there e8ists a state of rebellion, insurrection, or invasion, and
that by reason thereof the public safety re#uires the suspension of the privilege of the ,rit of *a#eas
corpusI
%t has been argued and admitted that the 3overnorC3eneral, ,ith the approval of the Philippine
Commission, has discretion, ,hen insurrection, rebellion, or invasion actually e8ist, to decide ,hether the
public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus: but the fact ,hether
insurrection, rebellion, or invasion does actually e8ist is an open #uestion, ,hich the judicial department
of the 3overnment may in#uire into and that the conclusions of the legislative and e8ecutive departments
;the Philippine Commission and the 3overnorC3eneral< of the 3overnment are not conclusive upon that
#uestion.
%n other ,ords, it is contended that the judicial department of the 3overnment may consider an
application for the ,rit of *a#eas corpus even though the privileges of the same have been suspended, in
the manner provided by la,, for the purposes of taking proof upon the #uestion ,hether there actually
e8ists a state of insurrection, rebellion, or invasion.
he applicants here admit that if a state of rebellion, insurrection, or invasion e8ists, and the public safety
is in danger , then the President, or 3overnorC3eneral ,ith the approval of the Philippine Commission,
may suspend the privilege of the ,rit of *a#eas corpus.
%nasmuch as the President, or 3overnorC3eneral ,ith the approval of the Philippine Commission, can
suspend the privilege of the ,rit of *a#eas corpus only under the conditions mentioned in the said statute,
it becomes their duty to make an investigation of the e8isting conditions in the Archipelago, or any part
thereof, to ascertain ,hether there actually e8ists a state of rebellion, insurrection, or invasion, and that
the public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus. Ehen this
investigation is concluded, the President, or the 3overnorC3eneral ,ith the consent of the Philippine
Commission, declares that there e8ist these conditions, and that the public safety re#uires the suspension
of the privilege of the ,rit of *a#eas corpus, can the judicial department of the 3overnment investigate
the same facts and declare that no such conditions e8istI
he act of Congress, above #uoted, ,isely provides for the investigation by t,o departments of the
3overnment K the legislative and e8ecutive K of the e8isting conditions, and joint action by the t,o
before the privilege of the ,rit of *a#eas corpus can be suspended in these %slands.
%f the investigation and findings of the President, or the 3overnorC3eneral ,ith the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the 3overnment,
then every officer ,hose duty it is to maintain order and protect the lives and property of the people may
refuse to act, and apply to the judicial department of the 3overnment for another investigation and
conclusion concerning the same conditions, to the end that they may be protected against civil actions
resulting from illegal acts.
0,ing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and may
jeopardi"e the very e8istence of the -tate. -uppose, for e8ample, that one of the thickly populated
3overnments situated near this Archipelago, an8ious to e8tend its po,er and territory, should suddenly
decide to invade these %slands, and should, ,ithout ,arning, appear in one of the remote harbors ,ith a
po,erful fleet and at once begin to land troops. he governor or military commander of the particular
district or province notifies the 3overnorC3eneral by telegraph ;%f this landing of troops and that the
people of the district are in collusion ,ith such invasion. Might not the 3overnorC3eneral and the
Commission accept this telegram as sufficient evidence and proof of the facts communicated and at once
take steps, even to the e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to
them to be necessary to repel such invasionI %t seems that all men interested in the maintainance and
stability of the 3overnment ,ould ans,er this #uestion in the affirmative.
But suppose some one, ,ho has been arrested in the district upon the ground that his detention ,ould
assist in restoring order and in repelling the invasion, applies for the ,rit of *a#eas corpus, alleging that
no invasion actually e8ists: may the judicial department of the 3overnment call the officers actually
engaged in the field before it and a,ay from their posts of duty for the purpose of e8plaining and
furnishing proof to it concerning the e8istence or nonCe8istence of the facts proclaimed to e8ist by the
legislative and e8ecutive branches of the -tateI %f so, then the courts may effectually tie the hands of the
e8ecutive, ,hose special duty it is to enforce the la,s and maintain order, until the invaders have actually
accomplished their purpose. he interpretation contended for here by the applicants, so pregnant ,ith
detrimental results, could not have been intended by the Congress of the =nited -tates ,hen it enacted
the la,.
%t is the duty of the legislative branch of the 3overnment to make such la,s and regulations as ,ill
effectually conserve peace and good order and protect the lives and property of the citi"ens of the -tate.
%t is the duty of the 3overnorC3eneral to take such steps as he deems ,ise and necessary for the
purpose of enforcing such la,s. /very delay and hindrance and obstacle ,hich prevents a strict
enforcement of la,s under the conditions mentioned necessarily tends to jeopardi"e public interests and
the safety of the ,hole people. %f the judicial department of the 3overnment, or any officer in the
3overnment, has a right to contest the orders of the President or of the 3overnorC3eneral under the
conditions above supposed, before complying ,ith such orders, then the hands of the President or the
3overnorC3eneral may be tied until the very object of the rebels or insurrections or invaders has been
accomplished. But it is urged that the President, or the 3overnorC3eneral ,ith the approval of the
Philippine Commission, might be mistaken as to the actual conditions: that the legislative department K
the Philippine Commission K might, by resolution, declare after investigation, that a state of rebellion,
insurrection, or invasion e8ists, and that the public safety re#uires the suspension of the privilege of the
,rit of *a#eas corpus, ,hen, as a matter of fact, no such conditions actually e8isted: that the President, or
3overnorC3eneral acting upon the authority of the Philippine Commission, might by proclamation
suspend the privilege of the ,rit of *a#eas corpus ,ithout there actually e8isting the conditions mentioned
in the act of Congress. %n other ,ords, the applicants allege in their argument in support of their
application for the ,rit of *a#eas corpus, that the legislative and e8ecutive branches of the 3overnment
might reach a ,rong conclusion from their investigations of the actual conditions, or might, through a
desire to oppress and harass the people, declare that a state of rebellion, insurrection, or invasion e8isted
and that public safety re#uired the suspension of the privilege of the ,rit of *a#eas corpus ,hen actually
and in fact no such conditions did e8ist. Ee can not assume that the legislative and e8ecutive branches
,ill act or take any action based upon such motives.
Moreover it can not be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
the machinery ,hich those branches have at their command for e8amining into the conditions in any part
of the Archipelago, ,ill fail to obtain all e8isting information concerning actual conditions. %t is the duty of
the e8ecutive branch of the 3overnment to constantly inform the legislative branch of the 3overnment of
the condition of the =nion as to the prevalence of peace and disorder. he e8ecutive branch of the
3overnment, through its numerous branches of the civil and military, ramifies every portion of the
Archipelago, and is enabled thereby to obtain information from every #uarter and corner of the -tate. Can
the judicial department of the government, ,ith its very limited machinery for the purpose of investigating
general conditions, be any more sure of ascertaining the true conditions throughout the Archipelago, or in
any particular district, than the other branches of the governmentI Ee think not. ;At p. (&C(2.<
888 888 888
he same general #uestion presented here ,as presented to the -upreme Court of the =nited -tates
in the case of 'artin vs. 'ott, in .anuary, &)*'. An act of Congress of &'(B provided K
hat ,henever the =nited -tates shall be invaded or be in imminent danger of invasion from any foreign
nation or %ndian tribe, it shall be la,ful for the President of the =nited -tates to call forth such number of
the militia of the -tate or -tates most convenient to the place of danger or scene of action, as he may
judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers
of the militia as he shall think proper.
%n this case ;Martin vs. Mott< the #uestion ,as presented to the court ,hether or not the President$s
action in calling out the militia ,as conclusive against the courts. he -upreme Court of the =nited
-tates, in ans,ering this #uestion, said7 .
he po,er thus confided by Congress to the President is, doubtless, of a very high and delicate nature. A
free people are naturally jealous of the e8ercise of military po,er: and the po,er to call the militia into
actual service is certainly felt to be one of no ordinary magnitude. But it is not a po,er ,hich can be
e8ecuted ,ithout corresponding responsibility. %t is, in its terms, a limited po,er, confined to cases of
actual invasion, or of imminent danger of invasion. %f it be a limited po,er, the #uestion arises, By ,hom
is the e8igency to be adjudged of and decidedI %s the President the sole and e8clusive judge ,hether the
e8igency has arisen, or is it to be considered as an open #uestion, upon ,hich every officer to ,hom the
orders of the President are addressed, may decide for himself, and e#ually open to be contested by very
militiaman ,ho shall refuse to obey the orders of the PresidentI Ee are all of the opinion that the
authority to decide ,hether the e8igency has arisen belongs e8clusively to the President and his decision
is conclusive upon all other persons. Ee think that this construction necessarily results from the nature of
the po,er itself and from the manifest object contemplated by the act of Congress. he po,er itself is to
be e8ercised upon sudden emergencies, upon great occasions of state and under circumstances ,hich
may be vital to the e8istence of the =nion. ... %f a superior officer has a right to contest the orders of the
President, upon his o,n doubts as to the e8igency having arisen, it must be e#ually the right of every
inferior officer and soldier .... -uch a course ,ould be subversive of all discipline and e8pose the best
disposed officer to the chances of erroneous litigation. Besides, in many instances, the evidence upon
,hich the President might decide that there is imminent danger of invasion might be of a nature not
constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state
,hich the public interest and even safety might imperiously demand to be kept in concealment.
Ehenever the statute gives a discretionary po,er to any person, to be e8ercised by him upon his o,n
opinion of certain facts it is a sound rule of construction that the statute constitutes him the sole and
e8clusive judge of the e8istence of those facts. And in the present case ,e are all of opinion that such is
the true construction of the act of &'(B. %t is no ans,er that such po,er may be abused, for there is no
po,er ,hich is not susceptible of abuse.$ ;Martin vs. Mott, &* Eheat., &( ;*B =.-.<: 6anderheyden vs.
@oung, && .ohns., ?.@. &B9.<
.ustice .oseph -tory for many years a member of the -upreme Court of the =nited -tates, in discussing
the #uestion ,ho may suspend the privilege of the ,rit of habeas: corpus under the Constitution of the
=nited -tates, said7
%t ,ould seem, as the po,er is given to Congress to suspend the ,rit of *a#eas corpus in cases of
rebellion, insurrection, or invasion, that the right to judge ,hether the e8igency has arisen must
conclusively belong to that body.$ ;-tory on the Constitution, Bth ed., see. &AJ*.<
.ustice .ames Net, for many years a justice of the supreme court of the -tate of ?e, @ork, in discussing
the same #uestion, cites the case of Martin vs. Mott, and says7 .
%n that case it ,as decided and settled by the -upreme Court of the =nited -tates that it belonged
e8clusively to the President to judge ,hen the e8igency arises in ,hich he had authority, under the
Constitution, to call forth the militia, and that his decision ,as conclusive upon all other persons. ;Nent$s
Commentaries, &Jth ed., vol. &, bottom p. A*A.<
.ohn !andolph ucker, for many years a professor of constitutional and international la, in Eashington
and +ee university, in discussing this #uestion, said7 .
By an act passed in &'(B Congress gave to the President po,er to call out the militia for certain
purposes, and by subse#uent acts, in &)9', po,er ,as given to him to be e8ercised ,henever he should
deem it necessary, for the purposes stated in the Constitution: and the -upreme Court ;=nited -tates<
has decided that this e8ecutive discretion in making the call ;for -tate militia< could not be judicially
#uestioned.$ ucker on the Constitution, 6ol. %%, p. B)&.<
.ohn ?orton Pomeroy, an eminent la, ,riter upon constitutional #uestions, said7 .
%n 'artin vs. 'ott it ,as decided that under the authority given to the President by the statute of &'(B,
calling forth the militia under certain circumstances, the po,er is e8clusively vested in him to determine
,hether those circumstances e8ist: and ,hen he has determined by issuing his call, no court can
#uestion his decision. ;Pomeroy$s Constitutional +a,, sec. J'2.<
>enry Campbell Black, a ,ellCkno,n ,riter on the Constitution, says7
By an early act of Congress it ,as provided that in case of an insurrection in any -tate
against the government thereof it shall be la,ful for the President of the =nited -tates, on
application of the legislature of such -tate, or of the e8ecutive ;,hen the legislature can
not be convened<, to call forth such a number of the militia of any other -tate or -tates as
may be applied for, as he may judge sufficient to suppress such insurrection. By this act
the po,er of deciding ,hether the e8igency has arisen upon ,hich the 3overnment of
the =nited -tates is bound to interfere is given to the President. ;Black$s Constitutional
+a,, p. &9*.<
.udge homas M. Cooley, in discussing the right of the judicial department of the 3overnment to interfere
,ith the discretionary action of the other departments of the 3overnment, in his ,ork on constitutional
la,, said7
Congress may confer upon the President the po,er to call them ;the militia< forth, and
this makes him the e8clusive judge ,hether the e8igency has arisen for the e8ercise of
the authority and renders one ,ho refuses to obey the call liable to punishment under
military la,. ;Cooley$s Principles of Constitutional +a,, p. &99.<.
But it may be argued by those ,ho contend for the contrary doctrine, to ,it, that the acts of the
3overnorC3eneral, ,ith the approval of the Philippine Commission, are not conclusive upon the
courts and that none of the foregoing citations are e8actly in point, that none of these cases or
authors treat of a case e8actly like the one presented. Ee are fortunate, ho,ever, in being able to
cite, in ans,er to that contention, the case of >enry Eilliam Boyle, ,here e8actly the same #uestion
,as presented to the supreme court of the -tate of %daho, ,hich the applicants present here and
,here the courts held the doctrine of the cases applied. %n the case of Boyle, he had been arrested
after the privilege of the ,rit of *a#eas corpus had been suspended. >e applied for a ,rit of *a#eas
corpus to the supreme court of %daho, alleging, among other things, in his application7
1irst7 hat $no insurrection, riot, or rebellion no, e8ists in -hoshone
County:$ and
-econd. hat $the 3overnor has no authority to proclaim martial la, or suspend the ,rit of *a#eas
corpus.
%n reply to this contention on the part of the applicant, Boyle, the court said7
Counsel have argued ably and ingeniously upon the #uestion as to ,hether the authority to suspend the
,rit of *a#eas corpus rests ,ith the legislative and e8ecutive po,ers of the 3overnment, but, from our
vie,s of this case, that #uestion cuts no figure. Ee are of the opinion that ,henever, for the purpose of
putting do,n insurrection or rebellion, the e8igencies of the case demand it, ,ith the successful
accomplishment of this end in vie,, it is entirely competent for the e8ecutive or for the military officer in
command, if there be such, either to suspend the ,rit or disregard it if issued. he statutes of this -tate
;%daho< make it the duty of the governor, ,henever such a state or condition e8ists as the proclamation of
the governor sho,s does e8ist in -hoshone County, to proclaim such locality in a state of insurrection and
to call in the aid of the military of the -tate or of the 1ederal 3overnment to suppress such insurrection
and reestablish permanently the ascendency of the la,. %t ,ould be an absurdity to say that the action of
the e8ecutive, under such circumstances, may be negatived and set at naught by the judiciary, or that the
action of the e8ecutive may be interfered ,ith or impugned by the judiciary. %f the courts are to be made a
sanctuary, a seat of refuge ,hereunto malefactors may fall for protection from punishment justly due for
the commission of crime they ,ill soon cease to be that palladium of the rights of the citi"en so ably
described by counsel.
0n application for a ,rit of *a#eas corpus, the truth of recitals of alleged facts in a proclamation issued by
the governor proclaiming a certain county to be in a state of insurrection and rebellion ,ill not be in#uired
into or revie,ed. he action of the governor in declaring -hoshone County to be in state of insurrection
and rebellion, and his action in calling to his aid the military forces of the =nited -tates for the purpose of
restoring good order and the supremacy of the la,, has the effect to put in force, to a limited e8tent,
martial la, in said county. -uch action is not in violation of the Constitution, but in harmony ,ith it, being
necessary for the preservation of government. %n such case the 3overnment may, like an individual acting
in selfCdefense, take those steps necessary to preserve its e8istence. %f hundreds of men can assemble
themselves and destroy property and kill and injure citi"ens, thus defeating the ends of government, and
the 3overnment is unable to take all la,ful and necessary steps to restore la, and maintain order, the
-tate ,ill then be impotent if not entirely destroyed, and anarchy placed in its stead.
%t having been demonstrated to the satisfaction of the governor, after some si8 or seven years of
e8perience, that the e8ecution of the la,s in -hoshone County through the ordinary and established
means and methods ,as rendered practically impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy of the la, and insuring the
punishment of those by ,hose unla,ful and criminal acts such a condition of things has been brought
about: and it is not the province of the courts to interfere, delay, or place obstructions in the path of duty
prescribed by la, for the e8ecutive, but rather to render him all the aid and assistance in their po,er, in
his efforts to bring about the consummation most devoutly prayed for by every good, la,Cabiding citi"en in
the -tate.$ ;%n re Boyle, JB +.!.A., &)((, )A*.< ;At pp. ((C&9J.<.
hese observations are follo,ed on pages &9J to &&B by a compilation of decided cases centrally
holding that 4,henever the Constitution or a statute gives a discretionary po,er to any person, to be
e8ercised by him upon his o,n opinion of certain facts, such person is to be considered the sole and
e8clusive judge of the e8istence of those facts.4 1or the sake of brevity, Ee shall not #uote the
discussion anymore. Ee are confident there can be no dissent insofar as the general proposition
stated is concerned.
?otably, in the unanimous decision of this Court in Montenegro, these vie,s are totally adopted in a
very brief passage thus7
B. %n his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. $here are$ he admits $intermittent sorties and lightning attacks by organi"ed
bands in different places$: but, he argues, $such sorties are occassional, locali"ed and transitory. And the
proclamation speaks no more than of overt acts of insurrection and rebellion, not of cases of invasion,
insurrection or rebellion or imminent danger thereof.$ 0n this subject it is noted that the President
concluded from the facts recited in the proclamation, and others connected there,ith, that $there is actual
danger of rebellion ,hich may e8tend throughout the country.$ -uch official declaration implying much
more than imminent danger of rebellion amply justifies the suspension of the ,rit.
o the petitioner$s unpracticed eye the repeated encounters bet,een dissident elements and military
troops may seem sporadic, isolated or casual. But the officers charged ,ith the ?ation$s security analy"ed
the e8tent and pattern of such violent clashes and arrived at the conclusion that they are ,arp and ,oof
of a general scheme to overthro, this government vi et ar(is, by force and arms.
And ,e agree ,ith the -olicitor 3eneral that in the light of the vie,s of the =nited -tates -upreme Court
thru Marshall, aney and -tory #uoted ,ith approval in Barcelon vs. Baker ;B Phil., )', pp. () an &99< the
authority to decide ,hether the e8igency has arisen re#uiring suspension belongs to the President and
$his decision is final and conclusive upon the courts and upon all other persons.
%ndeed as .ustice .ohnson said in that decision, ,hereas the /8ecutive branch of the 3overnment is
enabled thru its civil and military branches to obtain information about peace and order from every #uarter
and corner of the nation, the judicial department, ,ith its very limited machinery can not be in better
position to ascertain or evaluate the conditions prevailing in the Archipelago. ;At pp. ))2C))'.<
here are actually many more judicial precedents and opinions of kno,ledgeable and authoritative
te8t,riters, that can be copied here, maintaining ,ith ine8orable logic ,hy the /8ecutive is
incomparably best e#uipped and prepared to cope ,ith internal and e8ternal aggression and that,
indeed, the protection of the country against such contingencies is his sole responsibility not
supposed to be shared by the .udiciary. But the proposition appears to =s so plain and ineluctable
that to summon all of them to 0ur assistance could only open =s to the suspicion that the Philippine
-upreme Court has to depend on borro,ed thinking to resolve the most critical issues bet,een
individual rights, on the one hand, and state po,er e8erted as a matter of selfCdefense against
rebellion and subversion imperilling the country$s o,n survival, on the other. /mphatically, Ee don$t
have to. hank 3od Ee have enough native genius and indigenous means and resources to cope
,ith the most delicate problems of statehood. +et others listen to and abide by the platitudinous and
elegantly phrased dicta in Milligan, supra, Duncan and Ehite,
15
they ,ho are in and of the ,ealthiest
and mightiest po,er in the ,orld, that only actual military combat and related operations can justify
martial la,, but Ee, ,ho are in and of a small and ,eak developing nation, let us hearken and follo,
the homeCspun advice of our barrio folks cautioning everyone thus7
Nung ang bahay mo ay pa,id at ka,ayan pagdilim ng ulap at lumalakas na ang hanging magsara ka na
ng bintana at suhayan mo ang iyong bahay. ;Ehen your house is made of nipa and bamboo, and you see
the clouds darkening and the ,inds start blo,ing, it is time for you to close your ,indo,s and strengthen
the support of your house.<
his could e8plain ,hy under the Constitution, martial la, can be declared not only in case of actual
rebellion, but even only ,hen there is imminent danger thereof. And that is ,hy the open court rule
established in Milligan and reiterated in Duncan and Ehite is not controlling in this jurisdiction.
Besides, inasmuch as our people have included in the Constitution an e8press commitment of the
po,er to the President, ,hy do Ee have to resort to the pronouncements of other courts of other
countries ,herein said po,er is only impliedI !egardless of ,hat other courts believe their /8ecutive
may do in emergencies, our task is not to slavishly adopt ,hat those courts have said, for there is no
evidence that such ,as the intent of our constitutional fathers. gather, Ee should determine for
0urselves ,hat is best for our o,n circumstances in the Philippines, even if Ee have to give due
consideration to the e8perience other peoples have gone through under more or less similar crises in
the past.
%n any event, regardless of their ,eight insofar as the suspension of the privilege of the ,rit of *a#eas
corpus is concerned, Ee consider the reasons given in the aboveC#uoted opinions in Barcelon and
Montenegro of particular relevance ,hen it comes to the imposition of martial la,.
K J K
%t may be that the e8istence or nonCe8istence or imminence of a rebellion of the magnitude that ,ould
justify the imposition of martial la, is an objective fact capable of judicial notice, for a rebellion that is
not of general kno,ledge to the public cannot conceivably be dangerous to public safety. But
precisely because it is capable of judicial notice, no in#uiry is needed to determine the propriety of the
/8ecutive$s action.
Again, ,hile the e8istence of a rebellion may be ,idely kno,n, its real e8tent and the dangers it may
actually pose to the public safety are not al,ays easily perceptible to the unpracticed eye. %n the
present day practices of rebellion, its inseparable subversion aspect has proven to be more effective
and important than 4the rising ;of persons< publicly and taking arms against the 3overnment4 by
,hich the !evised Penal Code characteri"es rebellion as a crime under its sanction ;Art. &AJ,
!evised Penal Code<. -ubversion is such a covert kind of antiCgovernment activity that it is very
difficult even for army intelligence to determine its e8act area of influence and effect, not to mention
the details of its forces and resources. By subversion, the rebels can e8tend their field of action
unnoticed even up to the highest levels of the government, ,here no one can al,ays be certain of the
political comple8ion of the man ne8t to him, and this does not e8clude the courts. Arms, ammunitions
and all kinds of ,ar e#uipment travel and are transferred in deep secrecy to strategic locations, ,hich
can be one$s neighborhood ,ithout him having any idea of ,hat is going on. here are so many
insidious ,ays in ,hich subversives act, in fact too many to enumerate, but the point that immediately
suggests itself is that they are mostly incapable of being proven in court, so ho, are Ee to make a
judicial in#uiry about them that can satisfy our judicial conscienceI
he Constitution definitely commits it to the /8ecutive to determine the factual bases and to forth,ith
act as promptly as possible to meet the emergencies of rebellion and invasion ,hich may be crucial
to the life of the nation. >e must do this ,ith un,avering conviction, or any hesitancy or indecision on
his part ,ill surely detract from the needed precision in his choice of the means he ,ould employ to
repel the aggression. he apprehension that his decision might be held by the -upreme Court to be a
transgression of the fundamental la, he has s,orn to 4defend and preserve4 ,ould deter him from
acting ,hen precisely it is most urgent and critical that he should act, since the enemy is about to
strike the mortal blo,. Different men can honestly and reasonably vary in assessing the evidentiary
value of the same circumstance, and the prospect of being considered as a constitutional felon rather
than a saviour of the country should the .ustices disagree ,ith him, ,ould put the /8ecutive in an
unenviable predicament, certainly un,ise and imprudent for any Constitution to contemplate he
should be in. But ,hat is ,orse is that the Court is not e#uipped in any ,ay ,ith the means to
ade#uately appreciate the insidious practices of subversion, not to say that it cannot do it ,ith more
or at least e#ual accuracy as the /8ecutive. Besides, the Court ,ould then be acting already ,ith
considerable hindsight considerations ,hich can imperceptibly influence its judgment in overriding the
/8ecutive$s finding.
More than ever before, ,hen rebellion ,as purely a surface action, and vie,ing the matter from all
angles, it appears ineludible that the Court should refrain from interfering ,ith the /8ecutive$s delicate
decision. After all, the sacred rights of individuals enshrined in the Bill of !ights and the other
constitutional processes ever valuable to the people, but ,hich admittedly cannot, by the ,ay, be
more important than the very survival of the nation, are not necessarily s,ept a,ay by a state of
martial la,, for, as already pointed out earlier, the validity of the Proclamation is one thing, the
administration of the government under it is something else that has to be done ,ith the closest
adherence to the fundamental la, that the obvious necessities of the situation ,ill permit. As Ee see
it, it is in this sense that the Constitution is the supreme la, e#ually in times of peace and of ,ar and
for all classes of men, if Ee must refer again to petitioners$ reliance on Milligan. At the same time, let
us not overlook, in connection ,ith this favorite authority of petitioners, that the 1ederal -upreme
Court$s postulation therein, that it ,as 4happily proved by the result of the great effort to thro, off ;the<
just authority4 of the =nited -tates during the Civil Ear that the constitution of that country contains
,ithin itself all that is necessary for its preservation, is not factually accurate, for all the ,orld kno,s
that if the American =nion survived the ordeal of possible disintegration and is the great nation that
she is today, it ,as not because President +incoln confined himself strictly to the po,ers vested in the
presidency by the constitution, but because he ,as ,ise enough to resort to inherent
e8traconstitutional state prerogatives, e8ercisable by the /8ecutive alone, ,hich President Marcos
did not have to do, considering that our Constitution e8pressly confers upon him the authority to
utili"e such state po,er in defense of the nation.
K B K
he historical development of the po,ers of the Philippine /8ecutive unmistakably points to the same
direction. Practically all the constitutions that came into being during the revolutionary period before
the turn of the last century, of ,hich the Malolos Constitution is typical, either entrusted e8ecutive
po,er to a commission or made the /8ecutive largely dependent on the legislature. Ehen the
Americans ended their military occupation, after subduing the Aguinaldo forces of independence, they
had their o,n version of governmental po,ers. %n the Philippine Bill of &(9*, nothing ,as mentioned
about martial la,, and the po,er of the 3overnor 3eneral to suspend the privilege of the ,rit of
*a#eas corpus ,as conditioned on, among other things, the concurrence of the Philippine
Commission of ,hich, notably, the 3overnor 3eneral ,as the head. Ehen in &(9B, the 3overnor
3eneral suspended the Privilege in the provinces of Cavite and Batangas, the case of "arcelon vs.
"a-er, supra, arose. 0ver the dissent of .ustice Eillard ,ho invoked Milligan, the -upreme Court
held that the proclamation ordering such suspension ,as not revie,able by the .udiciary.
Eith a little touch of irony, in &(&2, ,hen the =nited -tates Congress, ,ith the avo,ed intent of
granting greater political autonomy to the Philippines, enacted the .ones +a,, it removed the need for
legislative concurrence in regards to the suspension of the Privilege, because the legislature ,as to
be in 1ilipino hands, and in addition to preserving such po,er of suspension, granted the 3overnorC
3eneral the sole authority to declare martial la,, subject only to revocation by the President of the
=nited -tates. Eithout forgetting that at that time, the 3overnorC3eneral being then an American,
those po,ers served as ,eapons of the coloni"er to consolidate its hold on the subject people, such
plenitude of po,er in the /8ecutive ,as to appear later to the 1ilipino leaders as something that
should be adopted in our fundamental la,. -o it ,as that in the Constitutional Convention of &(AJ,
the first the Philippines ever held in peace time, the delegates, dra,ing heavily from the e8perience of
the country during the autonomous period of the .ones +a,, and perchance persuaded in no small
measure by the personality of President Manuel +. Pue"on, lost no time in adopting the concept of a
strong e8ecutive. heir decision ,as studied and deliberate. %ndeed, it is the unanimous observation
of all students of our Constitution, that under it, ,e have in the Philippines the strongest e8ecutive in
the ,orld. 1ully a,are of this feature and appearing rather elated by the apparent success of the
delegates to reconcile the possible evils of dictatorship ,ith the need of an e8ecutive ,ho 4,ill not
only kno, ho, to govern, but ,ill actually govern4, President Claro M. !ecto of the Convention
remarked in his valedictory address adjourning the Assembly as follo,s7
During the debate on the /8ecutive Po,er it ,as the almost unanimous opinion that ,e had invested the
/8ecutive ,ith rather e8traordinary prerogatives. here is much truth in this assertion. But it is because
,e cannot be insensible to the events that are transpiring around us, events ,hich, ,hen all is said and
done, are nothing but history repeating itself. %n fact, ,e have seen ho, dictatorships, ,hether black or
red, capitalistic or proletarian, fascistic or communistic, ancient or modern, have served as the last refuge
of peoples ,hen their parliaments fail and they are already po,erless to save themselves from
misgovernment and chaos. +earning our lesson from the truth of history, and determined to spare our
people the evils of dictatorship and anarchy, ,e have thought it prudent to establish an e8ecutive po,er
,hich, subject to the fiscali"ation of the Assembly, and of public opinion, ,ill not only kno, ho, to govern,
but ,ill actually govern, ,ith a firm and steady hand, unembarrassed by ve8ations, interferences by other
departments, or by unholy alliances ,ith this and that social group. hus, possessed ,ith the necessary
gifts of honesty and competence, this /8ecutive ,ill be able to give his people an orderly and progressive
government, ,ithout need of usurping or abdicating po,ers, and cunning subterfuges ,ill not avail to
e8tenuate his failures before the bar of public opinion.4 ;4he Philippine Constitution K -ources, Making,
Meaning, and Application4 published by the Philippine +a,yers$ Association, p. BJ9.<
0f particular relevance to the present discussion is the fact that ,hen an attempt ,as made by a fe,
delegates led by Delegate -alvador Araneta of Manila to subject the /8ecutive$s po,er to suspend
the privilege of the ,rit of *a#eas corpus to concurrence or revie, by the ?ational Assembly and the
-upreme Court, the effort did not prosper, thereby strongly indicating, if it did not make it indubitably
definite, that the intent of the framers of the fundamental la, is that the /8ecutive should be the sole
judge of the circumstances ,arranting the e8ercise of the po,er thus granted. %n any event, the only
evidence of any thinking ,ithin the convention advocating the revocation of the Barcelon doctrine of
,hich together ,ith Milligan, they ,ere or ought to have been a,are, ,hat ,ith the best kno,n
la,yers in the Philippines in their midst, collapsed ,ith the rejection of the Araneta proposal.
%t ,as in the light of this historical development of the /8ecutive Po,er that in &(B&, the -upreme
Court decided unanimously the case of 'ontene+ro vs. CastaAe!a, supra, reiterating the doctrine of
conclusiveness of the /8ecutive$s findings in the Barcelon case.
1or all that it may be ,orthy of mention here, if only because practically the same 1ilipino minds, led
by President .ose P. +aurel, ,ere largely responsible for its formulation, the Constitution of the
-econd Philippine !epublic born under aegis of the .apanese occupation of the Philippines during
the -econd Eorld Ear, provided also for a strong e8ecutive. 0n this point, President +aurel himself
had the follo,ing to say7
he fundamental reason and necessity for the creation of a political center of gravity under the
!epublic is that, in any form of government K and this is especially true in an emergency, in a
national crisis K there must be a man responsible for the security of the state, there must be a man
,ith ade#uate po,ers, to face any given situation and meet the problems of the nation. here must
be no shifting of responsibility: there must be no evasion of responsibility: and if a government is to be
a real government and a scientific government there must be no t,o centers of gravity but one. ;*
0.3.G..M.A.H, )'A G&(JAH.<4 ;he Philippine Presidency by %rene !. Cortes, p. &J.<.
he foregoing is a logical follo,Cup of ,hat +aurel had said in the &(AJ Convention thus7
... A strong e8ecutive he is intended to be, because a strong e8ecutive ,e shall need, especially in
the early years of our independent, or semiCindependent e8istence. A ,eak e8ecutive is synonymous
,ith a ,eak government. >e shall not be a $monarch$ or a dictator in time of profound and 0ctavian
peace, #ut *e virtuall so #eco(es in an e6traor!inar e(er+enc: and ,hatever may be his position,
he bul,arks normally, the fortifications of a strong constitutional government, but abnormally, in
e8treme cases, he is suddenly ushered in as a Minerva, fullCgro,n and in full panoply of ,ar, to
occup t*e vanta+e +roun! 1 t*e rea! protector an! !e,en!er o, t*e li,e an! *onor o, *is nation.
;/mphasis supplied.< ;he Philippine Constitution, published by the Phil. +a,yers Association, 6ol. &,
&(2( /d., p. &)A.<.
hus, it is not surprising at all that ,ithout changing one ,ord in the provision granting to the
/8ecutive the po,er to cope ,ith the emergencies under discussion, the &('& Convention fortified
thru related provisions in the transitory portion of the Constitution the applicability of the Barcelon and
Montenegro concepts of the /8ecutive$s po,er, as applied to the imposition of martial la,, thereby
,eakening pro tanto as ,ill be seen in the follo,ing pages, the impact of 0ur +ansang doctrine, for
the purposes of the precise issue no, before =s.
At this juncture, it may be pointed out that the po,er granted to the /8ecutive to place the country or
any part thereof under martial la, is independent of the legislative grant to him of emergency Po,ers
authori"ed under the follo,ing provision of the &(AB Constitution7
-ec. *2. %n times of ,ar or other national emergency, the Congress may by la, authori"e the President,
for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and
regulations to carry out a declared national policy. ;Art. 6%, sec. *2, &(AB Constitution.<.
his provision is copied verbatim in the &('A Charter e8cept for the reference to the Prime Minister
instead of to the President and the addition of the follo,ing sentence indicating more emphatically the
temporary nature of the delegation7
=nless sooner ,ithdra,n by resolution of the ?ational Assembly, such po,ers shall cease upon its ne8t
adjournment. ;-ection &B, Article 6%%%, &('A Constitution of the Philippines.<
he point that immediately surges to the mind upon a reading of this provision is that in times of ,ar
or other national emergency it is definitely to the /8ecutive that the people thru the fundamental la,
entrust the running of the government, either by delegation of the legislative po,er to him thru an
e8press enactment of the +egislature to that effect or by direct authori"ation from the Constitution
itself to utili"e all the po,ers of government should he find it necessary to place the country or any
part thereof under martial la,. Additional evidence of such clear intent is the fact that in the course of
the deliberations in the Constitutional Convention of &(AJ of the proposal to incorporate the above
provision in the charter, Delegate Eenceslao 6in"ons of Camarines ?orte moved to delete the same
for fear that the concentration of po,ers in one man may facilitate the emergence of a dictatorship.
>e said in part7
he po,er to promulgate rules and regulations in times of emergency or ,ar is not recogni"ed in any
constitution e8cept, perhaps, the Constitution of Denmark, ,hich provides that in case of special urgency
the Ning may, ,hen the !eichstag is not in session, issue la,s of temporary application. -uch la,s,
ho,ever, shall not be contrary to the Constitution, and they shall be submitted to the !eichstag in its ne8t
session. -o, even in a kingdom like Denmark, the po,ers of the Ning are limited in times of emergency.
=nder the Constitution ,e are drafting no,, there is absolutely no limit e8cept ,hen the ?ational
Assembly specifies at the inception of the grant of po,er.
% ,ant to ,arn, Mr. President, of a future condition in our !epublic ,hen ,e shall no longer be under the
tutelage of any foreign po,er, ,hen ,e shall have to ,ork for our o,n destiny. % ,ant to say that % am not
very positive in stating here that ,e shall have a dictatorship because the structure of the government that
,e are creating permits its establishment, but the po,er to promulgate rules and regulations ,ill give rise
to a strong man ,ho may, in a desire to gratify his personal ambitions, sei"e the reins of government.4
;Page A(&, 6olume 1ive, he Philippine Constitution, %ts 0rigins, Making, Meaning, and Application, a
publication of the Philippine +a,yers Association, &('*.<.
Despite such elo#uent ,arning, the assembly voted do,n his motion.
%t is no, contended that instead of declaring martial la,, President Marcos should have sought from
Congress the approval of an emergency po,ers act similar to Common,ealth Acts 299 and 2'&
passed respectively on August &(, &(J9, long before the .apanese invasion, and December &2,&(J&,
,hen the ?ippon Army ,as already on its ,ay to Manila from +ingayen and other landing points in
the ?orth.
o start ,ith, Congress ,as not una,are of the ,orsening conditions of peace and order and of, at
least, evident insurgency, ,hat ,ith the numerous easily verifiable reports of open rebellious activities
in different parts of the country and the series of rallies and demonstrations, often bloody, in Manila
itself and other centers of population, including those that reached not only the portals but even the
session hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either
,ere indifferent or did not kno, ,hat to do under the circumstances. %nstead of taking immediate
measures to alleviate the conditions denounced and decried by the rebels and the activists, they
debated and argued long on palliatives ,ithout coming out ,ith anything substantial, much less
satisfactory in the eyes of those ,ho ,ere seditiously shouting for reforms. %n any event, in the face of
the inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that
urgently called for immediate action, the only alternative open to the President ,as to resort to the
other constitutional source of e8traordinary po,ers, the Constitution itself.
%t is significant to note that Common,ealth Act 2'& granted the President practically all the po,ers of
government. %t provided as follo,s7
-ec. &. he e8istence of ,ar bet,een the =nited -tates and other countries of /urope and Asia, ,hich
involves the Philippines, makes it necessary to invest the President ,ith e8traordinary po,ers in order to
meet the resulting emergency.
-ec. *. Pursuant to the provisions of Article 6%, section &2, of the Constitution, the President is hereby
authori"ed, during the e8istence of the emergency, to promulgate such rules and regulations as he may
deem necessary to carry out the national policy declared in section & hereof. Accordingly he is, among
other things, empo,ered ;a< to transfer the seat of the 3overnment or any of its subdivisions, branches,
departments, offices, agencies or instrumentalities: ;b< to reorgani"e the 3overnment of the
Common,ealth including the determination of the order of precedence of the heads of the /8ecutive
Departments: ;c< to create ne, subdivisions, branches, departments, offices, agencies or
instrumentalities of government and to abolish any of those already e8isting: ;d< to continue in force la,s
and appropriations ,hich ,ould lapse or other,ise become inoperative, and to modify or suspend the
operation or application of those of an administrative character: ;e< to impose ne, ta8es or to increase,
reduce, suspend, or abolish those in e8istence: ;f< to raise funds through the issuance of bonds or
other,ise, and to authori"e the e8penditure of the proceeds thereof: ;g< to authori"e the ?ational,
provincial, city or municipal governments to incur in overdrafts for purposes that he may approve: ;h< to
declare the suspension of the collection of credits or the payment of debts: and ;i< to e8ercise such other
po,ers as he may deem necessary to enable the 3overnment to fulfill its responsibilities and to maintain
and enforce its authority.
-ec. A. he President of the Philippines shall as soon as practicable upon the convening of the Congress
of the Philippines report thereto all the rules and regulations promulgated by him under the po,ers herein
granted.
-ec. J. his act shall take effect upon its approval, and the rules and regulations promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall other,ise provide.
1rom this e8tensive grant of immense po,ers, it may be deduced that the difference bet,een martial
la, and the delegation of legislative po,er could be just a matter of procedure in that the investment
of authority in the former is by the Constitution ,hile in the latter it is by the +egislature. he resulting
constitutional situation is the same in both government by the /8ecutive. %t can be said that even the
primacy of military assistance in the discharge of government responsibilities ,ould be covered by
the e8ercise of the delegated authority from Congress.
Ehat is most important, ho,ever, is that the Constitution does not prohibit the declaration of martial
la, just because of the authority given to the +egislative to invest the /8ecutive ,ith e8traordinary
po,ers. %t is not to be supposed that in the face of the inability or refusal of the +egislature to act, the
people should be left helpless and ,ithout a government to cope ,ith the emergency of an internal or
e8ternal aggression. Much less is it logical to maintain that it is the -upreme Court that is called upon
to decide ,hat measures should be taken in the premises. %ndeed, the fundamental la, looks to the
/8ecutive to make the choice of the means not only to repel the aggression but, as a necessary
conse#uence, to undertake such curative measures and reforms as are immediately available and
feasible to prevent the recurrence of the causes of the emergency.
Petitioners are capitali"ing on the pronouncements of this Court in +ansang. Ee feel, ho,ever, that
such e8cessive reliance is not altogether ,ell placed.
he e8act import of the +ansang doctrine is that it is ,ithin the constitutional prerogative of the
-upreme Court to in#uire into the veracity of the factual bases recited by the /8ecutive in a
proclamation ordering the suspension of the privilege of the ,rit of *a#eas corpus, for the purpose of
determining ,hether or not the /8ecutive acted arbitrarily in concluding from the evidence before him
that there ,as indeed a rebellion and that public necessity, as contemplated in the Constitution,
re#uired such suspension. %n other ,ords, Ee held therein that the issue of legality or illegality of a
proclamation suspending the Privilege is a justiciable one, in regard to ,hich the Court could make
independent findings based on the evidence on ,hich the President himself acted. Actually, ho,ever,
no real hearing ,as held for the purpose in that case. Ehat might perhaps be considered as such a
hearing ,as ,hat took place on 0ctober *) and *(,&('&, ,hen, because of the ,illingness
e8pressed by the respondents therein to impart to the Court classified information relevant to the
cases, subject to appropriate security measures, the Court met behind closed doors, and in the
presence of three attorneys representing the petitioners therein and the -olicitor 3eneral it ,as
briefed by the Chief of -taff of the Armed 1orces and other ranking military officials on said classified
information, after ,hich the parties ,ere granted time to file their respective memoranda of
observations on the matters revealed in the briefing, ,hich they did. ;-ee J* -C!A, at pp. J22CJ2'<.
%n the present cases there has been no such hearing, not even a briefing ,herein petitioners ,ere
represented. And it is gravely doubtful ,hether any move in that direction ,ould prosper, considering
there are not enough members of the Court, ,ho believe in the juridical relevance thereof, to
constitute the re#uired majority for a binding action to order such a hearing or even just a similar
briefing as before.
Be that as it may, the important point is that +ansang referred to the e8tent of the po,ers of the Court
in regard to a proclamation suspending the Privilege ,hereas ,hat is before =s no, is a
proclamation imposing martial la,. Ee hold that the po,ers of the /8ecutive involved in the t,o
proclamations are not of the same constitutional level and the prerogatives of the Court relative to
*a#eas corpus are distinct from those in the perspective of martial la,.
o start ,ith, it is too evident to admit of dispute that the afore#uoted constitutional provision touching
on the three po,ers of the /8ecutive, the calling of the armed forces, the suspension of the privilege
and the imposition of martial la, contemplates varying and ascending degrees of la,lessness and
public disorder. Ehile it is true that te8tually any of the three courses of action mentioned may be
taken by the /8ecutive on the occasion of an invasion, insurrection or rebellion, the degree of
resulting repression of individual rights under each of them varies so substantially that it cannot be
doubted that the constitution contemplates that the determination as to ,hich of them should be taken
should depend on the degree of gravity of the prevailing situation. %n other ,ords, it is the actual
magnitude of the rebellion to be suppressed and the degree and e8tent of danger to public safety
resulting therefrom that determines ,hether it should be the first, the second or the third that should
be taken in order that there may be a direct proportion bet,een the degree of gravity of the crisis and
the restraint of individual rights and liberties. Ehen the situation is not very serious but is
nevertheless beyond the control of the regular peace authorities of the place affected, then the armed
forces can be called. -hould the conditions deteriorate in such a ,ay as to involve a considerable
segment of the population, thereby making it difficult to maintain order and to differentiate the loyal
1rom the disloyal among the people, ,ithout detaining some of them, either preventively or for their
delivery to the proper authorities after the emergency or as soon as it eases, then the privilege of the
,rit of *a#eas corpus may also be suspended. But the moment the situation assumes very serious
proportions, to the e8tent that there is a breakdo,n of the regular government machinery either
because the officials cannot physically function or their functioning ,ould endanger public safety,
martial la, may be imposed. here is thus a marked gradation of the circumstances constituting
rebellion and danger to public safety in the provision, and it is to be supposed that the measure to be
adopted by the /8ecutive should be that ,hich the situation demands.
he calling of the armed forces is done by the /8ecutive in his capacity as CommanderCinCChief. he
po,er thus e8ercised is purely e8ecutive and does not cause any disturbance in the constitutional
order in the government. %n the case of suspension of the Privilege, individual rights guaranteed by
the Bill of !ights are restrained, but other,ise the regular constitutional machinery and the po,ers
and functions of the different officials of the government, including the courts, remain unaffected.
Moreover, the suspension of the Privilege, although premised on the demand of public safety, need
not be necessarily predicated on the re#uirements of national security as should be the case ,ith
martial la,. Again, the po,er e8ercised in suspension is e8ecutive po,er and nothing more. But
,hen martial la, is proclaimed, there is, as already observed earlier, a surrogation of the regular
government machinery by the constitutionally designated administrator ,ith the aid of the military.
Ehat is e8ercised in this instance is not e8ecutive po,er alone but state po,er ,hich involves the
totality of government authority, but ,ithout an actual military takeover, if only because the civilian
President remains at the head.
%n this connection, it is very important to note that ,hereas the Bill of !ights e8plicitly prohibits the
suspension of the Privilege of the ,rit of *a#eas corpus e8cept under the detailed circumstances
prescribed therein, including the limitations as to the time and place ,hen and ,here it may stay
suspended, there is no similar injunction in regard to the imposition of martial la,. %n other ,ords, the
grant of the po,er to declare martial la, in the /8ecutive portion of the Constitution is not countered,
unlike in the case of *a#eas corpus, by a prohibition in the Bill of !ights, the sanctuary of individual
liberties.
%nvoking +ansang, petitioners argue that if an order of suspension of the Privilege ,hich involves less
repression of constitutional processes than martial la, is revie,able by the courts, ,ith more reason
should the imposition of martial la,, ,hose effect upon the constitutional rights and processes is
more pervasive, be subject to a judicial test of constitutionality. 6ie,ing it from the angle of individual
rights, the argument sounds plausible, but ,hen it is considered that the framers of the Bill of !ights
never bothered to put the same or any similar breaks to the imposition of martial la, as that ,hich
they placed in regard to suspension, it can be readily seen that because of the gravity of the crisis
predicating the e8treme remedy of martial la,, the constitution itself makes the invocation of
individual rights subordinate to the national interest involved in the defense of the state against the
internal aggression that confronts it. 1rom this consideration, it follo,s that ,hatever standard of
constitutionality ,as established by the Court in +ansang relative to -uspension is not necessarily the
measure of the po,ers the Court can e8ercise over the /8ecutive$s proclamation of martial la,. Ehat
the Constitution purposely and ,ith good reason differentiates, the Court may not e#uate.
At any rate, Ee do not believe this is the proper occasion for the Court to alter or modify ,hat Ee
said in +ansang. All that Ee say here is that +ansang does not reach the martial la, po,ers of the
/8ecutive, if only because that case involved e8clusively the #uestion of legality of the detention,
during the -uspension, of some individuals, the petitioners therein, ,hereas here Ee are dealing ,ith
the deprivation of liberty of petitioners as a direct conse#uence of martial la,, and in effect the real
#uestion before =s no, is the legality of the martial la, regime itself, ,hich, as already
demonstrated, occupies a different level in the constitutional order of /8ecutive po,er, specially ,hen
considered from the point of vie, of the Bill of !ights.
But even if Ee must refer to the considerations of the Court in formulating +ansang, Ee cannot
disregard the impact of contemporary constitutional developments related thereto. he Convention of
&('& had barely started its relevant deliberations ,hen +ansang ,as decided. %t is to be assumed
that the delegates ,ere ,ell informed about its import. %ndeed, they must have focused their attention
thereto ,hen martial la, ,as proclaimed in -eptember of &('*, if only because some of the
delegates ,ere apprehended and detained and had forth,ith filed the petitions no, pending before
=s. he delegates kne, or ought to have kno,n that under the e8isting Constitution, the Bill of !ights
made no mention of the possible imposition of martial la, in the section prohibiting the suspension of
the privilege of the ,rit of *a#eas corpus. %nstead of seeing to it that in the charter they ,ere drafting
the prohibition as to *a#eas corpus should be e8tended to the declaration of martial la,, in order to
make the contingency thereof as difficult as in the case of the former, they evidently found more
reason to concur in the construction pursued by President Marcos of the prerogatives ,hich the
Constitution empo,ers him to utili"e during a rebellion or invasion. Accordingly, to erase further
doubts on the matter, the Convention enacted the transitory provision earlier referred to making the
Proclamation, among others, part of the la, of the land, ,hich provision, Ee deem, at this point, not
as a fiat placing the Proclamation definitely beyond the pale of unconstitutionality, but as a
contemporary authoritative construction of the current charter by the body precisely called to e8amine
it carefully and determine its defects that should be corrected, to the end that the rights of the people
may be best safeguarded. 6erily, such construction is entitled to due respect from =s, particularly
because it has been in effect, if not directly, approved by the people, not only in the referendum of
.anuary &9C&B, &('A assailed by petitioners but in the other one held by secret ballot on .uly *'C*),
&('A under the supervision of the Commission on /lections. And in the light of such construction, 0ur
considered vie, is that +ansang is not controlling on the issues regarding martial la, involved in
these cases.
Perhaps, it may not be amiss to add here that although the records of the Constitutional Convention
of &(AJ do not reveal the actual reasons for the rejection of the amendment proposed by Delegate
6icente .. 1rancisco to include in the Bill of !ights provision regarding *a#eas corpus the reference
made to imminent danger of invasion, insurrection or rebellion in the enumeration of the po,ers of the
/8ecutive relative to the same subject, it is #uite possible that in the mind of the convention it ,as not
absolutely necessary to suspend the Privilege ,hen the danger is only imminent unless the element
of public safety involved already re#uires the imposition of martial la,. !elatedly, Delegate Araneta
,ho as earlier mentioned, proposed to subject the suspension of the Privilege to legislative or judicial
concurrence or revie,, and ,ho appeared to be the most bothered, among the delegates, about the
e8ertion of e8ecutive po,er during the emergencies contemplated, never said a ,ord against the
manner in ,hich the /8ecutive ,as being granted the authority to impose martial la,, much less
proposed any restriction upon it the ,ay he did ,ith the suspension of the Privilege. his goes to
sho, that the feeling in the assembly ,as to regard martial la, differently from the suspension and to
recogni"e that its imposition should not be tramelled nor shackled by any provision of the Bill of
!ights.
K ' K
here are insurmountable pragmatic obstacles to the theory of justiciability sustained by petitioners. .
he most important of this is that there is no kno,n or recogni"ed procedure ,hich can be adopted in
the proposed in#uiry into the factual bases of the /8ecutive$s proclamation to insure that the degree
of judicious and fair hearing and determination of facts might be appro8imated. Admittedly, the
ordinary rules of pleading, practice and evidence are out of the #uestion. he relevant elemental facts
are scattered throughout the length and breath of the country, and there is no conceivable judicial
camera that can catch the ,hole picture ,ith ade#uate fidelity to the truth. Perhaps judicial notice can
help, but the elements of public safety are not properly susceptible of judicial notice ,hen it comes to
covert subversive activities. he problems of demonstration are manifold, and ,hen it is borne in
mind that, in the very nature of things and under universally accepted norms of state protection, there
is a ,all, impenetrable even to the judiciary, behind ,hich the state rightfully keeps a,ay from other
Departments matters affecting national security, one ,ill reali"e the futility of believing that the Court
can, assuming it ,ere, by some curious ,ay of reasoning, legally re#uired to do so, properly perform
its judicial attributes ,hen it comes to determining in the face of an apparently nation,ide rebellion,
,hether or not martial la, should be proclaimed by the /8ecutive, instead of resorting to the lesser
remedies of calling the armed forces or suspending the Privilege. Besides, for the Court to be able to
decide ,hether or not the action of the /8ecutive is arbitrary, it must, in justice to both parties, and to
him in particular, act in the light of the same evidence from ,hich he dre, his conclusion. >o, can
such evidence be all gathered and presented to the CourtI
-ome members of the Court are of the firm conviction that it is 0ur constitutional duty to indulge in
the suggested in#uiry, so Ee can be assured in 0ur o,n conscience, and for the protection of the
people, ,hether or not President Marcos has acted arbitrarily. But prescinding from the difficulties of
demonstration just discussed, from ,hat evidence is the Court going to dra, its o,n conclusions in
the cases at bar, ,hen Ee have not even been told ,hat evidence the President had before him,
e8cept those that may be inferred from the ,hereases of the Proclamation ,hich are disputed by
petitionersI 0n the other hand, ho, can Ee have all the evidence before =-, ,hen in the very nature
thereof Ee cannot have access to them, since they must be kept under the forbidding covers of
national security regulationsI /ven the standing ordinary rules of evidence provide in this respect
thus7 .
-/C. *&. Privile+e! co((unication. K
888 888 888
;e< A public officer cannot be e8amined during his term of office or after,ards, as to communications
made to him in official confidence, ,hen the court finds that the public interest ,ould suffer by the
disclosure. ;!ule &A9, !evised !ules of Court of the Philippines<.
he inevitable conclusion is that the Constitution must have intended that the decision of the
/8ecutive should be his alone.
%f Ee should hold that the matter before =s is justiciable, the practical result ,ould be that even if the
Court should no, decide in the style of +ansang that the President did not act arbitrarily in issuing the
Proclamation, Ee ,ould have to be ready to entertain future petitions, one after the other, filed by
,hosoever may be minded to allege, for his o,n purpose, that conditions have so improved as to
,arrant the lifting of martial la,. Accordingly, every no, and then the Court ,ould have to hear the
parties and evaluate their respective evidence. he 3overnment ,ould have to appear and prove all
over again the justifications for its action. he conse#uence ,ould be that instead of devoting his time
to the defense of the nation, the President ,ould be preparing himself for the court battle. %t is
ridiculous to think that the members of the Constitutional Convention had conceived placing such
difficulties in the ,ay of the /8ecutive ,hich make of his function of defending the state a continuous
running battle in t,o separate fronts, one ,ith the enemy another ,ith the courts. %t is suggested that
the Court can summarily dismiss any such future petitions in cavalier fashion by simply holding on to
the finding Ee ,ould make in these cases. But ne, allegations and arguments are bound to be
made, and it is definitely improper for =s to just summarily uphold the /8ecutive everytime a case
comes up.
Ehat is more absurd is that the -upreme Court is not the only court in ,hich a petition to lift may be
filed. %magine if petitions ,ere filed in t,o or three Courts of 1irst %nstance, ,hat ,ould happenI %n
this connection, Ee are in no position to enjoin the lo,er courts to entertain such petitions because
they may refer to the proposed lifting of martial la, only in the respective provinces ,here the courts
are, and Ee cannot hold, precisely because of 0ur o,n characteri"ation of the nature of the issue as
justiciable, or more simply that the Proclamation is subject to the revie, of factual bases by the court,
that any of said courts is ,ithout jurisdiction to entertain the petition. -tated other,ise, every court
,ould then be open to pass on the reasonability or arbitrariness of the President$s refusal or failure to
lift martial la,. Ee do not mean to insinuate that the lo,er court judges may not be prepared for the
purpose, but the spectacle alone of several of such petitions pending in various courts, ,ithout
visuali"ing anymore the potentiality of one judge or another upholding the proponent, is something
that ,ill not only foreseeably complicate our international relations but ,ill also detract from our image
as a people trained in the field of government. All of these considerations suggest again that it is best
that the .udiciary abstain from assuming a role not clearly indicated in the Constitution to pertain to it.
K C K
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he greatest fear entertained by those ,ho ,ould sustain the Court$s authority to revie, the action of
the President is that there might be occasions ,hen an /8ecutive drunk ,ith po,er might ,ithout
rhyme or reason impose martial la, upon the helpless people, using the very Constitution itself as his
,eapon of oppression to establish here a real dictatorship or totalitarian government. he vie, is that
it is only the -upreme Court that can prevent such a dismal eventuality by holding that it has the final
authority and inescapable duty to define the constitutional boundaries of the po,ers of the /8ecutive
and to determine in every case properly brought before it ,hether or not any such po,er has been
abused beyond the limits set do,n by the fundamental la,, and that unless Ee hold here that the
Court can determine the constitutional sufficiency of Proclamation &9)& in fact and in la,, the 1ilipino
people ,ould have no protection against such in abusive /8ecutive.
Ee here declare emphatically that such apprehension is definitely unfounded. Precisely, in this
decision, Ee are holding that the Court has the jurisdiction, the po,er and the authority to pass on
any challenge to an /8ecutive$s declaration of martial la, alleged in a proper case affecting private or
individual rights to be un,arranted by the Constitution. %n these cases, ho,ever, ,e do not see any
need for the interposition of our authority. %nstead ,hat appears clear to =s, in the light of the
considerations Ee have discuss above, and so Ee hold, is that the -olicitor 3eneral is eminently
correct in contending that in the circumstantial and constitutional milieu of the impugned
Proclamation, Ee should abstain from conducting the suggested in#uiry to determine their
constitutional sufficiency.
%n the ,ay Ee see the martial la, provision of the Constitution, only t,o hypotheses can be
considered relative to the Constitutional problem before =s. /ither the /8ecutive acts in conformity
,ith the provision or he does not. %n other ,ords, either he imposes martial la, because there is
actually a rebellion endangering the public safety or he does it for his o,n personal desire to grab
po,er, not,ithstanding the absence of the factual grounds re#uired by the fundamental la,. %n the
latter case, the Court ,ould have the constitutional po,er and duty to declare the proclamation
issued null and void. But to do this it does not have to conduct a judicial in#uiry by the reception of
evidence. %t should be guided solely by facts that are of judicial notice. hus, if the predicative recitals
of the proclamation are confirmed by facts of general public kno,ledge, obviously any further in#uiry
,ould be superfluous. 0n the other hand, in the contrary hypothesis, that is, it is publicly and
generally kno,n that there is no rebellion of the nature and e8tent contemplated in the Constitution,
no amount of evidence offered by the /8ecutive can judicially create such a rebellion. %ndeed, as
observed else,here in this opinion, a rebellion that does not come to the judicial notice of the Court
cannot ,arrant the imposition of martial la,, particularly in reference to one imposed over the ,hole
country. But once it is kno,n to the Court by judicial notice that there is a rebellion, it ,ould constitute
anundue interference ,ith the constitutional duties and prerogatives of the /8ecutive for the Court to
indulge in an in#uiry as to the constitutional sufficiency of his decision. Ehether or not public safety
re#uires the drastic action of imposing martial la, already involves the e8ercise of judgment, ,hich as
far as Ee can see is committed to the responsibility of the /8ecutive as the protector and defender of
the nation. 0ur considered vie, is that in such circumstances, the Constitution rather e8pects the
Court to defer to his decision. =nder this concept of the po,ers of the Court relative to the e8ercise
by the /8ecutive of his martial la, prerogatives, the Court does not relin#uish its authority as
guardian of the Constitution and the /8ecutive, guided solely by his o,n sense of responsibility under
his solemn oath 4to defend and preserve4 the Constitution, can proceed ,ith his task of saving the
integrity of the government and the nation, ,ithout any fear that the Court ,ould reverse his
judgment.
o be sure, it could have sufficed for =s to point out, in ans,er to the contention about possible
abuse, that it is a8iomatic in constitutional la, that the possibility that an official might abuse the
po,ers conferred upon him by la, or by the Charter does not mean that the po,er does not e8ist or
should not be granted. his Court affirmed this principle not only in "arcelon vs. "a-er, #uoted supra,
,hich ,as the precursor perhaps of the e8treme of judicial selfCrestraint or abstention in this
jurisdiction but even in 3n+ara vs. Electoral Co((ission, 2A Phil. &A(, reputedly the vanguard of
judicial activism in the Philippines, .ustice +aurel postulated reassuringly on this point in Angara thus7
4he possibility of abuse is not an argument against the concession of po,er as there is no po,er
that is not susceptible of abuse4 ;at p. &''<. And Ee could have complemented this ratiocination ,ith
the observation that it is most unlikely that the 1ilipino people ,ould be penali"ed by Divine
Providence ,ith the imposition upon them of an /8ecutive ,ith the frightening characteristics
ominously portrayed by those ,ho advocate that the Court, assuming its o,n immunity from being
abusive, arbitrary or improvident, should not recogni"e any constitutionally envisioned deference to
the other Departments of the 3overnment, particularly the /8ecutive.
Ee can feel, ho,ever, that the people need further reassurance. 0n this score, it is opportune to
recall that in 3velino vs. Cuenco, )A Phil. 2), in spite of the fact that in the !esolution of March J,
&(J(, this Court refused to intervene in the controversy bet,een the parties as to ,hether or not
there ,as a valid election of a ne, President of the -enate, upon the ground that the issue involved
,as purely political, in the subse#uent !esolution of March &J, &(J(, upon reali"ing that a critical
situation, detrimental to the national interest, subsisted as a conse#uence of its abstention, the Court
reversed itself and assumed the po,er to state categorically the correct solution to the conflict based
on its interpretation of the pertinent provisions of the Constitution.
Again, in .anuary, &(2*, in the space of several hours, AB9 appointments to different positions in the
government, including .ustices of the -upreme Court and of the Court of Appeals and judges of the
lo,er courts, fiscals, officers of the Army, directors of bureaus, 3overnor of the Central Bank, and
others ,ere sent by the President then to the Commission on Appointments on December *(, &(2&,
the day preceding his last halfCday in office, December A9, &(2&. =pon the said appointments being
impugned in the -upreme Court, the Court, aghast by the number of and the speed in the making of
said appointments, the fact that they ,ere made under circumstances that betrayed not only lack of
proper and deliberate consideration of the #ualifications of the appointees but also an evident intent
to deprive the succeeding President from filling the vacancies that had been left vacant even after the
results sho,ing the defeat of the incumbent President had already been publicly kno,n and
conceded, the departure from long established practices in their preparation as ,ell as the other
undesirable circumstances that surrounded the same, promptly struck them do,n as the product of
an improvident e8ercise of po,er, obno8ious to the precepts underlying the principled government
conceived in the Constitution.
15
he violation of the spirit and intent of the Constitution appeared
manifest to the Court on the basis of facts ,hich ,ere mainly if not all of judicial notice and, therefore,
needed no further demonstration in an in#uiry or investigation by the Court. =nder more or less a
similar setting of circumstances, ,hich occurred in the latter part of the term of the President ,hose
tenure e8pired on December A9, &(22, the -upreme court reiterated the above ruling in Guevarra vs.
Inocentes, &2 -C!A A'(.
hus everyone can see that ,hen situations arise ,hich on their faces and ,ithout the need of in#uiry
or investigation reveal an un#uestionable and palpable transgression of the Constitution, the
-upreme Court has never been ,ithout means to uphold the Constitution, the policy of judicial selfC
restraint implicit therein not,ithstanding. he precedents just related relate to peaceful controversies,
and, of course, the alleged violation of the Constitution by the /8ecutive in the e8ercise of a po,er
granted to him to meet the e8igencies of rebellion and the dangers to public safety it entails has to be
considered from a different perspective. /ven then, the -upreme Court ,ould not be po,erless to
act, =ntil all of its members are incarcerated or killed and there are not enough of them to constitute a
#uorum, the Court ,ould al,ays be there ready to strike do,n a proclamation of martial la, as
unconstitutional, ,henever from the facts manifest and generally kno,n to the people and to it, and
,ithout its having conducted any in#uiry by the reception of evidence, it should appear that the
declaration is made ,ithout any rational basis ,hatsoever and is predicated only on the distorted
motives of the /8ecutive. 1or as long, ho,ever, as the recitals or grounds given in a proclamation
accord substantially ,ith facts of judicial notice, either because they are of public kno,ledge or are by
their nature capable of un#uestionable demonstration, Ee have no reason to interfere ,ith the
discharge by the /8ecutive of a responsibility imposed upon him by the Constitution and in ,hich
there is no indication therein that the Court should share. But ,hen, as just stated, it is generally
kno,n or it is of public kno,ledge that there is no rebellion or, there being one, that it poses no
conceivable danger to the public safety, and, 3od forbid, martial la, is proclaimed, the Court, even
,ithout the need of any kind of judicial in#uiry into the facts alleged in the proclamation, ,ill certainly
act and declare the pretentious /8ecutive a constitutional outla,, ,ith the result that the regular
government established by the Constitution may continue in the hands of those ,ho are
constitutionally called upon to succeed him, unless he overcomes the legitimate government by force.
%n truth, such is the only ,ay the -upreme Court should act in discharging its duty to uphold the
Constitution by the use of the judicial po,er, if it is to give to the /8ecutive or the +egislature, as the
case may be, the due regard that the Constitution contemplates should be accorded to them in
consideration of their o,n functions hid responsibilities implicit in the principle of separation of po,ers
embodied therein.
%%
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he foregoing discussion covers, as must have been noted, the resolution not only of the issue of
jurisdiction raised by the respondents but also of the corollary #uestion of the application of the
+ansang doctrine. ?ot only that, from ,hat has been said, it is obvious that since it is to the President
that the Constitution has committed the discretion to impose martial la,, it follo,s that he alone
should have the discretion and the prerogative to declare ,hen it should cease or be lifted. /8actly
the same considerations compelling the conclusion that the Court may not revie, the constitutional
sufficiency of his proclamation of martial la, make it ineludible to conclude that the people have also
left it to the /8ecutive to decide ,hen conditions ,ould permit the full restoration of the regular
constitutional processes. Eith characteristic perceptive insight, in his thesis to be cited infra, .ustice
3uillermo -. -antos of the Court of Appeals, discourses on this point as follo,s7
JJ. K*en 'artial >ule is Ter(inate! K
%n both /ngland and the =nited -tates martial rule terminates ipso facto upon the cessation of the public
emergency that called it forth. o this proposition there has been no dissent. Martial rule must cease
,hen the public safety no longer re#uire its further e8ercise.
JB. K*o Ter(inates 'artial >ule K
-ince the declaration of martial rule has been committed to the judgment of the President, it follo,s that
its termination is to be fi8ed by the same authority. ;Barcelon vs. Baker, &(9B, B Phil. )'.< Again, to this
vie, there cannot he any valid objection. %t ,ould seem only natural that since the President has been
e8pressly authori"ed to declare martial rule no other authority should he permitted to terminate it.4 ;Martial
+a,, ?ature, Principles and Administration by 3uillermo -. -antos, p. 'B.<
?eedless to say, it is our Constitution that controls in the cases at bar, not the American theory. %n
fact, ,hen President +aurel proclaimed martial la, during the -econd Eorld Ear, he e8pressly
provided, to avoid any doubt about the matter, thus7
). he proclamation of martial la, being an emergency measure demanded by imperative necessity, it
shall continue as long as the need for it e8ists and shall terminate upon proclamation of the President of
the !epublic of the Philippines.
%n the interest of truth and to set 0ur perspective aright it may not be said that under Proclamation
&9)& and the manner in ,hich it has been implemented, there has been a total suspension, much
less an abrogation, of the Constitution. /ven te8tually, the ensuing orders issued by the President
have left virtually unaltered the established constitutional order in all levels of government and society
e8cept those that have to be adjusted and subjected to potential changes demanded by the
necessities of the situation and the attainment of the objectives of the declaration. !epeatedly and
emphatically, the President has solemnly reassured the people that there is no military takeover and
that the declared principle in the Constitution that 4Civilian authority is at all times supreme over the
military4 ;-ection ), Article %%, &('A Charter< shall be rigorously observed. And earlier in this opinion,
Ee have already discussed ho, he restored the security of tenure of the members of the Court and
ho, the judicial po,er has been retained by the courts, e8cept in those cases involving matters
affecting national security and public order and safety ,hich the situation demands should be dealt
,ith by the e8ecutive arms of the government.
Ehen President +incoln proclaimed martial la, in Nentucky in &)2J, he did not completely overhaul
the e8isting machinery, he let it continue insofar as it did not obstruct the military operations and
related activities. >e ordered thus7
Ehereas many citi"ens of the -tate of Nentucky have joined the forces of the insurgents, and such
insurgents have, on several occasions. entered the said -tate of Nentucky in large force, and, not ,ithout
aid and comfort furnished by disaffected and disloyal citi"ens of the =nited -tates residing therein, have
not only disturbed the public peace, but have overborne the civil authorities and made flagrant civil ,ar,
destroying property and life in various parts of the -tate7 And ,hereas it has been made kno,n to the
President of the =nited -tates by the officers commanding the national armies, that combinations have
been formed in the said -tate of Nentucky ,ith a purpose of inciting rebel forces to rene, the said
operations of civil ,ar ,ithin the said -tate, and thereby to embarrass the =nited -tates armies no,
operating in the said -tate of 6irginia and 3eorgia, and even to endanger their safety7 ... $he martial la,
herein proclaimed, and the things in that respect herein ordered, ,ill not be deemed or taken to interfere
,ith the holding of la,ful elections, or ,ith the proceedings of the constitutional legislature of Nentucky, or
,ith the administration of justice in the courts of la, e8isting therein bet,een citi"ens of the =nited -tates
in suits or proceedings ,hich do not affect the military operations or the constituted authorities of the
government of the =nited -tates. ;Martial +a,, ?ature, Principles and Administration by 3uillermo -.
-antos, pp. ('C().<.
%ncidentally, there is here a clear repudiation of the open court theory, and ,hat is more, even the
holding of regular elections and legislative sessions ,ere not suppressed.
1:
Accordingly, the
undeniable fact that the Philippine Congress ,as in session, albeit about to adjourn, ,hen martial la,
,as declared on -eptember *&, &('* is not necessarily an argument against the e8ercise by the
President of the po,er to make such a declaration.
President +aurel$s o,n declaration of martial la, during the .apanese occupation did not involve a
total blackout of constitutional government. %t reads in its pertinent portions thus7
888 888 888
J. All e8isting la,s shall continue in force and effect until amended or repealed by the President, and all
the e8isting civil agencies of an e8ecutive character shall continue e8ercising their po,ers and performing
their functions and duties, unless they are inconsistent ,ith the terms of this Proclamation or incompatible
,ith the e8peditious and effective enforcement of martial la, herein declared.
B. %t shall be the duty of the Military 3overnors to suppress treason, sedition, disorder and violence: and
to cause to be punished all disturbances of public peace and all offenders against the criminal la,s: and
also to protect persons in their legitimate rights. o this end and until other,ise decreed, the e8isting
courts of justice shall assume jurisdiction and try offenders ,ithout unnecessary delay and in a summary
manner, in accordance ,ith such procedural rules as may be prescribed by the Minister of .ustice. he
decisions of courts of justice of the different categories in criminal cases ,ithin their original jurisdiction
shall be final and unappealable7 Provi!e!, *o)ever, hat no sentence of death shall be carried into effect
,ithout the approval of the President.
2. he e8isting courts of justice shall continue to be invested ,ith, and shall e8ercise, the same
jurisdiction in civil actions and special proceedings as are no, provided in e8isting la,s, unless other,ise
directed by the President of the !epublic of the Philippines.
Proclamation &9)& is in no sense any more constitutionally offensive. %n fact, in ordering detention of
persons, the Proclamation pointedly limits arrests and detention only to those 4presently detained, as
,ell as all others ,ho may hereafter be similarly detained for the crimes of insurrection or rebellion,
and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident
thereto, or in connection there,ith, for crimes against national security and the la, of nations, crimes
against public order, crimes involving usurpation of authority, rank, title and improper use of names,
uniforms and insignia, crimes committed by public officers, and for such other crimes as ,ill be
enumerated in orders that % shall subse#uently promulgate, as ,ell as crimes as a conse#uence of
any violation of any decree, order or regulation promulgated by me personally or promulgated upon
my direction.4 %ndeed, even in the affected areas, the Constitution has not been really suspended
much less discarded. As contemplated in the fundamental la, itself, it is merely in a state of
anaesthesia, to the end that the much needed major surgery to save the nation$s life may be
successfully undertaken.
K %%% K
>/ %MP0-%%0? 01 MA!%A+ +AE A=0MA%CA++@ CA!!%/- E%> % >/ -=-P/?-%0?
01 >/ P!%6%+/3/ 01 >/ E!% 01 >AB/A- C0!P=- %? A?@ /6/?, >/ P!/-%D/?%A+
0!D/! 01 A!!/- A?D D//?%0? CA??0 B/ A--A%+/D A- D/P!%6A%0? 01 +%B/!@
E%>0= D=/ P!0C/--.
he ne8t issue to consider is that ,hich refers to the arrest and continued detention and other
restraints of the liberties of petitioner, and their main contention in this respect is that the proclamation
of martial la, does not carry ,ith it the suspension of the privilege of the ,rit of *a#eas corpus, hence
petitioners are entitled to immediate release from their constraints.
Ee do not believe such contention needs e8tended e8position or elaboration in order to be overruled.
he primary and fundamental purpose of martial la, is to maintain order and to insure the success of
the battle against the enemy by the most e8peditions and efficient means ,ithout loss of time and
,ith the minimum of effort. his is selfCevident. he arrest and detention of those contributing to the
disorder and especially of those helping or other,ise giving aid and comfort to the enemy are
indispensable, if martial la, is to mean anything at all. his is but logical. o fight the enemy, to
maintain order amidst riotous chaos and military operations, and to see to it that the ordinary
constitutional processes for the prosecution of la,Cbreakers are three functions that cannot humanly
be undertaken at the same time by the same authorities ,ith any fair hope of success in any of them.
o #uote from Malcolm and +aurel, 4Martial la, and the privilege of that ,rit ;of *a#eas corpus are
,holly incompatible ,ith each other.4 ;Malcolm and +aurel, Philippine Constitutional +a,, p. *&9<. %t
simply is not too much for the state to e8pect the people to tolerate or suffer inconveniences and
deprivations in the national interest, principally the security and integrity of the country.
Mere suspension of the Privilege may be ordered, as discussed earlier, ,hen the situation has not
reached very critical proportions imperilling the very e8istence of the nation, as long as public safety
demands it. %t is, therefore, absurd to contend, that ,hen martial la,, ,hich is precisely the ultimate
remedy against the gravest emergencies of internal or e8ternal aggression, is proclaimed, there is no
suspension of the Privilege unless this is separately and distinctly ordered. Considering that both
po,ers spring from the same basic causes, it stands to reason that the graver sanction includes the
lesser. %t is claimed that President +aurel treated the t,o matters separately in his afore#uoted
proclamation. Ee do not believe that the precedent cited controls. %t only proves that to avoid any
doubt, ,hat President +aurel did may be adopted. here can be no denying the point that ,ithout
suspension of the Privilege, martial la, ,ould certainly be ineffective. -ince martial la, involves the
totality of government authority, it may be assumed that by ordering the arrest and detention of
petitioners and the other persons mentioned in the Proclamation, until ordered released by him, the
President has by the tenor of such order virtually suspended the Privilege. !elatedly, as pointed out
by the -olicitor 3eneral no less than petitioner Diokno himself postulated in a lecture at the =.P. +a,
Center that7
here are only, as far as % kno,, t,o instances ,here persons may be detained ,ithout ,arrant but ,ith
due process. he first is in cases of martial la, or ,hen the ,rit of *a#eas corpus is suspended. %n those
cases, it is not that their detention is legal, it is that ,e cannot in#uire into the legality of their detention.
Because martial la, means actually the suspension of la, and the substitution of the ,ill of our
Congress. he second instance is that ,hich is provided for in !ule &&A, section 2 of the !ules of Court
and -ection A' of the !evised Charter of the City of Manila. /ssentially it consists of cases ,here the
crime is committed right in the presence of the person Eho is making the arrest or detention. ;rial
Problems in City M Municipal Courts, &('9, p. *2', =. P. +a, center .udicial Conference -eries.< .
%n his ,ell documented and very carefully prepared and comprehensive thesis on Martial +a,,
?ature, Principles and Administration, published by Central +a,book Publishing Co., %nc, in &('*,
.ustice 3uillermo -. -antos of the Court of Appeals and formerly of the .udge Advocate 3eneral$s
-ervice, Armed 1orces of the Philippines, makes these pointed observations7
Ehether the e8istence of martial la, and the suspension of the privilege of the ,rit of *a#eas corpus $are
one and the same thing$, or $the former includes the latter and much more,$ had been the subject of $an
angry ,ar of pamphlets bet,een Professors Parsons and Parker of the >arvard +a, -chool at the
outbreak of the Civil Ear.$ ;1airman, p. JA: Eiener p. (.< %t has also been a difficult #uestion to decide in
some jurisdictions ,hether the suspension of the privilege of the ,rit amounted to a declaration of martial
la,. ;Einthrop, pp. )*9 M )*), citing /8 parte 1ield, ( Am. +.!. B9': Bouvier$s +a, Dictionary, Ard 1rancis
!a,is /d., &(&J, p. *&9B, citing & >alleck %nt. +a, BJ(.
%n the face of the constitutional provisions ;Art. &&&, -ec. &, Clause ;&J< and fn (, supra.< in our
jurisdiction, there seems to be no room for doubt that the t,o are different. Ehile the grounds for the
suspension of the privilege of the ,rit and the proclamation of martial la, are the same, there can be no
#uestion that suspension of the ,rit means ,hat it says, that during the suspension of the privilege, the
,rit, if issued, ,ill be to no avail: but martial la, has more than just this effect. he only #uestion ,hich
apparently remains to be determined here, is, ,hether the declaration of martial la, ipso facto carries
,ith it the suspension of the privilege of the ,rit, or ,hether a declaration of martial la, must necessarily
include a declaration suspending the privilege of the ,rit in order to consider the same inoperative. But it
appears that the former is the better vie,, ;Malcolm and +aurel, Philippine Constitutional +a,, p. A&9<
although in the =nited -tates it has been held that #ualified martial rule may e8ist ,here the ,rit has, in
legal contemplation, not been suspended, ;1airman, p. JJ< and that the status of martial la, does not of
itself suspend the ,rit. ;Military +a, GDomestic DisturbancesH, Basic 1ield Manual, Ear Department, G=-H
fn &( M &B, p. &' G&(JBH.< ;-ee pp. J&CJ*.<
0f course, Ee are not bound by the rule in other jurisdictions.
1ormer Dean 6icente 3. -inco of the College of +a, of the =niversity of the Philippines, of ,hich he
became later on President, a noted authority on constitutional la, from ,hom many of us have
learned the subject, like,ise sustains the vie, that the proclamation of martial la, automatically
suspends the privilege of the ,rit of *a#eas corpus. ;6. -inco, Phil. Political +a,, p. *B(, &&th /d.,
&(2*<
?o,, as to the constitutional propriety of detaining persons on suspicion of conspiracy ,ith the enemy
,ithout the need of the regular judicial process, Ee have also the authoritative support of no less
than ,hat a distinguished member of this Court, considered as one of the best informed in American
constitutional la,, Mr. .ustice /nri#ue 1ernando, and the principal counsel of petitioners, former
-enator aLada, himself an authority, on the subject, had to say on the point in their joint authorship,
used as te8tbook in many la, schools, entitled Constitution of the Philippines, to ,it7
0nce martial la, has been declared, arrest may be necessary not so much for punishment but by ,ay of
precaution to stop disorder. As long as such arrests are made in good faith and in the honest belief they
are needed to maintain order, the President, as CommanderCinCChief, cannot thereafter, ,hen he is out of
office, be subjected to an action on the ground that he had no reasonable ground for his belief. K*en it
co(es to a !ecision # t*e *ea! o, a state upon a (atter involvin+ its li,e, t*e or!inar ri+*ts o,
in!ivi!uals (ust iel! to )*at *e !ee(s t*e necessities o, t*e (o(ent. Pu#lic !an+er )arrants t*e
su#stitution o, e6ecutive ,or 5u!icial process. ;/mphasis supplied.< ;Constitution of the Philippines by
aLada M 1ernando, 6ol. *, pp. B*ACB*B.<
he authority cited by .ustice 1ernando and -enator aLada says7
he plaintiff$s position, stated in a fe, ,ords, is that the action of the governor, sanctioned to the e8tent
that it ,as by the decision of the supreme court, ,as the action of the state and therefore ,ithin the &Jth
Amendment: but that, if that action ,as unconstitutional, the governor got no protection from personal
liability for his unconstitutional interference ,ith the plaintiff$s rights. %t is admitted, as it must be. that the
governor$s declaration that a state of insurrection e8isted is conclusive of that fact. %t seems to be
admitted also that the arrest alone ,ould riot necessarily have given a right to bring this suit. 0ut*er v.
"or!en, ' >o,. &, JB, J2, &* +. ed. B)&, 299, 29&. But it is said that a detention for so many days, alleged
to be ,ithout probable cause, at a time ,hen the courts ,ere open, ,ithout an attempt to bring the
plaintiff before them, makes a case on ,hich he has a right to have a jury pass.
Ee shall not consider all of the #uestions that the facts suggest, but shall confine ourselves to stating
,hat ,e regard as a sufficient ans,er to the complaint, ,ithout implying that there are not others e#ually
good. 0f course, the plaintiff$s position is that he has been deprived of his liberty ,ithout due process of
la,. But it is familiar that ,hat is due process of la, depends on circumstances. %t varies ,ith the subjectC
matter and the necessities of the situation. hus, summary proceedings suffice for ta8es, and e8ecutive
decisions for e8clusion from the county. Den e8 dem. 'urra v. Co#o-en 0an! O I(prov. Co. &) >o,.
*'*, &B +. ed. A'*: Enite! States v. Ju To, &() =.-. *BA, *2A, J( +. ed. &9CJ9, &9JJ, *B -up. Ct. !ep.
2JJ. Ehat, then, are the circumstances of this caseI By agreement the record of the proceedings upon
*a#eas corpus ,as made part of the complaint, but that did not make the averments of the petition for the
,rit averments of the complaint. he facts that ,e are to assume are that a state of insurrection e8isted
and that the governor, ,ithout sufficient reason but in good faith, in the course of putting the insurrection
do,n, held the plaintiff until he thought that he safely could release him.
%t ,ould seem to be admitted by the plaintiff that he ,as president of the Eestern 1ederation of Miners,
and that, ,hoever ,as to blame, trouble ,as apprehended ,ith the members of that organi"ation. Ee
mention these facts not as material, but simply to put in more definite form the nature of the occasion on
,hich the governor felt called upon to act. %n such a situation ,e must assume that he had a right, under
the state Constitution and la,s, to call out troops, as ,as held by the supreme court of the state. he
Constitution is supplemented by an act providing that $,hen an invasion of or insurrection in the state is
made or threatened, the governor shall order the national guard to repel or suppress the same.$ +a,s of
&)(', chap. 2A, art. ', M *, p. *9J. hat means that he shall make the ordinary use of the soldiers to that
end: that he may kill persons ,ho resist, and, of course, that he may use the milder measure of sei"ing
the bodies of those ,hom he considers to stand in the ,ay of restoring peace. -uch arrests are not
necessarily for punishment, but are by ,ay of precaution, to prevent the e8ercise of hostile po,er. -o
long as such arrests are made in good faith and in the honest belief that they are needed in order to head
the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of
office, on the ground that he had not reasonable ground for his belief. %f ,e suppose a governor ,ith a
very long term of office, it may be that a case could be imagined in ,hich the length of the imprisonment
,ould raise a different #uestion. But there is nothing in the duration of the plaintiff$s detention or in the
allegations of the complaint that ,ould ,arrant -ubmitting the judgment of the governor to revision by a %t
is not alleged that his judgment ,as not honest, if that be material, or that the plaintiff ,as detained after
fears of the insurrection ,ere at an end.
?o doubt there are cases ,here the e8pert on the spot may he called upon to justify his conduct later in
court, not,ithstanding the fact that he had sole command at the time and acted to the best of his
kno,ledge. hat is the position of the captain of a ship. But, even in that case, great ,eight is given to his
determination, and the matter is to be judged on the facts as they appeared then, and not merely in the
light of the event. 0a)rence v. 'inturn, &' >o,. &99, &&9, &B +. ed. B), 2*: he -tar of >ope, ( Eall. *9A,
&( +. ed. 2A): he 3ermanic ;0ceanic -team ?av. Co. v. Aitken< &(2 =.-. B)(, B(J, B(B, J( +. ed. 2&9,
2&A, *B -up. Ct. !ep. A&'. Ehen it comes to a decision by the head of the state upon a matter involving
its life, the ordinary rights of individuals must yield to ,hat he deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. -ee Geel v. San!ers,
(( =.-. JJ&, JJ2, *B +. ed. A*', A*). ;Moyer vs. Peabody, *&* =.-. J&2, J&'.<
!elatedly, in the decision of the -upreme Court of Colorado dealing ,ith the same detention of
Charles >. Moyer by order of the state governor, it ,as held7
By the reply it is alleged that, not,ithstanding the proclamation and determination of the 3overnor that a
state of insurrection e8isted in the county of -an Miguel, that as a matter of fact these conditions did not
e8ist at the time of such proclamation or the arrest of the petitioner, or at any other time. By - B, art. J, of
our Constitution, the governor is the commander in chief of the military forces of the state, e8cept ,hen
they are called into actual service of the =nited -tates: and he is thereby empo,ered to call out the militia
to suppress insurrection. %t must therefore become his duty to determine as a fact ,hen conditions e8ist in
a given locality ,hich demand that, in the discharge of his duties as chief e8ecutive of the state, he shall
employ the militia to suppress. T*is #ein+ true, t*e recitals in t*e procla(ation to t*e e,,ect t*at a state o,
insurrection e6iste! in t*e countr o, San 'i+uel cannot #e controverte!. 0ther,ise, the legality of the
orders of the e8ecutive ,ould not depend upon his judgment, but the judgment of another coordinate
branch of the state government ............
............................
............................
.... I,, t*en, t*e (ilitar (a resort to t*e e6tre(e o, ta-in+ *u(an li,e in or!er to suppress insurrection it
is i(possi#le to i(a+ine upon )*at *pot*esis it can #e success,ull clai(e! t*at t*e (il!er (eans o,
seizin+ t*e person o, t*ose participatin+ in t*e insurrection or ai!in+ an! a#ettin+ it (a not #e resorte!
to. he po,er and authority of the militia in such circumstances are not unlike that of the police of a city,
or the sheriff of a county, aided by his deputies or posse comitatus in suppressing a riot. Certainl suc*
o,,icials )oul! #e 5usti,ie! in arrestin+ t*e rioters an! placin+ t*e( in 5ail )it*out )arrant, an! !etainin+
t*e t*ere until t*e riot )as suppresse!. >allett .., in !e Application of -herman Parker ;no opinion for
publication<. I,, as conten!e! # counsel ,or petitioner, t*e (ilitar, as soon as t*e rioter or insurrectionist
is arreste!, (ust turn *i( over to t*e civil aut*orities o, t*e countr, t*e arrest (i+*t, an! in (an
instances )oul!, a(ount to a (ere ,arce. >e could be released on bail, and left free to again join the
rioters or engage in aiding and abetting their action, and, if again arrested, the same process ,ould have
to be repeated, and thus the action of the military ,ould be rendered a nullity. Again, if it be conceded
that, on the arrest of a rioter by the military, he must at once be turned over to the custody of the civil
officers of the county, then the military, in sei"ing armed insurrectionists and depriving them of their arms,
,ould be re#uired to forth,ith return them to the hands of those ,ho ,ere employing them in acts of
violence: or be subject to an action of replevin for their recovery ,hereby immediate possession of such
arms ,ould be obtained be the rioters, ,ho ,ould thus again be e#uipped to continue their la,less
conduct. To !en t*e ri+*t o, t*e (ilitia to t*ose )*o( t*e arrest )*ile en+a+e! in suppressin+ acts o,
violence an! until or!er is restore! )oul! lea! to t*e (ost a#sur! results. he arrest and detention of an
insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit such
acts, violates none of his constitutional rights. >e is not tried by any military court, or denied the right of
trial by jury: neither is he punished for violation of the la,, nor held ,ithout due process of la,. >is arrest
an! !etention is suc* circu(stances (erel to prevent *i( ,ro( ta-in+ part or ai!in+ in a continuation o,
t*e con!itions )*ic* t*e +overnor, in t*e !isc*ar+e o, *is o,,icial !uties an! in t*e e6ercise o, aut*orit
con,erre! # la), is en!eavorin+ to suppress. Ehen this end is reached, he could no longer be restrained
of his liberty by the military, but must be, just as respondents have indicated in their return to the ,rit,
turned over to the usual civil authorities of the county, to be dealt ,ith in the ordinary course of justice,
and tried for stich offenses against the la, as he may have committed. %t is true that petitioner is not held
by virtue of any ,arrant, but if his arrest and detention are authori"ed by la, he cannot complain because
those steps have not been taken ,hich are ordinarily re#uired before a citi"en can be arrested and
detained.
..........................
.... T*e sa(e po)er )*ic* !eter(ines t*e e6istence o, an insurrection (ust also !eci!e )*en t*e
insurrection *as #een suppresse!. ;/mphasis added.< ;!e Moyer, AB Colo, &B(, )B Pac. &(9 G&(9JH.<
%t is evident, therefore, that regardless of ,hether or not the privilege of the ,rit of *a#eas corpus is
e8pressly suspended during martial la,, arrest, detention and other restraints of liberty of individuals
may not be assailed as violative of the due process clause. he Presidential orders to such effect
constitute substantive and procedural due process at the same time and may therefore be invoked as
valid defenses against any remedy or prayer for release. 3iven the validity of the declaration of
martial la,, the sole tests of legality of constraints other,ise fro,ned upon in normal times by the
fundamental la, are substantial relevance and reasonableness. %n the very nature of things, and
absent any obvious sho,ing of palpable bad faith, the /8ecutive should enjoy respectful deference in
the determination of his grounds. As a rule, the Courts are not supposed to make any in#uiry into the
matter.
Ee accordingly hold that, as ,ell demonstrated by the -olicitor 3eneral, a proclamation of martial la,
automatically results in the suspension of the privilege of the ,rit of *a#eas corpus and, therefore, the
arrest, detention and restraints upon petitioners are authori"ed by the Constitution. %n any event, the
Presidential order of arrest and detention constitute due process and is, therefore, a valid defense to
any allegation of illegality of the constraints upon petitioners. Ee further hold that the duration of such
constraints may be coCe8tensive ,ith martial la, unless other,ise ordered by the /8ecutive.
%6
TCE EFFECT OF TCE 3PP>O@30 3N. >3TIFIC3TION
OF TCE NEK CONSTITETION ON TCE INST3NT
PETITIONS
All that remains no, for resolution is the #uestion of ,hat effect did the approval and ratification of the
?e, Constitution have upon the instant petitionsI
Ehen petitioners came to this Court in -eptember and 0ctober &('* to impugn the legality of their
arrest and detention by virtue of Proclamation &9)& and 3eneral 0rder ?o. *, their common
fundamental theory ,as that said proclamation and order ,ere violative of the Constitution of the
Philippines of &(AB, not only because, according to them, there ,as no justification for its placing the
country under martial la, but also because, even assuming its propriety, there ,as allegedly no legal
basis for the apprehension and detention of petitioners ,ithout any ,arrant of arrest and ,ithout even
any charges being filed against them. hus, in his return of the ,rit of *a#eas corpus issued by the
Court, as ,ell as in his oral argument at the hearings, the -olicitor 3eneral limited himself to barely
invoking the provision of the said Constitution empo,ering the President to proclaim martial la,, even
as he denied the allegation that there ,as no factual basis therefor, and simply contended that the
arrest and detention of petitioners ,ere made pursuant to orders validly issued under the po,ers of
the President flo,ing from the proclamation. .
K A K
As already noted, ho,ever, even before these cases could be submitted for decision, on ?ovember
A9, &('*, the Constitutional Convention of &('& approved a draft constitution designed to supersede
the Constitution of &(AB and on .anuary &', &('A, thru Proclamation &&9*, the President declared
that draft constitution to have been ratified by the people in the referendum of .anuary &9C&B, &('A,
and, as also stated earlier, said proclamation became the subject of t,o series of cases in this Court
,hich ultimately ended ,ith the decision of March A&, &('A adjudging that 4there is no further judicial
obstacle to the ?e, Constitution being considered in force and effect.4 And among the salient and
pertinent provisions of the ?e, Constitution or the Constitution of &('A, as the ne, charter may
distinctively be referred to, is that of -ection A ;*< of Article D6%% te8tually reproduced earlier above.
%n vie, of the comprehensive or allCinclusive tenor of the constitutional injunction contained in said
provision, referring as it does to 4all proclamations, orders, decrees, instructions, and acts
promulgated issued, or done by the incumbent President4, there can be no doubt that Proclamation
&9)& and 3eneral 0rder *, herein assailed by petitioners, are among those enjoined to he 4part of the
la, of the land.4 he #uestion that arises then is, did their having been made part of the la, of the
land by no less than an e8press mandate of the fundamental la, preclude further controversy as to
their validity and efficacyI
%n pondering over this #uestion, it is important to bear in mind the circumstances that attended the
framing and final approval of the draft constitution by the Convention. As already noted, t,o
actuations of the President of indubitable transcendental import overtook the deliberations of the
constituent assembly, namely, the issuance by him of Proclamation &9)& placing the Philippines
under martial la, and his e8ercise, under said proclamation, of nonCe8ecutive po,ers, inclusive of
general legislative authority. As to be e8pected in a country, like the Philippines, long accustomed to
strict constitutionalism, and the superiority of civilian authority over, the military, soon enough, these
t,o actuations spa,ned constitutional controversies of serious dimensions, so much so that several
cases involving them, including the instant ones, are no, pending in the -upreme Court. -urely, the
members of the Convention ,ere ,ell a,are of these developments. %n other ,ords, the delegates in
convention assembled ,ere living ,itnesses of the manner in ,hich, for the first time in our
constitutional history, the martial la, clause of the charter ,as being actually implemented, and they
kne, the grave constitutional issues such implementation had provoked.
%ndeed, no constituent assembly Could have been better circumstanced to formulate the fundamental
la, of the land. he Convention had a full and firstChand vie, of the controversial operation of the
most important part of the charter it ,as called to improve upon K its martial la, clause. 6erily, no
other aspect of the constitution could have commanded more the most serious attention of the
delegates. hey kne, or ought to have kno,n that the placing of the country or any part thereof
under martial la, could possibly affect the continued operation therein of the constitution or at least,
the enforceability of particular provisions thereof. herefore, if the Convention felt that ,hat ,as being
done by the President as ,itnessed by them ,as not ,ithin the contemplation of the e8isting
fundamental la, or that it ,as inconsistent ,ith the underlying principles of democracy and
constitutionalism to ,hich the nation has been irrevocably committed since its birth and ,hich ,ere to
remain as the foundations of the ne, charter, the delegates ,ould have considered it to be their
bounden duty to our people and to the future generations of 1ilipinos, to manifest their conviction by
providing appropriate safeguards against any repetition thereof in the constitution they ,ere drafting.
And so, ,hen it is considered that as finally approved, the ?e, Constitution reproduces in e8actly the
same terms or verbatim the martial la, clause of the &(AB charter, the ineludible conclusion is that
our ne, constitutional fathers did not see anything repugnant to the concepts of the old constitution in
,hat the President has done or ,as doing. As Ee see it, this attitude of the Convention constitutes
an authoritative contemporary construction of the provision in controversy, and considering that the
President$s manner of implementing martial la, has been sanctioned by the people not only in the
referendum of .anuary &9C&B, &('A but also in that of .uly *'C*), &('A, reliance on such attitude in
determining the meaning and intent of said provision cannot be out of place.
%n the light of these considerations, Ee do not see in the transitory provision under discussion any
idea of ratification or validation of something void or unauthori"ed. !ather, ,hat Ee perceive in it are
revelations of ,hat lay in the core of the martial la, clause of the &(AB Constitution as it ,as
conceived and formulated by its ,ise and farsighted framers. %t ,ould be unreasonable, illogical and
un,orthy of the &('& delegates to impute to them an intent to merely ratify, confirm or validate the
President$s acts, on the assumption that they ,ere originally unauthori"ed by the charter, for that
,ould imply that they ,ere concerned only about straightening out the present situation, ,hen it is
just as important to insure that future acts of the President are not tainted ,ith illegality. Ee cannot
entertain any thought that the delegates ,ere not sufficiently apprised on the implications of their
acts. %ndeed, the ?e, Constitution has not imparted e6 propio vi+ore any element of validity to the
acts in #uestion, it has only e8pressed in black and ,hite ,hat the 0ld Constitution did not deem
necessary to lay do,n ,ith precision in respect to them. 6ie,ed this ,ay, ,hat the transitory
provision under discussion means is that both the acts of the President before as ,ell as those after
ratification of the ?e, Constitution are valid K not validated K and, as just stated, ,hat reinforces
this construction and places the said acts beyond possible attacks for unconstitutionality are the
results of the t,o referendums of .anuary and .uly, &('A.
Eithal, having absolute faith in the high sense of duty and the patriotic courage of the members of the
Convention, Ee also reject the suggestion that they ,ere in any ,ay impeded, under the
circumstances then obtaining, from freely e8pressing themselves. Ee cannot for a moment entertain
the thought that any other 1ilipino can ever have less courage and love of country and concern for the
future of our people than the members of this Court ,ho are presently called upon to make
momentous decisions affecting no less than the legality and legitimacy of the very 3overnment
admittedly in effective control of the ,hole territory of the nation, regardless of possible personal
conse#uences to themselves.
he fact of the matter is that Proclamation &9)& did not make mention of the Convention at all. 0n the
contrary, judicial notice may be taken of the increased funds appropriated by the President so as to
enable it to proceed ,ith its deliberations, unbothered by any apprehension regarding the inade#uacy
of the funds ,hich the Congress had appropriated for it, and ,hich ,ere then fast d,indling, ,ithout
any certainty of further congressional appropriations. %ndeed, ,hen Delegate Nala, of the 1irst
District of !i"al proposed in a formal resolution that the sessions be suspended until after the lifting of
martial la,, the assembly voted over,helmingly to turn do,n the proposal. here is no evidence at all
that any form of undue pressure ,as brought to bear upon the delegates in any respect related to
their constituent functions. %t has not been sho,n that the arrest and detention of a number of
delegates, some of ,hom are petitioners herein, ,as in any ,ay connected ,ith or caused by their
actuations related to their constituent functions. Ehat 3eneral 0rder ?o. * asserts is that the
President ordered the 4-ecretary of ?ational Defense to forth,ith arrest or cause the arrest and take
into custody the individuals named in the attached list ;among them, the said delegates< and to hold
them until other,ise so ordered by me or my duly designated representative4 for their 4being active
participants or for having given aid and comfort in the conspiracy to sei"e political and state po,er in
the country and to take over the 3overnment by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against 0ur people and our legitimate 3overnment and in order to prevent
national interest, and to hold said individuals until other,ise so ordered by me or by my duly
designated representative.4 /ven then, said delegates ,ere allo,ed to cast their votes in the
assembly ,hen the final draft ,as submitted for approval of the members of the Convention. hus, it
can be safely asserted that the freedom of the Convention to act and to perform ,hatever ,as
incumbent upon it as a constituent body suffered no substantial diminution or constraint on account of
the proclamation of martial la,.
o reiterate then, -ection A ;*<, Article D6%% of the ?e, Constitution enjoins that 4all proclamations,
orders, decrees, instructions and acts promulgated, issued or done by the incumbent President shall
be part of the la, of the land and shall remain valid, legal, binding and effective even after the lifting
of martial la, or the ratification of this Constitution, unless modified, revoked, or superseded by
subse#uent proclamations, orders, decrees, instructions or other acts of the incumbent President, or
unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.4 ?otably, the
provision does not only make all such proclamations, orders, decrees, etc. 4part of the la, of the
land4, in ,hich case, it ,ould have been perhaps possible to argue, that they had just been accorded
the status of legislative enactments, ordinarily subject to possible attack on constitutional grounds.
he provision actually goes further. %t e8pressly ordains that the proclamations, orders, etc. referred
to should 4remain valid, legal, binding, and effective4 ... until revoked, modified, repealed or
superseded in the manners therein stipulated. Ehat is more, the provision refers to and contemplates
not only proclamations, orders, decrees, instructions and acts of e8ecutive character, but even those
essentially legislative, as may be gathered from the nature of the proclamations, decrees, orders, etc.
already e8isting at the time of the approval of the draft constitution and of the acceptance thereof by
the people. Accordingly, and because there is no doubt that Proclamation &9)& and 3eneral 0rder
?o. *, herein challenged, are among the proclamations and orders contemplated in said provision,
the Court has no alternative but to hold, as it hereby holds, in consonance ,ith the authoritative
construction by the Constitutional Convention of the fundamental la, of the land, that Proclamation
&9)& of President Marcos placing the Philippines under martial la, as ,ell as 3eneral 0rder ?o. *,
pursuant to ,hich petitioners are either in custody or restrained of their freedoms 4until other,ise so
ordered by ;the President< or ;his< duly designated representative4 are valid, legal, binding and
effective, and conse#uently, the continued detention of petitioner A#uino as ,ell as the constraints on
the freedoms of the other petitioners resulting from the conditions under ,hich they ,ere released
from custody are legal and constitutional. Ee feel Ee are confirmed in this conclusion by the results
of the referendum of .uly *'C*), &.J'A in ,hich &),9B*,9&2 voter gave their affirmative approval to
the follo,ing #uestion7
Martial la,I
Ee hasten to add to avoid misunderstanding or confusion of concepts, that it is not because of the
fiat or force of the ?e, Constitution itself that the transitory provision is being relied upon for the
purposes of the instant petitions. At this point, and ,ithout prejudice to looking into the matter insofar
as other issues and other cases affecting martial la, and the orders issued under it are concerned, all
that Ee say is that the said provision constitutes an authoritative contemporary construction of the
martial la, clause of the Constitution giving light regarding the emergency po,ers that the /8ecutive
may e8ercise after its proclamation.
K B K
But petitioner Diokno
17
,ould dilute the force of this conclusion by trying to find fault ,ith the
dispositive portion of the decision of this Court in the !atification Cases. >e contends that actually,
si8 justices rendered opinions e8pressly holding that the ?e, Constitution has not been validly ratified
in accordance ,ith Article D6 of the &(AB Constitution and that the said dispositive portion 4is not
consistent ,ith their findings, ,hich ,ere also the findings of the majority of the Court.4 0ther,ise
stated, the position of petitioner Diokno is that the decision in the !atification Cases has no binding
legal force as regards the #uestion of ,hether or not the ?e, Constitution is indeed in force and
effect. his is practically an attempt to make the Court resolve the same points ,hich counsels for the
petitioners in the !atification Cases submitted to the Court on the last day for the finality of the
decision therein, but ,ithout asking for either the reconsideration or modification thereof, because
they merely ,anted to record for posterity their o,n construction of the judgment of the Court.
18

Eithout in any ,ay attempting to reopen the issues already resolved by the Court in that decision, but
for the sake of erasing any doubt as to the true import of 0ur judgment therein, and in order that
those ,ho ,ould peruse the same may not be led astray by counsel$s misconstruction thereof, the
,riter feels it is here opportune to say a fe, ,ords relative to petitioner$s observations, considering
specially that 0ur discussion above is predicated on the premise that the ?e, Constitution is in full
force and effect.
o start ,ith, it is evident that the phrase in #uestion saying that 4there is no further judicial obstacle
to the ?e, Constitution being considered in force and effect4 ,as in actual fact approved specifically
by the members of the Court as the juridical result of their variant separate opinions. %n fact, even
those ,ho dissented, e8cept .ustice 5aldivar, accepted by their silence the accuracy of said
conclusion.
19
>ad any of the other justices, particularly, Chief .ustice Makalintal and .ustice Castro
felt that their joint opinion did not justify such a judgment, they ,ould have certainly objected to its
tenor, as .ustice 5aldivar did. ;-ee footnote &&<. -urely, it is not for anyone to say no, that the Court
misstated its judgment.
%n the particular case of Counsels aLada and Arroyo, ,hile it is true that on the last day for the
finality of that decision, they filed a 4Constancia4, separately from the Manifestation to the same effect
of the other counsel, discussing e8tensively the alleged inconsistency bet,een the collective result of
the opinions of the majority of the Court and the dispositive portion of the judgment, like the other
counsel, ho,ever, they did not make any prayer for relief, stating that their only purpose is 4to save
our people from being misled and confused, in order to place things in their proper perspective, and in
order to keep faith ,ith the &(AB Constitution. ... so that ,hen history passes judgment upon the real
,orth and meaning of the historic !esolution of this >onorable Court promulgated on March A&,
&('A, it may have all the facts before it,4 for ,hich reason, the majority of the Court, over the dissent
of .ustices 5aldivar, Antonio, /sguerra and the ,riter, did not consider it necessary to act, believing it
,as not e8actly the occasion to disabuse the minds of counsels about the juridical integrity of the
Court$s actuation embodied in the resolution. %n a sense, therefore, said counsels should be deemed
to be in estoppel to raise the same points no, as arguments for any affirmative relief, something
,hich they did not ask for ,hen it ,as more appropriate to do so.
%n the second place, laying aside the division of vie,s among the members of the Court on the
#uestion of ,hether or not there has been compliance ,ith the provisions of Article D6 of the &(AB
Constitution, the vital and decisive fact is that the majority of the Court held that the #uestion of
,hether or not the ?e, Constitution is already in force and effect is a political #uestion and the Court
must perforce defer to the judgment of the political departments of the government or of the people in
that respect. %n is true some of the .ustices could not find sufficient basis for determining ,hether or
not the people have accepted the ?e, Constitution, but, on that point, four .ustices, .ustices
Makasiar, Antonio, /sguerra and the ,riter, did vote categorically in the affirmative, ,hile t,o
.ustices, then Chief .ustice Concepcion and .ustice 5aldivar, voted in the negative. And in the joint
opinion of no, Chief .ustice Makalintal and .ustice Castro, it is crystal clear that the reference therein
to their inability to accurately appraise the people$s verdict ,as merely casual, the thrust of their
position being that ,hat is decisive is the President$s o,n attitude regarding the situation, that is,
,hether he ,ould take the report of the Natipunan ng mga Barangay to the effect that the people
have approved and ratified the ?e, Constitution as definitive and final or he ,ould prefer to submit
the ne, charter to the same kind of election ,hich used to be held for the ratification of constitutional
amendments, his decision either ,ay not being subject to judicial in#uiry. -tated differently, our
distinguished colleagues ,ere of the vie, that ,hether or not the ?e, Constitution may be held to
have been duly ratified pursuant to Article D6 of the &(AB Constitution and even their o,n negative
conclusion in such respect, have no bearing on the issue of the enforceability of the ?e, Constitution
on the basis of its having been accepted by the people, and that although they ,ere not possessed of
sufficient kno,ledge to determine this particular fact, the President$s o,n finding thereon is
conclusive upon the Court, since, according to them such a decision is political and outside the pale
of judicial revie,. o #uote their o,n ,ords7
>o,ever, a finding that the ratification of the draft Constitution by the Citi"ens Assemblies, as certified by
the President in Proclamation ?o. &&9*, ,as not in accordance ,ith the constitutional and statutory
procedure laid do,n for the purpose does not #uite resolve the #uestions raised in these cases. -uch a
finding, in our opinion, is on a matter ,hich is essentially justiciable, that is, ,ithin the po,er of this Court
to in#uire into. %t imports nothing more than a simple reading and application of the pertinent provisions of
the &(AB Constitution, of the /lection Code and of other related la,s and official acts. ?o #uestion of
,isdom or of policy is involved. But from this finding it does not necessarily follo, that this Court may
justifiably declare that the Constitution has not become effective, and for that reason give due course to
these petition or grant the ,rits herein prayed for. he effectivity of the Constitution in the final analysis, is
the basic and ultimate #uestion ,hich considerations other than the competence of this Court, are
relevant and unavoidable.
888 888 888
ratification as ,ell as the establishment of the government thereunder formed part of a revolution, albeit
peaceful, then the issue of ,hether or not that Constitution has become effective and, as a necessary
corollary ,hether or not the government legitimately functions under it instead of under the &(AB
Constitution, is political and therefore nonCjudicial in nature. =nder such a postulate ,hat the people did in
the Citi"ens Assemblies should be taken as an e8ercise of the ultimate sovereign po,ers. %f they had
risen up in arms and by force deposed the then e8isting government and set up a ne, government in its
place, there could not be the least doubt that their act ,ould be political and not subject to judicial revie,
but only to the judgment of the same body politic act, in the conte8t just set forth, is based on realities. %f a
ne, government gains authority and dominance through force, it can be effectively challenged only by a
stronger force: no .udicial revie, is concerned, if no force had been resorted to and the people. in
defiance of the e8isting Constitution but peacefully because of the absence of any appreciable opposition,
ordained a ne, Constitution and succeeded in having the government operate under it. Against such a
reality there can be no ade#uate judicial relief: and so courts forbear to take cogni"ance of the #uestion
but leave it to be decided through political means.
888 888 888
But then the President, pursuant to such recommendation. did proclaim that the Constitution had been
ratified and had come into effect. he more relevant consideration, therefore, as far as ,e can see,
should be as to ,hat the President had in mind in convening the Citi"ens Assemblies, submitting the
Constitution to them and proclaiming that the favorable e8pression of their vie,s ,as an act of ratification.
%n this respect subjective factors, ,hich defy judicial analysis and adjudication, are necessarily involved.
%n positing the problem ,ithin an identifiable frame of reference ,e find no need to consider ,hether or
not the regime established by President Marcos since he declared martial la, and under ,hich the ne,
Constitution ,as submitted to the Citi"ens Assemblies ,as a revolutionary one. he pivotal #uestion is
rather ,hether or not the effectivity of the said Constitution by virtue of Presidential Proclamation ?o.
&&9*, upon the recommendation of the Natipunan ng mga Barangay, ,as intended to be definite and
irrevocable, regardless of nonCcompliance ,ith the pertinent constitutional and statutory provisions
prescribing the procedure for ratification. Ee must confess that after considering all the available
evidence and all the relevant circumstances ,e have found no reasonably reliable ans,er to the
#uestion.
888 888 888
President. Ee have earlier made reference to subjective factors on ,hich this Court, to our mind, is in no
position to pass judgment. Among them is the President$s o,n assessment of the ,ill of the people as
e8pressed through the Citi"ens Assemblies and of the importance of the &('A Constitution to the
successful implementation of the social and economic reforms he has started or envisioned. %f he should
decide that there is no turning back, that ,hat the people recommended through the Citi"ens Assemblies,
as they ,ere reported to him, demanded that the action he took pursuant thereto be final and irrevocable,
then judicial revie, is out of the #uestion.
%n articulating our vie, that the procedure of ratification that ,as follo,ed ,as not in accordance ,ith the
&(AB Constitution and related statutes, ,e have discharged our s,orn duty as ,e conceive it to be. he
President should no, perhaps decide, if he has not already decided, ,hether adherence to such
procedure is ,eighty enough a consideration, if only to dispel any cloud of doubt that may no, and in the
future shroud the nation$s Charter.
%n the deliberation of this Court one of the issues formulated for resolution is ,hether or not the ne,
Constitution, since its submission to the Citi"ens Assemblies, has found acceptance among the people,
such issue being related to the political #uestion theory propounded by the respondents. Ee have not
tarried on the point at all since ,e find no reliable basis on ,hich to form a judgment. =nder a regime of
martial la,, ,ith the free e8pression of opinions through the usual media vehicles restricted, ,e have no
means of kno,n, to the point of judicial certainty, ,hether the people have accepted the Constitution. %n
any event, ,e do not find the issue decisive insofar as our vote in these cases is concerned. o interpret
the Constitution K that is judicial. hat Constitution should be deemed in effect because of popular
ac#uiescence K that is political, and therefore beyond the domain of judicial revie,. ;.A6/++A?A CvsC
>/ /D/C=%6/ -/C!/A!@ K B9 -C!A &2&C&2*: &2J: &22C&2': &'9C&'&<
40

%t only remains for the ,riter to reiterate here a fe, considerations already touched in the separate
opinions in the !atification Cases ,hich in his considered vie, may ,ell be taken into account by
those ,ho ,ould read again the judgment of the Court therein. .
K & K
>aving come to the conclusion that the #uestion of ,hether or not the ?e, Constitution is legally in
force and effect is political and outside the domain of judicial revie,, it ,as not strange that the Court
should simply rule that there should be no further judicial obstacle to the enforcement of the charter,
should that be, as it appeared to be, the intent of those actually in authority in the government. %t is
implicit in the political #uestion doctrine that the Court$s opinion as to the correctness of the legal
postures involved is of no moment, for the simple reason that the remedy against any error therein
lies either ,ith the sovereign people at the polls or ,ith the Political department concerned in the
discharge of its o,n responsibility under the fundamental la, of the land, and not ,ith the Court.
/ven if it ,ere other,ise desirable, if only for the benefit of those interested in the settlement of the
specific legal problem posed, any categorical ruling thereon ,ould transcend the bounds of judicial
propriety. 1or the Court to hold it is ,ithout po,er to decide and in the same breath to actually decide
is an intolerable incongruity, hence any pronouncement or holding made under the circumstances
could have no more force than an obiter !ictu(, no matter ho, rich in erudition and precedential
support. Conse#uently, to say that the ?e, Constitution may be considered by those in authority to
be in force and effect because such is the mandate e8pressed by the people in the form announced
by the President$s but a proper manner of e8pressing the Court$s abstention from ,resting the po,er
to decide from those in ,hom such prerogative is constitutionally lodged. his is neither to dodge a
constitutional duty nor to refrain from getting involved in a controversy of transcendental implications
K it is plain adherence to a principle considered paramount in republican democracies ,herein the
political #uestion doctrine is deeply imbedded as an ine8tricable part of the rule of la,. %t is an
unpardonable misconception of the doctrine for anyone to believe that for the -upreme Court to bo,
to the perceptible or audible voice of the sovereign people in appropriate instances is in any sense a
departure from or a disregard of la, as applied to political situations, for the very rule that enjoins
judicial interference in political #uestions is no less a legal principle than any other that can be
conceived, %ndeed, just as, in la,, judicial decision rendered ,ithin ambit of the courts$ authority
deserve the respect of the people, by the same token, the people$s verdict on ,hat inherently is theirs
to decide must be accorded due deference by the judiciary. 0ther,ise, judges ,ould be more
po,erful than the people by ,hom they have been given no more prerogative than to act solely ,ithin
the boundaries of the judicial sphere. Eithal, a court may err in finding that a given situation calls for
its abstention, in the same ,ay it may commit mistakes of judgment about any order matter it
decides, still its decision, conceding its honesty, cannot be faulted as an assault on the rule of la,.
hus, in a broad sense, it may be said that it is a necessary corollary of the truth that the
administration of justice in courts presided be human beings cannot perfect that even the honest
mistake of a judge is la,.
he ,riter further submits that, as pointed out in his separate opinion in the !atification Cases, those
,ho vehemently insist that the referendum of .anuary &9C&B, &('A ,as not the kind of election
contemplated in Article D6 of the &(AB Constitution seem to overlook that the said provision refers
only to the mode of ratifying amendments thereto and makes no mention at all a ne, constitution
designed to supersede it is to be submitted for approval by the people. %ndeed, the ,riter ,ould
readily agree, as ,as already made clear in the aforementioned opinion, that if ,hat ,ere submitted
to the people in the .anuary, &('A referendum had been merely an amendment or a bundle of
amendments to the &(AB Constitution, the results thereof could not constitute a valid ratification
thereof. But since it ,as a ,hole integral charter that the Citi"ens$ Assemblies had before them in that
referendum, it is evident that the ratification clause invoked cannot be controlling.
hat a ne, constitution is not contemplated is indicated in the te8t of the provision it itself. %t says7
4-uch amendments shall be valid as part of this Constitution ,hen approved by a majority of the
votes cast ....4 >o, can it be ever conceived that the &('A Constitution ,hich is an entire charter in
itself, differing substantially in its entirely and radically in most of its provisions, from the &(AB
Constitution be part of the latterI %n other ,ords, the mode ratification prescribed in Article D6 is only
for amendments that can be made part of the ,hole constitution, obviously not to an entire charter
precisely purported to supersede it.
And it is but logical that a constitution cannot and should not attempt to bind future generations as to
ho, they ,ould do a,ay ,ith it in favor of one suitable to their more recent needs and aspirations. %t
is true that in Tolentino vs. Co(elec, J& -C!A '9*, this Court, thru the ,riter, held that7
%n our discussion of the issue of jurisdiction, Ee have already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to -ection & of Article D6 of the Constitution,
already #uoted earlier in this opinion. Ee 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 e8isting Constitution.
?o,, Ee hold that even as to its latter task of proposing amendments to the Constitution, it is subject to
the provisions of -ection & of Article D6. his must be so, because it is plain to =s that the framers of the
Constitution took care that the process of amending the same should not be undertaken ,ith the same
ease and facility in changing an ordinary legislation. Constitution making is the most valued po,er,
second to none, of the people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and ,hich ,e 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 ,ithin the country and those subject to its sovereignty, every degree of care is taken in preparing
and drafting it. A constitution ,orthy of the people for ,hich it is intended must not be prepared in haste
,ithout ade#uate deliberation and study. %t is obvious that correspondingly, any amendment of the
Constitution itself, and perforce must be conceived and prepared ,ith as much care and deliberation.
1rom the very nature of things, the drafters of an original constitution, as already observed earlier,
operate ,ithout any limitations, restraints or inhibitions save those that they may impose upon
themselves. his is not necessarily true of subse#uent conventions called to amend the original
constitution. 3enerally, the framers of the latter see to it that their handi,ork is not lightly treated and as
easily mutilated or changed, not only for reasons purely personal but more importantly, because ,ritten
constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, so
long as they can be adopted to the needs and e8igencies of the people, hence, they must he insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies. hus,
as a rule, the original constitutions carry ,ith them limitations and conditions, more or less stringent,
made so by the people themselves, in regard to the process of their amendment. And ,hen such
limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of
any subse#uent convention to claim that they may ignore and disregard such conditions because they are
as po,erful and omnipotent as their original counterparts. ;At page '*JC'*2< .
But this passage should not be understood, as it ,as not meant to be understood, to refer to the
people$s inalienable right to cast aside the ,hole constitution itself ,hen they find it to be in their best
interests to do so. %t ,as so indicated already in the resolution denying the motion for reconsideration7
his is not to say that the people may not, in the e8ercise of their inherent revolutionary po,ers, amend
the Constitution or promulgate an entirely ne, one other,ise, but as long as any amendment is
,hich is not in conformity ,ith the letter, spirit and intent of the provision of the Charter for effecting
amendments cannot receive the sanction of this Court. ;!esolution of Motion for reconsideration,
olentino vs. Comelec 3.!. ?o. +CAJ&B9, 1ebruary J, &('&< .
1or it is rather absurd to think that in approving a ne, fundamental la, ,ith ,hich they ,ould replace
the e8isting one, they have to adhere to the mandates of the latter, under pain of getting stuck ,ith it,
should they fall. 0ne can easily visuali"e ho, the evil forces ,hich dominated the electoral process
during the old society ,ould have gone into play in order to stifle the urge for change, had the mode
of ratification in the manner of past plebiscites been the one observed in the submission of the ?e,
Constitution. o reiterate ,hat the ,riter said in the !atification Cases7
Consider that in the present case ,hat is involved is not just an amendment of a particular provision of an
e8isting Constitution: here, it is, as % have discussed earlier above, an entirely ne, Constitution that is
being proposed. his important circumstance makes a great deal of difference.
?o less than counsel olentino for herein respondents Puyat and !oy, ,ho ,as himself the petitioner in
the case % have just referred to is, no, inviting 0ur attention to the e8act language of Article D6 and
suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern
the ratification of a ne, Constitution. %t is particularly stressed that the Article specifically refers to nothing
else but 4amendments to this Constitution4 ,hich if ratified 4shall be valid as part of this Constitution.4
%ndeed, ho, can a ,hole ne, Constitution be by any manner of reasoning an amendment to any other
constitution and ho, can it, if ratified, form part of such other constitutionI ...
ne, constitution is being adopted implies a general intent to put aside the ,hole of the old one, and ,hat
,ould be really incongruous is the idea that in such an eventuality, the ne, Constitution ,ould subject its
going into effect any provision of the constitution it is to supersede, to use the language precisely of
-ection 2, Article D6%%, the effectivity clause, of the ?e, Constitution. My understanding is that generally,
constitutions are selfCborn, they very rarely, if at all, come into being, by virtue of any provision of another
constitution. his must be the reason ,hy every constitution has its o,n effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the ?e, Constitution, % ,ould have had serious doubts as to
,hether Article D6 could have had priority of application.4 ;.avellana CvsC he /8ecutive -ecretaryCB9
-C!A &('C&()<.
-ince in the ,ithdra,al motion of petitioner Diokno, the ,hole trust of his posture relative to the
alleged nonCenforceability of the Constitution of &('A revolves around supposed nonCcompliance in
its ratification, ,ith Article D6 of the &(AB Charter, and inasmuch as it is evident that the letter and
intent of that invoked provision do not ,arrant, as has just been e8plained, the application thereof to
the ?e, Constitution, for the simple reason that the same is not in fact and in la, as ,ell as in form
and in intent a mere amendment to the 0ld Constitution, but an integrally ne, charter ,hich cannot
conceivably be made just a part thereof, one cannot but vie, said motion to ,ithdra, as having been
designed for no other purpose than to serve as a vehicle for the ventilation of petitioner$s political
rather than legal outlook ,hich deserves scant consideration in the determination of the merits of the
cases at bar.
%n any event, that a constitution need not be ratified in the manner prescribed by its predecessor and
that the possible invalidity of the mode of its ratification does not affect its enforceability, as long as
the fact of its approval by the people or their ac#uiescence thereto is reasonably sho,n, is amply
demonstrated in the scholarly dissertation made by our learned colleague, Mr. .ustice 1eli8 6.
Makasiar, in his separate opinion in the !atification Cases, ,hich carried the concurrence of .ustices
Antonio, /sguerra and the ,riter. And that ,hat took place in the Philippines in .anuary, &('A is not
an unprecedented practice peculiar to our country, is like,ise plainly sho,n therein, since it appears
that no less than the Constitution of the =nited -tates of America, the nation ,hose close adherence
to constitutionalism petitioners ,ould ,ant the 1ilipinos to emulate, ,as also ratified in a ,ay not in
conformity ,ith the Articles of Confederation and Perpetual =nion, the Constitution ,hich it replaced,
and the reason for it ,as only because those in authority felt that it ,as impossible to secure
ratification, if the amendment clause of the Articles ,ere to be observed, and so they resorted to
e8traCconstitutional means to accomplish their purpose of having a ne, constitution. 1ollo,ing is the
pertinent portion of Mr. .ustice Makasiar$s illuminating dis#uisition based on actual historical facts
rather than on theoretical and philosophical hypotheses on ,hich petitioners ,ould seem to rely7
he classic e8ample of an illegal submission that did not impair the validity of the ratification or adoption
of a ne, Constitution is the case of the 1ederal Constitution of the =nited -tates. %t should be recalled
that the thirteen ;&A< original states of the American =nion K ,hich succeeded in liberating themselves
from /ngland after the revolution ,hich began on April &(, &''B ,ith the skirmish at +e8ington,
Massachusetts and ended ,ith the surrender of 3eneral Corn,allis at @orkto,n, 6irginia, on 0ctober
&(,&')& ;/ncyclopedia Brit., 6ol. &, &(AA /d., p. ''2< K adopted their Articles of Confederation and
Perpetual =nion, that ,as ,ritten from &''2 to &''' and ratified on March &, &')& ;/ncyclopedia Brit.,
6ol. &&, &(22 /d., p. B*B<. About si8 years thereafter, the Congress of the Confederation passed a
resolution on 1ebruary *&, &')' calling for a 1ederal Constitutional Convention 4,or t*e sole an! e6press
purpose o, revisain+ t*e articles o, con,e!eration ....$ ;Appendi8 &, he 1ederalist, Modern +ibrary ed., p.
B'', emphasis supplied<.
he Convention convened at Philadelphia on May &J, &')'. Article D%%% of the Articles of Confederation
and Perpetual =nion stated specifically7
he articles of this confederation shall be inviolably observed by every state, and the
union shall be perpetual: nor s*all an alteration at an ti(e *erea,ter #e (a!e in an o,
t*e(9 unless suc* alteration #e a+ree! to in a con+ress o, t*e unite! states, an! #e
a,ter)ar!s con,ir(e! # t*e le+islatures o, ever state. ;-ee the 1ederalist, Appendi8 &&,
Modern +ibrary /d., &(A', p. B)J: emphasis supplied<.
But the foregoing re#uirements prescribed by the Articles of Confederation and Perpetual =nion for the
alteration and for the ratification of the 1ederal Constitution as drafted by the Philadelphia Convention
,ere not follo,ed. 1earful that the said 1ederal Constitution ,ould not be ratified by the state legislatures
as prescribed, the Philadelphia Convention adopted a resolution re#uesting the Congress of the
Confederation to pass a resolution providing that the 1ederal Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine ;(< states, not necessarily in all thirteen ;&A<
states, the said Constitution shall take effect.
%t ,ould have a counsel of perfection to consign the ne, Constitution to the tender mercies of the
legislatures of each and all of the &A states. /8perience clearly indicated that ratification ,ould have had
the same chance as the scriptural camel passing thru the eye of a needle. It )as t*ere,ore !eter(ine! to
reco((en! to Con+ress t*at t*e ne) Constitution #e su#(itte! to conventions in t*e several states
speciall electe! to pass an! )*en it s*oul! #e rati,ie! # nine o, t*e t*irteen states ....$ ;he 1ederalist,
Modern +ibrary /d., &(A', %ntroduction by /d,ard /arle Mead, pp. viiiCi8 emphasis supplied<.
he Convention, anticipating that the influence of many state politicians ,ould be Anti
federalist, provided for ratification of the Constitution by popularly elected conventions in
each state. -uspecting that !hode %sland, at least, ,ould prove recalcitrant, it declared
that the Constitution ,ould go into effect as soon as nine states ratified. he convention
method had the further advantage that judges, ministers, and others ineligible to state
legislatures could be elected to a convention. he nineCstate provision ,as, of course,
mildly revolutionary. But the Congress of the Confederation, still sitting in ?e, @ork to
carry on federal government until relieved, formally submitted the ne, constitution to the
states and politely faded out before the first presidential inauguration.$ ;he 08ford
>istory of the Am. People by -amuel /liot Morison, &(2B ed., p. A&*<.
states on May *(, &'(9 ;&* C. .. p. 2'( footnote, &2 C...-. *' K by the state conventions and not by all
thirteen ;&A< state legislatures as re#uired by Article D%%% of the Articles of Confederation and Perpetual
=nion afore#uoted K and in spite of the fact that the 1ederal Constitution as originally adopted suffers
from t)o #asic in,ir(ities, na(el t*e a#sence o, a #ill o, ri+*ts an! o, a provision a,,ir(in+ t*e po)er o,
5u!icial revie).
he liberties of the American people ,ere guaranteed by the subse#uent amendments to the 1ederal
Constitution. he doctrine of judicial revie, has become part of American constitutional la, only by virtue
of a judicial pronouncement by Chief .ustice Marshall in the case of 'ar#ur vs. 'a!ison ;&)9A, & Branch
&A'<.
%n the &(J2 case of K*eeler vs. "oar! o, Trustees ;A' -/ *nd A**, A*2C AA9<, ,hich enunciated the
submission or ratification by the people, but on t*e ,act o, ,iat or approval or a!option or ac;uiescence #
t*e people, )*ic* ,act o, rati,ication or a!option or ac;uiescence is all t*at is essential, the Court cited
precisely the case of the irregular revision and ratification by state conventions of the 1ederal
Constitution, thus7
?o case identical in its facts ,ith the case no, under consideration has been called to
our attention, and ,e have found none, Ee think that the principle ,hich ,e apply in the
instant case ,as very clearly applied in the creation of the constitution of the =nited
-tates. he convention created by a resolution of Congress had authority to do one thing,
and one only, to ,it, amend the articles of confederation. his they did not do, but
submitted to the sovereign po,er, the people, a ne, constitution. %n this manner ,as the
constitution of the =nited -tates submitted to the people and it became operative as the
organic la, of this nation ,hen it had been properly adopted by the people.
Pomeroy$s Constitutional +a,, p. BB, discussing the convention that formulated the
constitution of the =nited -tates, has this to say 4he convention proceeded to do, and
did accomplish, ,hat they ,ere not authori"ed to do by a resolution of Congress that
called them together. hat resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and after,ards ratified by
all the state legislatures, in the manner pointed out by the e8isting organic la,. But the
convention soon became convinced that any amendments ,ere po,erless to effect a
cure: that the disease ,as too deeply seated to be reached by such tentative means.
hey sa, the system they ,ere called to improve must be totally abandoned, and that
the national idea must be reCestablished at the center of their political society. %t ,as
objected by some members, that they had no po,er, no authority, to construct a ne,
government. hey had no authority, if their decisions ,ere to he final: and no authority
,hatever, under the articles of confederation, to adopt the course they did. But they kne,
that their labors ,ere only to be suggestions: and that they as ,ell as any private
individuals, and any private individuals as ,ell as they, had a right to propose a plan of
government to the people for their adoption. hey ,ere, in fact, a mere assemblage of
private citi"ens, and their ,ork had no more binding sanction, than a constitution drafted
by Mr. >amilton in his office, ,ould have had. he people, by their e8pressed ,ill,
transformed this suggestion, this proposal, into an organic la,, and the people might
have done the same ,ith a constitution submitted to them by a single citi"en.
888 888 888
... K*en t*e people a!opt a co(pletel revise! constitution, t*e ,ra(in+ or su#(ission o, t*e instru(ent
is not )*at +ives its #in!in+ ,orce an! e,,ect. T*e ,iat o, t*e people, an! onl t*e ,iat o, t*e people, can
#reat*e li,e into a Constitution.
soverei+n. T*is )oul! #e an aut*orize! e6ercise o, soverei+n po)er # t*e court. ;%n -tate v. -,ift 2( %nd.
B9B, B&(, the %ndiana -upreme Court said7 $he people of a -tate may form an original constitution, or
abrogate an old one and form a ne, one, at and time, ,ithout and political restriction e8cept the
constitution of the =nited -tates: .... ;A' -/ A*'CA*), A*(, emphasis supplied.<
%n the &(9A case of Keston vs. >an, the court held7
%t remains to be said that if ,e felt at liberty to pass upon this #uestion, and ,ere
compeller to hold that the act of 1ebruary *A, &))', is unconstitutional and void, it ,ould
not, in our opinion, by any means follo, that the amendment is not a part of our state
Constitution. %n the recent case of Talor vs. Co((on)ealt* ;6a.< JJ -./. 'BJ, t*e
Supre(e Court o, @ir+inia *ol! t*at t*eir state Constitution o, $%F2, *avin+ #een
ac-no)le!+e! an! accepte! # t*e o,,icers a!(inisterin+ t*e state +overn(ent, an! #
t*e people, an! #ein+ in ,orce )it*out t opposition (ust #e re+ar!e! as an e6istin+
Constitution, irrespective o, t*e ;uestion as to )*et*er or not t*e convention )*ic*
pro(ul+ate! it *a! aut*orit so to !o )it*out su#(ittin+ it to a vote o, t*e people. %n
"rittle v. People, * ?eb. &(), is a similar holding as to certain provisions of the ?ebraska
Constitution of &))2, ,hich ,ere added by the +egislature at the re#uirement of
Congress, though never submitted to the people for their approval. ;(' ?E AJ(CAB9:
emphasis supplied<.
Against the decision in the Eheeler case, supra., confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such ratification ,as a clear violation of the prescription
on alteration and ratification of the Articles of Confederation and Perpetual =nion, petitioners in 3. !. ?o.
+CA2&2B dismissed this most significant historical fact by calling the 1ederal Constitution of the =nited
-tates as a revolutionary one, invoking the opinion e8pressed in 6ol. &2, Corpus .uris -ecundum, p. *',
that it ,as a revolutionary constitution because it did not obey the re#uirement that the Articles of
Confederation and Perpetual =nion can be amended only ,ith the consent of all thirteen ;&A< state
legislatures. his opinion does not cite any decided case, but merely refers to the footnotes on the brief
historical account of the =nited -tates Constitution on p. 2'( of 6ol. &*, C.-. Petitioners, on p. &) of their
main ?otes, refer =- to pp. *'9CA&2 of the O6,or! Cistor o, t*e 3(erican People, &(2B /d. by -amuel
/liot Morison, ,ho discusses the Articles of Confederation and Perpetual =nion in Chapter D6%%%
captioned $!evolutionary Constitution Making, &''B &')&$ ;pp. *'9C*)&<. %n Chapter DD on $he Creative
Period in Politics, &')BC&')),$ Professor Morison delineates the genersis of the 1ederal Constitution, but
does not refer to it even implicitly as a revolutionary constitution ;pp. *('CA&2<. >o,ever, the 1ederal
Constitution may be considered revolutionary from the vie,point of Mc%ver if the term revolution is
understood in $its E%D/! sense to embrace decisive changes in the character of government, even
though they do not involve the violent overthro, of an established order, ...$ ;!.M. Mac%ver, he Eeb of
3overnment, &(2B ed., p. *9A<.
%t is rather ridiculous to refer to the American Constitution as a revolutionary constitution, he Artycles of
Confederation and Perpetual =nion that ,as in force from .uly &*, &''2 to &')), forged as it ,as during
the ,ar of independence ,as revolutionary constitution of the thirteen ;&A< states. %n the e8isting 1ederal
Constitution of the =nited -tates ,hich ,as adopted seven ;'< or nine ;(< years after the thirteen ;&A<
states ,on their independence and long after popular support for the government of the Confederation
had stabili"ed ,as not a product of a revolution. he 1ederal Constitution ,as a $creation of the brain and
purpose of man$ in an era of peace. %t can only be considered revolutionary in the sense that it is a radical
departure from its predecessor, the Articles of Confederation and Perpetual =nion.
successor to the Articles of Confederation and Perpetual =nion. he fallacy of the statement is so obvious
that no further refutation is needed. ;8F SC>3 2F%42$8< .
Moreover, ,hether a proposal submitted to the people is just an amendment to an e8isting
constitution ,ithin the contemplation of its amendment clause or is a ne, charter not comprehended
by its language may not be determined solely by the simple processes of analysis of and comparison
bet,een the contents of one and the other. 6ery much depends on ,hat the constituent assembly,
reflecting its understanding of the desire of the people it represents, actually intends its handi,ork to
be, as such intent may be deduced from the face of the document itself. 1or the truth is that ,hatever
changes in form and in substance a constitution may undergo, as long as the same political, social
and economic ideologies as before continue to be the motivation behind such changes, the result can
never be, in a strict sense, a ne, constitution at all. %ndeed, in such circumstance, any alteration or
modification of any provision of a constitution, no matter ho, e8tensive, can al,ays he traced as
founded on its o,n bedrock, thereby proving identity. %t is therefore the e8pressed desire of the
makers of the charter that is decisive. And that is ,hy the ?e, Constitution has its o,n effectivity
clause ,hich makes no reference ho,soever to Article D6 of the past charter.
41

?o,, ho, the founding fathers of America must have regarded the difference bet,een a
constitutional amendment, on the one hand, and a ne, constitution, on the other, ,hen they found
the Articles of Confederation and Perpetual =nion no longer ade#uate for the full development of their
nation, as can be deduced from the historical account above, is at least one case in point K they
e8ercised their right to ratify their ne, fundamental la, in the most feasible manner, ,ithout regard to
any constitutional constraints. And yet, it is the constitution that is reputed to have stood all tests and
,as, in fact, the model of many national constitutions, including our o,n of &(AB, if it cannot be
accurately regarded also as the model of the present one.
Eith the foregoing considerations in mind, it can be readily seen ho, pointless it is to contend, as
petitioner Diokno does in his motion to ,ithdra,, that ,hat he deems as the failure of the .anuary,
&('A referendum to conform ,ith the re#uirements of Article D6 of the &(AB Constitution detracts
from the enforceability of the ?e, Constitution, in the light of the President$s assertion contained in
Proclamation &&9* that it has been approved and ratified by the people, coupled ,ith his evident firm
and irreversible resolution to consider it to have been, indeed, duly ratified, and in the face of the
indisputable fact that the ,hole government effectively in control of the entire Philippine territory has
been operating under it ,ithout any visible resistance on the part of any significant sector of the
populace. o allude to the filing of the petitions in the Plebiscite and the !atification Cases and the
occasional appearances in some public places of some underground propaganda ,hich, any,ay, has
not cut any perceptible impression any,here, as indicative or evidence of opposition by the people to
the ?e, Constitution ,ould be, to use a commonplace but apt e8pression, to mistake the trees for the
forest.
%t is thus abundantly clear that the passionate and tenacious raciocination in petitioner Diokno$s
,ithdra,al motion tending to assail the cogency of our opinions and their consistency ,ith the
judgment in the !atification Cases, to the e8tent of using terms that could signify doubt in the good
faith and intellectual integrity of some members of the Court and of trying to embarrass the Court
itself before the bar of history, does not in fact have any plausible basis ,hatsoever.
C O N C 0 E S I O N
he instant cases are uni#ue. o 0ur kno,ledge never before has any national tribunal of the highest
authority been called upon to pass on the validity of a martial la, order of the /8ecutive issued in the
face of actual or imminent danger of a rebellion K threatening the very e8istence of the nation. he
petitions herein treat of no more than the deprivation of liberty of the petitioners, but in reality ,hat is
involved here is the legitimacy of the government itself. ?o -upreme Court of any other country in the
,orld, Ee reiterate, has ever been confronted ,ith such a transcendental issue.
his is, therefore, a decision that affects not the petitioners alone, but the ,hole country and all our
people. 1or this reason, Ee have endeavored to the best of our ability to look at all the issues from
every conceivable point of vie,. Ee have gone over all the jurisprudence cited by the parties, the
,ritings of learned and kno,ledgeable authorities they have #uoted and ,hatever Ee could avail of
by 0urselves. Ee trust Ee have not misunderstood any of the contentions of the parties and their
able and learned counsels and that Ee have not overlooked any authority relevant to them. And Ee
must say Ee perceive no cause to do,ngrade their love of and loyalty to our common motherland
even if differences there are bet,een our convictions as to ho, to earlier attain the national destiny.
%ndeed, Ee have not considered as really persuasive any insinuations of motivations born of political
partisanship and personal ambitions.
Ee do not mean to belittle or depreciate foreign jurisprudence, but Ee have deliberately refrained
from relying on alien opinions, judicial or other,ise, in order to stress that the 1ilipinos can solve their
o,n problems ,ith their o,n resources intellectual or other,ise. Any,ay, Ee doubt if there is enough
relevant parallelism bet,een occurrences in other countries passed upon by the courts ,ith ,hat is
happening here today.
Principally, by this decision, Ee hold that the po,er to proclaim martial la, is lodged by the
Constitution e8clusively in the /8ecutive, but the grant of judicial po,er to the -upreme Court also by
the Constitution is plenary and total and, therefore, ,hen it is a matter of judicial notice, because it is
commonly kno,n by the general public or is capable of un#uestionable demonstration, that any
particular declaration of martial la, is devoid of any of the constitutionally re#uired bases, the Court
has the full authority and it ,ould not hesitate to strike do,n any such improvident proclamation and
to adjudge that the legitimate government continue ,ithout the offending /8ecutive, ,ho shall be
replaced in accordance ,ith the rules of succession provided in the e8isting Constitution and la,s. %n
the cases at bar, ho,ever, the Court, ,ith the abstention of only one member ,ho has preferred not
to emit any opinion on the issue at this time, holds that the President had good and sufficient grounds
in issuing Proclamation &9)&, ,hether the same is e8amined in the light of its o,n recitals, as some
.ustices advocate, or of facts of judicial notice together ,ith those undisputed in the record, in the
manner the rest of =s have actually tested it. Ee further hold that in restraining the liberties of
petitioners, the President has not overstepped the boundaries fi8ed by the Constitution.
1or doctrinal purposes, it is best to add to all the foregoing that a judicial challenge against the
imposition of martial la, by the /8ecutive in the midst of the actualities of a real assault against the
territorial integrity and life of the nation, inevitably calls for the reconciliation, ,hich Ee feel Ee have
been able to effectuate here, of t,o e8tremes in the allocation of po,ers under the Constitution K the
resort by the /8ecutive to the ultimate ,eapon ,ith ,hich the fundamental la, allo,s him to defend
the state against factual invasion or rebellion threatening the public safety, on the one hand, and the
assertion by the -upreme Court of the irreducible plenitude of its judicial authority, on the other. ?o
other conflict of prerogatives of such total dimensions can conceivably arise from the operation of any
other t,o parts of the charter. his decision then could ,ell be sui +eneris, hence, ,hatever has been
said here ,ould not necessarily govern #uestions related to adverse claims of authority related to the
lo,er levels of the hierarchy of po,ers in the Constitution.
Ee humbly submit this decision to the judgment of all our people, to history and to the generations of
1ilipinos still unborn, confident that it carries all that Ee kno, and all that Ee are. As Ee do this, Ee
are fully a,are that in this critical stage of our life as a nation, our overriding need is unity. %t is 0ur
fervent hope that by this decision, Ee have duly performed 0ur constitutionally assigned part in the
great effort to reduce if not to eliminate the remaining fundamental causes of internecine strife.
May Divine Providence continue to al,ays keep the Philippines in the right paths of democracy,
freedom and justice for allW
J E . G ' E N T
E>/!/10!/, the petitions in all the aboveCentitled cases are dismissed. ?o costs.
3 . . E N . E '
he follo,ing are my reasons for voting in favor of granting the motion to ,ithdra,7
%t is elementary that the remedy of *a#eas corpus e8ists only against involuntary confinement. he
moment, therefore, that after initially #uestioning the legality of his detention, the petitioner seeks
,ithdra,al of his petition at any stage of the case before judgment, his detention becomes in la,
automatically, by his o,n act, voluntary or ,ith his e8press consent, hence, the reason for further
in#uiry into the circumstances thereof ceases completely, and the court$s duty to proceed further and
render judgment comes to an end. By allo,ing the ,ithdra,al, no interest of justice ,ould be
prejudiced, no juridical harm needing redress could be caused to anyone. Accordingly, the petitioner$s
motive for his ,ithdra,al, ,hether e8pressed or unarticulated, are absolutely immaterial, albeit, in the
case at bar, petitioner himself suggests that, ,hile acceding to his re#uest, the members of the Court
may e8press their vie,s thereon. ;-urC!ejoinder dated May *&, &('J, p. A<.
%n the mind of the ,riter, the grounds alleged by petitioner Diokno and his counsel have an apparent
tendency to offend the dignity of the Court and to undermine the respect and faith of the people in its
capacity to administer justice. Ehat is ,orse, they may be false and baseless, as they are emotional
and personal. =nless properly e8plained, they give the impression that movant is impeaching the
integrity and good faith of some members of the Court. %n the premises, said petitioner and counsel
could be re#uired to sho, cause ,hy they should not be held in contempt of the Court, but there
being no formal charge to such effect in the instant proceedings, and in order not to confuse the
discussion and resolution of the transcendental issues herein, it is preferable, and the Court has
opted, to take up the matter of the possible responsibility for contempt separately, either motu propio
or upon the initiative of ,hoever may allege to be aggrieved thereby. 1or the present, it has to be
stated, ho,ever, that under no circumstances may any party or counsel vent his personal feelings
and emotions in any pleading or paper Bled ,ith the Court, particularly ,hile his case is pending
therein. Personalities that are directed to,ards the occupants of the judicial office naturally mar the
legal issues before them, correspondingly making more difficult their proper and impartial resolution.
/ven if the judges concerned are actually, as they are supposed to be, unmoved by them, still there
can be no assurance that the litigants and the public in general ,ill be convinced of their absolute
impartiality in their subse#uent actuations, and to that e8tent, the interests of justice are bound to
suffer. %t is but in keeping ,ith the highest traditions of the judiciary that such improprieties are not
allo,ed to pass unnoticed and are dealt ,ith by the court either (oto propio or upon corresponding
complaint, ,hether in an independent proceeding or as an incident ,ithin the pending case. ?o court
,orthy of its position should tolerate them.
But assaults upon the dignity and integrity of the court, are one thing, and the issues of the case at
hand are another. !egardless of ,hat the judge thinks is the belief of those concerned about the
motivations of the court$s subse#uent resolution of the issues, unless he inhibits himself from further
acting in the case, circumstances permitting, it is his inescapable duty to render judgment, taking
care, of course, that he remains, in fact, objective and impartial. %t is, therefore, of no moment, for the
purposes of disposing of petitioner Diokno$s motion to ,ithdra,, ,hether or not the charges leveled
by him and his counsel against the Court or any of its members are founded or unfounded and
,hether or not the same constitute actionable misconduct on their part, as participants in the case
before =s andFor as members of the Bar and officers of the Court. Any possible action for such
probable misconduct has no bearing on the #uestion of ,hether or not, observing the usual rules and
practices, the Court should dismiss his main petition, the alleged illegality of his detention having
been duly cured by his voluntary submission thereto.
All these is not to say that % have not given thought to the imperative necessity of resolving the issues
of public interest raised in petitioner Diokno$s petition. % can also see that it is important to the
3overnment that he does not escape the legal effects of the decision in these cases. But if these are
the main reasons for denying his motion to ,ithdra,, % believe that the 3overnment$s apprehensions
are rather unfounded. Ehile % ,ould not say that by his ,ithdra,al, petitioner impliedly admits the
correctness of the stand of the 3overnment, ,hat ,ith the avalanche of protests against alleged
injustice and supposed legal errors running through his pleadings, % am of the considered vie, that in
la,, he cannot correctly pretend that the rulings of the Court in the other cases herein in respect to
the issues therein that are common ,ith those of his petition are not binding on him at least by
precedential force. And inasmuch as in the cases not ,ithdra,n, all the issues of public interest
raised in his case ,ill have to be resolved, % do not see any purpose in insisting that he should remain
a petitioner ,hen he refuses, as a matter of conscience, to a,ait the unfavorable verdict he foresees
in his o,n case, ,hich he himself anticipates ,ill not set him free any,ay. 0f course, he protests that
nothing he can say can convince the Court, and, on the other hand, perhaps, the most technically
accurate and palpably just decision the court may fashion ,ill not convince him, but it has to be a
strange court that ,ill yield to a litigant$s point of vie, just because he sincerely feels he is right,
,hereas it is not unusual for a litigant to pretend not to see the correctness and justice of the court$s
judgment unfavorable to his interests.

ANTONIO, J.:
hese applications for ,rits of *a#eas corpus present for revie, Proclamation ?o. &9)& of the
President of the Philippines, placing the country under martial la, on -eptember *&, &('*, and the
legality of the arrest and detention of prisoners under the aforesaid proclamation. he issues posed
have confronted every democratic government in every clime and in every age. hey have al,ays
recurred in times of crisis ,hen the nation$s safety and continued e8istence are in peril. %nvolved is
the problem of harmoni"ing t,o basic interests that lie at the foundation of every democratic
constitutional system. he first is contained in !osseau$s formulation, $the people$s first intention is
that the -tate shall not perish,4 in other ,ords, the right of the -tate to its e8istence. he second are
the civil liberties guaranteed by the Constitution, ,hich 4imply the e8istence of an organi"ed system
maintaining public order ,ithout ,hich liberty itself ,ould be lost in the e8cesses of unrestrained
abuses. ...4 ;Co8 vs. ?e, >ampshire, A&* =.-. B2( G&(J9H<.
he petitions for *a#eas corpus initially raise the legality of the arrest and detention of petitioners. As
the respondents, ho,ever, plead, in defense, the declaration of martial la, and the conse#uent
suspension of the privilege of *a#eas corpus, the validity of Proclamation ?o. &9)& is the ultimate
constitutional issue.
>earings ,ere held on -eptember *2 and *( and 0ctober 2, &('*.
1

Mean,hile, some of the petitioners ,ere allo,ed to ,ithdra, their petitions.
4
Most of the petitioners
,ere subse#uently released from custody under certain conditions and some of them insist that their
cases have not become moot as their freedom of movement is restricted.
3
As of this date, only
petitioner Benigno A#uino, .r. ;+CABBJ2< remains in military custody.
0n August &&, &('A, petitioner Benigno A#uino, .r. ,as charged before the military commission ,ith
the crimes of subversion under the AntiC-ubversion Act ;!epublic Act ?o. &'99<, murder and illegal
possession of firearms. 0n August *A, &('A, he filed an action for certiorari and prohibition ;+CABBJ2<
,ith this Court, assailing the validity of his trial before the military commission, because the creation
of military tribunals for the trial of offenses committed by civilians is unconstitutional in the absence of
a state of ,ar or status of belligerency: being martial la, measures, they have ceased ,ith the
cessation of the emergency: and he could not e8pect a fair trial because the President of the
Philippines had prejudged his case. hat action is pending consideration and decision.
0n December *), &('A, petitioner Diokno moved to ,ithdra, his petition ;+CABBA(<, claiming that
there ,as delay in the disposition of his case, and that as a conse#uence of the decision of this Court
in Javellana v. E6ecutive Secretar ;+A2&J*, March A&, &('A< and of the action of the members of
this Court in taking an oath to support the ?e, Constitution, he has reason to believe that he cannot
4reasonably e8pect to get justice in this case.4 !espondents oppose this motion on the ground that
public interest or #uestions of public importance are involved and the reasons given are factually
untrue and contemptuous. 0n -eptember &&, &('J, petitioner Diokno ,as released from military
custody. %n vie, of his release, it ,as the consensus of the majority of the Court to consider his case
as moot. Ee shall no, proceed to discuss the issues posed by the remaining cases.
&. %s the determination by the President of the Philippines of the necessity for the e8ercise of his
po,er to declare martial la, political, hence, final and conclusive upon the courts, or is it justiciable
and, therefore, his determination is subject to revie, by the courtsI
*. Assuming +ansang to be applicable, can it be said that the President acted arbitrarily in issuing
Proclamation ?o. &9)&I
A. Assuming that the issues are justiciable, can the -upreme Court upon the facts of record and those
judicially kno,n to %t no, declare that the necessity for martial la, has already ceasedI
J. =nder a regime of martial la,, can the Court in#uire into the legal justification for the arrest and
detention as ,ell as the other constraints upon the individual liberties of the petitionersI %n the
affirmative, does %t have any ade#uate legal basis to declare that their detention is no longer
authori"ed by the Constitution.
%
CONSTITETION INTEN.E. ST>ONG EIECETI@E
he right of a government to maintain its e8istence is the most pervasive aspect of sovereignty. o
protect the nation$s continued e8istence, from e8ternal as ,ell as internal threats, the government 4is
invested ,ith all those inherent and implied po,ers ,hich, at the time of adopting the Constitution,
,ere generally considered to belong to every government as such, and as being essential to the
e8ercise of its functions4 ;Mr. .ustice Bradley, concurring in +egal ender Cases G=-H &* Eall. JB',
BBJ, BB2, *9 +. ed. *)', A&J, A&B<. o attain this end, nearly all other considerations are to be
subordinated. he constitutional po,er to act upon this basic principle has been recogni"ed by all
courts in every nation at different periods and diverse circumstances.
hese po,ers ,hich are to be e8ercised for the nation$s protection and security have been lodged by
the Constitution under Article 6%%, -ection &9 ;*< thereof, on the President of the Philippines, ,ho is
clothed ,ith e8clusive authority to determine the occasion on ,hich the po,ers shall be called forth.
he constitutional provision e8pressly vesting in the President the po,er to place 4the Philippines or
any part thereof under martial la, in case of invasion, insurrection or rebellion or imminent danger
thereof ,hen the public safety re#uires it,4
5
is taken bodily from the .ones +a, ,ith the difference that
the President of the =nited -tates had the po,er to modify or vacate the action taken by the
3overnorC3eneral.
5
Although the Civil 3overnor, under -ection B of the Philippine Bill of &(9*, could,
,ith the approval of the Philippine Commission, suspend the privilege of the ,rit of *a#eas corpus no
po,er to proclaim martial la, ,as specifically granted. his po,er is not mentioned in the 1ederal
Constitution of the =nited -tates. %t simply designates the President as commanderCinCchief7
he President shall be CommanderCinCChief of the Army and ?avy of the =nited -tates and of the militia
of the several states ,hen called into actual service of the =nited -tates ...
:

%ts absence in the 1ederal Constitution not,ithstanding, President Abraham +incoln during the Civil
Ear placed some parts of the country under martial la,. >e predicated the e8ercise of this po,er on
his authority as CommanderCinCChief of the Armed 1orces and on the ground of e8treme necessity for
the preservation of the =nion. Ehen not e8pressly provided in the Constitution, its justification,
therefore, ,ould be necessity. hus some authoritative ,riters vie, it as 4not a part of the
Constitution but is rather a po,er to preserve the Constitution ,hen constitutional methods prove
inade#uate to that end. %t is the la, of necessity.4
7
-ince the meaning of the term 4martial la,4 is
obscure, as is the po,er e8ercisable by the Chief /8ecutive under martial la,, resort must be had to
precedents. hus the po,ers of the Chief /8ecutive under the CommanderCinCChief clause of the
1ederal Constitution have been dra,n not only from general and specific provisions of the
Constitution but from historical precedents of Presidential action in times of crises. +incoln invoked his
authority under the CommanderCinCChief clause of the 1ederal Constitution for the series of
e8traordinary measures ,hich he took during the Civil Ear, such as the calling of volunteers for
military service, the augmentation of the Army and ?avy, the payment of X* million from the un
appropriated funds in the reasury to persons unauthori"ed to receive it, the closing of the Post 0ffice
to 4treasonable correspondence,4 the blockade of -outhern ports, the suspension of the ,rit of
*a#eas corpus, the arrests and detentions of persons 4,ho ,ere represented to him as being
engaged in or contemplating 4treasonable practices4 K all this for the most part ,as done ,ithout the
least statutory authori"ation from Congress. he actions of +incoln 4assert for the President,4
aspects of a ,ar emergency.4
8
he creation of public offices is conferred by the 1ederal Constitution
to Congress. During Eorld Ear &, ho,ever, President Eilson, on the basis of his po,er under the
4CommanderCinCChief4 clause of the 1ederal Constitution, created 4public offices,4 ,hich ,ere copied
in lavish scale by President !oosevelt in Eorld Ear %%. 4he principal canons of constitutional
interpretation are in ,artime set aside,4 according to Cor,in, 4so far as concerns both the scope of
national po,er and the capacity of the President to gather unto himself all the constitutionally
available po,ers in order the more effectively to focus them upon the task of the hour.4
9
he
presidential po,er, 4building on accumulated precedents has taken on at times, under the stimulation
of emergency conditions,4 according to t,o eminent commentators, the 4dimensions of e8ecutive
prerogative as described by .ohn +ocke, of a po,er to ,it, to fill needed gaps in the la,, or even to
supersede it so far as may be re#uisite to reali"e the fundamental la, of nature and government,
namely, that as much as may be all the members of society are to be preserved.4
10

here is no #uestion that the framers of the &(AB Constitution ,ere a,are of these precedents and of
the scope of the po,er that had been e8ercised by the Presidents of the =nited -tates in times of
grave crisis. he framers of the Constitution 4,ere not only idealists but also practicalCminded men.4
4Ehile they abjured ,ars of aggression they ,ell kne, that for the country to survive provisions for its
defense had to be made.4
11

%%
TEITE300Y .E'ONST>3"0E CONSTITETION30
CO''IT'ENT OF ISSEE TO TCE P>ESI.ENT
%nstead of making the President of the Philippines simply the commanderCinCchief of all the armed
forces, ,ith authority ,henever it becomes necessary to call out such armed forces to prevent or
suppress la,less violence, invasion, insurrection, or rebellion, the framers of the &(AB Constitution
e8pressly conferred upon him the e8clusive po,er and authority to suspend the privileges of the ,rit
of *a#eas corpus or place the Philippines, or any part thereof, under martial la,.
thereof, ,hen the public safety re#uires it, he may suspend the privileges of the ,rit of *a#eas corpus or
14

he condition ,hich ,ould ,arrant the e8ercise of the po,er ,as not confined to actual invasion,
insurrection or rebellion, but also to i((inent !an+er t*ereo,, ,hen the public safety re#uires it. %t is
evident, therefore, that ,hile American Presidents derived these e8traordinary po,ers by implication
from the -tate$s right to selfCpreservation, the President of the Philippines ,as e8pressly granted by
the Constitution ,ith all the po,ers necessary to protect the nation in times of grave peril.
he safety and ,ellCbeing of the nation re#uired that the President should not be hampered by lack of
authority but ,as to be a 4strong e8ecutive ,ho could maintain the unity of the nation ,ith sufficient
po,ers and prerogatives to save the country during great crises and dangers.4
13

As Delegate .ose P. +aurel comprehensively e8plained7
... A strong e8ecutive he is intended to be, because a strong e8ecutive ,e shall need, especially in the
early years of our independent, or semiCindependent e8istence. A ,eak e8ecutive is synonymous ,ith a
,eak government. >e shall not be a $monarch$ or a dictator in time of profound and 0ctavian peace, #ut
*e virtuall so #eco(es in an e6traor!inar e(er+enc: and ,hatever may be his position, he bul,arks
normally, the fortifications of a strong constitutional government, but abnormally, in e8treme cases, he is
suddenly ushered is as a Minerva, fullCgro,n and in full panoply of ,ar, to occup t*e vanta+e +roun! as
t*e rea! protector an! !e,en!er o, t*e li,e an! *onor o, *is nation. ;/mphasis -upplied.<
15

he concentration of an amplitude of po,er in the hands of the CommanderCinCChief of the Armed
1orces of the Philippines, ,ho is at the same time the elected civilian Chief of -tate, is predicated
upon the fact that it is he ,ho must initially shoulder the burden and deal ,ith the emergency. By the
nature of his position he possesses and ,ields the e8traordinary po,ers of selfCpreservation of the
democratic, constitutional state. %n times of crisis there is indeed unification of responsibility and
centrali"ation of authority in the Chief /8ecutive. 4he concentration of governmental po,er in a
democracy faced by an emergency,4 ,rote !ossiter, 4is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of po,ers. ... %n normal times the separation of po,ers
forms a distinct obstruction to arbitrary governmental action. By this same token in abnormal times it
may form an insurmountable barrier to decisive emergency action in behalf of the -tate and its
independent e8istence. here are moments in the life of any government ,hen all the po,ers must
,ork together in unanimity of purpose and action, even if this means the temporary union of
e8ecutive, legislative and judicial po,ers in the hands of one man. he more complete the separation
of po,ers in a constitutional system, the more difficult and yet the more necessary ,ill be their fusion
in time of crisis.4 ;!ossiter, Constitutional Dictatorship, *))C*)(.<
%t ,as intended, ho,ever, that the e8ercise of these e8traordinary po,ers is for the preservation of
the -tate, its democratic institutions, and the permanent freedom of its citi"ens.
%%%
>ESPONSI"I0ITY I'P0IES ">O3.
3ETCO>ITY 3N. .ISC>ETION
he conditions of ,ar, of insurrection or rebellion, or of any other national emergency are as varied as
the means re#uired for meeting them and it is, therefore, ,ithin the contemplation of the Constitution
that t he Chief /8ecutive, to preserve the safety of the nation on those times of national peril, should
have the broadest authority compatible ,ith the emergency in selecting the means and adopting the
measures ,hich in his honest judgment are necessary for the preservation of the nation$s safety.
4he circumstances that endanger the safety of nations are infinite,4 ,rote Ale8ander >amilton, 4and
for this reason no constitutional shackles can ,isely be imposed on the po,er to ,hich the care of it
is committed ... his is one of those truths ,hich to a correct and unprejudiced mind carries its o,n
evidence along ,ith it, and may be obscured, but cannot be made plainer by argument or
reasoning ... he means ought to be in proportion to the end: the persons from ,hose agency the
attainment of any end is e8pected ought to possess the means byH ,hich it is to be attained.4
15
Mr.
Madison e8pressed the same idea in the follo,ing terms7 4%t is vain to impose constitutional barriers to
the impulse of selfCpreservation. %t is ,orse than in vain, because it plants in the Constitution itself
necessary usurpations of po,er.4
1:

4=n#uestionably,4 ,rote Chief .ustice Tane in 0ut*er v. "or!en ;' >o,. JJ, G&)J(&, &* +.ed. 299<,
4a -tate may use its military po,er to put do,n an armed insurrection, too strong to be controlled by
the civil authority. he po,er is essential to the e8istence of every government, essential to the
preservation of order and free institutions, and is as necessary to the -tates of this =nion as to any
other government. he -tate itself must determine ,hat degree of force the crisis demands. And if
the 3overnment of !hode %sland deemed the armed opposition so formidable, and so ramified
throughout the -tate, as to re#uire the use of its military force and the declaration of martial la,, ,e
see no ground upon ,hich this Court can #uestion its authority.4
%n the Pri"e cases ;&' +. ed. J'2, G&)2AH<, the Court ascribed to the President of the =nited -tates, by
virtue of his po,ers as Chief /8ecutive and as CommanderCinCChief, the po,er ,hich in 0ut*er v.
"or!en is attributed to the government as a ,hole, to treat of insurrection as a state of ,ar, and the
scene of the insurrection as a seat or theater of ,ar. As .ustice 3rier in the Pri"e cases significantly
stated7 4Ehether the President in fulfilling his duties as CommanderCinCChief, in suppressing an
insurrection, has met ,ith such hostile resistance, and a civil )ar o, suc* alar(in+ proportions as )ill
co(pel *i( to accor! to t*e( t*e c*aracter o, #elli+erents, is a ;uestion to #e !eci!e! # *i(, an!
t*is court (ust #e +overne! # t*e !ecisions an! acts o, t*e Political .epart(ent of the government
to ,hich this po,er ,as entrusted. $>e must determine ,hat degree of force the crisis demands.
;/mphasis supplied.<
%n Cira#aas*i v. Enite! States, ,here the Court upheld the curfe, regulations affecting persons of
.apanese ancestry as valid military measures to prevent espionage and sabotage, there ,as again
reCaffirmance of the vie, that the Constitution has granted to the President and to Congress in the
e8ercise of the ,ar po,ers a 4,ide scope for the e8ercise of judgment and discretion in determining
the nature and e8tent of the threatened danger and in the selection of the means for resisting it.4
-ince the Constitution commits to the /8ecutive and to Congress the e8ercise of the ,ar po,er in all
the vicissitudes and conditions of ,arfare, it has necessarily given them ,ide scope for the e8ercise
of judgment and discretion in determining the nature and e8tent of the threatened injury or danger
and in the selection of the means for resisting it. /8 parte Puirin, supra ;A&' =- *), *(, ante, &*, &A,
2A - Ct *<: Pri"e Cases, supra ;* Black G=-H 2'9, &' + ed J''<: Martin v. Mott, &* Eheat. G=-H &(,
*(, 2 + ed BA', BJ9<. Ehere, as they did here, the conditions call for the e8ercise of judgment and
discretion and for the choice of means by those branches of the 3overnment on ,hich the
Constitution has place the responsibility of ,arCmaking, it is not for any court to sit in revie, of the
,isdom of their action or substitute its judgment for theirs.
he actions taken must be appraised in the light of the conditions ,ith ,hich the President and Congress
,ere confronted in the early months of &(J*, many of ,hich, since disclosed, ,ere then peculiarly ,ithin
the kno,ledge of the military authorities.
17

he measures to be taken in carrying on ,ar and to suppress insurrection,4 according to .ustice -,ayne,
in Ste)art v. Ga*n,
18
4are not defined. he decision of all #uestions rests ,holly in the discretion of those
to ,hom the substantial po,ers involved are confided by the Constitution. %n the latter case, the po,er is
not limited to victories in the field and the dispersion of the insurgent forces. %t carries ,ith it inherently the
po,er to guard against the immediate rene,al of the conflict, and to remedy the evils ,hich have arisen
from its rise and progress.
he thrust of those authorities is that the President as commanderCinCchief and chief e8ecutive on
,hom is committed the responsibility is empo,ered, indeed obliged, to preserve the state against
domestic violence and alien attack. %n the discharge of that duty, he necessarily is accorded a very
broad authority and discretion in ascertaining the nature and e8tent of the danger that confronts the
nation and in selecting the means or measures necessary for the preservation of the safety of the
!epublic.
he terms 4insurrection4 and 4rebellion4 are in a large measure incapable of precise or e8act legal
definitions and are more or less elastic in their meanings. As to ,hen an act or instance of revolting
against civil or political authority may be classified as an 4insurrection4 or as a 4rebellion4 is a #uestion
better addressed to the President, ,ho under the Constitution is the authority vested ,ith the po,er
of ascertaining the e8istence of such e8igencies and charged ,ith the responsibility of suppressing
them. o suppress such danger to the state, he is necessarily vested ,ith a broad authority and
discretion, to be e8ercised under the e8igencies of each particular occasion as the same may present
itself to his judgment and determination. >is actions in the face of such emergency must be vie,ed in
the conte8t of the situation as it then confronted him. %t is not for any court to sit in revie, of the
,isdom of his action as commanderCinCchief or to substitute its judgment for his.
%6
NEE. FO> EN?EESTIONING 3.CE>ENCE
TO PO0ITIC30 .ECISION
%t is, ho,ever, insisted that even ,ith the broad discretion granted to the President by the Constitution
in ascertaining ,hether or not conditions e8ist for the declaration of martial la,, his findings in support
of such declaration should nevertheless be subject to judicial revie,.
%t is important to bear in mind that Ee are here dealing ,ith a plenary and e8clusive po,er conferred
upon the Chief /8ecutive by the Constitution. he po,er itself is to be e8ercised upon sudden
emergencies, and under circumstances ,hich may be vital to the e8istence of the government. A
prompt and unhesitating obedience to orders issued in connection there,ith is indispensable as every
delay and obstacle to its immediate implementation may jeopardi"e the public interests.
By reason of his uni#ue position as Chief /8ecutive and as CommanderCinCChief of the Armed 1orces
of the Philippines, it is he, more than any other high official of the government, ,ho has the authority
and the means of obtaining through the various facilities in the civil and military agencies of the
government under his command, information promptly and effectively, from every #uarter and corner
of the state about the actual peace and order condition of the country. %n connection ,ith his duty and
responsibility, he is necessarily accorded the ,ise and objective counsel of trained and e8perienced
specialists on the subject. /ven if the Court could obtain all available information, it ,ould lack the
facility of determining ,hether or not the insurrection or rebellion or the imminence thereof poses a
danger to the public safety. ?or could the courts recreate a complete picture of the emergency in the
face of ,hich the President acted, in order to ade#uately judge his military action. Absent any
judicially discoverable and manageable standards for resolving judicially those #uestions, such a task
for a court to undertake may ,ellCnigh be impossible. 0n the other hand, the President, ,ho is
responsible for the peace and security of the nation, is necessarily compelled by the Constitution to
make those determinations and decisions. he matter is committed to him for determination by
criteria of political and military e8pediency. here e8ists, therefore, no standard ascertainable by
settled judicial e8perience by reference to ,hich his decision can be revie,ed by the courts.
19
%ndeed,
those are military decisions and in their very nature, 4military decisions are not susceptible of
intelligent and judicial appraisal. hey do not pretend to rest on evidence, but are made on
information that often ,ould not be admissible and on assumptions that could not be proved.
%nformation in support of an order could not be disclosed to courts ,ithout danger that it ,ould reach
the enemy. ?either can courts act on communications made in confidence. >ence, courts can never
have any real alternative to accepting the mere declaration of the authority that issued the order that it
,as reasonably necessary from a military vie,point.4
40
>e is necessarily constituted the judge of the
e8istence of the e8igency in the first instance and is bound to act according to his belief of the facts.
Both reason and authority, therefore, dictate that the determination of the necessity for the e8ercise of
the po,er to declare martial la, is ,ithin the e8clusive domain of the President and his determination
is final and conclusive upon the courts and upon all persons. ;cf. 1airman, Martial !ule and the
-uppression of %nsurrection, p. ''& .<
41
his construction necessarily results from the nature of the
po,er itself, and from the manifest object contemplated by the Constitution.
;a< "arcelon v. "a-er.
he e8isting doctrine at the time of the framing and adoption of the &(AB Constitution ,as that of
"arcelon v. "a-er ;B Phil. )'<. It enunciate! t*e principle t*at )*en t*e Governor4General )it* t*e
approval o, t*e P*ilippine Co((ission, un!er Section 8 o, t*e 3ct o, Con+ress o, Jul $, $%F2,
!eclares t*at a state o, re#ellion, insurrection or invasion e6ists, an! # reason t*ereo, t*e pu#lic
sa,et re;uires t*e suspension o, t*e Privile+es o, *a#eas corpus, t*is !eclaration is *el! conclusive
upon t*e 5u!icial !epart(ent o, t*e +overn(ent. And ,hen the Chief /8ecutive has decided that
conditions e8ist justifying the suspension of the privilege of the ,rit of *a#eas corpus, courts )ill
presu(e t*at suc* con!itions continue to e6ist until t*e sa(e aut*orit *as !eci!e! t*at suc*
con!itions no lon+er e6ist. hese doctrines are rooted on pragmatic considerations and sound
reasons of public policy. he 4doctrine that ,henever the Constitution or a statute gives a
discretionary po,er to any person, such person is to be considered the sole and e8clusive judge of
the e8istence of those facts4 has been recogni"ed by all courts and 4has never been disputed by any
respectable authority.4 "arcelon v. "a-er, supra.< he political department, according to Chief .ustice
aney in 'artin v. 'ott ;&* Eheat *(CA&<, is the sole judge of the e8istence of ,ar or insurrection,
and ,hen it declares either of these emergencies to e8ist, its action is not subject to revie, or liable
to be controlled by the judicial department of the -tate. ;Citing Fran-lin v. State "oar! o, E6a(iners,
*A Cal. &'*, &').<
T*e !an+er, an! !i,,iculties )*ic* )oul! +ro) out o, t*e a!option o, a contrar rule are clearl an!
a#l pointe! out in t*e "arcelon case, thus7
then ever o,,icer ,hose duty it is to maintain order and protect the lives and property of the people (a
re,use to act, an! appl to t*e 5u!icial !epart(ent o, t*e Govern(ent ,or anot*er investi+ation and
district or province notifies the 3overnorC3eneral by tele+rap* o, t*is lan!in+ o, troops and that the people
of the district are in collusion ,ith such invasion. 'i+*t not t*e Governor4General and the Commission
accept t*is tele+ra( as su,,icient and proof of the facts communicated an! at once ta-e steps, even to the
e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to them to be necessary
to repel such invasionI %t seems that all men interested in the maintenance and stability of the
3overnment ,ould ans,er this #uestion in the affirmative.
no invasion actually e8ists: (a t*e 5u!icial o, t*e Govern(ent call t*e o, o,,icers actuall en+a+e! in t*e
,iel! #e,ore it an! a)a ,ro( t*eir posts o, !ut ,or t*e purpose o, e6plainin+ an! ,urnis*in+ proo, to it
concerning the e8istence or none8istence of the facts proclaimed to e8ist by the legislative and e8ecutive
branches of the -tateI %f so, then the courts may effectually tie the hands of the e8ecutive, ,hose special
duty it is to enforce the la,s and maintain order, until the invaders have actually accomplished their
purpose. he interpretation contended for here by the applicants, so pregnant ,ith detrimental results,
could not have been intended by the Congress of the =nited -tates ,hen it enacted the la,.
%t is the duty of the legislative branch of the 3overnment to make stich la,s and regulations as ,ill
%t is the duty of the 3overnorC3eneral to take stich steps as he deems ,ise and necessary for the
enforcement of la,s under the conditions mentioned necessarily tends to jeopardi"e public interest and
the safety of the ,hole people. I, t*e 5u!icial !epart(ent o, t*e Govern(ent, or an o,,icer in t*e
Govern(ent, *as a ri+*t to contest t*e or!ers o, t*e Presi!ent or o, t*e Governor4General un!er t*e
con!itions a#ove suppose!, #e,ore co(plin+ )it* suc* or!ers, t*en t*e *an! o, t*e Presi!ent or t*e
Governor4General (a #e tie! until t*e ver o#5ect o, t*e re#els or insurrectos or inva!ers *as #een
acco(plis*e!. But it is urged that the President, or the 3overnorC3eneral ,ith the approval of the
application for the ,rit of that the levislative and e8ecutive branches of the 3overnment might reach a
,rong conclusion from their investigations of the actual conditions, or might, through a desire to oppress
and harass the people, declare that a state of rebellion, insurrection, or invasion e8isted and that public
safety re#uired the suspension of the privilege of the ,rit of *a#eas corpus ,hen actually and in fact no
such conditions did e8ist. Ee can not assume that the legislative and e8ecutive branches ,ill act or take
any action based upon such motives.
Moreover, it cannot be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
the e8ecutive branch of the 3overnment to constantly inform the legislative ranch of the 3overnment of
the condition of the =nion as to the prevalence of peace or disorder. he e8ecutive branch of the
3overnment, through 4%ts numerous branches of the civil and military, ramifies everyCportion of the
the judicial department of the 3overnment, ,ith its very limited machinery for the purpose of investigating
general conditions be any more sure of ascertaining the true conditions through out the Archipelago or in
any particular district, than the other branches of the 3overnmentI Ee think not. ;B Phil., pp. (AC(2.<
;b< T*e Constitution!al Convention o, $%7J.
his ,as the state of Philippine jurisprudence on the matter, ,hen the Constitutional Convention met
on .uly *9, &(AJ. %t must be recalled that, under the Philippine Bill of &(9*, the suspension of the
privilege of the ,rit of *a#eas corpus by the 3overnorC3eneral ,as subject to the approval of the
Philippine ;-ection B, Act of Congress of .uly &, &(9*<, ,hile, under -ection *& of the .ones +a, of
&(&2, the suspension of the of privilege of the ,rit of *a#eas corpus as ,ell as the proclamation of
martial la, by the 3overnorC3eneral could be modified or vacated by the President of the =nited
-tate. Ehen the first Draft ,as -ubmitted conferring the po,er to suspend the privilege of the ,rit of
*a#eas corpus e8clusively upon the President, Delegate Araneta proposed an amendment to the
effect that the ?ational Assembly should be the organ empo,ered to suspend the privileges of the
*a#eas corpus and, ,hen not session, the same may be done by the President ,ith the consent of
the majority of the -upreme Court. =nder the provisions of the Draft, Delegate Araneta argued, 4the
Chief /8ecutive ,ould be the only authority to determine the e8istence of the reasons for the
suspension of the ,rit of *a#eas corpus: and, according to Philippine jurisprudence, the -upreme
Court ,ould refuse to revie, the findings of the /8ecutive on the matter. Conse#uently, he added,
arrests ,ould be effected by military men ,ho ,ere generally arbitrary. hey ,ould be arresting
persons connected ,ith the rebellion, insurrection, invasion: some of them might also be arresting
other person ,ithout any cause ,hatsoever. he result ,ould be that many persons might find
themselves detained ,hen in fact they had no connection ,hatsoever ,ith the disturbances.4
44

?ot,ithstanding the brilliant arguments of Delegate Araneta, the Convention voted do,n the
amendment. /vident ,as the clear intent of the framers of the Charter of vesting on the President the
e8clusive po,er of suspending the privilege of the ,rit of *a#eas corpus and the conclusive po,er to
determine ,hether the e8igency has arisen re#uiring the suspension. here ,as no opposition in the
Convention to the grant on the President of the e8clusive po,er to place the Philippines or any part
thereof under martial la,.
!eali"ing the fragmentation of the Philippines into thousands of islands and of the ,ar clouds that
,ere then hovering over, /urope and Asia, the aforesaid framers of the Charter opted for a strong
e8ecutive.
he provision of -ection &9, Paragraph *, of Article 6%% of the &(AB Constitution ,as, therefore,
adopted in the light of the Court$s interpretation in "arcelon v. "a-er.
;c< 'ontene+ro v. CastaAe!a.
0n August A9, &(B*, or &' years after the ratification of the &(AB Constitution, this Court in
'ontene+ro v. CastaAe!a ;(& Phil. ))*. ))'<, construing the po,er of the President of the Philippines
under Article 6%%, -ection &9, Paragraph *, of the Constitution, reCaffirmed the doctrine in "arcelon v.
"a-er, thus7 4Ee agree ,ith the -olicitor 3eneral that in the light of the vie, of the limited -tates
-upreme Court through Marshall, aney and -tory #uoted ,ith approval in "arcelon v. "a-er ;B Phil.
)', ((C&99<, the authority to decide ,hether the e8igency has arisen re#uiring suspension belongs to
the President and D*is !ecision is ,inal an! conclusiveD upon the courts and upon all other persons.4
0n Montenegro$s contention that there is no state of invasion, insurrection, rebellion or imminent
danger thereof, as the 4intermittent sorties and lightning attacks by organi"ed bands in different
places are occasional, locali"ed and transitory,4 this Court e8plained that to the unpracticed eye the
repeated encounters bet,een dissident elements and military troops may seem sporadic, isolated, or
casual. But the officers charged ,ith the ?ation$s security, analy"ed the e8tent and pattern of such
violent clashes and arrived at the conclusion that they are ,arp and ,oof of a general scheme to
overthro, this government 4vi et ar(is, by force of arms.4 his Court then reiterated one of the
reasons ,hy the finding of the Chief /8ecutive that there is 4actual danger of rebellion4 ,as accorded
conclusiveness, thus7 4%ndeed, as .ustice .ohnson said in that decision, ,hereas the /8ecutive
branch of the 3overnment is enabled thru its civil and military branches to obtain information about
peace and order from every #uarter and corner of the nation, the judicial department, ,ith its very
limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the
Archipelago.4 ;'ontene+ro v. CastaAe!a an! "alao, (& Phil., ))*, ))2C))'.<
%t is true that the -upreme Court of the Enite! States in Sterlin+ v. Constantin,
43
asserted its authority
to revie, the action taken by the -tate 3overnor of e8as under his proclamation of martial la,.
>o,ever, the Court chose not to overturn the principle e8pressed in 'oer v. Pea#o! that the
#uestion of necessit is 4one strictly reserved for e8ecutive discretion.4 %t held that, ,hile the
declaration of is conclusive, the measures employed are revie,able7
%t does not follo, from the fact that the e8ecutive has this range of discretion, deemed to be a necessary
incident of his po,er to suppress disorder that every sort of action the 3overnor may take, no matter ho,
unjustified by the e8igency or subversive or private right and the jurisdiction of the courts, other,ise
available, is conclusively supported by mere e8ecutive fiat. he contrary is ,ellCestablished Ehat are the
limits of military discretion, and ,hether or not they have been overstepped in a particular case are
judicial #uestions. ...
his ruling in -terling should be vie,ed ,ithin the conte8t of its factual environment. At issue ,as the
validity of the attempt of the 3overnor to enforce by e8ecutive or military order the restriction on the
production of oil ,ells ,hich the District .udge had restrained pending proper judicial in#uiry. he
-tate 3overnor predicated his po,er under martial la,, although it ,as conceded that 4at no time has
there been any actual uprising in the territory: at no time has any military force been e8erted to put
riots and mobs do,n.4 he Court disapproved the order of the 3overnor as it had no relation to the
suppression of disorder but on the contrary it undermined the restraining order of the District .udge.
he Court declared that the 3overnor could not by pass the processes of constitutional government
by simply declaring martial la, ,hen no #ona ,i!e emergency e8isted. Ehile this case sho,s that the
judiciary can interfere ,hen no circu(stances e8isted ,hich could reasonably be interpreted as
constituting an emergency, it did not necessarily resolve the #uestion ,hether the Court could
interfere in the face of an actual e(er+enc.
;d< 0ansan+ v. Garcia.
0ur attention, is ho,ever, invited to 0ansan+ v. Garcia ;3.!. ?o. +CAA(2J etc., December &&, &('&,
J* -C!A JJ)< ,here this Court declared, in connection ,ith the suspension of the of the ,rit of
*a#eas corpus by the President of the Philippines on August *&, &('&, that it has the authority to
in#uire into the e8istence of the factual basis of the proclamation in order to determine the
constitutional sufficiency thereof. But this assertion of authority is #ualified by the Court$s une#uivocal
statement that 4the function of the Court is merely to check K not to supplant K the /8ecutive, or to
ascertain (erel )*et*er *e *as +one #eon! t*e constitutional li(its of his jurisdiction, not to
e6ercise t*e po)er veste! in *i( or to determine the ,isdom of his act.4 And that judicial in#uiry into
the basis of the #uestioned than to satisfy the Court to not the President$s decision is correct and that
public safety ,as endangered by the rebellion and justified the suspension of the ,rit, but that in
suspending the ,rit, the President did not act ar#itraril.4
%n the ascertainment of the factual basis of the suspension, ho,ever, the Court had to rely implicitly
on the findings of the Chief /8ecutive. %t did not conduct any independent factual in#uiry for, as this
Court e8plained in Barcelon and Montenegro, 4... ,hereas the /8ecutive branch of the 3overnment is
enabled thru its civil and military branches to obtain information about peace and order from every
#uarter and corner of the nation, the judicial department, ,ith its very limited machinery cannot be in
a better position to ascertain or evaluate the conditions prevailing in the Archipelago.4 %ndeed, such
reliance on the /8ecutive$s findings ,ould be the more compelling ,hen the danger posed to the
public safety is one arising from Communist rebellion and subversion.
Ee can take judicial notice of the fact that the Communists have refined their techni#ues of
revolution, but the ultimate object is the same K 4to undermine through civil disturbances and political
crises the ,ill of the ruling class to govern, and, at a critical point, to take over -tate po,er through
,ellCplanned and ably directed insurrection.4
45
%nstead of insurrection, there ,as to be the protracted
,ar. he plan ,as to retreat and attack only at an opportune time. 4he major objective is the
annihilation of the enemy$s fighting strength and in the holding or taking of cities and places. he
holding or taking of cities and places is the result of the annihilation of the enemy$s fighting strength.4
45
he 6ietnam Ear contributed its o,n brand of terrorism conceived by >o Chi Minh and 6o ?guyen
3iap K the silent and simple assassination of village officials for the destruction of the government$s
administrative net,ork. Modern rebellion no, is a ,ar of sabotage and harassment, of an aggression
more often concealed than open of guerrillas striking at night, of assassins and terrorists, and of
professional revolutionaries resorting to all sorts of stratagems, crafts, methods and subterfuge, to
undermine and subvert the security of the -tate to facilitate its violent overthro,.
4:

%n the ultimate analysis, even assuming that the matter is justiciable ,ill Ee apply the standards set in
0ansan+, by ascertaining ,hether or not the President acted arbitrarily in issuing Proclamation ?o.
&9)&, the result ,ould be the same.
1or the e8istence of an actual rebellion and insurrection in this country by a si"able group of men ,ho
have publicly risen in arms to overthro, the government ,as confirmed by this Court in +ansang.
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila
from the late t,enties to the early thirties, then aimed principally at incitement to sedition or rebellion, as
the immediate objective. =pon the establishment of the Common,ealth of the Philippines, the movement
seemed to have ,aned notably: but, the outbreak of Eorld Ear %% in the Pacific and the miseries, the
devastation and havoc and the proliferation of unlicensed firearms concomitant ,ith the military
occupation of the Philippines and its subse#uent liberation, brought about, in the late forties, a resurgence
of the Communist threat, ,ith such vigor as to be able to organi"e and operate in Central +u"on an army
K called >=NBA+A>AP, during the occupation, and renamed >ukbong Mapagpalaya ng Bayan ;>MB<
after liberation K ,hich clashed several times ,ith the armed forces of the !epublic. his prompted then
President Puirino to issue Proclamation ?o. *&9, dated 0ctober **, &(B9, suspending the privilege of the
,rit of habeas, validity of ,hich ,as upheld in 'ontene+ro v. CastaAe!a. Days before the promulgation of
said Proclamation, or on 0ctober &), &(B9, members of the Communist Politburo in the Philippines ,ere
apprehended in Manila. -ubse#uently accused and convicted of the crime of rebellion, they served their
respective sentences.
approved, upon the ground stated in the very preamble of said statute K that
... the Communist Party of the Philippines, although purportedly a political party, is in fact
an organi"ed conspiracy to overthro, the 3overnment of the !epublic of the Philippines,
not only by force and violence but also by deceit, subversion and other illegal means, for
the purpose of establishing in the Philippines a totalitarian regime subject to alien
domination and control:
... the continued e8istence and activities of the Communist Party of the Philippines
constitutes a clear, present and +rave danger to the security of the Philippines: and
... in the face of the organi"ed, systematic and persistent subversion, national in scope
but international in direction, posed by the Communist Party of the Philippines and its
activities, there is urgent need for legislation to cope ,ith this continuing menace to the
freedom and security of the country ....
Committee of -even K copy of ,hich !eport ,as filed in these by the petitioners herein K
he years follo,ing &(2A sa, the successive emergence in the country of several mass
organi"ations, notably the +apiang Manggaga,a ;no, the -ocialist Party of the
Philippines< among the ,orkers: the Malayang -amahan ng Mga Magsasaka ;MA-ANA<,
among the pasantry: the Nabataang Makabayan ;NM< among the youthFstudents: and the
Movement for the Advancement of ?ationalism ;MA?< among the
intellectualsFprofessionals. he PNP has e8erted allCout effort to infiltrate, influence and
utili"e these organi"ations in promoting its radical brand of nationalism.
Democratic !evolution$ states, inter alia=
T*e Co((unist Part o, t*e P*ilippines is !eter(ine! to i(ple(ent its +eneral pro+ra(e for a people$s
independent, democratic, united, just and prosperous.....
888 888 888
he central task of any revolutionary movement is to sei"e political po,er. he Co((unist Part o, t*e
P*ilippines assu(es t*is tas- at a time that both the international and national situations are favorable to
taking the road of revolution.
conducted raids, resorted to kidnapping and taken part in other violent incidents numbering over *A9 in
or to the Maoist faction, believe that force and violence are indipensable to the attainment of their main
and ultimate objective, and act in accordance ,ith such belief, although they may disagree on the means
to be used at a given time and in a particular place: and ;b< there is a ?e, Peoples Army, other, of
course, than the armed forces of the !epublic and antagonistic thereto. -uch ?e, People$s Army is per
se proof of the e8istence of a rebellion, especially considering that its establishment ,as announce!
pu#licl by the reorgani"ed CPP. -uch announcement is in the nature of a public challenge to the duly
constituted authorities and may be likened to a declaration of ,ar, sufficient to establish a ,ar status or a
condition of belligerency, even before the actual commencement of hostilities.
Ke entertain, t*ere,ore, no !ou#ts a#out t*e e6istence o, a siza#le +roup o, (en )*o *ave pu#licl risen
in ar(s to overt*ro) t*e +overn(ent an! *ave t*us #een an! still are en+a+e! in re#ellion a+ainst t*e
Govern(ent o, t*e P*ilippines.
666 666 666
he records before =s sho, that, on or before August *&, &('&, the /8ecutive had information and
reports K subse#uently confirmed, in many respects by the abovementioned !eport of the -enate AdC
>oc Committee of -even K to the effect that the Communist Party of the Philippines does not merely
adhere to +enin$s idea of a s,ift armed uprising: that it has, also, adopted >o Chi Minh$s terrorist tactics
and resorted to the assassination of uncooperative local officials: ...
Petitioner similarly fail to take into account that K as per said information and reports K the reorgani"ed
Communist Party of the Philippines has, moreover, adopted Mao$s concept of protracted people$s ,ar,
aimed at the paraly"ation of the ,ill to resist of the government, of the political, economic and intellectual
leadership, and of the people themselves: that conformably to such concept, the Party has placed special
emphasis upon a most e8tensive and intensive program of subversion by the establishment of front
organi"ations in urban centers, the organi"ation or armed city partisans and, the infiltration in student
groups, labor unions, and farmer and professional groups: that the CPP managed to infiltrate or establish
and control nine ;(< major labor organi"ations: that it has e8ploited the youth movement and succeeded in
making Communist fronts of eleven ;&&< major student or youth organi"ations: that there are, accordingly,
about thirty ;A9< mass organi"ations actively advancing the CPP interest, ...: that in &('9, the Party had
recorded t,o hundred fiftyCeight ;*B)< major demonstrations, of ,hich about thirtyCthree ;AA< ended in
violence, resulting in fifteen ;&B< killed and over five hundred ;B99< injured: that most of these actions
,ere organi"ed, coordinated or led by the aforementioned front organi"ations: that the violent
demonstrations ,ere generally instigated by a small, but ,ellCtrained group of armed agitators: that the
number of demonstrations heretofore staged in &('& has already e8ceeded those of &('9: and that
t,entyCfour ;*J< of these demonstrations ,ere violent, and resulted in the death of fifteen ;&B< persons
and the injury to many more.
-ubse#uent events K as reported K have also proven that petitioners$ counsel have underestimated the
t*reat to pu#lic sa,et posed by the ?e, People$s Army. %ndeed, it appears that, since 3u+ust 2$, $%7$, it
t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one ;&< B-D= killed and three ;A<
?PA casualties: that in an encounter at Botolan, 5ambales, one ;&< NM-DN leader, an unidentified
dissident, and Commander Panchito, leader of the dissident group ,ere killed: that on August *2, &('&,
there ,as an encounter in the barrio of -an Pedro, %riga City Camarines -ur, bet,een PC and the ?PA,
in ,hich a PC and t,o ;*< NM members ,ere killed: that the current disturbances in Cotabato and the
+anao provinces have been rendered more comple8 by the involvement of the CPPF?PA, for, in midC
&('&, a NM group, headed by .ovencio /sparago"a, contacted the >igaonan tribes, in their settlement in
Magsaysay, Misamis 0riental, and offered them books, pamphlets and brochures of Mao se ung, as
,ell as conducted teachCins in the reservation: that /sparago"a ,as reportedly killed on -eptember **,
&('&, in an operation of the PC in said reservation: and that there are no, t,o ;*< ?PA cadres in
Mindanao.
%t is true that the suspension of the privilege of the ,rit ,as lifted on .anuary ', &('*, but it can not be
denied that soon thereafter, la,lessness and terrorism had reached such a point that the nation ,as
already drifting to,ards anarchy. 0n -eptember *&, &('*, ,hen the President of the Philippines,
pursuant to Article 6%%, section &9, paragraph * of the &(AB Constitution, placed the Philippines under
martial la,, the nation ,as in the throes of a crisis. he authority of the constitutional government ,as
resisted openly by a coalition of forces, of large numbers of persons ,ho ,ere engaged in an armed
conflict for its violent overthro,.
47
he movement ,ith the active material and foreign political and
economic interests ,as engaged in an open attempt to establish by violence and force a separate
and independent political state.
1orceful military action, matched ,ith attractive benevolence and a socioCeconomic program, has
indeed broken the back of the rebellion in some areas. here are to be sure significant gains in the
economy, the unprecedented increase in e8ports, the billionCdollar international reserve, the ne, high
in revenue collections and other notable infrastructures of development and progress. %ndeed there is
a in the people$s sense of values, in their attitudes and motivations. But Ee personally take notice of
the fact that even as of this late date, there is still a continuing rebellion that poses a danger to the
public safety. Communist insurgency and subversion, once it takes root in any nation, is a hardy
plant. A party ,hose strength is in selected, dedicated, indoctrinated and rigidly disciplined members,
,hich may even no, be secreted in strategic posts in industry, schools, churches and in government,
can not easily be eradicated.
48

he ?PA ;?e, People$s Army< is pursuing a policy of strategic retreat but tactical offensive. %t
continues to conduct its activities through si8 !egional 0perational Commands ;!0Cs< covering
?orthern, Central, and -outhern +u"on, Eestern and /astern 6isayas, and Mindanao. Combat
operations ,ere conducted against the Communist insurgents by the armed forces of the government
in Cagayan, %fugao, Nalinga, Apayao, Camarines -ur, and -orsogon. -ubversive activities continue
unabated in urban areas. +ast .anuary, &('J, the Maoist group kno,n as the Moro ?ational
+iberation 1ront ;M?+1< attacked and overran the military detachment at Bilaan -ulu, and the to,n of
Parang. he to,n of .olo ,as attacked by a rebel force of B99 men last 1ebruary 2, ('J, and to cover
their retreat ra"ed t,oCthirds of the to,n. 0nly this August, there ,as fighting bet,een government
troops and muslim rebels armed ,ith modern and sophisticated ,eapons of ,ar in some parts of
Cotabato and in the outskirts of the major southern port city of Davao. %t ,ould be an incredible
naivete to conclude in the face of such a reality, that the peril to public safety had already abated.
?or is the fact that the courts are open proof that there is no ground for martial rule or its continuance.
he 4open court4 theory has been derived from the dictum in /8 Parte Milligan ;' Eall. &*' G&)22H,
viz.7 4Martial rule cannot arise from a threatened invasion: the necessity must be actual and present:
the invasion real such as effectually closes the courts and deposes the civil administration.4 his has
been dismissed as unrealistic by authoritative ,riters on the subject as it does not present an
accurate definition of the allo,able limits of the of the President of the =nited -tates. As a matter of
fact, the limiting force of the 'illi+an case ,as materially modified a generation later in another
decision of the Court in of the 1ederal -upreme Court in 'oer v. Pea#o! ;*&* =.-. ') G&(9(H<.
-peaking for the Court in 'oer v. Pea#o!, .ustice >olmes brushed aside as i((aterial the fact,
,hich the majority opinion in the 'illi+an case thought absolutely crucial K viz.7 martial rule can
never e8ist ,here the Courts are open and in the proper and unobstructed e8ercise of their
jurisdiction. he opinion a!(itte! t*at t*e Courts )ere open but held 4that the governor$s declaration
that a state of insurrection e8isted is conclusive of that fact.4 Although %t found that the 43overnor,
,ithout sufficient reason, but in +oo! ,ait*, in the course of putting the insurrection do,n, held the
plaintiff until he thought that he could safely release him,4 the Court held that plaintiff Moyer had no
cause of action. -tating that the 3overnor ,as empo,ered by employ the ?ational 3uard to suppress
insurrection, the Court further declared that 4he may kill persons ,ho resist, and of course he may
use the milder measure of sei"ing the bodies of those ,hom he considers to stand in the ,ay of
restoring peace. -uch arrests are not necessarily for punishment, #ut are # )a o, precaution, to
prevent t*e e6ercise o, *ostile po)er.4 -o long as such arrests are made in good faith and in the
honest belief that they are needed in order to head insurrection off, the 3overnor is the ,inal 5u!+e
and cannot #e su#5ecte! to an action a,ter *e is out o, o,,ice on t*e +roun! t*at *e *a! no reasona#le
+roun! ,or *is #elie, ... Ehen it comes to a decision by the head of state upon a matter involving its
life, t*e or!inar ri+*ts o, t*e in!ivi!uals (ust iel! to )*at *e !ee(s t*e necessities o, t*e (o(ent.
Public danger ,arrants the substitution of e8ecutive process for judicial process.4
4%t is simply not true,4 ,rote Clinton !ossiter in &(B9,
49
4that (artial la) cannot arise ,ro( a
t*reatene! invasion or t*at (artial la) can never e6ist )*ere t*e Courts are open. hese statements
!o not present an accurate definition of the allo,able limits of the martial po,ers of President and
Congress in the face of alien threats or internal !isor!er. ?or ,as Davis$ dictum on the specific
po,ers of Congress in this matter any more accurate. And, ho,ever elo#uent and #uotable his ,ords
on the untouchability of the Constitution in times of actual crisis, t*e !o not no), an! !i! not t*en,
e8press the realities of American Constitutional +a,.4
%n any event, this 4open court4 theory does not apply to the Philippine situation. Both the &(AB and the
&('A Constitutions e8pressly authori"e the declaration of martial la,, even ,here the danger to the
public safety arises merely from the imminence of an invasion or rebellion. he fact that the civil
courts are open can not be controlling, since they might be open and undisturbed in their functions
and yet ,holly incompetent to avert the threatened danger and to punish those involved in the
invasion or rebellion ,ith certainty and promptitude. Certainly such a theory ,hen applied to the
situation modern ,ar and of the present day Communist insurgency and subversion ,ould prove to
be unrealistic.
30

?or may it be argued that the employment of government resources for the building of a ?e, -ociety
is inconsistent ,ith the efforts of suppressing the rebellion and creating a legitimate public order.
4/veryone recogni"ed the legal basis for the martial necessity,4 ,rote President Marcos, 4this ,as the
simplest theory of all. ?ational decline and demorali"ation, social and economic deterioration,
anarchy and rebellion ,ere not just statistical reports: they ,ere documented in the mind and body
and ordinary e8perience of every 1ilipino. But, as a study of revolutions and ideologies proves,
(artial rule coul! not in the long run, secure the Philippine !epublic unless t*e social ini;uities an!
ol! *a#its )*ic* precipitate! t*e (ilitar necessit )ere sta(pe! out. >ence, the -eptember *&
Movement for martial rule to be of any lasting benefit to the people and the nation, to justify the
national discipline, should incorporate a movement for great, perhaps even drastic, reforms in all
spheres of national life. -ave the !epublic, yes, but to keep it safe, ,e have to start remaking the
society.4
31
%ndeed, the creation of a ?e, -ociety ,as a realistic response to the compelling need or a
revolutionary change.
1or centuries, most of our people ,ere imprisoned in a socioCcultural system that placed them in
perpetual dependence. 4%t made of the many mere pa,ns in the game of partisanCpo,er polities,
legitimi"ed $he,s of ,ood and dra,ers of ,ater$ for the landed elite, grist for the diploma mills and an
alienated mass sporadically erupting in violent resentment over immemorial ,rongs. !ural
back,ardness ,as built into the very social order ,herein our masses could not move for,ard or
even desire to get moving.4
34
he old political frame,ork, transplanted from the Eest had proven
indeed to be inade#uate. he aspirations of our people for social justice had remained unfulfilled. he
electoral process ,as no model of democracy in action. o a society that has been torn up by
decades of bitter political strife and social anarchy, the problem ,as the rescue of the larger social
order from factional interests. %mplicit then ,as the task of creating a legitimate public order, the
creation of political institutions capable of giving substance to public interests. his implied the
building of coherent institutions, an effective bureaucracy and all administration capable of enlisting
the enthusiasm, support and loyalty of the people. /vidently, the po,er to suppress or insurrections is
riot 4limited to victories in the field and the dispersion of the insurgent. %t carries ,ith it inherently the
po,er to guard against the immediate rene,al of the conflict and to remedy the evils4
33
,hich
spa,ned and gave rise to the e8igency.
Ee find confirmation of this contemporaneous construction of presidential po,ers in the ne,
Constitution. %t must be noted that ,hile Art, %D, -ec. &* of the ne, Constitution embodies the
commanderCinCchief clause of the &(AB Constitution ;Art. 6%%, -ee. &9G*H<, it e8pressly declares in Art.
D6%%, -ec. AG*H that the proclamations, orders and decrees, instructions and acts issued or done by
the incumbent President, are 4part of the la, of the land4 and are to 4remain valid, legal, binding, and
effective4 until 4modified revoked, or superseded by subse#uent proclamations, orders, decrees,
instruction, or other acts of the incumbent President, or unless e8pressly repealed by the regular
?ational Assembly.4 =ndoubtedly, the proviso refers to the present martial la, regime and the
measures taken under it by the President. %t must be recalled that the prudent e8ercise by the
President of the po,ers under martial la, not only stemmed the tide of violence and subversion but
also buttressed the people$s faith in public authority. %t is in recognition of the objective merit of the
measures taken under martial la, that the Constitution affirms their validity.
his is evident from the deliberations of the &22CMan -pecial Committee of the Constitutional
Convention, formed to finally draft the Constitution, at its meeting on 0ctober *J, &('*, on the
provisions of -ection J of the draft, no, -ection &* of Article %D of the ?e, Constitution, ,hich are
#uoted hereunder, to ,it7
D/+/3A/ D/ 3=5MA? ;A.<7 he #uestion, @our >onor, brings to the fore the nature and concept of
martial la,. As it is understood by recogni"ed authorities on the subject, martial la, rests upon the
doctrine of paramount necessity. he controlling consideration, @our >onor, is necessity. he crucial
consideration is the very e8istence of the -tate, the very e8istence of the Constitution and the la,s upon
,hich depend the rights of the citi"ens, and the condition of peace and order so basic to the continued
enjoyment of such rights. herefore, from this vie, of the nature of martial la,, the po,er is to be
e8ercised not only for the more immediate object of #uelling the disturbance or meeting a public peril
,hich, in the first place, caused the declaration of martial la,, but also to prevent the recurrence of the
very causes ,hich necessitated the declaration of martial la,. hus, @our >onor, % believe that ,hen
President Marcos, to cite the domestic e8perience, declared that he proclaimed Martial la, to save the
!epublic and to form a ?e, -ociety, he ,as stating the full course ,hich martial la, must have to take in
order to achieve its rational end. Because in the particular case of the Philippine situation, % agree ,ith the
President that it is not enough that ,e be able to #uell the rebellion and the la,lessness, but that ,e
should also be able to eliminate the many ills and evils in society ,hich have, in the first place, bred and
abetted the rebellion and the la,lessness.
D/+/3A/ +/6%-/ ;0.<7 % agree ,ith you ,holeheartedly, @our >onor. hat$s all, Mr. Chairman.
D/+/3A/ AD%+7 %t seems, @our >onor, that ,e are revolutioni"ing the traditional concept of martial la,
,hich is commonly understood as a ,eapon to combat la,lessness and rebellion through the use of the
military authorities. %f my understanding is correct, @our >onor, martial la, is essentially the substitution of
military po,er for civilian authorities in areas ,here such civilian authorities are unable to discharge their
functions due to the disturbed peace and order conditions therein. But ,ith your e8planation, @our >onor,
it seems that the martial la, administrator, even if he has in the meantime succeeded in #uelling the
immediate threats to the security of the state, could take measures no longer in the form of military
operations but essentially and principally of the nature of ameliorative social action. .
D/+/3A/ D/ 3=5MA? ;A.<7 >is >onor is correct ,hen he said that ,e are abandoning the narro,,
traditional and classic concept of martial la,. But ,e are abandoning the same only to humani"e it. 1or
@our >onor ,ill recall that the old concept of martial la, is that the la, of the camp is the la, of the land,
,hich ,e are not ready to accept, and President Marcos, a,are as he is, that the 1ilipino people ,ill not
countenance any suppressive and unjust action, rightly seeks not only to immediately #uell and break the
back of the rebel elements but to form a ?e, -ociety, to create a ne, atmosphere ,hich ,ill not be a
natural habitat of discontent. -tated other,ise, the concept of martial la,, as no, being practiced, is not
only to restore peace and order in the streets and in the to,ns but to remedy the social and political
environments in such a ,ay that discontent ,ill not once more be rene,ed.
D/+/3A/ 0!%5 ;!.<7 % can feel from the discussion, Mr. Chairman, that ,e are having difficulty in
trying to ascertain the scope and limitations of martial la,. o my mind, Mr. Chairman, it is constitutionally
impossible for us to place in this great document, in black and ,hite, the limits and the e8tent of martial
la,. Ee are framing a Constitution and not a statute and unlike a statute, a Constitution must limit itself to
providing basic concepts and policies ,ithout going into details. % have heard from some of the Delegates
here their concern that ,e might be, by this provision and the interpretations being given to it, departing
from the traditional concept of martial la,. Concepts are mere concepts, Mr. Chairman, but concepts, like
principles, must be tested by their application to e8isting conditions, ,hether those concepts are
contained in statutes or in a Constitution. !eferring specifically to the e8ercise of this po,er by President
Marcos, doubts have been e8pressed in some #uarters, ,hether in declaring martial la, he could
e8ercise legislative and judicial po,ers. % ,ould ,ant to emphasi"e that the circumstances ,hich
provoked the President in declaring martial la, may not be #uantified. %n fact, it is completely different
from a case of invasion ,here the threat to national security comes from the outside. he martial la,
declared by the President ,as occasioned by the acts of rebellion, subversion, la,lessness and chaos
that are ,idespread in the country. heir origin, therefore, is internal. here ,as no threat from ,ithout,
but only from ,ithin. But these acts of la,lessness, rebellion, and subversion are mere manifestations of
more serious upheavals that beset the deepest core of our social order. %f ,e shall limit and constrict
martial la, to its traditional concept, in the sense that the military ,ill be merely called upon to discharge
civilian functions in areas ,here the civil functionaries are not in a position to perform their normal duties
or, better still, to #uell la,lessness and restore peace and order, then martial la, ,ould be a mere
temporary palliative and ,e shall be helpless if bound by the old ma8im that martial la, is the public la,
of military necessity, that necessity calls it forth, that necessity justifies its e8istence, and necessity
measures the e8tent and degrees to ,hich it may be employed. My point here, @our >onor, is that
beyond martial necessity lies the graver problem of solving the maladies ,hich, in the first place, brought
about the conditions ,hich precipitated the e8ercise of his martial authority, ,ill be limited to merely taking
a military measures to #uell the rebellion and eliminating la,lessness in the country and leave him ,ith no
means or authority to effect the needed social and economic reforms to create an enduring condition of
peace and order, then ,e shall have failed in providing in this Constitution the basic philosophy of martial
la, ,hich, % am sure, ,e are embodying in it for the great purpose of preserving the -tate. % say that the
preservation of the -tate is not limited merely to eliminating the threats that immediately confront it. More
than that, the treasure to preserve the -tate must go deeper into the root cause$s of the social disorder
that endanger the general safety.
D/+/3A/ D/ 3=5MA? ;A.<7 % need not add more, Mr. Chairman, to the very convincing, remarks of
only good friend and colleague, Delegate 0rti". And % take it, Mr. Chairman, that is also the position of this
Committee.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @es, also of this committee.
D/+/3A/ AD%+7 .ust one more #uestion, Mr. Chairman, if the distinguished Delegate from +a =nion
,ould oblige.
D/+/3A/ D/ 3=5MA? ;A.<7 All the time, @our >onor.
D/+/3A/ AD%+7 Ehen martial la, is proclaimed, @our >onor, ,ould it mean that the Constitution,
,hich authori"es such proclamation, is set aside or that at least same provisions of the constitution are
suspendedI
D/+/3A/ D/ 3=5MA? ;A.<7 he Constitution is not set aside, but the operation of some of its
provisions must, of necessity, be restricted. %f not suspended, because their continuance is inconsistent
,ith the proclamation of martial la,. 1or instance, some civil liberties ,ill have to be suspended upon the
proclamation of martial la,, not because ,e do not value them, but simply because it is impossible to
implement these civil liberties handCinChand ,ith the effective and successful e8ercise and implementation
of martial po,ers. here are certain individual rights ,hich must be restricted and curtailed because their
e8ercise and enjoyment ,ould negate the implementation of martial authority. he preservation of the
-tate and its Constitution stands paramount over certain individual rights and freedom. As it ,ere, the
Constitution provides martial la, as its ,eapon for survival, and ,hen the occasion arises, ,hen such is
at stake, prudence re#uires that certain individual rights must have to be scarified temporarily. 1or indeed,
the destruction of the Constitution ,ould mean the destruction of all the rights that flo, from it. .
D/+/3A/ AD%+7 Does @our >onor mean to say that ,hen martial la, is declared and %, for instance, am
detained by the military authorities , % cannot avail of the normal judicial processes to obtain my liberty and
#uestion the legality of my detentionI
D/+/3A/ D/ 3=5MA? ;A.<7 %f % am not mistaken, @our >onor, you are referring to the privilege of the
,rit of *a#eas corpus.
D/+/3A/ AD%+7 @es, @our >onor, that is correct.
D/+/3A/ D/ 3=5MA? ;A.<7 %n that case, @our >onor, % take it that ,hen martial la, is proclaimed, the
privilege of the ,rit of *a#eas corpus is ipso facto suspended and, therefore, if you are apprehended and
detained by the military authorities, more so, ,hen your apprehension and detention ,ere for an offense
against the security of the -tate, then you cannot invoke the privilege of the ,rit of *a#eas corpus and
ask the courts to order your temporary release. he privilege of the ,rit of *a#eas corpus, like some other
individual rights, must have to yield to the greater need of preserving the -tate. >ere, ,e have to make a
choice bet,een t,o values, and % say that in times of great peril, ,hen the very safety of the ,hole nation
and this Constitution is at stake, ,e have to elect for the greater one. 1or, as % have said, individual rights
assume meaning and importance only ,hen their e8ercise could be guaranteed by the -tate, and such
guaranty cannot definitely be bad unless the -tate is in a position to assert and enforce its authority.
D/+/3A/ AD%+7 -ince martial la, ,as declared by President Marcos last -eptember *&, &('*, and
announced on -eptember *A, &('*, the President has been issuing decrees ,hich are in the nature of
statutes, regulating as they do, various and numerous norms of conduct of both the private and the public
sectors. Eould you say, @our >onor, that such e8ercise of legislative po,ers by the President is ,ithin his
martial la, authorityI
D/+/3A/ D/ 3=5MA? ;A.<7 Certainly, and that is the position of this Committee, As martial la,
administrator and by virtue of his position as CommanderCinCChief of the Armed 1orces, the President
could e8ercise legislative and, if % may add, some judicial po,ers to meet the martial situation. he Chief
/8ecutive must not be hamstrung or limited to his traditional po,ers as Chief /8ecutive. Ehen martial la,
is declared, the declaration gives rise to the birth of po,ers, not strictly e8ecutive in character, but
nonetheless necessary and incident to the assumption of martial la, authority to the end that the -tate
may be safe.
D/+/3A/ AD%+7 % am not at all #uestioning the constitutionality of the President$s assumption of po,ers
,hich are not strictly e8ecutive in character. %ndeed, % can concede that ,hen martial la, is declared, the
President can e8ercise certain judicial and legislative po,ers ,hich are essential to or ,hich have to do
,ith the #uelling of rebellion, insurrection, imminent danger thereof, or meeting an invasion. Ehat
appears disturbing to me, and ,hich % ,ant @our >onor to convince me further, is the e8ercise and
assumption by the President or by the Prime Minister of po,ers, either legislative or judicial in character,
,hich have nothing to do ,ith the conditions of rebellion, insurrection, invasion or imminent danger
thereof. o be more specific, @our >onor, and to cite to you an e8ample, % have in mind the decree issued
by the President proclaiming a nation,ide land reform or declaring land reform throughout the Philippines.
% suppose you ,ill agree ,ith me, @our >onor, that such a decree, or any similar decree for that matter,
has nothing to do ,ith invasion, insurrection, rebellion or imminent danger thereof. My point, @our >onor,
is that this measure basically has nothing to do ,ith the restoration of peace and order or the #uelling of
rebellion or insurrection. >o, could ,e validly say that the President$s assumption of such po,ers is
justified by the proclamation of martial la,I
D/+/3A/ D/ 3=5MA? ;A.<7 As % have repeatedly stated. @our >onor, ,e have no, to abandon the
traditional concept of martial la, as it is understood in some foreign te8tbooks. Ee have to at martial la,
not as an immutable principle. !ather, ,e must vie, it in the light of our contemporary e8perience and not
in isolation thereof. he #uelling of rebellion or la,lessness or, in other ,ords, the restoration of peace
and order may admittedly be said to be the immediate objective of martial la,, but that is to beg the
#uestion. 1or ho, could there really be an enduring peace and order if the very causes ,hich spa,ned
the conditions ,hich necessitated the e8ercise of martial po,ers are not remediedI @ou cite as all
e8ample the decree on land reform. @our >onor ,ill have to admit that one of the major causes of social
unrest among the peasantry in our society is the deplorable treatment society has given to our peasants.
As early as the &(A9$s, the peasants have been agitating for agrarian reforms to the e8tent that during the
time of President Puirino they almost succeeded in overthro,ing the government by force. Eere ,e to
adopt the traditional concept of martial la,, ,e ,ould be confined to merely putting do,n one peasant
uprising after another, leaving unsolved the maladies that in the main brought forth those uprisings. %f ,e
are really to establish an enduring condition of peace and order and assure through the ages the stability
of our Constitution and the !epublic, % say that martial la,, being the ultimate ,eapon of survival provided
for in the Constitution, must penetrate deeper and seek to alleviate and cure the ills and the seething
furies deep in the bo,els of the social structure. %n a very real sense, therefore, there is a profound
relationship bet,een the e8ercise by the martial la, administrator of legislative and judicial po,ers and
the ultimate analysis, the only kno,n limitation to martial la, po,ers is the convenience of the martial la,
administrator and the judgment and verdict of the and, of course, the verdict of history itself.
D/+/3A/ +/6%-/ ;0.<7 @our >onor, just for purposes of discussion, may % kno, from you ,hether
has been an occasion in this country ,here any past President had made use of his martial la, po,erI
D/+/3A/ D/ 3=5MA? ;A.<7 % am glad that you asked that #uestion, @our >onor, because it seems
that ,e are of the impression that since its incorporation into the &(AB Constitution, the, martial la,
provision has never been availed of by any President @our >onor, that during the .apanese occupation,
President +aurel had occasion to declare martial la,, and % recall that ,hen President +aurel declared
martial la,, he also assumed legislative and judicial po,ers. Ee must, of course, reali"e that during the
time of President +aurel the threats to national security ,hich precipitated the declaration came from the
outside. he threats, therefore ,ere not internal in origin and character as those ,hich prompted
President Marcos to issue his historic proclamation. %f, in case K as ,hat happened during the time of
President +aurel K the declaration of martial la, necessitated the e8ercise of legislative po,ers by the
martial la, administrator, % say that greater necessity calls forth the e8ercise of that po,er ,hen the
threats to national security are posed not by invaders but by the rebellious and seditious elements, both of
the left and right, from ,ithin. % say that because every rebellion ,hether in this country or in other foreign
countries, is usually the product of social unrest and dissatisfaction ,ith the established order. !ebellions
or the acts of rebellion are usually preceded by long suffering of those ,ho ultimately choose to rise in
arms against the government. A rebellion is not born overnight. %t is the result of an accumulation of social
sufferings on the part of the rebels until they can no longer stand those sufferings to the point that, like a
volcano, it must sooner erupt. %n this conte8t, the stamping out of rebellion must not be the main and only
objective of martial la,. he Martial la, administrator should, nay, must, take steps to remedy the crises
that lie behind the rebellious movement, even if in the process, he should e8ercise legislative and judicial
po,ers. 1or ,hat benefit ,ould it be after having put do,n a rebellion through the e8ercise of martial
po,er if another rebellion is again in the offing because the root causes ,hich propelled the movement
are ever presentI 0ne might succeed in capturing the rebel leaders and their follo,ers, imprison them for
life or, better still, kill them in the field, but someday ne, leaders ,ill pick up the torch and the tattered
banners and lead another movement. 3reat causes of every human undertaking do not usually die ,ith
the men behind those causes. =nless the root causes are themselves eliminated, there ,ill be a
resurgence of another rebellion and, logically, the endless and vicious e8ercise of martial la, authority.
his reminds me of the ,ise ,ords of an old man in our to,n7 hat if you are going to clear your field of
,eeds and grasses, you should not merely cut them, but dig them out.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eith the indulgence of the 3entlemen from +a =nion, the Chair
,ould ,ant to have a recess for at least ten minutes.
D/+/3A/ D/ 3=5MA? ;A.<7 hank you, Mr. Chairman. %n fact, % ,as about to move for it after the
grueling interpellations by some of our colleagues here, but before ,e recess, may % move for the
approval of -ection JI
P!/-%D%?3 011%C/! =PA5 ;A.<7 Are there any objectionsI here being none, -ection J is approved.
Although there are authorities to the contrary, it is generally held that, in construing constitutional
provisions ,hich are ambiguous or of doubtful meaning, the courts may consider the debates in the
constitutional convention as thro,ing light on the intent of the framers of the Constitution.
35
%t is true
that the intent of the convention is not controlling by itself, but as its proceeding ,as preliminary to the
adoption by the people of the Constitution the understanding of the convention as to ,hat ,as meant
by the terms of the constitutional provision ,hich ,as the subject of the deliberation, goes a long ,ay
to,ard e8plaining the understanding of the people ,hen they ratified it.
35
More than this, the people
reali"ed that these provisions of the ne, Constitution ,ere discussed in the light of the tremendous
forces of change at ,ork in the nation, since the advent of martial la,. /vident in the humblest
villages to the bustling metropolises at the time ,ere the infrastructures and institutional changes
made by the government in a bold e8periment to create a just and compassionate society. %t ,as ,ith
an a,areness of all of these revolutionary changes, and the confidence of the people in the
determination and capability of the ne, dispensation to carry out its historic project of eliminating the
traditional sources of unrest in the Philippines, that they over,helmingly approved the ne,
Constitution.
6
PO0ITIC30 ?EESTION
Ee have adverted to the fact that our jurisprudence attest abundantly to the e8istence of a continuing
Communist rebellion and subversion, and on this point then can hardly be any dispute. he narro,
#uestion, therefore, presented for resolution is ,hether the determination by the President of the
Philippines of the necessity for the e8ercise of his constitutional po,er to declare martial la, is
subject to revie,. %n resolving the #uestion, Ee reCaffirm the vie, that the determination of the for the
e8ercise of the po,er to declare martial la, is ,ithin the e8clusive domain of the President, and his
determination is final and conclusive upon the courts and upon all persons. his conclusion
necessarily results from the fact that the very nature of the e8ecutive decision is political, not judicial.
he decision as to ,hether or not there is necessit ,or t*e e6ercise o, t*e po)er is )*oll con,i!e!
# our to t*e C*ie, E6ecutive. 1or such decision, he is directly responsible to the people for ,hose
,elfare he is obliged to act. %n vie, of the of the responsibility reposed upon him, it is essential that
he be accorded freedom of action demanded by the e8igency. he po,er is to be e8ercised upon
sudden emergencies and under circumstances vital to the e8istence of the -tate. he issue is
committed to him for determination by criteria of political and military e8pediency. %t is not pretended
to rest on evidence but on information ,hich may not be acceptable in court. here are therefore, no
standards ascertainable by settled judicial e8perience or process by reference to ,hich his decision
can be judicially revie,ed. %n other ,ords, his decision is of a kind for ,hich the judicial has neither
the aptitude, facilities nor responsibility to undertake. Ee are un,illing to give our assent to
e8pressions of opinion ,hich, although not intended, tends to cripple the constitutional po,ers of the
government in dealing promptly and effectively ,ith the danger to the public safety posed by the
rebellion and Communist subversion.
Moreover, the Court is ,ithout po,er to shape measures for dealing ,ith the problems of society,
much less ,ith the suppression of rebellion or Communist subversion. he nature of judicial po,er is
largely negative, and it is essential that the opportunity of the Chief /8ecutive for ,ellCdirected
positive action in dealing ,ith the problem be preserved, if the 3overnment is to serve the best
interests of the people. 1inally, as a conse#uence of the general referendum of .uly *'C*), &('A,
,here &),9B*,9&2 citi"ens voted over,helmingly for the continuance of President Marcos in office
beyond &('A to enable him to finish the reforms he had instituted under martial la,, the #uestion of
the legality of the proclamation of martial la,, and its continuance, had undoubtedly been removed
from judicial intervention.
Ee conclude that the proclamation of martial la, by the President of the Philippines on -eptember
*&, &('* and its continuance until the present are valid as they are in accordance ,ith the
Constitution.
6%
COE>T P>EC0E.E. F>O' IN?EI>ING INTO 0EG30ITY
OF 3>>EST 3N. .ETENTION OF PETITIONE>S
>aving concluded that the Proclamation of Martial +a, on -eptember *&, &('* by the President of
the Philippines and its continuance are valid and constitutional, the arrest and detention of petitioners,
pursuant to 3eneral 0rder ?o. * dated -eptember **, &('* of the President, as amended by 3eneral
0rder ?o. *CA, dated -eptember *2, &('*, may not no, be assailed as unconstitutional and arbitrary.
3eneral 0rder ?o. * directed the -ecretary of ?ational Defense to arrest 4individuals named in the
attached list, for being active participants in the conspiracy to sei"e political and state po,er in the
country and to take over the government by force ... in order to prevent them from further committing
acts that are inimical or injurious to our people, the government and our national interest4 and 4to hold
said individuals until other,ise ordered released by the President or his duly authori"ed
representative.4 %t is not disputed that petitioners are all included in the list attached to 3eneral 0rder
?o. *.
%t should be important to note that as a conse#uence of the proclamation of martial la,, the privilege
of the ,rit of *a#eas corpus has been impliedly suspended. Authoritative ,riters on the subject vie,
the suspension of the ,rit of *a#eas corpus as an incident, but an important incident of a declaration
of martial la,.
he suspension of the ,rit of *a#eas corpus is not, in itself, a declaration of martial la,: it is simply an
incident, though a very important incident, to such a declaration. But practically, in /ngland and the
=nited -tates, the essence of martial la, is the suspension of the privilege of the ,rit of *a#eas corpus,
and a declaration of martial la, ,ould be utterly useless unless accompanied by the suspension of the
privilege of such ,rit. >ence, in the =nited -tates the t,o, martial la, and the suspension of the ,rit is
regarded as one and the same thing. +uther v. Borden, ' >o,. &: Martin v. Mott, &* Eheat. &(: -tory,
Com. on the Constitution, see. &AJ*: .ohnson v. Duncan, A Martin, ?.-. BA9. ;&* +. ed. B)*C)A<.
/vidently, according to .udge -malley, there could not be any privilege of the ,rit of *a#eas corpus
under martial la, ;%n re 1ield, ( 1ed. Cas. & G&)2*H<. he evident purpose of the suspension of the
,rit is to enable the e8ecutive, as a precautionary measure, to detain ,ithout interference persons
suspected of harboring designs harmful to public safety ;E6 Parte Bi((er(an, A* 1ed. *nd. JJ*,
JJ2<. %n any event, the Proclamation of Martial +a,, in effect, suspended the privilege of the ,rit ,ith
respect to those detained for the crimes of insurrection or rebellion, etc., thus7
be similarly detained for the cri(es o, insurrection or re#ellion, and all other crimes and offenses
crimes against national security and the la, of the nations, crimes against public order, crimes involving
promulgated by me personally or promulgated upon my direction s*all #e -ept un!er !etention until
ot*er)ise or!ere! release! # (e or # ( !ul !esi+nate! representative. ;/mphasis supplied<.
3eneral 0rder ?o. * ,as issued to implement the aforecited provisions of the Proclamation of Martial
+a,. .
By the suspension of the privilege of the ,rit of *a#eas corpus, the judiciary is precluded from
interfering ,ith the orders of the /8ecutive by in#uiring into the legality of the detention of persons
involved in the rebellion. .
he arrest and detention of persons reasonably believed to be engaged in, or connected ,ith, the
insurgency is predicated upon the principle that in time of public disorder it is the right and duty of all
citi"ens especially the officer entrusted ,ith the enforcement of the la, to employ such force as may
be necessary to preserve the peace and restrain those ,ho may be committing felonies.
/ncroachments upon personal liberty, as ,ell as upon private property on those occasions, are
justified by the necessity of preserving order and the greater interests of the political community. he
Chief /8ecutive, upon ,hom is reposed the duty to preserve the nation in those times of national
peril, has correspondingly the right to e8ercise broad authority and discretion compatible ,ith the
emergency in selecting the means and adopting the measures ,hich, in his honest judgment, are
necessary for the preservation of the nation$s safety. %n case of rebellion or insurrection, the Chief
/8ecutive may 4use the milder measure of sei"ing the bodies of those ,hom he considers to stand in
the ,ay of restoring peace. -uch arrests are not necessarily for punishment but are by ,ay of
precaution, to prevent the e8ercise of hostile po,er.4 ;'oer v. Pea#o!, *&* =. -. '), )JC)B G&(9(H
BA +. ed. J&&.<
he justification for the preventive detention of individuals is that in a crisis such as invasion or
domestic insurrection 4the danger to the security of the nation and its institutions is so great that the
government must take measures that temporarily deprive citi"ens of certain rights in order to ensure
the survival of the political structure that protects those and other rights during ordinary times.4
;.evelop(ents National Securit, 6ol. )B, >arvard +a, !evie,, March &('*, ?o. B, p. &*)2<.
3:

%n 'oer v. Pea#o!, supra, the -upreme Court of the =nited -tates upheld the detention of a labor
leader ,hose mere presence in the area of a violent labor dispute ,as deemed likely to incite further
disturbances. 4-o long as such arrests are made in good faith,4 said the erudite .ustice >olmes, 4and
in the honest belief that they are made in order to head the insurrection off, the governor is the final
judge and can not be subjected to an action after he is out of office, on the ground that he had no
During Eorld Ear %%, persons of .apanese ancestry ,ere evacuated from their homes in the Eest
Coast and interned in the interior until the loyalty of each individual could be established. %n
Gore(atsu v. Enite! States ;A*A, =.-. *&J G*JJH<, the -upreme Court of the =nited -tates upheld the
e8clusion of these persons on the ground that among them a substantial number ,ere likely to be
disloyal and that, therefore, the presence of the entire group created the risk of sabotage and
espionage. Although the Court avoided constitutionality of the detention that follo,ed the evacuation,
its separation of the issue of e8clusion from that detention ,as artificial, since the separate orders
part of a single overCall policy. he reasoning behind its of persons of .apanese ancestry ,ould seem
to apply ,ith e#ual force to the detention despite the greater restrictions oil movement that the latter
entailed. %n the Middle /ast, military authorities of %srael have detained suspected Arab terrorists
,ithout trial ;Dersho,it", Terroris( an! Preventive .etention= T*e Case o, Israel, B9 Commentaries,
Dec. &('9 at ')<.
Among the most effective countermeasures adopted by the governments in -outheast Asia to
prevent the gro,th of Communist po,er has been the arrest and detention ,ithout trial of key united
front leaders of suitable times.
37

he preventive detention of persons reasonably believed to be involved in the Communist rebellion
and subversion has long been recogni"ed by all democratic governments as a necessary emergency
measure for restoring order. 4Because of the difficulty in piercing the secrecy of tightly knit subversive
organi"ations in order to determine ,hich individuals are responsible for the violence, governments
have occasionally responded to emergencies marked by the threat or reality of sabotage or terrorism
by detaining persons on the ground that they are dangerous and ,ill probably engage in such
actions.4
38
%n the case at bar, petitioner A#uino ;+CABBJ2< has already been charged ,ith the violation of the
AntiC-ubversion Act ;+A'A2J< and therefore his detention is reasonably related to the dueling of the
rebellion. =pon the other hand, the other petitioners have been released but their movements are
subject to certain restrictions. he restrictions on the freedom of movement of these petitioners, as a
condition for their release, are, ho,ever, re#uired by considerations of national security.
39
%n the
absence of ,ar or rebellion, the right to travel ,ithin the Philippines may be considered
constitutionally protected. But even under such circumstances that freedom is not absolute. Areas
ravaged by floods, fire and pestilence can be #uarantined, as unlimited travel to those areas may
directly and materially interfere ,ith the safety and ,elfare of the inhabitants of the area affected.
During a rebellion or insurrection the authority of the commander to issue and enforce police
regulations in the area of the rebellion or insurrection is ,ell recogni"ed. -uch regulations may
involve the limitation of the right of assembly, the right to keep arms, and restrictions on freedom of
movement of civilians.
50
=ndoubtedly, measures conceived in good faith, in the face of the
emergency and directly related to the #uelling of the disorder fall ,ithin the discretion of the President
in the e8ercise of his authority to suppress the rebellion and restore public order.
Ee find no basis, therefore, for concluding that petitioner A#uino$s continued detention and the
restrictions imposed on the movements of the other petitioners ,ho ,ere released, are arbitrary.
CONC0ESION
Ee reali"e the transcendental importance of these cases. Beyond the #uestion of deprivation of
liberty of petitioners is the necessity of laying at rest any doubt on the validity of the institutional
changes made to bring the country out of an era of rebellion, near political anarchy and economic
stagnation and to establish the foundation of a truly democratic government and a just and
compassionate society. %ndeed, as a respected delegate of t,o Constitutional Conventions observed7
4he introduction of martial la, has been a necessary recourse to restore order and steer the country
safely through a severe economic and social crisis.4
51
he e8ercise of these e8traordinary po,ers not
only to restore civil order thru military force but also to effect urgently needed reforms in order to root
out the causes of the rebellion and Communist subversion may indeed be an e8periment in the
government. But it ,as necessary if the national democratic institution ,as to survive in competition
,ith the more revolutionary types of government. 4?ational democratic constitutionalism, ancient
though its origin may be,4 observed Dr. C.1. -trong,
54
4is still in an e8perimental stage and if it is to
survive in competition ,ith more revolutionary types of government, ,e must be prepared to adapt to
everCchanging conditions of modern e8istence. he basic purpose of a political institution is, after all,
the same ,herever it appears7 to secure social peace and progress, safeguard individual rights, and
promote national ,ellCbeing.4
hese adaptations and innovations ,ere resorted to in order to reali"e the social values that
constitute the professed goals of the democratic polity. %t ,as an attempt to make the political
institution serve as an effective instrument of economic and social development. he need of the
times ,as for a more effective mode of decisionCmaking and policyCformulation to enable the nation to
keep pace ,ith the revolutionary changes that ,ere ine8orably reshaping Philippine -ociety. A
government, observed the then Delegate Manuel !o8as, a Member of the -ubCCommittee of -even
of the -ponsorship Committee of the &(AJ Constitutional Convention, 4is a practical science, not a
theory, and a government can be successful only if in its structure due consideration is given to the
habits, the customs, the character and, as McNinley said to the idiosyncracies of the people.4
53

E>/!/10!/, Ee hereby conclude that ;a< the proclamation of martial la, ;Proclamation ?o. &9)&<
on -eptember *&, &('* by the President of the Philippines and its continuance, are valid as they
have been done in accordance ,ith the Constitution, and ;b< as a conse#uence of the suspension of
the privilege of the ,rit of *a#eas corpus upon the proclamation of martial la,, the Court is therefore
from in#uiring into the legality of the arrest and detention of these petitioners or on the restrictions
imposed upon their movements after their release military custody.
Accordingly, Ee vote to dismiss all the petitions.
'a-asiar, Fernan!ez an! 3;uino, JJ., concur.

ESG"ERRA, J.:
A. P!/+%M%?A!@ -A/M/?
0n -eptember *&, &('*, the President issued Proclamation ?o. &9)& placing the ,hole Philippines,
under martial la,. his proclamation ,as publicly announced by the President over the and radio on
the evening of -eptember *&, &('*. he grounds for the proclamation are recited in detail in its
preamble, specifically mentioning various acts of insurrection and rebellion already perpetrated and
about to be committed against the 3overnment by the la,lesselements of the country in order to gain
political control of the state. After laying do,n the basis for the establishment of martial la,, the
President ordered7
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines. by virtue of the po,ers
their commanderCinCchief, do hereby command the armed forces of the Philippines, to maintain la, and
%ssued shortly after the proclamation ,as 3eneral 0rder ?o. *, follo,ed by ?o. *CA, dated -eptember
*2, &('*, to ,hich ,as attached a list of the names of various persons ,ho had taken part in the
various acts of insurrection, rebellion and subversion mentioned in the proclamation, and given aid
and comfort in the conspiracy to sei"e political and state po,er in the country and take over the
government by force. hey ,ere ordered to be apprehended immediately and taken into custody by
the -ecretary of ?ational Defense ,ho ,as to act as representative of the President in carrying out
martial la,.
he petitioners herein ,ere on -eptember ** and *A, &('*, arrested and taken into military custody
by the -ecretary of ?ational Defense pursuant to 3eneral 0rder ?o. *CA of the President for being
included in said list as having participated, directly or indirectly, or given aid and comfort to those
engaged in the conspiracy and plot to sei"e political and state po,er and to take over the
3overnment by force. hey ask this Court to set them at liberty, claiming that their arrest and
detention is illegal and unconstitutional since the proclamation of martial la, is arbitrary and ,ithout
basis and the alleged ground therefor do not e8ist and the courts are open and normally functioning.
1or the respondents the -olicitor 3eneral in his ans,er maintains that Proclamation ?o. &9)& is
Constitutional and valid, having been issued in accordance ,ith the Constitution: that the orders and
decrees issued thereunder are valid: that the arrest and detention of petitioners pursuant thereto is
like,ise valid, legal and constitutional, and that this Court should refrain from issuing the desired ,rits
as these cases involve a political #uestion.
After joinder of issues, these cases ,ere heard on -eptember *2 and *(, &('*, and on 0ctober 2,
&('*, follo,ed by the filing of Memoranda and ?otes on the arguments of both parties.
After submission of these cases for decision, petitioner !amon E. Diokno filed a motion to be allo,ed
to ,ithdra, his petition. o the motion is attached a hand,ritten letter of said petitioner to his counsel
stating the reasons ,hy he ,ished to ,ithdra, his petition. he principal reasons advanced by him
for his action are his doubts and misgivings on ,hether he can still obtain justice from this Court as at
present constituted since three of the .ustices among the four ,ho held in the ratification cases that
there ,as no valid ratification of the ?e, Constitution signed on ?ovember A9, &('* and proclaimed
ratified by the President on .anuary &', &('A ;the then Chief .ustice having retired<, had taken an
oath to support and defend the said constitution: that in filing his petition he e8pected it to be decided
be the -upreme Court under the &(AB constitution, and that ,ith the oath taking of the three
remaining members, he can no longer e8pect to obtain justice.
After the motion to ,ithdra, had been deliberated upon by the Court, seven justices voted to grant
and five voted to deny the motion. here being no majority to grant the motion, it ,as denied. hose
,ho voted to deny the motion are of the vie, that it is not simply a matter of right to ,ithdra,
because of the great public interest involved in his case ,hich should be decided for the peace and
tran#uility of the nation, and because of the contemptuous statement of petitioner Diokno that this
Court is no longer capable of administering justice to him. his #uestion should no longer stand on
the ,ay to the disposition of these cases on the merits.
B. >/ %--=/-.
Prescinding from the #uestion of jurisdiction ,hich the -olicitor 3eneral raised by reason of the
President$s 3eneral 0rder ?o. A, dated -eptember **, &('*, as amended by 3eneral 0rder ?o. ACA,
dated -eptember *J, &('*, ,hich allo,ed the judicial courts to regularly function but inhibited them
from taking cogni"ance of cases involving the validity, legality or constitutionality of the Martial +a,
Proclamation, or any decree, order or acts issued, promulgated or performed by the President or his
duly authori"ed representative pursuant thereto, from ,hich position he relented and he has,
accordingly, refrained from pressing that issue upon the Court, the main issues for resolution are the
validity of Proclamation ?o. &9)& declaring and establishing martial la, and ,hether this Court can
in#uire into to veracity and sufficiency of the facts constituting the grounds for its issuance.
% maintain that Proclamation ?o. &9)& is constitutional, valid and binding: that the veracity or
sufficiency of its factual bases cannot be in#uired into by the Courts and that the #uestion presented
by the petitions is political in nature and not justiciable.
Proclamation ?o. &9)& ,as issued by the President pursuant to Article 6%%, -ection &9, paragraph *,
of the Constitution of &(AB, ,hich reads as follo,s7
he President shall be commanderCinCchief of all armed forces of the Philippines and, ,hether it becomes
necessary, he may call violence, invasion, insurrection, or rebellion. %n case of invasion, insurrection, or
rebellion, or imminent danger thereof, ,hen the public safety re#uires it, he may suspend the privilege of
the ,rit of *a#eas corpus, or place the Philippines or any part thereof under martial la,.
his provision may, for present purposes, be called the CommanderCinCChief clause.
he above provision has no counterpart in the Constitution of the =nited -tates or in that of any state
thereof e8cept that of Alaska to a limited e8tent. o comprehend the scope and e8tent of the
President$s po,er to declare martial la,, let us trace the background and origin of this provision.
o suppress the great rebellion in the =nited -tates, kno,n as the Civil Ear ,hich ,as aimed to
,reck the 1ederal union, President +incoln e8ercised po,ers not granted to him by the Constitution of
the =nited -tates but pertaining to the congress. >e had suspended the privilege of the ,rit of
*a#eas corpus: proclaimed martial la, in certain areas and Military Commissions ,ere organi"ed
,here it ,as deemed necessary to do so in order to subdue the rebels or prevent their sympathi"ers
from promoting the rebellion. +incoln justified his acts by saying7
% did understand ... that my oath to preserve the Constitution to the best of my ability imposed upon me
the duty of preserving, by every indispensable means that government K that nation K of ,hich that
constitution ,as the organic la,. Eas it possible to lose the nation and yet preserve the ConstitutionI By
general la,, life and limb must be protected, yet often a limb must be amputated to save a life: but a life is
never ,isely given to save a limb. % felt that measures, other,ise unconstitutional, might become la,ful by
becoming indispensable to the preservation of the Constitution through the preservation of the nation.
!ight or ,rong, % assumed this ground, and no, avo, it ... ;* ?icholay and >ay, Abraham +incoln
Complete Eorks, B9) ;&(9*<<.
-ydney 3. 1isher in his ,ork entitled 4-uspension of Ca#eas corpus During the Ear of the
!ebellion,4 A Pol. -cience Puarterly, e8pressed the same idea ,hen he said7
... /very man thinks he has a right to live and every government thinks it has a right to live. /very man
,hen driven to the ,all by a murderous assailant ,ill override all la,s to protect himself, and this is called
the great right of selfCdefense. -o every government, ,hen driven to the ,all by a rebellion, ,ill trample
do,n a constitution before it ,ill allo, itself to be destroyed. his may not be constitutional la,, but it is
fact. ;Pp. JBJ, J)JCJ)B<
But the difficulty occasioned by the absence of a constitutional po,er to suspend the privilege of the
,rit of *a#eas corpus and to proclaim martial la,, ,hich greatly hamstrung +incoln in coping
effectively ,ith the civil la,, ,as obviated ,hen our o,n Constitution e8pressly provided for the grant
of that presidential po,er ;Art. 6%%, -ection &9, par. *<. =nlike the legislative po,er under the Bill of
!ights of our Constitution ;Article %%%, -ection &, paragraph &J, &(AB Constitution<, the President can
suspend the privilege of the ,rit of *a#eas corpus and impose martial la, in cases of imminent
danger of invasion, insurrection or rebellion ,hen the public safety re#uires it. he Congress could
not have been granted the po,er to suspend in case of imminent danger as it is not by the nature of
its office in a position to determine promptly the e8istence of such situation. %t can only see or ,itness
the actual occurrence thereof and ,hen they happen, Congress is also empo,ered to suspend tile
privilege of the ,rit of *a#eas corpus as an e8ercise of legislative po,er ,hen the President falls to
act: but under no circumstances can it declare martial la, as this po,er is e8clusively lodged in the
President as CommanderCinCChief.
Ehen the Philippine Constitution of &(AB ,as ,ritten, the framers decided to adopt the provisions of
-ection A, paragraph ', of the .ones +a,, ,hich became Article &&&, -ection &, paragraph &J, of the
&(AB Constitution, and those of -ection *& of the .ones +a, ,hich became Article 6%%, -ection &9,
paragraph *, of the same. he .ones +a, provisions read as follo,s7
-ection A, paragraph ' of the .ones +a, provided7
suspended by the President, or by the 3overnorC3eneral, ,herever during such period the necessity for
And -ection *& of the same la, in part provided that7
... ;><e ;referring to the 3overnorC3eneral< may, in case of rebellion or invasion, or imminent danger
thereof, ,hen the public safety re#uires it, suspend the privilege of the ,rit of *a#eas corpus, or place the
%slands, or any part thereof, under martial la,7 Provi!e! hat ,henever the 3overnorC3eneral shall
e8ercise this authority, he shall at once notify the President of the =nited -tates thereof, together ,ith the
attending facts and circumstances, and the President shall have po,er to modify or vacate the action of
the 3overnorC3eneral.
Before the .ones +a,, the Philippine Bill of &(9* provided as follo,s7
;-ection *, par. '<.
he Philippine Bill of &(9* had no provision pertaining to the declaration of martial la,.
he adoption of the .ones +a, provisions ,as prompted by the prevailing sentiment among the
delegates to the &(AJC&(AB Constitutional Convention to establish a strong e8ecutive, as sho,n by its
proceedings reported by t,o of its prominent delegates ;+aurel and Aruego< ,ho recounted in their
published ,orks ho, the delegates blocked the move to subject the po,er to suspend the privilege of
the ,rit of *a#eas corpus, in case of invasion, insurrections or rebellion, to the approval of the
?ational Assembly, but did nothing to block, and allo,ed, the grant of the po,er, including that to
declare martial la,, to the President as CommanderCinCChief of the Armed 1orces. Ehat is evident
from this incident is that ,hen it comes to the suspension of the privilege of the ,rit of *a#eas corpus
and establishment of martial la, in case of the occurrence or imminent danger of the contingencies
mentioned therein, and the public safety re#uires it, the clear intent ,as to e8clusively vest in the
President that po,er, ,hereas Congress can only suspend under the Bill of !ights provision ,hen
there is actual occurrence of these events for reasons already adverted to above. And ,hen martial
la, is proclaimed, the suspension of the privilege of *a#eas corpus necessarily follo,s for. the
greater po,er includes the less. ?obody ,ill ever doubt that there are greater restrictions to individual
liberty and freedom under martial la, than under suspension of the privilege of the ,rit of *a#eas
corpus. %n the former he can even close the courts if necessary and establish in their place military
commissions. %n the latter, the action proceeds from the premise that the courts are open but cannot
grant the ,rit.
Ehen the Constitution of &(AB ,as being framed, the prevailing jurisprudence on the matter ,as that
laid do,n in "arcelon vs. "a-er, B Phil. )'. -eptember A9, &(9B. %n that case the #uestion presented
and decided is identical to ,hat is raised by the petitioners here. his ;&(9B< Court ruled that the
judiciary may not in#uire into the facts and circumstance upon ,hich the then 3overnor 3eneral
suspended the privilege of the ,rit under -ection B of the Philippine Bill of &(9*, ,hich granted him
the same po,er no, vested in the President, and that the findings of the 3overnor 3eneral ,ere
4final and conclusive4 upon the courts. A,are of this rule, the framers of the &(AB Constitution
granted to the President the po,ers no, found in Article 6%%, -ection &9, paragraph *, of the &(AB
Constitution.
0n 0ctober **, &(B9, Proclamation ?o. *&9 suspending the privilege of the ,rit of *a#eas corpus
,as issued by the late President Puirino. Assailed before this Court in 'ontene+ro vs. CastaAe!a
and Balao (& Phil. ))*, as unconstitutional and unfounded, this Court said7
thru Marshall, aney and -tory #uoted ,ith approval in "arcelon vs. "a-er ;B Phil. )', pp. () and &99<
the aut*orit to !eci!e )*et*er t*e e6i+enc *as arisen re;uirin+ suspension #elon+s to t*e Presi!ent
an! D*is !ecision is ,inal an! conclusiveD upon t*e courts an! upon all ot*er persons.
But in 0ansan+ vs. Garcia, +CAA(2J, decided December &&, &('&, J* -C!A, JJ), this Court asserted
the po,er to in#uire into the constitutional sufficiency of the factual bases supporting the President$s
action in suspending the privilege of the ,rit of *a#eas corpus under Proclamation ?o. ))(, dated
August *&, &('&. %n departing from the rule established in the Baker and CastaLeda cases, this Court
said7
he ,eight of "arcelon v. "a-er, as a precedent, is diluted by t,o ;*< factors, namely7 ;a< it relied heavily
upon 'artin v. 'ott involving the =.-. President$s po,er to call out t*e (ilitia, ,hich he being the
commanderCinCchief of all the armed forces may be e8ercised to suppress or prevent any la,less
violence, even ,ithout invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of the ,rit of *a#eas corpus, jeopardi"ing as the
latter does individual liberty: and ;b< the privilege had been suspended by the American 3overnorC
3eneral, ,hose act, as representative of the -overeign, affecting the freedom of its subjects, can hardly
be e#uated ,ith that of the President of the Philippines dealing ,ith the freedom of the 1ilipino people, in
)*o( soverei+nt resi!es, an! ,ro( )*o( all +overn(ent aut*orit e(anates. he pertinent ruling in the
Montenegro case ,as based mainly upon the Barcelon case, and, hence, cannot have more ,eight than
the same ...
% maintain that ,e should return to the rule in the Baker and CastaLeda cases and jettison the
+ansang doctrine ,hich denies the grant of full, plenary and unrestricted po,er to the President to
suspend the privilege of the ,rit of *a#eas corpus and declare martial la,. his denial of unrestricted
po,er is not in keeping ,ith the intent and purpose behind the constitutional provision involved.
he Act of Congress of &'(B involved in Martin M Mott ;&* Eheat &( ;&)*'<< ,hich is the main prop
of the Baker case, held inapplicable in +ansang cage, provided7
judge necessary to repel such invasion ...
he distinction made by this Court bet,een the po,er of the President to call out the militia and his
po,er to suspend the privilege of the ,rit of *a#eas corpus and declare martial la, does not ,arrant
a different treatment. he important and decisive point to consider is that both po,ers are e8pressly
conferred upon the President by the same -ection, e8ercisable only upon the e8istence of certain
facts and situations. =nder the &(AB Constitution ;Article 6%%, -ection &9, paragraph *,< both po,ers
are embraced in the President$s po,er as CommanderCinCChief of the Armed 1orces.
he Baker decision should not have been emasculated by comparing the position then of the
3overnor 3eneral 4as the representative of the -overeign4 in relation to the 1ilipinos ,ho ,ere its
4subjects4. =nder prevailing conditions and democratic principles, there ,ould be greater justification
for relying on the judgment of the President of the Philippines ,ho is the chosen representative of the
1ilipino people and hence more authoritative in speaking for the nation than on that of an American
3overnor 3eneral then ,ho personified the burden of an imposed sovereignty upon us. And as the
/8ecutive of this 3overnment ,ho is charged ,ith the responsibility of e8ecuting the la,s, he is as
much a guardian of the rights and liberties of the people as any court of justice. o judicially undercut
the force and efficacy of the Baker and Montenegro doctrine is to ride rough shod over the intent of
the framers of the &(AB Constitution. Parenthetically it may be stated that the CommanderCinCChief
clause ,as retained in the &('A Constitution.
Although the +ansang case tried to cushion the blo, administered to the constitutional provision
involved by adopting the test of reasonableness4 in the e8ercise of the President$s po,er, ,ithout
meaning to substitute its judgment for that of the President, yet the effect of the ruling is so far
reaching that it may lead to a serious confrontation bet,een the Courts and the President. he po,er
to in#uire into the constitutional sufficiency of the factual bases of the *a#eas corpus proclamation
;grounds for the issuance of ,hich are the same as those for martial la,< presupposes the po,er to
kno, ,hat are the facts to be tested by the constitutional provision. his is the essence of an in#uiry:
the determination of the constitutional sufficiency of those facts simply follo,s. -uppose this Court
says they are not sufficient to justify martial la, and the President says they are because the
evidence on ,hich he acted sho,s the e8istence of invasion, insurrection or rebellion, or the
imminent danger thereof, ,hat ,ill happenI he outcome is too unpleasant to contemplate. +et us
not try to repeat in our country ,hat transpired bet,een President +incoln and Chief .ustice aney
,hen the latter issued a ,rit of *a#eas corpus to set free one held by the military and President
+incoln practically said7 aney has issued his ,rit. +et him enforce it4. /8 parte Merryman, &' 1ed.
Cas. &JJ ;?o. (J)'< ;C.C.D. Md. &)2&<.
President +incoln, in the face of the grave danger then to the nation, simply ignored it and nothing
could be done about it.
he test of reasonableness, or absence of arbitrariness in the e8ercise of the presidential po,er, is all
a play of ,ords. he determination of the reasonableness of the act of the President calls for a
consideration of the availability and choice of less drastic alternatives for the President to take, and
,hen that is done the Court ,ill in effect be substituting its judgment for that of the President. %f the
Court ,ere to limit its po,ers to ascertaining ,hether there is evidence to support the e8ercise of the
President$s po,er, ,ithout determining ,hether or not such evidence is true, ,e ,ould have the
curious spectacle of this Court having no choice but to give its imprimatur to the validity of the
presidential proclamation, as it did in the +ansang case ,here it merely accepted the reports of the
military on the facts relied upon by the President in issuing Proclamation ?o. ))(, ,ithout judicially
determining ,hether or not the contents of those reports ,ere true, %n so doing, this Court simply
displayed the miserable limits of its competence for having no means for checking ,hether or not
those facts are true. %t ,ould have been more in keeping ,ith the dignity, prestige and proper role of
this Court to simply read and consider the bases for the suspension as stated in the various
4,hereases4 of the Proclamation, and then determine ,hether they are in conformity ,ith the
constitution. his to me is the e8tent of its po,er. o transcend it is to usurp or interfere ,ith the
e8ercise of a presidential prerogative.
his Court should not spurn the reminder that it is not the source of the panacea for all ills affecting
the body politic ;6era vs. Avelino, '', Phil. &(*<. Ehen a particular cure can come only from the
political department, it should refrain from injecting itself into the clash of political forces contending
for the settlement of a public #uestion. he determination of ,hen and ho, a constitutionally granted
presidential po,er should be e8ercised calls for the strict observance of the timeChonored principle of
the separation of po,ers and respect for a coCe#ual, coordinate and independent branch of the
3overnment. his is the basic foundation of the rule governing the handling of a political #uestion that
is beyond judicial competence ;Alejandrino vs. Pue"on, J2 Phil. AB: Cabili vs. 1rancisco, 3. !. ?o. +C
J2A), May ), &(B&: Baker vs. Carr, A29 =.-. p. &)2: )* -. Ct. !ep. 2(: ' +. /d. *nd, 22A<. %t is high
time to ree8amine and repudiate the +ansang doctrine and give the President the sole authority to
decide ,hen and ho, to e8ercise his o,n constitutional po,ers. A return to the sanity and ,isdom of
the Baker and Montenegro doctrine and a reali"ation that judicial po,er is un,elcome ,hen a
#uestion presents attributes that render it incapable of judicial determination, because the po,er to
decide it devolves on another entity, is urgently needed. %t is ,orth,hile recalling ,hat this Court in its
sobriety and ,isdom, unperturbed by the formidable turmoils, the fierce passions and emotions and
the stresses of our times, said in the Baker case7 ;he term 43overnor 3eneral4 should read
4President4<.
0,ing to conditions at times, a state of insurrection, rebellion or invasion may arise suddenly and may
district or province notifies the 3overnorC3eneral by telegraph of this landing of troops and that the people
of the district are in collusion ,ith such invasion. Might not the 3overnorC3eneral and the Commission
accept this telegram as sufficient evidence and proof of the facts communicated and at once take steps,
even to the e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to them to be
necessary to repel such invasionI %t seem that all men interested in the maintenance and stability of the
3overnment ,ould ans,er this #uestion in the affirmative ....
assists in restoring order and in repelling the invasion, applies for the ,rit of *a#eas corpus alleging that
furnishing proof to it concerning the e8istence or none8istence of the facts proclaimed to e8ist by the
the la,.
safety of the ,hole people. %f the judicial department of the 3overnment, or any officer in the 3overnment,
has a right to contest the orders of the President or of the 3overnorC3eneral under the conditions above
supposed, before complying ,ith such orders, then the hands of the President or the 3overnorC3eneral
may be tied until the very object of the rebels or insurrectos or invaders has been accomplished. But it is
urged that the President, or the 3overnorC3eneral ,ith the approval of the Philippine Commission, might
be mistaken as to the actual conditions: that the legislative department K the Philippine Commission K
might, by resolution, declare after investigation, that a state of rebellion, insurrection, or invasion e8ists,
and that the public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus, ,hen, as a
matter of fact, no such conditions actually e8isted: that the President, or 3overnorC3eneral acting upon
the authority of the Philippine Commission, might by proclamation suspend the privilege of the ,rit of
*a#eas corpus ,ithout there actually e8isting the conditions mentioned in the act of Congress. %n other
,ords, the applicants allege in their argument in support of their application for the ,rit of *a#eas corpus
that the legislative and e8ecutive branches of the 3overnment might reach a ,rong conclusion from their
investigations of the actual conditions, or might, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion e8isted and that public safety re#uired the
suspension of the privilege of the ,rit of *a#eas corpus ,hen actually and in fact no such conditions did
e8ist. Ee can not assume that the legislative and e8ecutive branches ,ill act or take any action based
upon such motives.
Moreover, it can not be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
any particular district, than the other branches of the 3overnmentI Ee think not.
C. >/ C0?C+=-%0?
he resolution of the #uestion of validity of Proclamation ?o. &9)& and all acts done under it, by
delving into the sufficiency of the grounds on ,hich the declaration of martial la, is premised,
involves a political #uestion. Ehether or not there is constitutional basis for the President$s action is
for him to decide alone. % take it for a fact that he is not an irresponsible man and ,ill act reasonably
and ,isely, and not arbitrarily. ?o President in his right mind ,ill proclaim martial la, ,ithout any
basis at all but merely to fight the hobgoblins and monsters of his o,n imagination. %n the e8ercise of
that po,er this Court should not interfere or take part in any manner, shape or form, as it did in the
+ansang case. Ehen this Court re#uired the Army officers, ,ho furnished the President ,ith the facts
on ,hich he acted, to present proofs to establish the basis of the *a#eas corpus suspension, this
Court practically superimposed itself on the e8ecutive by in#uiring into the e8istence of the facts to
support his action. his is indeed unfortunate. o in#uire is to kno, the facts as basis of action. o
in#uire is to decide, and to decide includes the po,er to topple do,n or destroy ,hat has been done
or erected. his is the ultimate effect of the +ansang doctrine. .
Ehen the security and e8istence of the state is jeopardi"ed by sophisticated clandestine and
overseas means of destruction and subversion: ,hen open avo,als of attempts to dismember the
Philippines are politically and financially encouraged and supported by foreign po,ers: ,hen the
advocates of a sinister political and social ideology are openly storming even the bastions of military
po,er and strength ,ith the use of smuggled arms furnished by those ,ho ,ish this nation ill, let us
leave to the /8ecutive the unhampered determination of the occasion for the e8ercise of his po,er,
as ,ell as the choice of the ,eapons for safeguarding the nation. his Court should not, by a process
of subtle reasoning and rhetorical display of legal erudition stand on the ,ay to effective action by
virtually crippling him. %nstead, it should be a rock of refuge and strength for those ,ho are called
upon to do battle against the forces of devastating iconoclasm and ruthless vandalism that ruled our
streets, our public s#uares and our schools before the establishment of martial la,. %nstead of
imposing cramping restrictions on the e8ecutive and thereby giving the enemy aid and comfort, this
Court should allo, the political department a full and ,ide latitude of action.
%t follo,s that all orders, decrees or acts of the President under the Martial +a, Proclamation,
including those of the respondent -ecretary of ?ational Defense as his authori"ed representative, are
valid and binding. he people have ratified those acts by the adoption and ratification of the ?e,
Constitution as proclaimed by the President on .anuary &', &('A, and by the !eferendum held on
.uly *'C*),&('A. 1or us to declare them valid in our decision no, has become merely an antiCclima8
after ,e have decided in the .avellana case that the people have ratified and accepted the ?e,
Constitution and there remains no more judicial obstacle to its enforcement.
Conse#uently, the arrest and detention of the petitioners, including their further detention after the
ratification and acceptance of the ?e, Constitution, and even up to the present, are valid and
constitutional. he duration of their detention, especially as regards petitioner .ose E. Diokno, is a
matter addressed to the sound discretion of the President. As to petitioner Benigno -. A#uino, .r., his
detention is no longer open to #uestion as formal, charges of subversion, murder and illegal
possession of firearms have been filed against him ,ith the proper Military Commission.
D. >/ .=D3M/?
By this separate opinion % might incur the displeasure of my senior brethren ,ho conceived and
labored in bringing forth the +ansang decision ,hich % am openly advocating to be discarded because
this Court practically interfered ,ith the e8ercise of a purely e8ecutive po,er under the guise of
in#uiring into the constitutional sufficiency of the factual bases of the *a#eas corpus proclamation. By
re#uiring the representatives of the President to present evidence to sho, the reasonable e8ercise of
his po,er, % repeat that this Court trenched upon a constitutionally granted po,er of the President. %n
e8pressing my honest thoughts on a matter that % believe is of supreme importance to the safety and
security of the nation, % did so unmindful of the possible condemnation of my colleagues and fearless
of the judgment of history.
10! A++ >/ 10!/30%?3, % vote to dismiss all petitions.

FERNANDE1, J.:
%
P>O0OGEE
% have decided to ,rite this -eparate 0pinion even before the main opinion has been ,ritten, for no
other cases in the history of the !epublic have assumed such transcendental importance as the
cases ,hich directly arose out of the proclamation of martial la, on -eptember *&, &('*. ?o other
cases presented before this Court have aroused such ,idespread attention, speculation, controversy,
and concern. And in the language of one of the petitioners, 4the decision in these case;s<, ,hatever it
may be, ,ill be cited in history books many, many years from no,. And it ,ill be #uoted ,herever
lovers of freedom ask the #uestion K Ehat did the Court do in that difficult hourI
0ur decision in the various petitions no, before this ribunal like 0ur decision in the !atification
Cases ;+CA2&J*, .avellana vs. he /8ecutive -ecretary, et al. +CA2&2B, !o8as, et al., vs. Melchor,
etc. et al.,: +CA2*A*, Monteclaro, et al., vs. he /8ecutive -ecretary, et al., and +CA2*)A, Dilag, et al.,
vs. he >onorable /8ecutive -ecretary, et al.<, must uphold the validity of constitutionalism in our
country and our steadfast adherence to the !ule of +a,. he decision should set the pattern and the
thrust or 0ur continuous effort to locate that elusive boundary bet,een individual liberty and public
order. %t should reconcile the claims to individual or civil rights ,ith the e#ually and, at times, even
more compelling needs of community e8istence in a spirit of Constitutionalism and adherence to the
!ule of +a,.
hrough our ?e, Constitution, the Delegates to the Constitutional Convention and the voters in the
ratification referendum alike have given our government a fresh mandate and ne, guidelines in the
charting of a truly independent e8istence and the emergence of a dynamic and progressive order. %t is
no, the task of this Court to concreti"e and make clearly visible the connecting links bet,een the
&(AB Constitution and the &('A Constitution, and to consider the constitutionality of the martial la,
proclamation ;?o. &9)&< no, being vehemently challenged in these cases C its constitutionality as
initially proclaimed under the old Constitution, and the constitutionality of its continuation ,hich no,
falls under the present Charter.
%t is also the function of this ribunal to help give flesh and substance to our people$s aspirations for
secure and selfCsufficient if not abundant e8istence even as justice, peace, liberty, and e#uality are
guaranteed and assured. %t must strike the correct balance, given specific times and circumstances,
bet,een the demands of public or social order and e#ually insistent claims of individual liberty.
he issues raised regarding the force and effectivity of the &('A Constitution have been thoroughly
discussed in other cases. hey should no, be a settled matter but have been raised ane,. hese
,ere discuss at length in the earlier stages of the instant petitions. he mass of pleadings and lengthy
oral arguments d,elt not only on the validity of Proclamation ?o. &9)& and the legality of the arrest
and detention of the petitioners but also on the effectivity of the ne, Constitution and other related
matters as right to counsel, jurisdiction of military tribunals, applications for amnesty, visits of
relatives, conditions inside the detention camp, right to ,ithdra, the petition, and the like. Ehile it is
necessary to sift the basic issues from all secondary and incidental matters, ,e must also touch on
important related issues. %t is imperative to declare ,hat the Constitution commands is the la, on
these issues.
T*e avera+e citizen, as a rule, is not ver intereste! in t*e !etaile! intricacies surroun!in+ t*e
resolution o, constitutional ;uestions. Ce usuall *as stron+ vie)s on t*e ,inal outco(e o,
constitutional liti+ation #ut rarel #ot*ers to in;uire into t*e la#rint*ian ,acets o, t*e case or t*e
!etaile! reasonin+ )*ic* usuall supports t*e !ispositive portion.
It is not so )it* re+ar! to t*ese *a#eas corpus cases. T*e e6plosive potentialities o, Our rulin+ are
-no)n to ever#o!. T*e countr a)aits Our !ecision )it* -een e6pectations. T*e +roun!s
supportin+ t*e !ecision are a (atter o, pu#lic concern. T*e i(plication o, t*ese cases *ave #een
speculate! upon, alt*ou+* so(eti(es )it* li(ite! co(pre*ension an! noticea#le lac- o, ,airness,
even in ,orei+n countries.
It, t*ere,ore, #e*ooves t*e (e(#ers o, t*is Tri#unal to ren!er t*eir opinions as (uc* as possi#le, in
ter(s an! in a presentation t*at can #e un!erstoo! # t*e people.
%n J.'. Tuason an! Co. Inc. vs. 0an! Tenure 3!(inistration, ;A& -C!A J&A, J*A< this ribunal stated
that 4as the Constitution is not primarily a la,yer$s document, it being essential for the rule of la, to
obtain that it should ever be present in the people$s consciousness, its language as much as possible
should be understood in the sense they have in common use.4
In t*is case, Ke s*oul! +o one step ,urt*er. Ke s*oul! not li(it Ourselves to loo-in+ at t*e )or!s o,
t*e Constitution as or!inar an! si(ple lan+ua+e #ut Our reasonin+ in t*e !ecision itsel, s*oul! #e
,ran- an! e6plicit. Our tas- is not a (ere (atter o, constitutional construction an! interpretation.
T*rou+* its !ecision, t*is Court s*oul! also spea- !irectl to t*e avera+e la(an, to t*e co((on
people.
%%
TCE '3>TI30 03K P>OC03'3TION
0n -eptember *A, &('* the President announced that, on -eptember *&, &('* or t,o days earlier,
he had, pursuant to Proclamation ?o. &9)&, declared a state of martial la, in the Philippines. he
President cited and detailed many acts of insurrection and rebellion against the government of the
!epublic of the Philippines committed by la,less elements and various front organi"ations in order to
sei"e political and state po,er. Proclamation ?o. &9)& concludes K
po,ers vested upon me by Article 6%%, -ection &9, paragraph ;*< of the Constitution, do hereby place
the entire Philippines as defined in Article &, -ection & of the Constitution under martial la, and, in my
capacity as their commanderCinCchief, do hereby command the armed forces of the Philippines, to
maintain la, and order throughout the Philippines, prevent or suppress all forms of la,less violence
as ,ell as any act of insurrection or rebellion and to enforce obedience to all the la,s and decrees,
orders and regulations promulgated by me personally or upon my direction.
%n addition, % do hereby order that all persons presently detained, as ,ell as all others ,ho may
hereafter be similarly detained for the crimes committed in furtherance or on the occasion thereof, or
incident thereto, or in connection there,ith, for crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of names, uniforms, and insignia, crimes
committed by public officer, and for such other crimes as ,ill be enumerated in 0rders that % shall
subse#uently promulgate, as ,ell as crimes as a conse#uence of any violation of any decree, order
or regulation promulgated by me personally or promulgated upon my direction shall be kept under
detention until other,ise ordered released by me or by my duly designated representative.
888 888 888
%%%
3>>EST OF TCE PETITIONE>S
=nder a state of martial la,, petitioners or the persons in ,hose behalf petitions for ,rits of *a#eas
corpus have been filed ,ere on various dates arrested and detained. he orders of arrest ,ere
premised on 3eneral 0rder ?o. * of the President dated -eptember **, &('* & ,hich ,as amended
by 3eneral 0rder ?o. *CA, on -eptember *2, &('*. 3eneral 0rder ?o. *CA reads7
Pursuant to Proclamation 0rder ?o. &9)&, dated -eptember *&, &('*, and in my capacity as
CommanderCinCChief of all the Armed 1orces of the Philippines, % hereby order you as -ecretary of
?ational Defense to forth,ith arrest or cause the arrest and take into your custody the individuals named
in the attached lists for being participants or for having given aid and comfort in the conspiracy to sei"e
political and state po,er in the country and to take over the government by force, the e8tent of ,hich has
no, assumed the proportion of an actual ,ar against our people and our legitimate government and in
order to prevent them from further committing acts that are inimical or injurious to our people, the
government and our national interest, and to hold said individuals until other,ise so ordered by me or by
my duly designated representative.
+ike,ise, % do hereby order you to arrest or cause the arrest and take into custody and to hold them until
other,ise ordered released by me or by my duly designated representative7
&. -uch persons as may have committed crimes and offenses in furtherance or on the occasion of or
incident to or in connection ,ith the crimes of insurrection or rebellion as defined in Articles &AJ to &A) of
the !evised Penal Code, and other crimes against public order as defined in Articles &J2, &J', &J), &J(,
&B&, &BA, &BJ, &BB, and &B2 of the same Code:
*. -uch persons ,ho may have committed crimes against national security and the la,s of the nation, as
enumerated and defined in itle % of the !evie, Penal Code:
888 888 888
Arrests and detentions under a martial la, proclamation are not necessarily limited to those ,ho have
actually committed crimes and offenses. More specifically, those arrested and taken into custody
under 3eneral 0rder ?o. *CA fall under three general groups7
&. hose ,ho appear to have actually committed crimes and offenses and ,ho should be charged and
punished for such crimes and offenses pursuant to our penal la,s:
*. hose ,ho have been arrested not to make them account for crimes and offenses but to prevent them
from committing acts inimical or injurious to the objectives of a martial la, proclamation: and
A. hose ,ho appear to have actually committed crimes and offenses but ,hose prosecution and
punishment is deferred because the preventive nature of their detention is, for the moment, more
important than their punishment for violating the la,s of the land.
Criminal charges have been filed against petitioner Benigno -. A#uino, .r., and he, therefore, may fall
under 3roup ?o. & and the 4preventive4 aspect of 3roup ?o. A. %t is true that he #uestions the validity
of the charges, raises as an issue the deprivation of fundamental rights of an accused, and
challenges the jurisdiction of a military commission to try him. >o,ever, determination of these
#uestions is properly for another proceeding and another decision. 1or purposes of these *a#eas
corpus petitions, he and many others similarly situated may fall under 3roups & and A.
Petitioner .ose E. Diokno can fall under 3roup ?o. * and 3roup ?o. A, as far as the record indicates.
hus, there may be persons arrested pursuant to 3eneral 0rder ?o. * ,ho may fall under the second
group but against ,hom charges could be filed as under the third group. hey have not been charged
for reasons obviously related to national security. he administration may have determined that, in
the light of the martial la, situation, it is neither ,ise nor e8pedient to file such charges no,.
he constitutionality of the arrest of those arrested under 3roup ?o. & cannot be #uestioned. hey
have committed a crime and therefore can be ordered arrested and detained.
he constitutionality of the arrest of those arrested under 3roups ?os. * and A, under martial la,
finds support in the book of .ustice 1ernando and -enator aLada: the pertinent part of said book
reads as follo,s7
Once (artial la) *as #een !eclare!, arrest (a #e necessar not so (uc* ,or punis*(ent #ut #
)a o, precaution to stop !isor!er. As long as such arrest are made in good faith and in the honest
belief they are needed to maintain order, the President. as CommanderCinCChief, cannot thereafter,
after he is out of office, be subjected to an action on the ground that he had no reasonable ground for
his belief. Ehen it comes to a decision by the head of the -tate upon a matter involving its life, the
ordinary rights of individual, must yield to ,hat he deems the necessities of the moment. Public
danger ,arrants the substitution of e8ecutive process. his is admitted ,ith regard to killing men in
the actual clash of arms and the same is true of temporary detention to prevent apprehended harm.
3ood faith and honest belief in the necessity of the detention to maintain order thus furnishes a good
defense to any claim for liability. ;aLada and 1ernando, Constitution o, t*e P*ilippines, 6ol. %%, pp.
&9&AC &9&J, &(BA ed.<
%6
TCE PETITIONS FO> K>ITS OF C3"E3S CO>PES
;a< T*e Groun!s T*ere,or=
Petitions for ,rits of *a#eas corpus ,ere accordingly filed in this Court by or in behalf of the arrested
and detained individuals. he petitions contain substantially similar grounds and prayers.
1or instance, in 3.!. ?o. +CABBA(, Carmen %. Diokno pressed for the urgent and immediate release of
-enator .ose E. Diokno from the custody of either the respondents, their agents, instruments,
au8iliaries or servants. %t is alleged that the respondents unla,fully or illegally and ,ithout any valid
authority ,hatsoever, in violation of the petitioner$s rights as a citi"en of the !epublic, sei"ed his
person from his residence and moved him to a place of confinement and detention. he petition also
alleges that no charges have been filed against .ose E. Diokno for committing or having committed
insurrection or rebellion or subversion and that the memorandum directing his arrest is neither an
order of arrest nor a ,arrant of arrest.
he petition in 3.!. ?o. +CABBJ2 alleges that petitioners Benigno -. A#uino, .r., !amon 6. Mitra, .r.,
1rancisco -. !odrigo, and ?apoleon !ama have been illegally detained and unla,fully deprived of
their personal liberty beyond the period authori"ed by la, ,ithout any formal complaint for any
specific offense having been instituted against them before our courts of la, and ,ithout any judicial
,rit or order having been issued authori"ing their confinement. %t is alleged that the petitioners have
not committed any crime nor violated any la,, rule or regulation ,hether individually or in
collaboration ,ith other person or persons for ,hich they may be detained and deprived of their
personal liberty ,ithout any formal charge or judicial ,arrant.
A common allegation in the various petitions challenges the validity of Presidential Proclamation ?o.
&9)&. %t is asserted that Proclamation ?o. &9)& declaring martial la, is illegal and unconstitutional
and, therefore, null and void because the conditions under ,hich martial la, may be declared by the
President do not e8ist. he petition in 3.!. ?o. +CABBJ2 states that assuming ar+u(enti +ratis that
the conditions for the valid e8ercise of the e8traordinary po,er to declare martial la, e8ist,
Proclamation ?o. &9)& and Presidential Decrees and 0rders issued pursuant thereto are
unconstitutional and illegal in e8tent and scope because they deprive the -upreme Court of its
constitutional po,er and authority to determine the constitutionality, legality and validity of the
decrees, orders, rules and regulations issued pursuant to the proclamation. %t is alleged that the
proclamation is unconstitutional and illegal because it divests and ousts the civil courts throughout the
Philippines of the jurisdiction to decide and punish certain offenses under the e8isting la,s of the
land. he petition emphasi"es that civil courts continue to remain open and have in fact never ceased
to function. he petition challenges the validity of Proclamation ?o. &9)& because it grants to the
President po,ers ,hich are other,ise vested by the Constitution in other departments of the
3overnment.
Corollary to the above allegations in 3.!. ?o. +CABBJ2 is the allegation of petitioners 6eronica +.
@uyitung and an Chin >ian in 3.!. ?o. +CABBB2 that assuming ,ithout admitting the validity of
Proclamation ?o. &9)&, the issuance of such a proclamation is not a valid justification to arrest any
person ,himsically or arbitrarily or ,ithout the necessary basis or foundation inherent in the proper
arrest or detention.
he petition in 3.!. ?o. ABBJ' alleges that petitioner /. 6oltaire 3arcia %% has not committed the
crimes of insurrection, rebellion or subversion nor any crime similar thereto nor any crime at all. %t
states that his continued illegal detention prevents him from performing his function as member of the
Constitutional Convention and, therefore, deprives his district of representation ,hich is obviously
against public policy and public interest. he petition asks the -upreme Court to take judicial notice of
the fact that there ,as no invasion, insurrection, or rebellion or imminent danger thereof before andFor
after the date of Proclamation ?o. &9)& that may re#uire for the public safety the placing of any part
of the country under martial la,. !eiterating the allegations in the other petitions, it outlines ho,,
throughout the length and breadth of the country especially in the 3reater Manila area, all e8ecutive
offices are functioning in complete normalcy: ho, all courts from the lo,est municipal courts to the
-upreme Court are in full operation: ho, the different legislative bodies from barrio councils up to
Congress are like,ise functioning smoothly according to la,.
Petitioner /rnesto !ondon in 3.!. ?o. +CABB'A alleges that pursuant to Proclamation ?o. &9)& the
President issued 3eneral 0rder ?o. A ,hich creates military tribunals to take jurisdiction over certain
acts and crimes to the e8clusion of civil courts. he petition alleges that the creation of such military
tribunals and the vesting thereof ,ith judicial functions are null and void because civil courts are open
and functioning. %t #uestions the intent to try the petitioner before the military tribunals for any crime
,hich the respondents may impute to him. he petitioner alleges that he has not engaged in any of
the criminal activities defined in Proclamation ?o. &9)&, that, at best, he is only a critic of the policies
of the 3overnment and, at ,orst, a civilian citi"en amenable to the processes of civilian la,, if at all
he has committed any offense.
;b< Present Status o, Petitioners=
As things no, stand, the different petitioners may be divided into four ;J< groups7
&. -ome petitioners like 6eronica +. @uyitung, an Chin >ian, Bren 3uiao, >ernando .. Abaya,
/rnesto 3ranada, +uis Beltran, !uben Cusipag and Eillie Baun have already been released from
custody of the respondents and are no longer under detention. hese petitioners earlier filed motions
to ,ithdra, their cases and the Court readily approved the ,ithdra,al of the petitions.
*. -ome petitioners like .oa#uin 6. !oces, eodoro M. +ocsin, -r., !olando 1adul !osalind 3alang,
3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !. Mauricio, .uan +. Mercado, !oberto
0rdoLe" and Manuel Almario have like,ise been released from respondents$ custody and are also
no longer detained. >o,ever, after an initial period of silence follo,ing their release, the petitioners
have manifested that they have long been conditionally released subject to various conditions and
continuing restrictions thus implying they e8pect a decision on their petitions. Petitioner 1rancisco -.
!odrigo has also filed a manifestation stating that ,hile he ,as released from detention at 1ort
Bonifacio, Pue"on City on December B, &('*, his release ,as conditional and subject to certain
restrictions. >is manifestation ,as filed for the purpose of sho,ing that insofar as he is concerned,
his petition for *a#eas corpus is not moot and academic. Petitioner 1rancisco -. !odrigo is, therefore,
asking this Court to render a decision on his petition for a ,rit of *a#eas corpus.
A. 0n the other hand, petitioner .ose E. Diokno ,as under detention until very recently. 1or reasons
,hich ,ill be discussed later, he has, ho,ever, asked for and insisted upon the ,ithdra,al of his
petition in spite of the fact that he is under detention. Before this opinion could be promulgated,
ho,ever, he has been ordered released by the President on the occasion of his /8cellency$s
birthday, -eptember &&, &('J, together ,ith some other detainees under martial la,.
J. Petitioner Benigno -. A#uino, .r., is still under detention. Charges have been filed before a military
commission for various crimes and offenses but the petitioner challenger: the jurisdiction of military
courts. >e has not filed any motion to ,ithdra, his petition. Based on his pleadings and his challenge
to the jurisdiction of military tribunals, the petitioner states that it is incumbent upon this Court to rule
upon the merits of the petition. >e ,ants information filed before civilian courts and invokes
constitutional rights to free him from military detention. Petitioner Benigno -. A#uino, .r., is insistent
that this Court render a decision on his petition for a ,rit of *a#eas corpus.
6
3NSKE> OF >ESPON.ENTS=
TCE ISSEES
he ans,er of the respondents states that on -eptember *&, &('*, the President of the Philippines,
in the e8ercise of po,ers vested in him by Article 6%%, -ection &9, paragraph * of the Constitution,
issued Proclamation ?o. &9)& placing the entire Philippines under martial la,. All the acts #uestioned
by the petitioners are justified by orders and instructions of the President issued pursuant to the
proclamation of martial la,. he mail #uestion that confronts the ribunal is, therefore, the validity of
Proclamation ?o. &9)&. %f it is tainted ,ith unconstitutionality, then all the acts taken pursuant to the
proclamation are void. %t ,ill then follo, that the arrest and detentions of the petitioners are void.
0n the other hand, if the proclamation of martial la, is sustained, ,e still have to determine its scope
and effects. Ee must ans,er these #uestions7 May ,e in#uire into the validity of its continuationI %s a
suspension of the privilege of the ,rit of *a#eas corpus automatically included in a proclamation of
martial la,I
0ther #uestions also arise ,hich, ho,ever, need be decided by =s only in a general manner in the
present cases. May the CommanderCinCChief issue orders ,ith the force and effect of legislationI
May such legislation cover subjects ,hich are not directly related to the con#uest of the particular
crisisI %n other ,ords, does the proclamation of martial la, give the President authority to pass
legislation not directly related to invasion, insurrection, rebellion, or imminent danger thereof.I %f
civilian courts are open and functioning, may the President issue decrees and orders ,hich transfer
some of their jurisdiction to military tribunalsI
%ncidental issues have also been raised in the light of the main issue of martial la,. 0ne is no longer
before this Court but may be mentioned in passing. he &('A Constitution increased the composition
of the Court from eleven ;&&< to fifteen ;&B<. At a time ,hen there ,ere only nine ;(< members carried
over from the old Court, may these nine members the Acting Chief .ustice and eight members K
validly hear a constitutional issueI %s there a #uorum under Article D, section * ;*< ,hich reads7
;*< All cases involving the constitutionality of a treaty, e8ecutive agreement, or la, shall be heard and
decided by the -upreme Court en #anc and no treaty, e8ecutive agreement, or la, may be declared
unconstitutional ,ithout the concurrence of at least ten Members. All other cases ,hich under its rules are
re#uired to be heard en #anc, shall be decided ,ith the concurrence of at least eight Members.
Ee no, have a Chief .ustice and eleven members so the problem of a #uorum is solved.
Another incidental issue is the po,er of this Court to in#uire into the conditions of detention of
petitioners. And still another issue is ,hether one of the petitioners may, at a time ,hen a decision is
ready to be promulgated, ,ithdra, his petition and avoid a decision on the issues he has raised.
6%
ON PETITIONE> .IOGNODS 'OTION
TO KITC.>3K
he first issue to resolve is an incidental but important one. %t is also the most recent.
;a< 3r+u(ents Pro an! Con=
%n a Motion to Eithdra, dated December *(, &('A, petitioner .ose E. Diokno asked leave of court to
,ithdra, the petition for *a#eas corpus filed in his behalf. >e asked for the ,ithdra,al of the main
petition and other pleadings filed in the case. he reason given for the ,ithdra,al ,as 41irst, though %
am convinced beyond any nagging doubt that ,e are on the side of right and reason, la, and justice,
% am e#ually convinced that ,e cannot reasonably e8pect either right or reason, la, or justice to
prevail in my case ... ;and< -econd, in vie, of the ne, oath that its members have taken, the present
-upreme Court is a ne, Court functioning under a ne, Constitution, different from the Court under
,hich % applied for my release. % ,as ,illing to be judged by the old Court under the old Constitution
but not by the ne, Court under the ne, Constitution because as Albert Camus$ judge penitent said in
the novel $he 1all$7 $he ,ho clings to a la, does not fear the judgment that puts him in his place
,ithin an order he believes in. But the keenest of human torments is to be judged ,ithout la,.4
0n being re#uired to comment on the petitioner$s motion to ,ithdra,, the -olicitor 3eneral stated that
the petitioner > should not be allo,ed to remove his case from this Court. hree reasons ,ere given7
;a< that the charge is unfair to the -upreme Court and its members: ;b< that it is untrue and ;c< that in
the main, it is contemptuous. he -olicitor 3eneral disputed, as unfair, the charge that justice cannot
be e8pected from the -upreme Court. >e pointed out that the -upreme Court did not inject itself into
the controversy but it ,as the petitioner ,ho invoked the Court$s jurisdiction not only in this case but
the plebiscite cases as ,ell. he -olicitor 3eneral noted that the scorn ,ith ,hich the Court is treated
in the motion to ,ithdra, stands in sharp contrast ,ith the praise lavished on it ,hen petitioners
began these proceedings.
%t may be noted that the -upreme Court ,as then characteri"ed as having the greatest credibility
among the three branches of government. %t ,as described as a dispenser of justice and as the last
citadel of their liberties.
%n his Memorandum, petitioner manifested and stressed the importance of a decision K 4the decision
in this case, )*atever it (a #e, ,ill be cited in history books many years from no,. And it ,ill be
#uoted ,herever lovers of freedom ask the #uestion ... Ehat did the Court do in that difficult hourI4
he petitioner further stated in the Memorandum that 4the duty of this Court is a,esome indeed. %ts
responsibility to 0ur people and to history is heavier and more enormous than ,ords and phrases
can possibly describe.4
%n contrast to this insistence on a decision, a portion of the motion to ,ithdra, cited by the
respondents may be repeated7
G%Ht seems to me that our people have the right to e8pect members of the highest court of the land to
display a conscience more sensitive, a sense of mental honesty more consistent than those generally
displayed in the market place. And it has pained me to note that, in s,earing to support the ne,
$Constitution$, the five members of the Court ,ho had held that it had not been validly ratified, have not
fulfilled our e8pectations. % do not blame them % do not kno, ,hat % ,ould have done in their place. But, as
the same time, % cannot continue to entrust my case to them: and % have become thoroughly convinced
that our #uest for justice in my case is futile. ;p. 2<.
%ssue ,as also taken by the respondent ,ith the petitioner$s charge that despite the finding of a
majority that the ne, Constitution had not been validly ratified, the Court nonetheless dismissed the
petitions seeking to stop the enforcement of the Constitution. he allegation that the justices of this
Court took an oath to support the Constitution because they had been allo,ed to continue in office
,as challenged as false by the respondents.
he third ground for the respondents$ opposition to the motion to ,ithdra, is the allegedly
contemptuous nature of the motion. he Comment states that attacks on the Court are most serious:
none of those made in the past has put the court$s integrity and capacity for justice in serious
#uestion as much as the petitioner$s motion to ,ithdra,. According to the -olicitor 3eneral, the
charge in the case at bar goes to the very foundation of our system of justice and the respect that is
due to, it, that it is subversive of public confidence in the impartiality and independence of courts and
tends to embarrass the administration of justice. he -olicitor 3eneral manifested that 4,e cannot
shape the ,orld of the -upreme Court as ,e ,ant to see it and, later seeing the ,orld of reality, lash
at the -upreme Court for betraying our illusions.4
%n succeeding pleadings, petitioner Diokno pressed his motion to ,ithdra, ,ith even greater vigor.
Counsel for petitioner stated that the soCcalled charge K 4unfair to the Court and its members, untrue,
and contemptuous4 K ,as never made at all and that the -olicitor 3eneral ,as putting up a
stra,man and proceeding to demolish it.
%n a fortyCsi8 ;J2< page !eply, he pointed out that the factual bases for deciding to ,ithdra, the case
have not been specifically denied, as indeed they are undeniable. %t should be noted, ho,ever, that
the cited factual bases go into the very merits of the petition for the ,rit of *a#eas corpus7
;&< 0n the #uestion of the validity of ratification, si8 ;2< members of the Court held that the proposed
Constitution ,as not validly ratified.
;*< 0n the #uestion of ac#uiescence by the 1ilipino people, only a minority of four ;J< justices held there
,as ac#uiescence, t,o ;*< holding that there ,as no ac#uiescence, and four ;J< holding they had no
means of kno,ing to the point of judicial certainty, ,hether the people have accepted the Constitution.
;A< he Court did not rule that the 4ne, Constitution4 ,as in effect.
;J< he ratification cases ,ere nevertheless dismissed.
he petitioner added 4undeniable facts47
;&< he petition for *a#eas corpus ,as filed -eptember *A, &('* ,hile the ratification cases ,ere riled
.anuary *9 and *A, &('A.
;*< 1rom the filing of the petition to the date Petitioner Diokno asked his counsel to ,ithdra, the case,
J29 days had elapsed.
;A< 0n the date the reply ,as filed, BA& days had elapsed ,ithout charges being filed or trial and
conviction for any offense being held.
;J< All the members of the old Court, ,ho had taken an oath to 4preserve and defend4 the &(AB
Constitution, took an oath on 0ctober *(, &('A to defend the 4ne, Constitution4.
%n disputing the -olicitor 3eneral$s charge that the -upreme Court is treated ,ith scorn in the Motion
to Eithdra,, the petitioner stated that the tone of the motion may be one of dismay or frustration but
certainly not of scorn. he petitioner called the charge gratuitous and totally bare of foundation.
he petitioner also pointed out that there could be no contempt of court in the motion to ,ithdra,
because the factual bases of his letter are indisputable and the motion comes under the protection of
the constitutional right to a fair hearing. >e invoked his right to free e8pression as a litigant and
stressed that a citi"en of the !epublic may e8press himself thoughtfully, sincerely and reputably
,ithout fear of reprisal. he petitioner also pointed out that both principle and precedent justify grant
of the motion to ,ithdra,.
;b< ' ori+inal stan!= 'otion s*oul! #e !enie!7
>easons7
' present stan!7 %n vie, of the release of Diokno before this opinion could be promulgated, % no,
vote to grant his motion to ,ithdra, his petition the same having become moot and academic.
But, % ,ould like to discuss the merits of the motion if only to establish guidelines for similar cases that
may arise in the future. .
As a general rule, the right of the plaintiff to dismiss his action ,ith the consent of the Court is
universally recogni"ed. %f the plaintiff believes that the action he has commenced in order to enforce a
right or to rectify a ,rong is no longer necessary or he later discovers that the right no longer e8ists,
he should be allo,ed to ,ithdra, his case. %f in the course of litigation, he finds out that the course of
the action shall be different from that he had intended, the general rule is that he should be permitted
to ,ithdra, the same, subject to the approval of the Court.
he plaintiff should not be re#uired to continue the action ,hen it is not to his advantage to do so.
+itigation should be discouraged and not encouraged. Courts should not allo, parties to litigate ,hen
they no longer desire to litigate.
%t should be noted, ho,ever, that the !ules of Court do not allo, automatic approval of the plaintiff$s
motion to dismiss after service of the ans,er or of a motion for summary judgment. =nder !ule &', >>
once the issues are joined, an action can be dismissed upon the plaintiffs instance only upon order of
the Court and upon such terms and conditions as the Court deems proper.
he re#uirement in the !ules that dismissal is discretionary upon the Court is not ,ithout significance.
%n fact, the petitioner does not deny the authority of the Court to reject his motion as long as there are
reasons for such rejection. >e is simply arguing that there is no valid reason to deny the motion thus
implying that a denial ,ould, in effect, be an abuse in the e8ercise of a discretionary po,er.
%n the Court$s deliberations, the vie, ,as advanced that petitioner$s motion for ,ithdra,al made his
confinement voluntary. % disagreed, for said motion, in the light of the other pleadings and memoranda
submitted by him, can still be considered as a protest against his confinement. %n other ,ords,
petitioner has not made any statement upon ,hich ,e can base a conclusion that he is agreeing
voluntarily to his continued confinement and thereby making his case moot and academic.
% submit there can be no debate over the principle that the right to ,ithdra, a petition at this stage is
not an absolute right. Ehat faces this Court is not its po,er to grant or deny the motion but ,hether
there are sound reasons ,hy the motion to ,ithdra, should be denied. %f there are no sound reasons,
the motion should be granted.
According to the petitioner, there are only t,o instances ,hen a Court may validly deny such a
,ithdra,al K
;&< Ehen the ,ithdra,al ,ould irreparably injure other parties to the case such as, for e8ample, in
class suits, in probate proceeding or in ordinary civil actions ,hen the adverse party has pleaded a
counterclaim that cannot be decided ,ithout first deciding the main case: and
;*< Ehen the ,ithdra,al ,ould irreparably injure the public interest by depriving the Court of the
opportunity to prevent or to correct a serious violation of the Constitution or of the la,s.
% am not prepared to accept the proposition or to render an abstract opinion that there are indeed only
t,o such e8ceptions. he infinite number of factual situations that can come before this Court could
conceivably add one or t,o or even more e8ceptions. %t ,ould be imprudent or precipitate to make
such a categorical assertion. Ehere it not for the release of Diokno, % ,ould have on my firm belief
that the importance of this case and the issues raised by the petitioner call for denial of the motion to
,ithdra,. he points ably raised by -olicitor 3eneral /stelito P. Mendo"a and Assistant -olicitor
3eneral 6icente 6. Mendo"a, ,ho have sho,n remarkably splendid performance in shouldering
almost entirely the government$s defense against some of the country$s most distinguished la,yers,
notably former -enator +oren"o M. aLada and a battery of other la,yers ,hose names are a
veritable list of 4Eho is Eho4 in the legal profession, can be condensed into only one argument K the
petitioners have brought before this Court a case of such transcendental importance that it becomes
a duty to our legal institutions, to our people, and to posterity to decide it. Ee must not leave the
resolution of such grave issues to a future day.
1urthermore, among the present *a#eas corpus cases no, before this Court, the best forum for 0ur
decision ,ould have been the Diokno case for, before his release, he ,as the only petitioner ,ho ,as
actually detained but ,ithout charges, ,hile there are already charges filed against A#uino, and ,ith
respect to the others ,hose cases are still pending before =s, they are only under detention ,ithin
the 3reater Manila area or are under community arrest.
he petitioner seeks to distinguish his case from Griven-o vs. >e+ister o, .ee!s, '( Phil. J2&. %n that
case, this Court ruled K
According to !ule B*, section J, of the !ules of Court, it is discretionary upon this Court to grant a
,ithdra,al of appeal after the briefs have been presented. At the time the motion for ,ithdra,al ,as filed
in this case, not only had the briefs been presented, but the case had already been voted and the majority
decision ,as being prepared. he motion for ,ithdra,al stated no reason ,hatsoever, and the -olicitor
3eneral ,as agreeable to it. Ehile the motion ,as pending in this Court, came the ne, circular of the
Department of .ustice, instructing all register of deeds to accept for registration all transfers of residential
lots to aliens. he herein respondentCappellee ,as naturally one of the registers of deeds to obey the ne,
circular, as against his o,n stand in this case ,hich had been maintained by the trial court and firmly
defended in this Court by the -olicitor 3eneral. %f ,e grant the ,ithdra,al, the result ,ould be that
petitionerCappellant Ale8ander A. Nrivenko ,ins his case, not by a decision of this Court, but by the
decision or circular of the Department of .ustice, issued ,hile this case ,as pending before this Court.
Ehether or not this is the reason ,hy appellant seeks the ,ithdra,al of his appeal ,hy the -olicitor
3eneral readily agrees to that ,ithdra,al, is no, immaterial. Ehat is material and indeed very important,
is ,hether or not ,e should allo, interference ,ith the regular and complete e8ercise by this Court of its
constitutional functions, and ,hether or not after having held long deliberations and after having reached
a clear and positive conviction as to ,hat the constitutional mandate is, ,e may still allo, our conviction
to be silenced, and the constitutional mandate to be ignored or misconceived, ,ith all the harmful
conse#uences that might be brought upon the national patrimony. 1or it is but natural that the ne,
circular be taken full advantage of by many, ,ith the circumstance that perhaps the constitutional
#uestion may never come up again before this court, because both vendors and the vendees ,ill have no
interest but to uphold the validity of their transactions, and very unlikely ,ill the register of deeds venture
to disobey the orders of their superior. hus the possibility for this court to voice its conviction in a future
case may be remote, ,ith the result that our indifference of today might signify a permanent offense to the
Constitution. ;pp. J22CJ2'<
here are indeed certain differences bet,een the facts of the Griven-o case and the facts of the
current petitions. %f the factual situations ,ere completely similar, former -enator +oren"o M. aLada
,ould have been the last person to insist on the Diokno motion for ,ithdra,al. >e ,as the -olicitor
3eneral in &(J'. >e is completely familiar ,ith the ramifications of the Griven-o case.
% cannot, ho,ever, agree ,ith counsel aLada that the deviations from the Griven-o facts call for a
different ruling in the instant petitions. he -upreme Court has grappled at length and in depth ,ith
the validity of the proclamation of martial la,. %t has closely e8amined the resultant curtailments of me
liberties as the right to a ,rit of *a#eas corpus or to freedom of e8pression. Ehen it is on the verge of
issuing a decision, it is suddenly asked to drop the case and the issues raised simply because the
petitioner is no longer interested in the decision. o my mind, a granting of the motion ,ould be
recreancy and unfaithfulness to the Courts s,orn duties and obligations.
As in the Griven-o case, the reasons for the ,ithdra,al are no longer significant. %t is the nonC
silencing of this Court on issues of utmost public importance ,hich really matters. %t is true that
petitioner Diokno is alone in seeking ,ithdra,al at this stage of the case. he fact that a decision
could possibly still be rendered on remaining cases is, ho,ever, no justification to grant the motion.
he issue is ,hether one or t,o or all of the petitioners may ask for a ,ithdra,al of his or their
petitions and hope to bring about a nonCdecision on the issues because of the rendering moot and
academic of the case. My ans,er is categorically in the negative. %n fact, even it the case is mooted
at this stage by the release of the petitioners, % ,ould still vote for a decision on the #uestions raised.
T*is (a #e a si(ple (otion ,or )it*!ra)al. Yet, I see no !i,,erence in t*e nee! to ans)er vital
;uestions t*at *ave #een presente!. T*e pu#lic interest t*at is a,,ecte! is e;uall pressin+ an!
serious i, t*e petitions are co(pare! to instances in t*e past )*en t*e Court insiste! on ren!erin+ a
!ecision. In ,act, t*ere is an even stron+er nee! to interpret t*e (eanin+ o, t*e constitutional
provision in spite o, ur+in+s t*at it s*oul! re,rain ,ro( !oin+ so.
As early as &(A', this Court, speaking through .ustice +aurel in People o, t*e P*ilippine Islan!s v.
@era ;2B Phil, B2, (J< emphatically stated that ,hen the country a,aits a decision on an important
constitutional #uestion, a rela8ation of general rules is called for. A decision must issue.
... All a,ait the decision of this Court on the constitutional #uestion. Considering, therefore, the
importance ,hich the instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that the constitutionality of Act ?o. J**& be no, resolved. ... %n Yu Con+ En+ vs.
Trini!a!, supra, an analogous situation confronted us. Ee said7 4%nasmuch as the property and personal
rights of nearly t,elve thousand merchants are affected by these proceedings and inasmuch as Act ?o.
*('* is a ne, la, not yet interpreted by the courts, in the interest of the public ,elfare and for the
advancement of public policy, ,e have determined to overrule the defense of ,ant of jurisdiction in order
that ,e may decide the main issue. Ee have here an e8traordinary situation ,hich calls for a rela8ation of
the general rule.4 0ur ruling on this point ,as sustained by the -upreme Court of the =nited -tates. A
more binding authority in support of the vie, ,e have taken can not be found.
%n the case of 3velino vs. Cuenco ;(A Phil. &'<, the -upreme Court had very sound reasons to
resolve on March J, &(J( not to decide ,hether or not -enator Cuenco had validly been elected
-enate President. he Court ruled that the subject matter of the ;uo )arranto proceeding to declare
the petitioner the rightful President of the Philippine -enate and to oust the respondent ,as not a
matter for the -upreme Court in vie, of the separation of po,ers doctrine, the political nature of the
controversy, and the constitutional grant to the -enate of the po,er to elect its o,n President. he
po,er to elect its President should not be interfered ,ith nor taken over by the judiciary.
0n March &J, &(J( or only ten ;&9< days later, the Court, by a majority of seven, decided to resolve
the #uestions presented to it. he Court could very ,ell have insisted on its earlier stand that it should
render no decision. /lection of the -enate President ,as still a matter ,hich only the -enate should
decide. And yet, in the light of subse#uent events ,hich justified its intervention, partly for the reasons
stated in the March J, &(J( resolution of the Court, and partly because of the grounds stated in the
various individual opinions, the Court ,as constrained to declare positively that there ,as a #uorum
in the session ,here Cuenco ,as elected Acting -enate President. he Court decided to reverse a
categorical position taken only ten ;&9< days earlier. %t is clear from the circumstances of the case that
the Court ,as impelled by strong policy considerations to make a definite pronouncement in the case
in order to conform to substantial justice and comply ,ith the re#uirements of public interest. As
pointed out by .ustice Perfecto in his concurring opinion, 4his case raises vital constitutional
#uestions ,hich no one can settle or decide if this Court should refuse to decide them.4
%n Gonzales vs. Co((ission on Elections, ;*' -C!A )BA<, the ,ords of .ustice +aurel ,ere recalled
in order to overcome objections to an e8tended decision on a case ,hich had become moot and
academic.
%n the course of the deliberations, a serious procedural objection ,as raised by five members of the Court
;Chief .ustice Concepcion and .ustices !eyes, Makalintal, eehankee and Barredo.< %t is their vie, that
respondent Commission on /lections not being sought to be restrained from performing any specific act,
this suit cannot be characteri"ed as other than a mere re#uest for an advisory opinion. -uch a vie,, from
the remedial la, standpoint, has much to recommend it. ?onetheless, a majority ,ould affirm the original
stand that under the circumstances, it could still rightfully be treated as a petition for prohibition.
he language of .ustice +aurel fits the case7 $All a,ait the decision of this Court on the constitutional
#uestion. Considering, therefore, the importance ,hich the instant mm has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that GitsH constitutionality ... be no, resolved.$
;2B Phil. B2, (J ;&(A'< Cf. Yu Con+ En+ v. Trini!a!, J' Phil. A)B ;&(*2<, *'& =- B99: '9 +a, ed., &9B(<.
%t may like,ise be added that the e8ceptional character of the situation that confronts us, the paramount
public interest, and the undeniable necessity for a ruling, the national elections being barely si8 months
a,ay, reinforce our stand.
%t ,ould appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to
prevent the enforcement of an alleged unconstitutional statute. Ee are left ,ith no choice then: ,e must
act on the matter.
%n .e la Ca(ara v. Ena+e ;J& -C!A &<, this Court ,as similarly impelled to make a decision because
of strong policy considerations. A petition to reduce the P&,&(B,*99.99 bail imposed by the trial court
had become moot and academic. he petitioner had escaped from the provincial jail. he Court could
no longer grant any relief. %t, ho,ever, decided the case 4to set forth ane, the controlling and
authoritative doctrines that should be observed in fi8ing the amount of the bail sought in order that full
respect be accorded to such a constitutional right.4 ;at page J<. /ducation, especially of trial judges,
,as the reason for ans,ering the issues s#uarely.
% ,ould like to reiterate, ho,ever, that in vie, of the fact that petitioner Diokno has been released on
the occasion of President Marcos$ birthday ;-eptember &&<, % no, vote to grant the Diokno motion to
,ithdra, his petition for a ,rit of *a#eas corpus, the same having become moot and academic.
6%%
COE>TS .ETY TO .ECI.E 300
I'PO>T3NT ISSEES H ON TCE PETITIONS
OF TCE PETITIONE>S
But as already stated under the topic %6 ;b< 4Present -tatus of the Petitioners4, many of them, notably
A#uino and !odrigo, still insist on a decision. his ,e must no, do, for the resolution of the
controversy in favor of the petitioners or for the respondents is not the compelling consideration. Ehat
is important and essential is that the Court declare in a manner that cannot be misunderstood ,hat
the Constitution commands and ,hat the Constitution re#uires.
%t is true that the Court should not formulate a rule of constitutional la, broader than is re#uired by the
precise facts to ,hich it is applied. %t is true that a decision on a #uestion of a constitutional nature
should only be as broad and detailed as is necessary to decide it.
here are, therefore, those ,ho ,ould limit a decision solely on the ransitory Provisions of the &('A
Constitution. he e8ercise of martial la, po,ers under Article 6%%, -ection &9, paragraph * of the
former Constitution or Article 6%%, -ection &* of the &('A Constitution have been subjected to
intensive, searching, and ,ellCpublished challenges.
1
%f Ee decide the case solely on the transitory
provision, uncertainty and confusion about martial la, ,ould remain. he provisions on martial la,
,ould still be une8plained and unresolved by this Court. %t is easy to see the patent undesirability of
such a situation.
%n these petitions, our people a,ait the decision of this Court on the constitutional #uestion.
Considering, therefore, the importance ,hich the instant petitions have assumed, Ee must set forth
the controlling and authoritative doctrines.
6%%
TCE TC>EE P>INCIP30 ISSEES
he -olicitor 3eneral stated the respondents$ position as a narro, one K ,hether the arrest and
detention of the petitioners ,ere legal.
%t is true that *a#eas corpus is intended for cases of illegal confinement or detention by ,hich a
person is deprived of his liberty ;-ection &, !ule &9*, !ules of Court<. %ts essential object is to in#uire
into all manner of involuntary restraint and to relieve a person therefrom, if such restraint is illegal
;6illavicencio vs. +ukban, A( Phil. ''): Culauag vs. Director of Prisons, &' -C!A J*(<. Ehile the
issue may be presented in seemingly narro, terms, its scope and implications are not that simple.
he respondents argue that this Court is precluded by the Constitution from in#uiring into the legality
of the detentions. hey argue that such an in#uiry is possible only ,here the privilege of the ,rit of
*a#eas corpus is available and inasmuch as the privilege of the ,rit has been suspended by the
President upon the proclamation of martial la,, it follo,s that Ee should inhibit 0urselves from
asking for the reasons ,hy the petitioners ,ere arrested and detained. %t is argued that the
Constitution has vested the determination of the necessity for and legality of detentions under martial
la, e8clusively in the Presidency K a coCe#ual department of government.
he principal issues, therefore, revolve around first, the validity of Proclamation ?o. &9)&. -econd,
assuming its original validity, may Ee in#uire into the validity of its continuationI And third, has the
privilege of the ,rit of *a#eas corpus also been suspended upon the proclamation of martial la,I he
e8tent of 0ur in#uiry into the legality of the detentions and their effects is dependent on the ans,ers
to the foregoing issues.
%D
P>OC03'3TION NO. $F&$9 3 .E@I3TION
F>O' TCE T>3.ITION30 CONCEPT OF
'3>TI30 03K9 3>GE'ENTS ON ITS
@30I.ITY
%n Proclamation ?o. &9)&, date -eptember *&, &('*, President 1erdinand /. Marcos placed the
entire Philippines as defined in Article &, -ection & of the Constitution under martial la, by virtue of
the po,er vested in the President of the !epublic of the Philippines by Article 6%%, -ection &9, par. ;*<
of the Constitution ,hich reads K
he President shall be the commanderCinCchief of all armed forces of the Philippines and, ,henever it
becomes necessary, be may call out such armed forces to prevent or suppress la,less violence,
invasion, insurrection, or rebellion. %n case of invasion, insurrection, rebellion or imminent danger thereof,
,hen the public safety re#uires it, he may suspend the privileges of the ,rit of *a#eas corpus, or place
the Philippines or any part thereof under martial la,.
;a< K*at is (artial la)2
As the -olicitor 3eneral pointed out ,hen asked to submit definitions of martial la,, there are as
many definitions as there are court rulings and ,riters on the subject. he response of the petitioners
gives the same impression.
As good !e,initions as any that may have been (a!e in t*e past are the follo,ing7
3enerally speaking, martial la, or, more properly, martial rule, is the temporary government and control
by military force and authority of territory in ,hich, by reason of the e8istence of ,ar or public commotion,
the civil government is inade#uate to the preservation of order and the enforcement of la,. %n strictness it
is not la, at all, but rather a cessation of all municipal la,, as an incident of the jus belli and because of
paramount necessity, and depends, for its e8istence, operation and e8tent, on the imminence of public
peril and the obligation to provide for the general safety. %t is essentially a la, or rule of force, a purely
military measure, and in the final analysis is merely the ,ill of the officer commanding the military forces.
As the offCspring of necessity, it transcends and displaces the ordinary la,s of the land, and it applies
alike to military and nonCmilitary persons, and is e8ercisable alike over friends and enemies, citi"ens and
aliens. ;C...-., 6ol. (A, pp. &&BC&&2, citing cases<.
Martial la, is the e8ercise of the po,er ,hich resides in the e8ecutive branch of the government to
preserve order and insure the public safety in times of emergency ,hen other branches of the
government are unable to function, or their functioning ,ould itself threaten the public safety4. ;+uther vs.
Borden, ' >os. ;=-< &, JB, &* + ed B)&, 299<. 4%t is a la, of necessity to be prescribed and administered
by the e8ecutive po,er. %ts object, the preservation of the public safety and good order, defines its scope,
,hich ,ill vary ,ith the circumstances and necessities of the case. he e8ercise of the po,er may not
e8tend beyond ,hat is re#uired by the e8igency ,hich calls it forth.4 ;Mitchell vs. >armony, &A >o, ;=-<
&&B, &AA, &J + ed 'B, )A: =nited -tates vs. !ussell, &A Eall. ;=-< 2*A, 2*), *9 + ed J'J, J'B: !aymond
vs. homas, (& =- '&*, '&2, *A + ed JAJ, JAB: -terling vs. Constantin, &(9. ;Concurring opinion, Duncan
vs. Nahanamoku A*' =.-. AAJ, AAB, (9 + ed '92 ;&(JBC&(J2<.
%t has been held, therefore, that martial la, is a 4la, of actual military necessity in actual presence of ,ar,
and is administered by the general of the army, ,hose ,ill it is, subject to slight limitations.4 ;Constantino
vs. -mith, D.C. e8t, B' 1. *d *A(<. =nder this same ruling, martial la, is strictly no la, at all. %t is a
cessation of all municipal la,.
%n another decision, it has been held that K
All respectable ,riters and publicists agree in the definition of martial la, K that it is neither more nor less
than the ,ill of the general ,ho commands the army. %t overrides and suppresses all e8isting la,s, civil
officers and civil authorities, by the arbitrary e8ercise of militar po,er and every citi"en or subject, in other
,ords, the entire population of the country, ,ithin the confines of its po,er, is subjected to the mere ,ill or
caprice of the commander. >e holds the lives, liberty and property of all in the palm of his hands. Martial
la, is regulated by no kno,n or established system or code of la,s, as it is over and above all of them.
he commander is the legislator, judge and e8ecutioner. ;%n re7 /gan ) 1ed. Cas. p. A2'<.
0ther definitions may be cited7
Martial la, ... is not statutory in character and al,ays arises out of strict military necessity. %ts
proclamation or establishment is not e8pressly authori"ed any of the provisions of the Constitution: it
comes into being only in the territory of an enemy or in a part of the territory of the =nited -tates in time of
,ar or in time of peace in ,hich the proper civil authority is, for some controlling reason, unable to
e8ercise its proper function. ;Charles Earren, 4-pies, and the Po,er of Congress to -ubject Certain
Classes of Civilian to rial by Military ribunal4, he American +a, !evie, +%%% ;MarchCApril, &(&(<, *9&C
*(*<.
he term martial la, refers to the e8ceptional measures adopted ,hether by the military or the civil
authorities, in times of ,ar of domestic disturbance, for the preservation of order and the maintenance of
the public authority. o the operation of martial la, all the inhabitants of the country or of the disturbed
district, aliens as ,ell as citi"ens, are subject. ;Moore, %nt. +a, Digest %%, &)2. As to the subjection of
aliens to Martial +a,, -ee Moore, %%, &(2<.
Martial la, relates to the domestic territory in a condition of insurrection or invasion, ,hen the Constitution
and its civil authorities, state or federal as the case may be, have been rendered inoperative or po,erless
by the insurrectionary or invading forces. %t is part of our domestic or municipal la,.4 ;Arnold 1., 4he
!ationale of Martial +a,4, &B ABA. BB&<.
A Philippine author has tried to reconcile the many definitions.
Ehatever the previous obscurity ,hich has enveloped martial la, in both the British /mpire and the
=nited -tates, it is settled today that martial la, is ;&< the e8ercise of military jurisdiction: ;*< by the
military over the civilian population: ;A< in a domestic territory: ;J< on occasion of serious public
emergencies such as insurrection, rebellion, invasion or imminent danger thereof: ;B< according to an
un,ritten la,: and ;2< as necessity re#uires. ;-antos, Martial +a,, p. )&<.
he e8isting definitions are all based on the traditional concepts. hey ,ere made at a time ,hen
invasions ,ere preceded by J)Chour ultimatums follo,ed by a formal declaration of ,ar, and ,hen
insurrections and rebellions involved frontal clashes bet,een opposing and ,ellCdefined forces. %f one
group ,as overcome by the other, the losers ,ould surrender their s,ords and guns. he ,inners, in
turn, might magnanimously offer to return the s,ords and allo, the losers to retain their sidearms,
rifles, and horses for home use. %n short, there ,ere clear and sporting rules of the game ,hich ,ere
generally follo,s.
;b< 'o!ern 'artial 0a).
Martial la, pursuant to Proclamation ?o. &9)&, ho,ever, does not completely follo, the traditional
forms and features ,hich martial la, has assumed in the past. %t is modern in concept, in the light of
relevant ne, conditions, particularly present day rapid means of transportation, sophisticated means
of communications, unconventional ,eaponry, and such advanced concepts as subversion, fifth
columns, the un,itting use of innocent persons, and the ,eapons of ideological ,arfare.
he contingencies ,hich re#uire a state of martial la, are timeChonored. hey are invasion,
insurrection and rebellion. 0ur Constitution also allo,s a proclamation of martial la, in the face of
imminent danger from any of these three contingencies. he Constitution vests the po,er to declare
martial la, in the President under the &(AB Constitution or the Prime Minister under the &('A
Constitution. As to the form, e8tent, and appearance of martial la,, the Constitution and our
jurisprudence are silent.
Martial la, pursuant to Proclamation ?o. &9)& has, ho,ever, deviated from the traditional picture of
rigid military rule superCimposed as a result of actual and total or near total breakdo,n of government.
Martial la, ,as proclaimed before the normal administration of la, and order could break do,n.
Courts of justice ,ere still open and have remained open throughout the state of martial la,. he
nation,ide anarchy, overthro, of government, and convulsive disorders ,hich classical authors
mention as essential factors for the proclamation and continuation of martial la, ,ere not present.
More important, martial la, under Proclamation ?o. &9)& has not resulted in the rule of the military.
he ,ill of the generals ,ho command the armed forces has definitely not replaced the la,s of the
land. %t has not superseded civilian authority. %nstead of the rule by military officials, ,e have the rule
of the highest civilian and elective official of the land, assisted by civilian heads of e8ecutive
departments, civilian elective local officials and other civilian officials. Martial la, under Proclamation
?o. &9)& has made e8tensive use of military forces, not to take over Civilian authority but to insure
that civilian authority is effective throughout the country. his Court can very ,ell note that it has
summoned and continues to summon military officers to come before it, sometimes personally and at
other times through counsel. hese military commanders have been re#uired to justify their acts
according to our Constitution and the la,s of the land. hese military officers are a,are that it is not
their ,ill much less their caprice but the sovereign ,ill of the people under a rule of la,, ,hich
governs under martial la, pursuant to Proclamation ?o. &9)&.
It is t*is para!o6ical nature o, (artial la) in t*e P*ilippines t*at lea!s to t*e various ;uestions raise!
in t*e instant petitions. It is also t*is apparentl variant ,or( an! its occasionall !iver+ent scope an!
e,,ects )*ic* re;uire t*is Court to e6plain 5ust )*at t*e (artial la) provision o, t*e Constitution
(eans.
Ee must, perforce, e8amine the arguments of the parties on this matter.
;c< >espon!entsD 3r+u(ents
he respondents contend that ,hen martial la, ,as proclaimed on -eptember *&, &('*, the rebellion
and armed action undertaken by the la,less elements of the communist and other armed
aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and force had
assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines. his declaration is found in the last 4,hereas4 of Proclamation ?o. &9)&. he follo,ing
assertions of the factual situation on -eptember *&, &('* are also found in Proclamation ?o. &9)&.
&. here is a group of la,less elements ,ho are moved by a common or similar ideological
conviction, design, strategy, and goal. heir prime purpose is to stage, undertake, and ,age an
armed insurrection and rebellion against the government of the !epublic of the Philippines in order to
forcibly sei"e political and state po,er in this country. hey have in fact actually staged, undertaken,
and ,aged this insurrection and rebellion. hey ,ant to overthro, the duly constituted government
and supplant our e8isting political, social, economic, and legal order ,ith an entirely ne, one. his
ne, form of government, its system of la,s, its conception of 3od and religion, its notion of individual
rights and family relations, and its political, social, economic, legal and moral precepts are based on
the Mar8ist, +eninist, Maoist teachings and beliefs.
*. hese la,less elements have entered into a conspiracy and have joined and banded their
resources and forces. hey use seemingly innocent and harmless although actually destructive front
organi"ation. hese organi"ations have been infiltrated or deliberately formed by them through
sustained and careful recruitment among the peasantry, laborers, professionals, intellectuals,
students, and mass media personnel. heir membership has been strengthened and broadened.
heir control and influence has spread over almost every segment and level of our society throughout
the land.
A. he foregoing group of la,less elements enjoy the active, moral, and material support of a foreign
po,er. %n the months of May, .une and .uly, &('*, they brought into the country at Digoyo Point,
Palanan, %sabela and other points along the Pacific coast of +u"on, substantial #uantities of ,ar
materials consisting of around A,B99 MC&J rifles, several do"ens of J9 mm rocket launchers, large
#uantities of )9 mm rockets and ammunitions and other combat paraphernalia.
J. he la,less elements have an overCall revolutionary plan. hey have distributed their regional
program of action for &('* to their various field commanders and party ,orkers. he implementation
of the program of action from the intensification of recruitment to the assassination of high
government officials and the establishment of a provisional revolutionary government in various to,ns
and cities has actually commenced. 6arious incidents of bombings, strikes, robberies, sabotage, and
demonstrations are actually in implementation of the program of action. +i#uidation missions aimed at
ranking government officials ,ere about to be implemented by the fielding of soCcalled -parro, =nits.
B. here is an e#ually serious disorder in Mindanao and -ulu resulting in actual ,ar among
Christians, Muslims, %lagas, Barracudas, the Mindanao %ndependence Movement and government
troops. 6iolent disorder in Mindanao and -ulu resulted in over A,999 casualties and more than
B99,999 injured, displaced and homeless persons. he economy of Mindanao and -ulu is paraly"ed.
2. here is throughout the land a state of anarchy, la,less chaos, disorder, turmoil and destruction of
a magnitude e#uivalent to an actual ,ar bet,een government forces on the one hand and the ?e,
People$s Army and the satellite organi"ations on the other.
'. he -upreme Court in the &('& *a#eas corpus cases has found that in truth and in fact there
e8ists an actual insurrection and rebellion in the country. Portions of the -upreme Court decision are
cited. %t ,as concluded by the -upreme Court that the unla,ful activities of the aforesaid elements
pose a clear, present, and grave danger to public safety and the security of the nation is also cited.
;d< PetitionersD 3r+u(ents=
0n the other hand, the petitioners state that in the Philippines 4there has been no disruption at all: all
government offices ,ere performing their usual functions: all courts ,ere open and in the
unobstructed e8ercise of their jurisdiction at the time martial la, ,as declared.4 he petitioners state
that ,e have no Civil Ear in the Philippines and that no province, no city, no to,n throughout the
Philippines has seceded from the !epublic. hey state that there is no status of belligerency. here is
no armed struggle carried on bet,een t,o political bodies, each of ,hich e8ercises de facto
sovereignty over persons ,ithin a determinate territory, and commands an army ,hich is prepared to
observe the ordinary la,s of ,ar.
0n rebellion, the petitioners point out that the rebels have not established an organi"ed civil
government nor occupied a substantial portion of the national territory and, in fact, are described as
mere 4la,less elements.4
he petitioners state that 4the thrust of martial la, cases is this K that for the re#uirement of public
safety to be satisfied, civil authority must have either fallen a,ay or proved inade#uate for the
emergency, the courts are actually closed, and it is impossible to administer criminal justice according
to la,, and that ,here rebellion really e8ists, there is a necessity to furnish a substitute for the civil
authority, thus overthro,n, and as no po,er is left but the military, it is allo,ed to govern until the
la,s can have their free course. 1or martial rule can never e8ist ,here the courts are open and in the
unobstructed e8ercise of their jurisdiction.4 he petitioners cite Arnold, in his article, 4he !ationale of
Martial +a,4 ;&B ABA. BB&<.
and its civil authorities ... >A6/ B//? !/?D/!/D %?0P/!A%6/ 0! P0E/!+/-- by the
insurrectionary or invading forces.
After citing the foregoing, petitioners asked this Court to take judicial notice of the follo,ing7
&. Congress ,as in session and ,as in the unobstructed e8ercise of its functions ,hen martial ,as
proclaimed:
*. he -upreme Court, the Court of Appeals, the Courts of 1irst %nstance in the 3reater Manila Area
K ,here petitioners had been arrested K indeed, even the municipal and city courts ,ere, at the
time martial la, ,as publicly announced, open and are still open and functioning throughout the
length and breadth of the land: no proof has been sho,n that any court has been rendered 4unable to
administer justice,4 due to the activities of the rebels. %ronically, it is 3eneral 0rder ?o. A, as amended
by, 3eneral 0rder ?o. ACA, issued pursuant to Proclamation ?o. &9)&, that seeks to render them
po,erless, in many cases, to administer justice, according to the Constitution and the la,s of the
land:
A. he Constitutional Convention the soCcalled 4fourth branch4 K had been holding its sessions ,hen
martial la, ,as proclaimed. Despite martial la,, or probably because of it, it decided to ,ork ,ith
greater efficiency, it has just finished its ,ork. A 4plebiscite4 under martial la, is being called on
.anuary &B, &('A, so the people can 4ratify4 the proposed Constitution:
J. %n the 3reater Manila Area, contrary to the speech of -eptember *A, &('*, no university, college,
or school ,as closed due to the activities of the rebels:
B. All instruments of mass communications ,ere in operation up to -eptember **, &('*. he ne8t
day, free speech and free press K the very heart of free in#uiry and the search for truth K became
nothing but empty memories. 0nly the 4safe ne,spapers and radioCtv stations4 ,ere allo,ed to open.
Political dissent ,as suppressed:
2. All agencies and instrumentalities of government, national as ,ell as local, ,ere functioning ,hen
martial la, ,as proclaimed. By 3eneral 0rder ?o. A, they ,ere ordered 4to continue to function under
their present officers and employees and in accordance ,ith e8isting la,s ...4
he petitioners state ,hy Proclamation ?o. &9)& is unconstitutional7
hese indisputable facts ,hich re#uire no introduction of proof because they all fall ,ithin the scope
of judicial notice, under !ule &*( of the !ules of Court K sho, that at the time martial la, ,as
declared there ,as absolutely no justification for it, in fact and in la,. >ence, Proclamation ?o. &9)&
is unconstitutional and void, because7
&. %t is predicated on the e8istence of 4the magnitude of an actual ,ar4 or an 4actual status of ,ar4
that does not e8ist:
*. %t is allegedly based on the 4status of belligerency4 ,hich no -tate in the ,orld, not even the
Philippines, has e8tended to the rebels or the la,less elements described in the Proclamation:
A. Although there may be rebellion in some remote places, as in %sabela, there is no justification for
the declaration of martial la, throughout the Philippines, since
a< no large scale, nation,ide rebellion or insurrection e8ists in the Philippines:
b< public safety does not re#uire it, inasmuch as no department of government, no government
agency or instrumentality, and even more important, no civil court of appellate or original jurisdiction
,as, at the time martial la, ,as proclaimed, unable to open or function, or has been, at any time
since the incumbent President came into po,er 4rendered po,erless or inoperative4 due to the
activities of the rebels or the la,less elements described in the Proclamation:
c< he President himself declared that the armed forces can handle the situation ,ithout 4utili"ing the
e8traordinary po,ers of the President4 ;.anuary &, &('*<, that long before martial la, ,as
proclaimed, the 3overnment had the said rebellion4 and the 4rebels and their supporters4 under
control, as the Army kne, the stepCbyCstep plot of the Communists and had an hourCbyChour
monitoring of the movements of the subversive leaders.
d< he problem in the 3reater Manila Area K ,here petitioners ,ere sei"ed and arrested K ,as, at
the time martial la, ,as proclaimed, plain la,lessness and criminality.
As the President described the situation in his speech of -eptember *A, &('*7
+a,lessness and criminality like kidnapping, smuggling, e8tortion, blackmail, gunCrunning, hoarding
and manipulation of prices, corruption in government, ta8 evasion perpetrated by syndicated
criminals, have increasingly escalated ...
he petitioners pointed out that neither any of these or a combination of all, constitute either the
occasion or the justification for the imposition of martial rule. 0ther,ise, since these crimes have
al,ays been ,ith us for many years, ,e ,ould never see the end of martial la, in this country.
%t is argued that since Proclamation ?o. &9)& is unconstitutional and void, the 3eneral 0rders, issued
in pursuance thereto and by ,ay of its implementation, must inevitably suffer from the same
congenital infirmity.
;e< 3ut*orities cite! # t*e Parties H
Petitioners and respondents alike premise their arguments on the martial la, provision of the
Constitution. Both cite decisions of foreign courts and treatises of foreign ,riters e8pounding on
martial la,. And yet, completely divergent opinions on the meaning of the provision is the result.
Martial la, is based on a la, of necessity and is utili"ed as a measure of governmental selfCdefense.
%t is, therefore, an inherent po,er. %t needs no constitutional or statutory grant before it may be
,ielded. As the petitioners state ;Addendum, pages )9C)&<, it is a recogni"ed institution in the
constitutional systems of both /ngland and America, not,ithstanding lack of e8press provisions on
martial la, in ,ritten constitutions.
Ee accept judicial decisions of these countries as highly persuasive, if not as precedents. he
absence of e8press recognition in the constitutions or statute of these countries helps e8plain ,hy
there is disagreement on a precise definition. More important, it e8plains ,hy the necessity, scope,
and e8tent of martial la, proclamations have to be determined by the regular courts and ,hy the
decisions are, themselves, conflicting. he Constitutions and statutes are silent or different from each
other. he Courts have been forced to go to the common la, and to general principles of
Constitutional +a, to look for bases of po,er and to resolve problems arising out of states of martial
la,. he various authorities cited by both petitioners and respondents in their pleadings and oral
arguments undoubtedly have valuable ,orth and applicability. hey are very helpful in resolving the
momentous issues raised by the petitions. he fact remains, ho,ever, that they deal ,ith an e8ercise
of po,er ,hich is undefined. 1or the =nited -tates -upreme Court, the po,er is not specifically
prescribed in the federal Constitution. his has led foreign courts to naturally and logically look for the
confining limits and restrictions of ambiguous, cryptic, and perple8ing boundaries. -ince the po,er is
not defined, the natural tendency is not to describe it but to look for its limits. AngloCAmerican
authorities may assist but should not control because, here, the limits are present and determined by
no less than the fundamental la,.
%n the Philippines, there is an ubi#uitous and mandatory guide. he Constitution speaks in clear and
positive terms. 3iven certain conditions, the Philippines or any part thereof may be placed under
martial la,. o resolve the instant petitions, it is necessary to find out ,hat the Constitution
commands and ,hat the e8press ,ords of its positive provision mean. %t is the Constitution that
should speak on the circumstances and #ualifications of the initiation and use of an a,esome
emergency po,er. .
;b< 'ore ar+u(ents o, t*e >espon!ents7
According to the respondents, the Constitution plainly provides that the circumstances ,hen martial
la, may be declared, its scope and its effects are beyond judicial e8amination. he respondents
contend that this Court lacks jurisdiction to take cogni"ance of the instant petitions for *a#eas corpus.
he -olicitor 3eneral has consistently pleaded throughout these proceedings that the #uestions
involved are political and nonCjusticiable. >e states that the President, s,orn to defend the
Constitution and the !epublic, proclaimed martial la, pursuant to authority e8pressly conferred by the
Constitution. %t is argued that his decision is beyond controversion because the Constitution has
made it so and that only history and the 1ilipino people may pass judgment on ,hether the President
has correctly acted in a time of supreme crisis.
;a< 'ore ar+u(ents o, t*e petitioners=
Petitioners, on the other hand, contend that this ribunal is the ultimate interpreter of the Constitution.
As such, it has the po,er and duty to declare Proclamation ?o. &9)& unconstitutional and void
because the President has e8ceeded his po,ers. %t is argued that ,here basic individual rights are
involved, judicial in#uiry is not precluded. 0n the argument that martial la, is te8tually and e8clusively
committed to the President, the petitioners ans,er that under the same Constitution, the President
may not disable the Courts and oust them, particularly the -upreme Court, of their jurisdiction to hear
cases assigned to them by the Constitution and the la,s. Petitioners stress that the Court should act
no, or the time ,ill come ,hen it can no longer act, ho,ever, much it may ,ish to, for it shall have
completely lost then the moral force and authority it still possesses and the valid claim it may still
have of being independent, fearless, and just.
D
PO0ITIC30 ?EESTIONS 3N. COE>TS
JE>IS.ICTION O@E> TCE'
he respondents$ assertion that the #uestions raised in these petitions are political and nonCjusticiable
raises a point ,hich is easily misunderstood.
Ehat is a political #uestionI
%n 'a#ana+ vs. 0opez ;') Phil. &, J<, this Court recogni"ed the problems in trying to make a
definition7
%t is a doctrine too ,ell established to need citation of authorities, that political #uestions are not ,ithin the
province of the judiciary, e8cept to the e8tent that po,er to deal ,ith such #uestions has been conferred
upon the courts by e8press constitutional or statutory provision. ;&2 C...-., JA&<. his doctrine is
predicated on the principle of the separation of po,ers, a principle also too ,ell kno,n to re#uire
elucidation or citation of authorities. he difficulty lies in determining ,hat matters tall ,ithin the meaning
of political #uestion. he term is not susceptible of e8act definition, and precedents and authorities are not
al,ays in full harmony as to the scope of the restrictions, on this ground, on the courts to meddle ,ith the
actions of the political departments of the government.
% think it is time for this Court to distinguish bet,een jurisdiction over a case and jurisdiction over the
issue raised in that case. %t is erroneous to state that ,hen a petition raises an issue ,hich is political
in nature, this Court is ,ithout jurisdiction over the case. It *as 5uris!iction.
he -upreme Court has jurisdiction to receive the petition and to find out ,hether the issues are
indeed political or not. A finding of political #uestion is the province of the Court in all cases. A mere
allegation of political #uestion does not automatically divest the Court of its jurisdiction. he Court
may, therefore, re#uire the parties to the case to prove or refute the e8istence of a political #uestion.
he Court has jurisdiction to receive the pleadings, to listen to the arguments and to make up its
mind.
0nce the Court, ho,ever, finds that the issue is political in nature, it should rule that it has no
jurisdiction to decide the issue one ,ay or another. %t still renders a decision. %t must still state that,
according to the Constitution, this matter is not for the judiciary but for the political departments to
decide. his is the task Ee must perform in these petitions. Ehen ,e decide ,hether or not the
issues are political in nature, Ee e8ercise jurisdiction. %f Ee find a political #uestion, Ee still have
jurisdiction over the case but not over the specific issue.
A lot of emotionalism is directed against the Court ,hen it rules that a #uestion is political. %t is alleged
that the Court has surrendered its po,ers. he political #uestion, it is said, 4applies to all those
#uestions of ,hich the Court, at a given time, ,ill be of the opinion that it is impolitic or ine8pedient to
take jurisdiction. -ometimes this idea of ine8pediency ,ill result from the fear of the vastness of the
conse#uences that a decision on the merits might entail. -ometimes, it ,ill result from the feeling that
the Court is incompetent to deal ,ith the type of #uestion involved. -ometimes, it ,ill be induced by
the feeling that the matter is too high for the Courts4 ;1inkelstein, 4.udicial -elf +imitation4, A) >arvard
+a, !evie, A*), AJJ< he political #uestion doctrine is, therefore, described as a doctrine of judicial
opportunism. +ike Pontius Pilate, the Court is accused of tossing the hot issue for others to
determine. %t is charged ,ith ,ashing its hands off a difficult or e8plosive situation. A political
#uestion, it is alleged, is nothing more than any #uestion ,hich the Court does not ,ant to decide. %t
is understandable ,hy courts should have a seemingly natural or spontaneous tendency to reject a
political #uestion argument. he charge that the Court is abdicating a function or running a,ay from
responsibility can strike to the very marro, of any judge$s feelings.
% do not share these misgivings. % positively reject them as ,rong impressions. his Court is
discharging a constitutional duty ,hen it determines that an issue is a political #uestion. Because of
its implications, ho,ever, this is a fact ,hich the Court must also e8plain in the simplest terms
possible.
he Constitution defines and limits the po,ers entrusted by the sovereign people to their government.
1irst, it declares the boundaries ,here the po,ers of government cannot go further because
individual rights ,ould be impaired. -econd, it divides the po,ers given to the entire government
among the various departments and constitutional bodies. %ts provisions are, therefore, both a grant
and a limitation of po,er.
%n other ,ords, the Constitution may be likened to a map. his map sho,s ho, the po,ers of
sovereignty have been distributed among the departments of government. %t sho,s ,here there is a
sharing of po,ers or ,here checks and balances may be found. %t also sho,s ,here there is a
dividing line bet,een government po,er and individual liberty. %n plainer language, the constitutional
map, like any other map, carries different boundaries. he boundaries are the delimitation$s of po,er.
he function of the Court is to fi8 those boundaries ,henever encroachments are alleged. %n doing
so, the Court interprets the constitutional map. %t declares that this po,er is e8ecutive, that po,er is
legislative, and that other po,er is judicial. %t may sometimes state that a certain po,er, like
impeachment, is judicial in nature. ?onetheless, the constitutional map has included impeachment
,ithin the boundaries of legislative functions. he Court has to declare that the judicial po,er of
impeachment is e8clusively for the legislature to e8ercise.
his task of allocating constitutional boundaries, % must repeat, is given to this Court. %t cannot be
divested of this jurisdiction. %t cannot yield this po,er.
>o,ever, ,hen the Court finds that a certain po,er is given by the Constitution to a coCe#ual
department, it must defer to the decision of that department even if it appears to be seemingly
judicial. %t should declare that the Constitution has vested this determination in the e8ecutive or the
legislature. he Court must, therefore, state that it cannot go any further. he sovereign people
through the Constitution have dra,n a boundary ,hich this Court has ascertained and ,hich it must
respect. Ehen the Court finds a political #uestion, it is not, therefore, shirking or avoiding a duty. %t is,
in fact, complying ,ith its duty. Much as it ,ants to go into the issues and decide the #uestions, it has
to decline. he Constitution has given the po,er of determination to another department. As
interpreter of the Constitution, the Court has to lead in respecting its boundaries.
%f ,e e8amine this Court$s definition of a political #uestion in TaAa!a vs. Cuenco ;3.!. ?o. +C&9B*9,
1ebruary *), &(B'<, Ee find that it conforms to the foregoing e8planation.
%n short, the term 4political #uestion4 connotes, in legal parlance, ,hat it means in ordinary parlance,
namely, a #uestion of policy. %n other ,ords, in the language of Corpus .uris -ecundum ;supra<, it refers
to 4those #uestions ,hich, un!er t*e Constitution, are to be !eci!e! # t*e people in their sovereign
capacity, or in regard to ,hich full discretionary authority has been delegated to the le+islature or
e6ecutive branch of the 3overnment.4 %t is concerned ,ith issues dependent upon the )is!o(, not
legality, of a particular measure. ;/mphasis supplied<
his is a determination of constitutional boundaries. he Court has found that the Constitution has
assigned a political #uestion to the people through a referendum or either one or both of the political
departments.
A more complete definition is found in "a-er vs. Carr ;A2( =.-. &)2, '+ /d. *d 22A, &(2*<, to ,it7
%t is apparent that several formulations ,hich vary slightly according to the settings in ,hich the #uestions
arise may describe a political #uestion, ,hich identifies it as essentially a function of the separation of
po,ers. Prominent on the surface of any case held to involve a political #uestion is found a te8tually
demonstrable constitutional commitment of the issue to a coordinate political department: or a lack of
judicially discoverable and manageable standards for resolving it: or the impossibility of deciding ,ithout
an initial policy determination of a kind clearly for nonCjudicial discretion: or the impossibility of a court$s
undertaking independent resolution ,ithout e8pressing lack of the respect due coordinate branches of
government or an unusual need for un#uestioning adherence to a political decision already made: or the
#uestion.
Again, the Court makes a determination that the Constitution has vested the making of a final
decision in a body other than the Court.
D%
P>OC03'3TION NO. $F&$ IS @30I. H
IT IS PO0ITIC30 IN N3TE>E 3N. TCE>EFO>E
NOT JESTICI3"0E
>o, does the Court determine ,hether a martial la, proclamation is a political #uestion or notI he
respondents argue that only the President is authori"ed to determine ,hen martial la, may be
proclaimed. he petitioners insist that this Court may e8amine and nullify the Presidential
determination as beyond his constitutional po,ers.
>as the Constitution vested the po,er e8clusively in the PresidentI Are the petitioners correct or is it
the claim of respondents ,hich is validI
he rule in constitutional construction is to give effect to the intent of the authors. he authors are,
first, the framers ,ho ,ere ordered by the sovereign people to represent them in the specific
assignment of drafting the fundamental la, and second, the people, themselves, ,ho by their
ratification confirm ,hat their delegates have ,rought and manifested as e8pressions of the
sovereign ,ill.
>o,, then, do ,e ascertain the intent of the authors on the grant of martial la, po,ersI
A search for intent must necessarily start ,ithin the four corners of the document itself.
... he #uestion is one then of constitutional construction. %t is ,ell to recall fundamentals. he primary
task is one of ascertaining and thereafter assuring the reali"ation of the purpose of the framers and of the
people in the adoption of the Constitution.
Ee look to the language of the document itself in our search for its meaning. Ee do not of course stop
there, but that is ,here ,e begin. ... ;ua"on M Co. vs. +and enure Administration, A& -C!A J&A, J**<
he Constitution is sufficiently e8plicit in locating the po,er to proclaim martial la,. %t is similarly
e8plicit in specifying the occasions for its e8ercise. 4%n case of invasion, insurrection, or rebellion, or
imminent danger thereof, ,hen the public safety re#uires it, he ;the President as CommanderCinC
Chief of all armed forces of the Philippines< may suspend the privileges of the ,rit of *a#eas corpus
or place the Philippines or any part thereof under martial la,.4
his provision on martial la, is found in Article 6%% of the &(AB Constitution. his Article refers to the
Presidency. -ection &9, ,here the provision appears as the second paragraph, is e8clusively devoted
to po,ers conferred by the Constitution on the President. his is in sharp contrast to the Constitution
of the =nited -tates ,here the suspension of the privilege of the ,rit of *a#eas corpus appears, not
as a grant of po,er under Article %% on the /8ecutive nor in the first ten amendments constituting their
Bill of !ights, but in Article % on the +egislature. %t is given not as a grant of po,er but as a limitation
on the po,ers of the 1ederal Congress.
%t is significant that, as regards the suspension of the privilege of the ,rit of *a#eas corpus, the
Philippine Constitution treats it both as a grant of po,er in the article on the Presidency and as a
limitation to government action in the article on the Bill of !ights. 0n the other hand, there is no dual
treatment of martial la,. here is only a grant of po,er in Article 6%% to meet certain grave dangers to
the !epublic. ?o,here in the Constitution is it treated in terms of limitation.
%n J. '. Tuazon O Co., Inc. vs. 0an! Tenure 3!(inistration, A& -C!A p. J&A,J*A, this Court ruled7
!eference to the historical basis of this provision as reflected in the proceedings of the Constitutional
Convention, t,o of the e8trinsic aids to construction along ,ith contemporaneous understanding and the
consideration of the conse#uences that flo, from the interpretation under consideration, yields additional
light on the matter.
+et us, therefore, look at the history of the provision. %t is important to be guided by the authors of the
Constitution more than by citations from foreign court decisions and #uotations from constitutional la,
,riters ,hich petitioners and respondents can seem to unendingly cull to sustain their diametrically
opposed positions. .
he Philippine Bill of &(9* has no provision on martial la,, although it provided7
-/C%0? B. ...
suspended by the President, or by the 3overnor, ,ith the approval of the Philippine Commission,
Both e8ecutive and legislative shared in deciding ,hen the privilege of the ,rit may be suspended.
he .ones +a, or Philippine Autonomy Act of &(&2 re#uired a similar sharing of po,er as the
Philippine Bill of &(9*. %nstead of approval of the Philippine Commission, ho,ever: it provided that the
President of the =nited -tates must be notified ,henever the privilege of the ,rit of *a#eas corpus
has been suspended or martial la, has been proclaimed.
-/C%0? *& ... >e shall be responsible for the faithful e8ecution of the la,s of the Philippine %slands and
of the =nited -tates operative ,ithin the Philippine %slands, and ,henever it becomes necessary he may
call upon commanders of the military and naval forces of the =nited -tates in the %slands, or summon the
posse co(itatus, or call out the Militia, or other locally created armed forces, to prevent or suppress
la,less violence, invasion, insurrection, or rebellion: and *e (a, in case o, re#ellion or in or invasion or
i((inent !an+er t*ereo,, )*en t*e pu#lic sa,et re;uires it, suspen! t*e privile+es o, t*e )rit o, *a#eas
corpus, or place t*e islan!s, or an part t*ereo,, un!er (artial la)9 Provi!e!, T*at )*enever t*e
Governor4General s*all e6ercise t*is aut*orit, *e s*all at once noti, t*e Presi!ent o, t*e Enite! States
t*ereo,, to+et*er ,ith the attending facts, and circumstances, the President shall have po,er to modify or
vacate the action of the 3overnorC3eneral. ;/mphasis supplied<
he treatment of both martial la, and *a#eas corpus as part of the limitations in the Bill of !ights and
as part of the grant of po,ers of the Chief /8ecutive started ,ith the .ones +a,. his organic act also
added 4imminent danger4 as a ground for suspension.
his ,as the status of our constitutional la, on *a#eas corpus and on martial la, ,hen the &(AB
Philippine Constitution ,as drafted. he most learned Philippine la,yers ,ere among the delegates
to the &(AJ Constitutional Convention. he delegates had before them the Philippine Bill of &(9*
re#uiring approval of the legislature before the Chief /8ecutive may e8ercise his po,er. hey had
before them the provision of the .ones +a, #ualifying the 3overnorC3eneral$s po,er ,ith supervision
and control by the President of the =nited -tates ,ho may modify or vacate the former$s action. hey
chose to vest the po,er e8clusively in the President of the Philippines. hey e8panded the ,ide
scope of his authority by including 4imminent danger4 as an occasion for its e8ercise, thus deliberately
adopting the .ones +a, provision minus the limitation. heir proposal on martial la, ,as
over,helmingly ratified by the people.
he choice ,as no perfunctory or casual one. %t ,as the product of thorough study and deliberation.
Ehile the debates in the &(AB Constitutional Convention centered on *a#eas corpus, they
necessarily apply to martial la, because the t,o are ine8tricably linked in one and the same
provision. he -olicitorC3eneral has summari"ed these deliberations on *a#eas corpus and martial
la,.
As a matter of fact, in the Constitutional Convention, Delegate Araneta proposed the follo,ing provisions7
%n case of rebellion, insurrection, or invasion, ,hen the public safety
re#uires it, the ?ational Assembly may suspend the privilege of the ,rit
of *a#eas corpus. %n case the ?ational Assembly is not in session the
President may suspend the privilege of the ,rit of *a#eas corpus ,ith the
consent of the majority of the -upreme Court, but this suspension of the
privilege of the ,rit of *a#eas corpus ,ill be revoked if the President
does not call a special session of the ?ational Assembly ,ithin fifteen
days from the decree suspending the ,rit of *a#eas corpus or if the
?ational Assembly fails to confirm the action of the President ,ithin A9
days. ;B .. +aurel, Proceedings of the Philippine Constitutional
Convention, *B(, ;-. +aurel ed. &(22<
%n support of his proposal, Araneta argued, first, that the po,er to suspend the privilege
of the ,rit of *a#eas corpus should be vested in the ?ational Assembly because that
po,er ,as 4essentially4 legislative. ;%d. *J(CB9< and second, that in case the ?ational
Assembly ,as not in session, thus making it necessary to vest the po,er in the
President, that the e8ercise of the po,er be subject to the concurrence of the -upreme
Court and even ,hen the Court has concurred in the decision of the President that the
suspension ,ould be effective only for a certain period unless the ?ational Assembly ,as
convened and its ratification ,as secured. ;I!., at *BB<
>e ,as interpellated by various delegates: Delegate Pere" and 3rageda, especially,
,ere concerned, lest the re#uirement of securing the concurrence of other branches of
government in the decision of the President deprives him of effective means of meeting
an emergency. ;I!., at *BBCB2<. he Committee on -ponsorship headed by Delegate
-otto opposed the amendment. Ehen finally put to vote, the amendment ,as rejected.
;I!., at *B(<.
here are a number of points ,e should note regarding the proposal. 1irst, the proposal
refers only to the suspension of the privilege of the ,rit of *a#eas corpus. %t did not
apparently contemplate the proclamation of martial la,. Secon!, the proposal ,ould vest
the po,er of suspension in the ?ational Assembly and in the President only ,hen the
?ational Assembly is not in session. T*ir!, e8ercise of the po,er by the President, is
subject to the concurrence of the -upreme Court and the confirmation of the ?ational
Assembly.
he Constitutional Convention must have been a,are of the e8perience of President
+incoln during the American Civil Ear. hey must have been a,are of the vie,s e8press
then that it ,as the legislature and not the President ,ho may suspend the privilege of
the ,rit of *a#eas corpus or proclaim martial la,. -urely, they ,ere cogni"ant of the vast
implications incident to a suspension of the privilege of the ,rit of *a#eas corpus and
more so to the proclamation of martial la,. his is reflected in the follo,ing records of the
proceedings7
During the debates on the first draft, Delegate 1rancisco proposed an amendment
inserting, as a fourth cause for the suspension of the ,rit of *a#eas corpus, imminent
danger of the three causes included herein. Ehen submitted to a vote for the first time,
the amendment ,as carried.
After his Motion for a reconsideration of the amendment ,as approved, Delegate 0rense
spoke against the amendment alleging that it ,ould be dangerous to make imminent
danger a ground for the suspension of the ,rit of *a#eas corpus. %n part, he said7
3entlemen, this phrase is too ambiguous, and in the hands of a President, ,ho believes
himself more or less a dictator, it is e8tremely dangerous: it ,ould be a s,ord ,ith ,hich
he ,ould behead us.
%n defense of the amendment, Delegate 1rancisco pointed out that it ,as intended to
make this part of the bill of rights conform to that part of the draft giving the President the
po,er to suspend the ,rit of *a#eas corpus also in the case of an imminent danger of
invasion or rebellion. Ehen asked by Delegate !afols if the phrase, imminent danger,
might not be struck out from the corresponding provision under the e8ecutive po,er
instead, Delegate 1rancisco ans,ered7
0utright, it is possible to eliminate the phrase, imminent danger thereof, in the page %
have mentioned. But % say, going to the essence and referring e8clusively to the
necessity of including the ,ords, of imminent danger or one or the other, % ,ish to say the
follo,ing7 that it should not be necessary that there e8ist a rebellion, insurrection, or
invasion in order that *a#eas corpus may be suspended. %t should be sufficient that there
e8ists not a danger but an imminent danger, and the ,ord, imminent should be
maintained. Ehen there e8ists an imminent danger, the -tate re#uires for its protection,
and for that of all the citi"ens the suspension of the *a#eas corpus.
Ehen put to a vote for the second time, the amendment ,as defeated ,ith '* votes
against and B2 votes in favor of the same. ;% Aruego$s 1raming of the Philippine
Constitution, &)9C&)&<
But the Convention voted for a strong e8ecutive, and ,rote Article 6%%, -ection &9 ;*< into the Constitution.
he conferment of the po,er in the President is clear and definite. hat the authority to suspend the
privilege of the ,rit of *a#eas corpus and to proclaim martial la, ,as, intended to be e8clusively vested in
the President, there can be no doubt. ;Memorandum for !espondents dated ?ovember &', &('*, pp. &&C
&J<
he only conclusion % can make after ascertaining the intent of the authors of the Constitution is that
the po,er to proclaim martial la, is e8clusively vested in the President. he proclamation and its
attendant circumstances therefore form a political #uestion.
=nless this Court decides that every act of the e8ecutive and of the legislature is justiciable there can
be no clearer e8ample of a political #uestion than Proclamation ?o. &9)&. %t is the e8ercise by the
highest elective official of the land of a supreme political duty e8clusively entrusted to him by the
Constitution. 0ur people have entrusted to the President through a specific provision of the
fundamental la, the a,esome responsibility to ,ield a po,erful ,eapon. he people have entrusted
to him the estimation that the perils are so ominous and threatening that this ultimate ,eapon of our
duly constituted government must be used.
he -upreme Court ,as not given the jurisdiction to share the determination of the occasions for its
e8ercise. %t is not given the authority by the Constitution to e8pand or limit the scope of its use
depending on the allegations of litigants. %t is not authori"ed by the Constitution to say that martial la,
may be proclaimed in %sabela and -ulu but not in 3reater Manila. Much less does it have the po,er
nor should it even e8ercise the po,er, assuming its e8istence, to nullify a proclamation of the
President on a matter e8clusively vested in him by the Constitution and on issues so politically and
emotionally charged. he Court$s function in such cases is to assume jurisdiction for the purpose of
finding out ,hether the issues constitute a political #uestion or not. %ts function is to determine
,hether or not a #uestion is indeed justiciable.
Petitioners ,ant this Court to e8amine the bases given by the President in issuing Proclamation ?o.
&9)&. hey ,ant the Court to find or to take judicial notice of the absence of an insurrection or
rebellion K of the absence of an imminent danger thereof. Petitioners ,ould have this Court dispute
and nullify the findings of facts of the President himself in a matter that is peculiarly e8ecutive in
nature.
Ehy should Ee honor the President$s findingsI
%n cases ,here the issues are indisputably judicial in nature, the findings of the President are still
given utmost respect and deference. %n the matter of the declaration of martial la,, a po,er that is
e8clusively vested in the President, may the Court differ ,ith the findingsI ?o, because as Ee have
already stated, t*e vali! reason ,or t*is e6clusive +rant o, po)er is t*at t*e Presi!ent possesses all
t*e ,acilities to +at*er t*e re;uire! !ata an! in,or(ation an! *as a #roa!er perspective to properl
evaluate t*e(, #etter t*an an ,acilit an! perspective t*at t*e Court can *ave.
3t )*at state in an insurrection or *o) serious an! (ani,est s*oul! su#versive activities #eco(e
#e,ore t*e Court !eci!es t*e particular point )*en (artial la) (a #e proclai(e!2 T*e petitioners,
relin+ on t*e classic sta+es o, +overn(ental overt*ro) as e6perience! # pre4Korl! Kar II
e6a(ples, )oul! )ait until all civil courts are close! an! t*e countr is in co(plete c*aos. Petitioners
!o not realize t*at lon+ #e,ore t*e courts are close!, t*e Presi!ent )oul! *ave #een -ille! or
capture! an! t*e ene( irrevoca#l entrenc*e! in po)er. T*e aut*ors o, t*e Constitution never
envisione! t*at t*e (artial la) po)er so care,ull an! !eli#eratel inclu!e! a(on+ t*e po)ers o, t*e
Presi!ent )oul! #e )it**el! until suc* ti(e as it (a not #e use! at all.
It is ( ,ir( vie), t*at t*e !ecision to proclai( (artial la) is an e6clusive ,unction o, t*e Presi!ent. I,
*e ,in!s t*at invasion, insurrection, or re#ellion or i((inent !an+er o, an o, t*e t*ree is present,
suc* ,in!in+ is conclusive on t*e Court. I, *e ,in!s t*at pu#lic sa,et re;uires t*e entire countr s*oul!
#e place! un!er (artial la), t*at ,in!in+ is conclusive on t*e Court. In t*e e6ercise o, suc* an
e(er+enc po)er inten!e! ,or t*e supre(e an! in*erent ri+*t o, sel,4!e,ense an! sel,4preservation,
t*e Constitution cannot #e rea! to (ean ot*er)ise.
%n 0ansan+ vs. Garcia ;J* -C!A JJ), J)9< this Court stated that 4in the e8ercise of such authority ;to
suspend the privilege of the ,rit of *a#eas corpus<, the function of the Court is merely to c*ec- K not
to supplant K the E6ecutive, or to ascertain (erel )*et*er *e *as +one beyond the constitutional
limits of his jurisdiction, not to e6ercise t*e po)er vested in him or to determine the ,isdom of his
act.4
% do not see ho,, both from the legal and practical points of vie,, the Court can check the President$s
decision to proclaim martial la,. he same may, perhaps, be done as regards a suspension of the
privilege of the ,rit of *a#eas corpus although % reserve a more definitive statement on that issue
,hen a case s#uarely in point on the matter is raised before =s. >o,ever, martial la, poses entirely
different problems. A proclamation of martial la, goes beyond the suspension of the privilege of the
,rit of *a#eas corpus, ,hose effects are largely remedied ,ith the release of detainees.
=pon proclaiming martial la,, the President did not limit himself to ordering the arrest and detention
of the participants and others having a hand in the conspiracy to sei"e political and state po,er.
=nder martial la,, the President ordered the takeover or control of communications media, public
utilities, and privately o,ned aircraft and ,ater craft. 1oreign travel ,as restricted. Curfe, ,as
imposed all over the country. A purge of undesirable government officials, through resignations or
summary investigations, ,as effected. he entire e8ecutive branch of government ,as reorgani"ed.
A cleanliness and beautification campaign, ,ith martial la, sanctions to enforce it, ,as ordered. his
,as only the beginning.
Conse#uences of Proclamation ?o. &9)& are many and farCreaching. hey permeate every aspect
and every activity in the life of the people. A court decision is not needed nor is it the proper place to
enumerate them. Most obvious, of course, are the President$s acts of legislation on the very broad
range of subjects that Congress used to cover. As early as ?ovember ), &('*, the petitioners
prepared a Memorandum stressing this point.
%t may be pointed out that since martial la, ,as declared, the President has been e8ercising legislative
po,er that is lodged by the Constitution in Congress. A good number of the decrees promulgated have no
direct relation to the #uelling of the disorders caused by the la,less elements. hey are aimed at building
a ?e, -ociety, but they cannot be justified as a valid e8ercise of martial rule. ;at page (J<
T*ese i(plications an! conse;uences o, (artial la) serve to #olster ( vie) t*at t*e Constitution
never inten!e! t*at t*is Court coul! e6a(ine an! !eclare invali! t*e Presi!entDs initial !eter(ination.
T*e Constitution !i! not inten! t*at t*e Court coul!, in t*e !etac*e! an! peace,ul a,ter(at* o,
success,ul (artial la), reac* #ac- an! invali!ate evert*in+ !one ,ro( t*e start. T*at )oul! result in
c*aos.
% am, of course, a,are of the C*icot Count .raina+e .istrict vs. "a6ter State "an- ;A9) =.-. A'&,
A'J< doctrine ,hich this Court adopted in 'unicipalit o, 'ala#an+ vs. Pan+an!apun "enito, et al.
;*' -C!A BAA, BJ9<7
he Courts belo, have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, ,as not a la,: that it ,as inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. ;?orton vs. -helby County, &&) =.-. J*B, JJ*:
Chicago, % M +. !y. Co. vs. >ackett, **) =.-. BB(, B22<. %t is #uite clear, ho,ever, that such broad
statements as to the effect of a determination of unconstitutionality must be taken ,ith #ualifications. he
actual e8istence of a statute, prior to such a determination, is an operative fact and may have
conse#uences ,hich cannot justly be ignored. he past cannot al,ays be erased by a ne, judicial
declaration. he effect of the subse#uent ruling as to invalidity may have to be considered in various
aspects ,ith respect to particular relations, individual and corporate, and particular conduct, private and
official. Puestions of rights claimed to have become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and
of its previous application, demand e8amination. hese #uestions are among the most difficult of those
,hich have engaged the attention of courts, state and federal, and it is manifest from numerous decisions
that an allCinclusive statement of a principle of absolute retroactive invalidity cannot be justified.
%t may be argued that the actual e8istence of Proclamation ?o. &9)& is an operative fact and that its
conse#uences should not be ignored.
he operative fact doctrine, ho,ever, has no application in this situation ,here, faced ,ith
insurrection and rebellion, the President proclaims martial la,. /ven assuming that every single
member of this Court doubts the President$s findings, Ee have to consider that the Constitution vests
the determination in him. he stakes involved are supreme and the determination must be made
immediately and decisively.
T*ere is t*e possi#ilit t*at t*e Presi!ent *as an e6a++erate! appreciation o, t*e !an+ers an! *as
over4acte! )it* t*e use o, t*e a)eso(e (easure o, (artial la). T*e ,act re(ains, *o)ever, t*at t*e
aut*ors o, t*e Constitution )ere a)are o, t*is possi#ilit an! still provi!e! t*at t*e po)er e6clusivel
#elon+s to *i(. It )oul! #e stretc*in+ t*e plain )or!s o, t*e Constitution i, )e )ei+* our personal
,in!in+s a+ainst t*e o,,icial ,in!in+s o, t*e Presi!ent. Ce possesses all t*e ,acilities to +at*er !ata an!
in,or(ation an! *as a (uc* #roa!er perspective to properl evaluate t*e(. Ce is per,or(in+ a
,unction )*ic* is, o, course, re;uire! # t*e Constitution to #e !isc*ar+e! # t*e Presi!ent.
3n! ,or us to venture into a 5u!icial in;uir on t*e ,actual #asis o, t*e constitutionalit o, t*e (artial
la) procla(ation )oul! #e to i+nore t*e )ell4esta#lis*e! principle o, presi!ential privile+e )*ic*
e6e(pts t*e Presi!ent ,ro( !ivul+in+ even to t*e *i+*est court o, t*e lan! ,acts )*ic* i, !ivul+e!
)oul! en!an+er national securit. As a matter of fact, in the latest case on this matter ,hich ,as that
filed against President !ichard M. ?i8on, although the -upreme Court of the =nited -tates ordered
the President to produce the tapes of his conversation ,ith some of his aides pursuant to a subpoena
for use in a criminal prosecution against one of his aides, because the claim that 4disclosures of
confidential conversation bet,een the President and his close advisors ... ,ould be inconsistent ,ith
the public interest ... cannot out,eigh ... the legitimate needs of the judicial process4 in a criminal
prosecution, the Court, ho,ever, made the statement from ,hich ,e can infer that if President ?i8on
had only claimed that the tapes contain 4military, diplomatic or sensitive national security secrets4, it
,ould have sustained the refusal of ?i8on to produce them.
... >o,ever, ,hen the privilege depends solely on the broad, undifferentiated claim of public interest in
the confidentiality of such conversations, a confrontation ,ith other values arises. 3#sent a clai( o, nee!
to protect (ilitar, !iplo(atic, or sensitive national securit secrets, )e ,in! it !i,,icult to accept t*e
ar+u(ent that even the very important interest in confidentiality of presidential communications is
significantly diminished by production of such material for in camera inspection ,ith all the protection that
a district court ,ill be obliged to provide.
%n this case the President challenges a subpoena served on him as a third party re#uiring the production
of materials for use in a criminal prosecution on the claim that he has a privilege against disclosure of
confidential communications. >e does not place his claim of privilege on the ground they are. military or
diplomatic secrets. As to these areas of Art. %% duties the courts have traditionally sho,n the utmost
deference to presidential responsibilities. %n C. O S. 3ir 0ines vs. Kater(an Stea(s*ip Corp., AAA =. -.
&9A,&&& ;&(J)<, dealing ,ith presidential authority involving foreign policy considerations, the Court said7
he President, both as CommanderCinCchief and as the ?ation$s organ for foreign affairs,
has available intelligence services ,hose reports are not and ought not to be published to
the ,orld. %t ,ould be intolerable that courts, ,ithout relevant information, should revie,
and perhaps nullify actions of the /8ecutive taken on information properly held secret. I!.
at &&&
%n the Enite! States vs. >enol!s, AJB =. -. & ;&(B*<, dealing ,ith a claimant$s demand for evidence in a
damage case, against the 3overnment, the Court said7
%t may be possible to satisfy the court, from all the circumstances of the case, that there is
a reasonable danger that compulsion of the evidence ,ill e8pose military matters ,hich,
in the interest of national security, should not be divulged. Ehen this is the case, the
occasion for the privilege is appropriate, and the court should not jeopardi"e the security
,hich the privilege is meant to protect by insisting upon an e8amination of the evidence,
even by the judge alone, in chambers.
?o case of the Court, ho,ever, has e8tended this high degree of deference to a President$s generali"ed
interest in confidentiality. ?o,here in the Constitution, as ,e have noted earlier, is there any e8plicit
reference to a privilege of confidentiality, yet to the e8tent this interest relates to the effective discharge of
a President$s po,ers, it is constitutionally based.
;=nited -tates, Petitioner, vs. !ichard M. ?i8on, President of the united -tate et al.: !ichard M. ?i8on,
President of the =nited -tates, Petitioner, vs. =nited -tates: .uly *J, &('J: ?os. 'AC&'22 and 'AC&)AJ:
-upreme Court of the =nited -tates<
%t is for the above reasons that, as far as the proclamation is concerned, the Court should revert to the
rule in "arcelon vs. "a-er ;B Phil. )'< and 'ontene+ro vs. CastaAe!a ;(& Phil. ))2<. he only #uestions
,hich the judiciary should look into are ;&< Did the Constitution confer the authority to suspend the
privilege of the ,rit of *a#eas corpus and proclaim martial la, on the PresidentI and ;*< Did the
President declare that he is acting under such authority and in conformance ,ith itI he authority being
e8clusively vested in the President, his decision is final and conclusive upon the Court.
%nsofar as the President$s decision to proclaim martial la, is concerned, it is, therefore, my vie, that
under the Constitution, the -upreme Court has no authority to in#uire into the e8istence of a factual
basis for its proclamation. he constitutional sufficiency for the proclamation is properly for the
President alone to determine.
III
G>3NTING TC3T P>OC03'3TION NO. $F&$
IS NOT PO0ITIC30 "ET JESTICI3"0E,
IT IS STI00 @30I. "EC3ESE TCE P>ESI.ENT
C3S NOT 3CTE. 3>"IT>3>I0Y IN ISSEING IT
%t should be noted that Proclamation ?o. &9)& is not a mere conclusion that there is insurrection and
rebellion in the country. he President did not limit himself to a curt and laconic declaration that on
the basis of his findings, there is insurrection or a rebellion and that he has proclaimed martial la,. .
Proclamation ?o. &9)& specifies in t,entyCsi8 ;*2< printed pages the various findings ,hich led to its
promulgation. he conspiracy to overthro, the government, the rapidly e8panding ranks of the
conspirators, the raising of funds and materials under centrali"ed direction, the maintenance of a
rebel army the massive propaganda campaign, the acts of sabotage and armed insurrection or
rebellion, the previous decision of this Court, the la,lessness and disorder in the country, the violent
demonstrations led by Communist fronts, the armed clashes bet,een rebels and government troops,
the active moral and material support of a foreign po,er, the importation of firearms and ,ar material
by rebels, the presence of a ,ellCscheduled program of revolutionary action, the organi"ation of
li#uidation s#uads, the serious disorder in Mindanao and -ulu, the activities of the Mindanao
%ndependence Movement, the thousands killed and hundreds of thousands of injured or displaced
persons, the inade#uacy of simply calling out the aimed forces or suspending the privilege of the ,rit
of *a#eas corpus, the alarmingly rapid escalation of rebel or subversive activities, and other evidence
of insurrection or rebellion are specified in detailed manner.
he findings of the President are given in a positive, detailed, and categorical form. As a matter of
fact, subse#uent events, related to the Court in a series of classified briefings made to it by the Army
the last one being on August &B, &('J, confirm the overCall validity of the President$s basis. here is
constitutional sufficiency for his conclusion that martial la, be proclaimed. Proclamation ?o. &9)&
does not, therefore, suffer any constitutional infirmity of arbitrariness, granting that this test can be
applied to it.
%t appears proper, at this point, to elucidate further on the test of arbitrariness.
he Court$s decision in 0ansan+ vs. Garcia ;J* -C!A JJ)< has been interpreted and, to my mind,
misunderstood by many people to mean that the Court had completely reversed "arcelon vs. "a-er
and 'ontene+ro vs. CastaAe!a. here are, of course, certain statements in the decision that give rise
to this conclusion. 1or instance, the Court stated that the ,eight of "arcelon vs. "a-er, as precedent,
is diluted by t,o factors, namely, ;a< it relied heavily upon 'artin vs. 'ott ;2 +. ed. BA'< involving the
=.-. President$s po,er to call out the militia and ;b< the fact that suspension of the privilege of the ,rit
of *a#eas corpus ,as by the American 3overnorC3eneral, the representative of the foreign
sovereign. he Court stated that in the "arcelon case it ,ent into the #uestion K Did the 3overnorC
3eneral act in conformance ,ith the authority vested in him by the Congress of the =nited -tatesI %n
other ,ords, the Court stated that it made an actual determination ,hether or not the Chief /8ecutive
had acted in accordance ,ith la,. he Court also added that in the Montenegro case, it considered
the #uestion ,hether or not there really ,as a rebellion. he Court revie,ed American jurisprudence
on suspension of the privilege. %t stated that the tenor of the opinions, considered as a ,hole, strongly
suggests the Court$s conviction that the conditions essential for the validity of proclamations or orders
,ere in fact present. %t stated that ,henever the American courts took the opposite vie, it had a
backdrop permeated or characteri"ed by the belief that said conditions ,ere absent.
%n truth, ho,ever, the decision in 0ansan+ vs. Garcia does not state that the Court may conduct a full
e8amination into the facts ,hich led the President to issue the proclamation. he Court$s decision
categorically asserts that the e8amination of presidential acts by the Court is limited to arbitrariness.
he Court accepted the vie, K
... that judicial in#uiry into the basis of the #uestioned proclamation can go no further than to satisfy the
Court not that tile President$s decision is correct and that public safety ,as endangered by the rebellion
and justified the suspension of the ,rit, but that in suspending the ,rit, the President did not act arbitrarily.
he Court adopted, as the test of validity, the doctrine in Ne##ia vs. Ne) Yor-, *(& =. -. B9* K
... %f the la,s passed are seen to have a reasonable relation to a proper legislative purpose, and are
neither arbitrary nor discriminatory, the re#uirements of due process are satisfied, and judicial
determination to that effect renders a court ,unctus o,icio ... Eith the ,isdom of the policy adopted, ,ith
the ade#uacy or practicality of the la, enacted to for,ard it, the courts are both incompetent and
unauthori"ed to deal ....
1or purposes of comparison and emphasis, the Court, in 0ansan+ vs. Garcia, ,ent into the judicial
authority to revie, decisions of administrative bodies or agencies. %t stated that the revie,ing court
determines only ,hether there is some evidentiary basis for the contested administrative findings and
does not undertake #uantitative e8amination of supporting evidence. herefore, the Court stated that
it interferes ,ith an administrative finding only if there is no evidence ,hatsoever in support thereof
and said finding is actually arbitrary, capricious, and obviously unauthori"ed. he Court ruled that this
approach of deferring to the findings of administrative bodies cannot even be applied in its aforesaid
form to test the validity of an act of Congress or of the /8ecutive. he presumption of validity is of a
much higher category. he Court emphasi"ed that the coCe#uality of coordinate branches of the
government under our constitutional system demands that the test of validity of acts of Congress and
of those of the /8ecutive should be fundamentally the same. And this test is not correctness but
arbitrariness.
%t follo,s, therefore, that even if % ,ere to subscribe to the vie, that 0ansan+ vs. Garcia should not be
categorically reversed as erroneous doctrine, my decision ,ould be the same. /ven under 0ansan+
vs. Garcia, martial la, is valid.
here is nothing arbitrary in the decision to promulgate Proclamation ?o. &9)&. %t is not
unconstitutional.
D%%%
TCE CONTINE3TION :3N. E@ENTE30 0IFTING<
OF TCE ST3TE OF '3>TI30
03K IS 3 PO0ITIC30 ?EESTION
he continuation of the state of martial la, and the resulting continued restrictions on individual
liberties are, of course, serious aspects of the main issue ,ith ,hich this Court is concerned.
%n fact, this is the more difficult #uestion K he President having acted upon an initial and positive
finding that martial la, is necessary, may the Court in#uire into the bases for its duration or the need
for its continued impositionI
o,ards the end of this separate opinion, % ans,er the arguments of the petitioners #uestioning the
effectivity and legality of the ne, Constitution. %t is my un#ualified vie,, as e8plained later, that this
Court in the !atification Cases declared the ne, Constitution to be legally in force and effect.
% have to mention this vie,, at this juncture, because martial la, ,as proclaimed under the old
Constitution. >o,ever, its continuation and eventual lifting are no, governed by the ne, Constitution.
he e8ercise of martial la, po,er may be likened to the jurisdiction of a court. A court may have
jurisdiction under an old la, but the jurisdiction may be removed or modified by a ne, statute. %n
other ,ords, is the continuing state of martial la, valid under the ne, ConstitutionI %s it also a
political #uestion under the present CharterI
Article %D of the ne, Constitution on the Prime Minister and the Cabinet provides7
-/C. &*. he Prime Minister shall be commanderCinCchief of all armed forces of the Philippines and,
corpus, or place the Philippines or any part thereof under martial la,.
%t should be noted that the above provision is a verbatim reiteration of Article 6%%, -ection &9,
Paragraph ;*< of the old Constitution.
Ehat ,as the intent of the framers in adopting verbatim the provision found in the old ConstitutionI
At this point, modesty and prudence should inhibit me from advancing my o,n vie,s as the only member
of this ribunal ,ho ,as a delegate to the &('& Constitutional Convention. %n @era vs. 3velino ;'' Phil.
&(*<, this Court stated K 4he theory has been proposed K modesty aside K that the dissenting
members of this Court ,ho ,ere delegates to the Constitutional Convention and ,ere 4coCauthors of the
Constitution4 4are in a better position to interpret4 that same Constitution in this particular litigation.
here is no doubt that their properly recorded utterances during the debates and proceedings of the
Convention deserve ,eight, like those of any other delegate therein. ?ote, ho,ever, that the proceedings
of the Convention 4are less conclusive of the proper construction of the instrument than are legislative
proceedings of the proper construction of a statute: since in the latter case it is the intent of the legislature
,e seek, ,hile in the former ,e are endeavoring to arrive at the intent of the people through the
discussions and deliberations of their representatives.4 ;Eilloughby on the Constitution, 6ol. %, pp. BJ, BB.<
heir ,ritings ;of the delegates< commenting or e8plaining that instrument, published shortly thereafter,
may, like those of >amilton, Madison and .ay in he 1ederalist K here in the Philippines, the book of
Delegate Aruego, supra, and of others K have persuasive force. ;0p. cit., p. BB.<
But their personal opinion on the matter at issue e8pressed during our deliberations stand on a different
footing7 %f based on a 4fact4 kno,n to them, but not duly established or judicially cogni"able, it is
immaterial, and their brethren are not e8pected to take their ,ord for it, to the prejudice of the party
adversely affected, ,ho had no chance of rebuttal. %f on a matter of legal hermeneutics, their conclusions
may not, simply on account of membership in the Convention, be a shade better, in the eyes of the la,.
here is the ,ord 4deference4 to be sure. But deference is a compliment spontaneously to be paid K
never a tribute to be demanded.
And if ,e should ;,ithout intending any desparagement< compare the Constitution$s enactment to a
drama on the stage or in actual life, ,e ,ould reali"e that the intelligent spectators or readers often kno,
as much, if not more, about the real meaning, effects or tendencies of the event, or incidents thereof, as
some of the actors themselves, ,ho sometimes become so absorbed in fulfilling their emotional roles that
the fail to ,atch the other scenes or to meditate on the larger aspects of the ,hole performance, or ,hat
is ,orse, become so infatuated ,ith their lines as to construe the entire story according to their prejudices
or frustrations. Perspective and disinterestedness help certainly a lot in e8amining actions and
occurrences. 4Come to think of it, under the theory thus proposed, Marshall and >olmes ;names
venerated by those ,ho have devoted a si"eable portion of their professional lives to analy"ing or solving
constitutional problems and developments< ,ere not so authoritative after all in e8pounding the =nited
-tates Constitution K because they ,ere not members of the 1ederal Convention that framed itW ;pp.
*&BC*&2<4
% ,ish to follo, the e8ample, ho,ever, of my distinguished colleague, 'r. Justice Cali6to O. Bal!ivar
in P*ilippine Constitution 3ssociation vs. 'at*a ;&) -C!A A99< ,here, ,ith characteristic humility,
he stated in a concurring opinion K
My opinion in this regard is based upon a personal kno,ledge of ho, the constitutional proviso, Article 6%,
-ection &J of the Constitution, ,hich is no, in #uestion, became a part of our present Constitution. %t ,as
the -econd ?ational Assembly ,hich amended our original Constitution. % ,as a humble Member of the
-econd ?ational Assembly, representing the province of Anti#ue.
888 888 888
% still have vivid recollections of the important points brought up during the deliberations in caucus over
proposed amendments and of the agreements arrived at. % remember too the influences that ,orked, and
the pressures that ,ere brought to bear upon the Assemblymen, in the efforts to bring about agreements
on very controversial matters and thus secure the insertion of the desired amendments to the
Constitution. he discussions on the proposed amendments affecting the legislative branch of the
government ,ere specially of interest to us then because ,e ,ere in some ,ay personally affected, as
most of us ,ere interested in running for reCelection. .
%t is not my purpose here to impose on anyone my recollections of matters that ,ere brought up during
our caucuses then, but % only ,ish to emphasi"e the fact that my concurring opinion in the decision of the
case no, before =s has for its basis my honest and best recollections of ,hat had transpired or ,hat had
been e8pressed, during the caucuses held by the Members of the -econd ?ational Assembly in the
deliberations ,hich later brought about the &(J9 amendments.
888 888 888
% have endeavored to make a discourse of facts as % kno, them, because % sincerely believe that the
interpretation, embodied in the opinion penned by my esteemed colleague, Mr. .ustice ..B.+. !eyes, of
the pertinent provision of Article 6%, -ection &J of our Constitution is in consonance ,ith the facts and
circumstances as % remember them, and as % kno, them. As % have stated at the early part of this
concurring opinion, it is not my purpose to impose on anyone my recollection of ,hat transpired, or of
,hat had been discussed about, or of ,hat had been agreed upon, by the Members of the -econd
?ational Assembly during the deliberations ,hich brought about the &(J9 amendments to our
Constitution. My perception and my memory are as frail as those of any other human being, and % may
have incurred myself in error. %t just happened that the facts and the circumstances that % have herein
narrated, as % remember them, have engendered in my mind an opinion, nay a conviction, ,hich dovetails
,ith the opinion of my illustrious colleague that has penned the opinion for the majority of the Court in this
case. ;at pp. A&2, A&' and A*'CA*)<
.ustice 5aldivar$s recollections on the intent of the -econd ?ational Assembly meeting as a
constituent body in &(J9 are most helpful. here are no e8isting records of the deliberations on the
Article 6%, -ection &J amendment to the &(AB Constitution. he amendment discussions and debates
,hich took place during legislative caucuses are unrecorded and this Court has .ustice 5aldivar to
thank for his recollections.
%t is in this spirit that % venture my o,n recollections. % am also fairly certain that ,hen the proceedings
of the &('& Constitutional Convention are published, my observations ,ill be sustained. Ehen the
last Constitutional Convention approved the ?e, Constitution on ?ovember *(, &('*, the delegates
,ere a,are of preCconvention proposals to subject the e8ercise of the po,er by the /8ecutive to
judicial in#uiry. -tudies on the ,isdom of having a joint e8ercise of the po,er by the /8ecutive and
the +egislature ,ere before the delegates. ;=P +a, Center Constitution !evision Project, &('9, pp.
&9JC&9)< here ,ere ever constitutional la, scholars ,ho #uestioned the po,er altogether and
,anted it removed. hey claimed that ,hether or not martial la, is in the Constitution, it ,ill be
declared ,hen absolutely necessary and therefore, anticipating its use through a constitutional
provision serves no useful purpose.
he delegates ,ere fully a,are of the 3overnment stand on the *a#eas corpus and martial la,
provision. he 0ansan+ vs. Garcia decision ,as fairly recent. he po,ers of the Chief /8ecutive ,ere
e8tensively debated. he delegation kne, that in the 0ansan+ vs. Garcia, proceedings, the -olicitor
3eneral had consistently and forcefully argued that "arcelon vs. "a-er and 'ontene+ro vs.
CastaAe!a ,ere correct interpretations of the President$s po,er to suspend the privilege of the ,rit of
*a#eas corpus or place the Philippines or any part thereof under martial la,.
More significant is the fact that ,hen the ne, Constitution ,as finali"ed and the draft corrected and
approved prior to submission to the people, ,e ,ere already under a state of martial la,. he
petitioners had been arrested and various petitions filed. %n fact, petitioner /. 6oltaire 3arcia %%
included in his petition the argument that his detention pursuant to Proclamation ?o. &9)& deprived
his constituency of their representation in the Constitutional Convention. he delegates ,ere a,are
that Proclamation ?o. &9)& ,as challenged before this Court and that the -olicitor 3enerals ans,er
to all the petitions ,as invariably the doctrine of political #uestion.
%f it ,as the intent of the Constitutional Convention to subject the Prime Minister$s e8ercise of the
po,er to judicial in#uiry andFor control, the provision on martial la, ,ould have been accordingly
amended. %n fact, during the deliberations of the Committees on Civil and Political !ights and
/8ecutive Po,er, there ,ere proposals that the po,er to proclaim martial la, be subjected to control,
confirmation, or reversal by Congress or the -upreme Court, but the Convention did not accept any of
these proposals and decided to simply reiterate the earlier provision.
%t ,ould be enlightening for us to peruse the pertinent portions of the proceedings of the Committee
on Civil and Political !ights and /8ecutive Po,er, and % #uote7
&('& C0?-%=%0?A+ C0?6/?%0?
Manila
C0MM%//- 0? C%6%+ A?D P0+%%CA+ !%3>-
A?D /D/C=%6/ P0E/!
M%?=/- 01 >/ M//%?3
;.oint Public >earing<
E/D?/-DA@, -/P/MB/! ), &('&
-ession >all, Manila >otel
C0MM%// 0? C%6%+ A?D P0+%%CA+ !%3>-
P>ESENT
C*air(an @ice C*air(an7
Delegate De la -erna Delegate Abueg
'e(#ers=
&. Delegate Abad (. Delegate Pepito
*. Delegate Badelles &9. Delegate !eyes C.
A. Delegate 3arcia +. P. &&. Delegate -antillan
J. Delegate 3unigundo &*. Delegate -evilia
B. Delegate 3u"man 6. &A. Delegate -umulong
2. Delegate +aggui &J. Delegate 6eloso %.
'. Delegate Mendiola &B. Delegate 5afra
). Delegate 0pinion

CO''ITTEE ON EIECETI@E POKE>
P>ESENT
C*air(an= @ice C*air(an=
Delegate /spina Delegdate /8mundo
'e(#ers=
&. Delegate Corpus A. Delegate -antillan
*. Delegate 3arcia +. M. J. Delegate 5afra
Non4'e(#ers=
&. Delegate Ben"on B. Delegate Mastura
*. Delegate Calderon C. 2. Delegate !osales
A. Delegate Cali,ara '. Delegate @ancha
J. Delegate Castillo

Guest=
.ustice /nri#ue 1ernando
0P/?%?3 01 >/ M//%?3
&. At (7B9 a.m. Chairman 6ictor De la -erna called the meeting to order.
*. =pon certification of the -ecretary, the, Chair announced the e8istence of a ;uoru(.
A. he Chair then announced that the Committee has furnished the body resolutions regarding the
suspension of the privilege of the of *a#eas corpus. he Chair mentioned si8 !esolutions ?umbered &'2,
*29, BA&, &J&B, *A( and *A(J.
J. he Chair further said that the resolutions can be grouped into three schools of thought K the first,
refers to the absolute prohibition against suspension of the privilege of the ,rit of *a#eas corpus by any
authority in any and all events: the second supports the theory that it may be suspended by the President
,ith the concurrence of Congress or the -upreme Court: and the third, refers to the removal of the po,er
to suspend from the President and transfer the same to the -upreme Court.
B. he Chair then introduced to the members the guest speaker, .ustice /nri#ue 1ernando of the
-upreme Court of the Philippines. >e e8pressed fe, ,ords of ,elcome to the .ustice in behalf of the t,o
Committees conducting the public hearing.
2. .ustice 1ernando started his remarks by clarifying that he ,ould only ans,er #uestions that ,ill not
conflict ,ith his role as .ustice of the -upreme Court, since there ,as a pending case before the said
Court ,here the Po,er of the President to suspend the ,rit of *a#eas corpus is placed at issue. >e said
that he considered the privilege of the ,rit of *a#eas corpus as the most important human right. >e is of
the vie, that it might be preferrable if the Bill of !ights make it clear and e8plicit that at no time and under
no circumstances should the privilege of the ,rit be suspended. >e clarified that even if this po,er to
suspend the privilege of the ,rit ,ere removed from the President, he still has enough po,ers to prevent
rebellion, sedition, insurrection or imminent danger thereof because of his po,er to call the armed forces
in case the need for it arises.
'. he Chair asked the first #uestion to .ustice 1ernando. Because the .ustice send that it ,as not
necessary to grant the President the po,er to suspend the ,rit since Congress can al,ays pass a la,
that ,ould lengthen the period of detention of prisoners, the Chair asked if it ,ould not be very
cumbersome for Congress to enact such a la, in times of national emergency.
). .ustice 1ernando, in ans,er to the Chair$s #uery, said that Congress can pass a la, to that effect
,ithout a national emergency.
(. %n ans,er to #uestion propounded by Delegate Ceni"a, .ustice 1ernando said in &(B& in the
>ernande" case he e8pressed the opinion that even if the privilege of the ,rit ,ere suspended, the right
to bail could still be availed of. >e admitted, ho,ever, that up to no, there is no clearCcut ruling on the
matter. >e also said that the President, should not have the sole po,er to declare Martial +a,.
&9. Delegate Mendiola also asked .ustice 1ernando ,ho ,ould determine the circumstances that ,ould
,arrant the detention of prisoners for a longer period than ,hat is no, provided under the !evised Penal
Code. he .ustice ans,ered that if the prisoner is held for crimes against public order, then the ordinary
rules of criminal la, ,ill govern. he arresting authorities, in collaboration ,ith the 1iscal, ,ill determine
said circumstances.
&&. Delegate +aggui asked .ustice 1ernando ,hether he ,ould still deny the po,er to suspend the ,rit to
the President if the Convention ,rites into the Constitution safeguards against abuse of said po,er. he
.ustice said he ,ould still say that the po,er be denied the President because he considers the privilege
of the ,rit of *a#eas corpus as the most important human right.
&*. Delegate 3unigundo interpellated the .ustice and asked ,hether the latter ,ould favor preventive
detention of political prisoners or political offenders. he .ustice said ,e should follo, the Constitutional
Provisions regarding probable cause, and the rights of the accused should al,ays be respected.
&A. Delegate -antillan asked .ustice 1ernando ,hether he ,ould favor the proposal to delete the phrase
4imminent danger thereof4 and to limit the suspension of the ,rit from &9 to &B days unless Congress or
the -upreme Court ,ould e8tend the same. .ustice 1ernando said, since he ,as for the denial of the
po,er to suspend the ,rit, anything less than that ,ould not be in consonance ,ith his stand.
&J. Delegate 5afra asked .ustice 1ernando if it ,ould not be dangerous for a President to declare Martial
+a, because if he did, the military might take over the government and topple do,n the President and
even Congress, thereby establishing military dictatorship. .ustice 1ernando said that the danger e8ists.
&B. Delegate /8mundo interpellated .ustice 1ernando and asked the latter ,hat the President of the
Philippines should have done instead of suspending the privilege of the ,rit of *a#eas corpus,
considering the chaos and turmoil that prevailed prior to the suspension. he .ustice said that since it is
the duty of the President to faithfully e8ecute the la,s, he should and he could have called out the armed
forces to suppress insurrection, invasion, and rebellion.
&2. 0thers like Delegates Mastura, Adil, 3u"man, Pepito, 6eloso, Beng"on, +eviste ;0.<, and Ceni"a
interpellated .ustice 1ernando. he Chair then thanked the .ustice for his enlightening speech. >e
e8pressed the hope that at some future time the .ustice ,ould again favor the Committee ,ith his
appearance so that the members could propound more #uestions.
AD.0=!?M/? 01 M//%?3
&'. he meeting ,as adjourned at &* noon.
P!/PA!/D B@7
>0?0!AB+/ MACA!%0 CAM/++0
yped by 7 Cynthia B. Arra"ola
Proofread by 7 /. de 0campoF6. M. =mil
&('& C0?-%=%0?A+ C0?6/?%0?
M a n i l a
CO''ITTEES ON CI@I0 3N. PO0ITIC30 >IGCTS 3N.
EIECETI@E POKE>
M%?=/- 01 >/ .0%? M//%?3
?o. CCC
E/D?/-DA@, -/P/MB/! &B, &('&
CI@I0 3N. PO0ITIC30 >IGCTS
P>ESENT
'e(#ers=
&. Delegate Abalos /. (. Delgate 0pinion
*. Delegate Abad &9. Delegate Padua
A. Delegate, Aruego &&. Delegate Pepito
J. Delegate Calderon .. &*. Delegate !eyes C.
B. Delegate 3unigundo &A. Delegate -antos 0.
2. Delegate 3u"man &J. Delegate -iguion !eyna
'. Delegate +aggui &B. Delegate 5afra
). Delegate Mendiola

Non4'e(#ers=
&. Delegate Adil 2. Delegate 3arcia +.
*. Delegate A"cuLa '. Delegate Molina
A. Delegate Claver ). Delegate !ama.
J. Delegate De Pio (. Delegate -eares.
B. Delegate 3arcia /. &9. Delegate upa" D.
Guest=
-enator .ose E. Diokno
3"SENT
'e(#ers=
&. Delegate Aldeguer ). Delegate 3uiao
*. Delegate Badelles (. Delegate Mastura
A. Delegate Catubig &9. Delegate Purisima
J. Delegate Ceni"a &&. Delegate -antillan
B. Delegate De la Pa" &*. Delegate -evilia
2. Delegate 1algui &A. Delegate -umulong
'. Delegate 1ernande" &J. Delegate 6eloso %.

EIECETI@E POKE>
P>ESENT
C*air(an=
Delegate /spina
'e(#ers=
&. Delegate Alano &*. Delegate ?uguid
*. Delegate Astilla &A. Delegate 0lmedo
A. Delegate Barrera &J. Delegate Piit
J. Delegate Britanico &B. Delegate !amos
B. Delegate Cabal &2. Delegate -agadal
2. Delegate Corpus &'. Delegate -aguin
'. Delegate 1lores A. &). Delegate -ambola,an
). Delegate 3arcia +.M. &(. Delegate -anche"
(. Delegate 3on"ales *9. Delegate ocao
&9. Delegate .uaban *&. Delegate 6ele"
&&. Delegate Mutuc **. Delegate @Ligue"

3"SENT
@ice C*air(an=
Delegate /8mundo
'e(#ers=
&. Delegate Araneta -. ). Delegate ?epomuceno
*. Delegate Davide (. Delegate -antillan
A. Delegate Duavit &9. Delegate -errano
J. Delegate 3audiel &&. Delegate -inco
B. Delegate +i,ag &*. Delegate rillana
2. Delegate +una &A. Delegate @ap
'. Delegate Marino &J. Delegate 5osa
0P/?%?3 01 M//%?3
&. At (7A9 a.m., Chairman 6ictor De la -erna called the meeting to order and declared the e8istence of a
,orking #uorum.
*. Chairman 3erardo -. /spina stated that it ,as a joint hearing of the Committee on Civil and Political
!ights and the Committee on /8ecutive Po,ers.
A. he Chair confirmed the statement of Chairman /spina and further stated that it ,as the second joint
hearing of the t,o Committees, and introduced -enator .ose E. Diokno, guest speaker for the hearing.
J. -enator Diokno thanked the joint Body for giving him an opportunity to discuss ,ith them the po,er to
suspend the privilege of the ,rit of *a#eas corpus and the po,er to declare martial la,. o be able to
resolve the problem, he propounded the #uestions7 ;&< should the President have the po,er to suspend
the privilege of the ,rit of *a#eas corpus, ;*< assuming he ,as given the po,er, under ,hat
circumstances should he be allo,ed to e8ercise it, and ;A< ,hat safeguards should be placed upon the
e8ercise of that po,er. >e surmised that in his opinion, if the only legal basis for the grant of the po,er is
to bide time to be able to bring persons to court for it to decide on the matter, as such time is al,ays
available to the government, he sa, no reason in suspending the privilege of the ,rit of *a#eas corpus,
since the same objective can be attained by the imposition of martial la,, ,hich is not a graver step and
is not gravely abused in the practical point of vie, that no President ,ill declare martial la, unless he can
have the armed forces agree ,ith him that there is actual invasion, rebellion or insurrection. >e stated
that the present Constitution only allo,ed the suspension of the privilege in cases of e8treme emergency
affecting the very sovereignty of the -tate, ,hich in his belief, is only in cages of invasion, rebellion or
insurrection. >e did not agree that there should be a safeguard provided prior to the issuance of the
proclamation suspending the privilege of the ,rit, but rather after the ,rit has been suspended, by
re#uiring either the courts or Congress to pass upon the necessity of the suspension of the ,rit. >e
dissented ,ith the idea that ,here should be a definite time period for its validity, because it is difficult to
determine ,hat should be an ade#uate period, ho,ever, the -upreme court or Congress could al,ays be
re#uired to act ,ithin a definite period on the validity of the suspension ,hich he considered, already a
proper safeguard.
>e added further that the po,er to place any part of the national territory under martial la, should be,
limited to cases only of actual invasion, rebellion or insurrection. >o,ever, he strongly favored the
deletion of the provision 4on imminent danger4, ,hich he stressed, is an e8cuse for a dictatorial President
to declare martial la, on the that there is imminent danger ,hen there is none. here is a possibility, he
said, that the armed forces ,ill be broken up, in the sense that one group may favor the President and the
other may refuse to allo, themselves to be used ,hen there is actually no 4imminent danger4, so that
instead of their helping preserve peace and order, it ,ould provide an occasion for bringing about
revolutions.
B. he Chair asked the -enator if the President should declare martial la, ,here imminent danger
actually e8ists and the civil authorities are still functioning. >e further #ualified that is it not the of the
Constitution in the phrase 4martial la,4 that the civil authorities call upon the military authorities to help
them or is it a complete and arbitrary substitution of authority by the military.
B.& -enator Diokno replied that the President$s action in his personal opinion, is arbitrary
and illegal, but ,ho could stop him from doing that. /ven the -upreme Court is reluctant
to act because it has the army to reckon ,ith. >e construed that martial la, could be
legally e8ercised only in places ,here actual fighting e8ists and the civil authorities are no
longer e8ercising authority, in ,hich case the military can supplant the civil authorities.
>e added that it is also possible to declare a limited martial la, in certain areas ,here
the military may impose curfe, and temporary detention of persons charged of causing
and participating in chaotic situations.
2. Chairman /spina recogni"ed Delegate Britanico ,ho had the first option to interpellate the -enator.
2.& Delegate Britanico ,anted to kno, from the -enator ,hether, in his opinion, the
po,er to suspend the ,rit be altogether removed from the President, and that in the
event this po,er is retained, ho, should it be e8ercised by the PresidentI .
2.* -enator Diokno replied that if this po,er is retained it should he e8ercised by the
President alone but subject to revie, by either Congress or the Parliamentary Body that
may eventually be adopted.
2.A Delegate Britanico ,anted the vie, of the -enator if he ,as agreeable to have the
President share the po,er ,ith the 6ice President, -enate majority and minority floor
leaders, -enate President, .ustices of the -upreme Court, the Comelec Chairman and
other heads of the constitutional organi"ations K
2.J -enator Diokno replied that he is averse to sharing po,ers because it could not be
done e8pediently. he -enator reminded the group that as a general rule, the President
and the President of the -enate belong to the same party and even the justices of the
-upreme Court fall under the same situation, and it ,ould then still be the President ,ho
,ill decide.
'. he Chair called on Delegate 0lmedo on his reservation to ask the ne8t #uestion.
'.& Delegate 0lmedo ,anted to clarify if there is any technical distinction bet,een
suspension of the privilege of the ,rit of *a#eas corpus and the ,rit itself.
'.* -enator Diokno replied that the ,rit itself is the order of the court to the person having
custody of the subject to produce him in court, and that the subject has the privilege to
post bail pending the filing of the case against him, if he is to be heard for an offense. >e
cited the decision of the Confederate Authority ,hich says that the privilege of the ,rit
refers to criminal arrests in ,hich the persons arrested have the privilege to be released
on bail, ,hich is the privilege that is suspended.
'.A Delegate 0lmedo asked ,hether the -enator$s stand on the abolition of the po,er to
suspend the privilege of the ,rit or as an alternative, the suspension be e8ercised ,ith
the participation of other agencies, is because of the antiCadministration group clamoring
for its abolition from the constitutional provisionsI .
'.J -enator Diokno reiterated his statement that it is his personal belief that martial la, is
a better measure than the suspension of the privilege of the ,rit, ,hich the President
claims to have e8ercised to dismantle the communist apparatus in the country. Ehether
this is justified or not remains an issue. Assuming that the Communists are arrested no,,
ne, leaders ,ill come up and take over command, and these ne, ones are not yet
kno,n to the military authorities and so the same communistic situation continues to e8ist
and the cycle goes on unresolved.
'.B As a last #uestion, Delegate 0lmedo sought to be clarified on the alternative vie, of
the -enator that of retaining the po,er but its e8ercise be ,ith the concurrence of
Congress and the -upreme Court.
'.2 he -enator reiterated that he is for the abolition of the po,er, but if the
Constitutional Convention believes it necessary to retain it, then its e8ercise by the
e8ecutive must be subject to revie, and reversal, if need be, by Congress and the
-upreme Court. >e maintained that the e8ercise of the po,er to suspend the privilege of
the ,rit is determined by t,o factors7 ;&< legality and, ;*< ,isdom. he -upreme Court
shall determine the legality and Congress determines the ,isdom of the President$s
e8ercise of the po,er, and it is the Convention that can resolve this problem.
). Chairman /spina called on Delegate Barrera, ho,ever, re#uested the Members to limit their #uestions
to only t,o to allo, everybody the opportunity to #uestion the guest.
).& Delegate Barrera stated that the -enator is for the discarding of the constitutional
provision on the po,er to suspend the privilege of the ,rit of *a#eas corpus but is for the
right of an organ of government to declare martial la, but limited to an actual e8istence of
invasion, rebellion or insurrection, his ,as confirmed by the -enator. Delegate Barrera
in#uired ,hether the -enator agrees or not to the fact that in places ,here actual fighting
or actual invasion, rebellion or insurrection e8ists, declaration of martial la, is
unnecessary since the commanderCinCchief has the full responsibility of e8ercising every
step necessary to protect and preserve the ,elfare of the nation.
).* -enator Diokno replied that ,hile it is true that the po,er to take all the n steps to
preserve peace and order and protect the people, is inherent po,er of sovereignty, yet it
,ould certainly be safer to provide this po,er of formal declaration to prevent individual
arbitrary e8ercise of po,er by military commanders in the field. >e stressed the need for
a specific constitutional provision ,hich must be clearly stated and defined as to the
e8tent of the e8ercise of such po,ers.
(. Delegate Padua ;C.< disclosed that he is an author of a resolution removing po,ers of the President to
suspend the privilege of the ,rit of *a#eas corpus as ,ell as to declare martial la,, and his point of
concern lies in the subse#uent grant of emergency po,ers that are complimentary to e8ercise of martial
la, by the President no, given in the present Constitution. >e asked the -enator ,hether the criterion in
the e8ercise of martial la, to actual invasion only K that is, remove the terms 4rebellion and insurrection4
as part of the criteria, ,ould diminish the presidential po,er e8cesses and abuses. Delegate Padua cited
the vie, of .ustice 1ernando that people have the right to rebel, and this ,ould tend to justify e8clusion of
rebellion and insurrection as prere#uisites to impose martial la,.
(.& -enator Diokno opined that the complimentary emergency po,ers of the President
,as intended by the Constitution to allo, the President to legislate in the absence of
Congress but #ualified this statement by revealing that he has not made deeper studies
along this particular point. >e also stated that the state has to have po,er to protect itself
from any form of change other than through constitutional processes and this concept is
shared not only by democratic but by any form of government in e8istence. %n ans,er to
Delegate Padua, he suggested to define ,hat the ,ord rebellion in the provision mean,
and the term 4insurrection4 should be removed since insurrection is a small rebellion,
,hich does not merit declaration of martial la,. his provision could ,ell fit in the Bill of
!ights instead as 4the -tate or any portion thereof, may be placed under martial la, only
in case of actual invasion or rebellion, ,hen the public safety so re#uires.4 hen eliminate
the provision granting po,er to suspend the privilege of the ,rit of *a#eas corpus and
place the po,er to declare martial la, among the po,ers of the President in -ection &9,
Article 6%%, perhaps.
&9. Delegate Pat sought clarification as to the stand of the -enator on the President being already
CommanderC%nCChief of the Armed 1orces, and is then capable of #uelling rebellion, therefore the po,er
of martial la, need not be specified in the Constitution or that if it has to be, then it has to be in aid to
civilian authorities only. >e further sought the -enator$s opinion upon ,hom to lodge the po,er to
suspend the privilege of the ,rit of *a#eas corpus as ,ell as po,er to declare martial la,, since he is a
proponent of a form of government that ,ould have both a President as head of state and prime minister
as head of government.
&9.& he -enator clarified his statement to Delegate Barrera that to declare martial la, is
a recogni"ed po,er inherent to the sovereignty of the state and so, need not be
mentioned in the Constitution, a case in point is the =nited -tates Constitution. %n reply to
the second #uery, he stressed that, to him, there should not be such po,ers lodged on
anyone any,here. But if there has to be, the Prime Minister, since the President is
generally a ceremonial officer, and ,ould not be kept abreast officially on every
circumstance and happening of the day in the country.
&&. Delegate -iguion !eyna pointed out that from the discussions, it ,ould be safe to assume that the
only thing that matters to an e8ecutive ,hen he is allo,ed to suspend the privilege of the ,rit or not, in his
e#uivalent right to arrest and detain people beyond the statutory re#uirement. >e in#uired ,hether the
-enator entertains the same thinking that the provision has outlived its usefulness since this provision
,as established during the days ,hen third degree ,as accepted as a means of getting at the truth and
confessions from people. %n the absence of third degree methods, there is nothing to be gained in
detaining people unless by the psychological idea that a detainee ,ould soften to confession, ,hich is
unlikely.
&&.& he -enator e8plained that the objective of suspending the privilege of the ,rit is to
hold people incommunicado citing as an e8ample, the Philippines, if it is threatened by a
!ed Chinese invasion and the authorities suspected Mr. Chan, Mr. an, etc. to be spies,
then suspension of the privilege of the ,rit ,ould enable the government to take
immediate hold of Mr. Chan, Mr. an and company and keep them under detention
,ithout right to bail. his ,ould put them out of circulation and disable their operations.
he justifying reason therefore, lies in the need of the Armed 1orces for essential time to
devote on the fight against the invaders or rebels instead of consuming time to formulate
charges against these detainees and the filing of charges against these detainees can be
put aside until such time ,hen the invasion or rebellion is under control. %n short, it is to
enable the Armed 1orces to buy essential time. >e reiterated that po,er to suspend the
privilege of the ,rit of *a#eas corpus and po,er to declare martial la, are justified only
on actual invasion or rebellion, and he still maintained that the former case is
unnecessary.
&&.* Delegate -iguion !eyna further #ueried the -enator ho, the -tate can meet the
security problem in a case of imminent invasion and the po,er to suspend the privilege of
the ,rit is no longer provided for, taking as a case in point, the Philippine situation during
the period prior to the .apanese ,ar ,hen .apanese spies ,ere all over the country
preparing the grounds for its invasion in .apan. >o, can the President or the Prime
Minister meet the problem if he has no Po,er to suspend the privilege of the ,rit.
&&.A he -enator replied that in situations like this, the -enate should undertake
surveillance ,ork as is done in the =.-. he suspects are kept under surveillance and
,hen enough evidence is ac#uired the authorities spring the trap on them and bring them
to court or in case the suspect is found operating ,ithin an area ,here an actual fighting
is on, then the commander of the Armed 1orces in the area, by virtue of his inherent
military po,er to restrict movement of civilians in the area can apprehend and take them
to custody until the fight is over ,ithout the need for suspending the privilege of the ,rit. %t
is part of military po,er. >e suggested as an alternative that a degree of fle8ibility in the
manner of legislation can be resorted to. Citing as an e8ample the legislation on matters
of crimes against the security of the state, detention period prior to filing the case in court
can be enlarged. here are la,s at present failing under this category. Eire tapping is
unla,ful under normal conditions but it is allo,ed in cases involving security and
rebellion.
&*. %n the follo,Cup clarification by Chairman De la -erna, the attention of the -enator ,as directed back
to his former statement that pending the privilege of the ,rit only allo,s the government to hold the
detainee incommunicado but the detainee has other rights as the right to communicate ,ith relatives.
&*.& -enator Diokno agreed that the detainee is still entitled to other rights as the right to
be represented by counsel, but once detained, he is subject to restrictions and control by
the jailer.
&*.* Delegate De la -erna asked if there is a difference in the treatment of detainees
,hen the privilege of the ,rit is suspended and detainees arrested ,hen the privilege is
not suspended7 Ehether to hold a person incommunicado, a jailer is under instruction to
impose certain degree of restrictions to this person ,hich is not true ,ith the ordinary
prisoners.
&*.A -enator Diokno replied that there ,as really no distinction or difference ,ritten in the
la, but the jailer, in the e8ercise of his duty, has a certain degree of un,ritten po,er over
his detainees. he -enator ho,ever disclosed ,hat happened recently to people
detained ,hich he e8perienced as their counsel. he la,yers ,ere allo,ed to talk to the
detainees after a number of days had lapsed, and in fact after their statements ,ere
already taken, after the process of interrogations ,ere terminated. >e revealed that he
,as informed that the detainees ,ere never harmed nor subject to physical pressure but
the process of interrogation continued for hours and hours, and even at an unholy hour of
midnight they ,ere a,akened for further interrogation. Methods designed to inflict mental
and physical torture to tire out the detainees.
&A. he Chair recogni"ed Delegates Molina and Mendiola ,ho jointly engaged the -enator into a series
of interpellations regarding the -enator$s personal opinions and vie,s on the incumbent Presidential
e8ercise of his po,ers ;Proclamation ))( and ))(CA< suspending the privilege of the ,rit of *a#eas
corpus.
&J. Delegate Mutuc asked the -enator if there is no difference bet,een the "arcelon vs. t*e "a-er and
the 'ontene+ro vs. CastaAe!a cases.
&J.& he -enator replied that there ,as a difference and e8plained7 ;&< %n the former
case, the suspension of the privilege of the ,rit should not have been done but it ,as
done only upon joint hearing by the Philippine Commission and the 3overnor 3eneral to
grant action. Ehile in the latter case, the suspension ,as the e8clusive action of the
President of the Philippines. ;*< he situation in the former case ,ere such that at the
very beginning our courts ,ere manned by American .urists intended to be later on
manned by 1ilipino .urists. his being so, the courts found it hard to rule and make a
doctrine. -uch action could be interpreted as tantamount to allo,ing 1ilipino .urists to
overrule an American 3overnor 3eneral and by implication, overrule the President of the
=.-. since under the .ones +a,, the privilege of the ,rit can be suspended by the
President of the =.-. his can be held later on ;today< that the 1ilipino -upreme Court
could revie, the findings of the President of the =.-., ,hich is impossible under the
relation bet,een a colony and its coloni"er, and ;A< that the standard of morality and truth
,ere observed ,ith greater fidelity at that time than they are today.
&J.* Delegate Mutuc sought clarification in the event that the -upreme Court rules that
the antiCsubversion la, is not a Bill of Attainder the -enator begged off. >e stated that he
preferred not to discuss the details and merits of his position in this case, but strongly
urged the Convention to consider re,riting the provisions on the freedom of association.
&B. he Chair ,anted to kno, ,hether suspension of the ,rit and the right to bail is not suspended.
&B.& he -enator stated that in his opinion the right to bail prior to filing the case in court
is suspended. Ehen the case is filed in court, the custody of the person accused goes
from the e8ecutive to the judiciary. 0n a follo,Cup #uestion by the Chairman seeking
clarification for the distinction pointed out by the -enator that right to bail prior to filing the
case in court is suspended, the -enator e8plained that the provision of the privileged of
the ,rit consists of the right of a person to be released if the arrest is found illegal by
court, or the detention is arbitrary or in absence of a prima facie evidence against the
person, so if the privilege of the ,rit is suspended, it follo,s that all the other rights are
also suspended.
&B.* he Chair sought the vie, of the -enator on the opinion of both -ecretary Abad
-antos and -olicitor Antonio that during suspension of the privilege of the ,rit, an order
of ,arrant of arrest is necessary. -enator Diokno agreed ,ith this opinion. he Chair
pointed out that if, as the -enator said, the purpose of the privilege of the ,rit is to
#uestion the legality of arrest and detention, it could be so, even if there is a valid ,arrant
of arrest. his ,ould seem to point out that the issuance of the ,arrant of arrest is
unnecessary. he -enator replied, ?0, and pointed out that if no case can be produced
against a person detained, the arrest is unla,ful and the arresting officer is subject to
prosecution. he suspension of the privilege of the ,rit merely makes it impossible for the
courts to order the release of the detainee. he -enator agreed substantially ,ith the
observation of the Chair that this long legal process re#uired to be follo,ed defeats the
very purpose of the suspension of the privilege of the ,rit, and stated that this is the
reason the e8ecutive and the military authorities resort to illegal shortcuts in taking people
into custody. Many of the detainees today ,ere not issued legal ,arrants, but ,ere just
invited to the military head#uarters. Because of these observations cited, the -enator
urged the joint Body to revie, and re,rite the provisions on the issuance of ,arrants of
arrest.
&2. Delegate upa" ;D.< engaged the -enator in a series of clarificatory #uestions ,hich delved on points
already discussed by the -enator in previous interpellations by Delegates Mutuc, Barrera, !eyes, +aggui
and -iguion !eyna. he -enator ho,ever reiterated his statement that he is for the retention of the
e8ercise of martial la,, not that it is less harmful, but that it is less subject to abuse than the suspension
of the privilege of the ,rit.
&'. Delegate 3unigundo$s interpellations ,ere on the subject of effectivity and validity of Presidential
Proclamations as Proclamation ?o. ))( and ))(CA. he -enator emphasi"ed that the effectivity of
proclamations hinges on the time it ,as made public, not necessarily though, that it be published in the
0fficial 3a"ette, nor copies of the contents be furnished the metropolitan ne,spapers for publication.
&). -enator Diokno categorically ans,ered Delegate -anche" that he ,as suggesting a proposal to
totally remove the po,er to suspend the ,rit of *a#eas corpus in the proposed Constitution, since being
silent about it ,ill allo, Congress or the President to e8ercise its po,er of such procedure. %n ans,er to
Delegate Calderon ;..<, he reiterated that the suspension of the ,rit of *a#eas corpus can be e8ercised
,ith or ,ithout being provided for in the Constitution.
&(. Delegate Aruego ,as informed by -enator Diokno that those detained can only apply for bail if a case
is filed against a detainee in court, so ,hat is done is to file a petition for *a#eas corpus, ,hich includes
the right to bail, it the case is bailable.
*9. Delegate 6ele" e8plained that he ,as recommending t,o alternative proposals to the /8ecutive
Po,er Committee7 &< to prevent forever the suspension of the privilege, or *< to put safeguards, meaning
the President may suspend it but only in actual cases of invasion or rebellion for a specific period of time
in specific areas ,here public safety re#uires it, ,ith the concurrence of t,oCthirds vote of the members of
Congress, if in session, and if not, it ,ill be subject to the automatic revie, by the -upreme Court.
*9.& -enator Diokno ,as in favor of Delegate 6ele"$ first proposal, ho,ever, in the event
the thinking of the Convention does not agree, the -enator did not ,ant to limit the
President, or ,hoever e8ercises the po,er to suspend, for a specific period, because it
,ill be infle8ible and meaningless. >e ,as not agreeable to a concurrence by Congress
because he does not ,ant to tie the hands of the President in of emergency, since it is
very hard to muster a #uorum in both houses of Congress. >o,ever, he ,as for its
revie, by the -upreme Court. >e ,as for the immediate proclamation, but a limit of time
should be set ,ithin ,hich, the revie, should be made.
*9.* Delegate Barrera insisted that the right to protect itself is an inherent sovereign right
of any -tate, so that for any organi"ation of government to e8ercise those means of
protection ;declaration of martial la, and suspension of the privilege of the ,rit< should
be so stated in the Constitution, and the necessary safeguards provided for.
*&. Delegates Barrera and -iguion !eyna engaged the -enator in a discussion critici"ing
the actuations of the incumbent President in connection ,ith the suspension of the ,rit of
*a#eas corpus.
AD.0=!?M/? 01 M//%?3
**. he Chair thanked -enator Diokno for his elucidation and participation in the discussions of the topics
for the day, and adjourned the joint public hearing at &*7&9 p.m.
P!/PA!/D A?D /D%/D B@7 ;-gd.< >0?. C/+-0 P. AB=/?A
A/-/D B@7
;-gd.< 6%C0! D/ +A -/!?A
Chairman
Committee on Civil and Political !ights
yped by7 Alice 3. A#uino
Proofread by7 -alome 0rti"F6ivencio 3opole
Gno)in+ t*e Govern(entDs stan! an! t*e Presi!entDs action, t*e Constitutional Convention !eci!e!
to retain t*e (artial la) po)er ver#ati( in t*e ne) Constitution. T*e ,ra(ers not onl rati,ie! t*e
vali!it o, t*e e6istin+ state o, (artial la) #ut rea,,ir(e! t*e Presi!entDs interpretation as t*e correct
(eanin+ o, t*e constitutional provision ,or ,uture occasion re;uirin+ its e6ercise. T*e political
c*aracter o, a (artial la) procla(ation )it* its continuation )as t*en con,ir(e! # t*e Constitution
Convention.
he political character of continued martial la, is also sustained by the parliamentary system under
the ne, Charter. he po,er to declare martial la, is vested e8clusively in the Prime Minister by
Article %D, -ection &*. 1ollo,ing established precedents, such a vesting of po,er is supposed to
mean that its e8ercise is to the e8clusion of all others ,ho may ,ant to share in the po,er. %n
practice, ho,ever, this ,ill no longer be true.
he &('A Constitution joined together the /8ecutive and the +egislative departments of the
government, ,hich ,ere distinctly separate from each other under the &(AB Constitution. he ?e,
Charter provides7 4he legislative po,er shall be vested in a ?ational Assembly.4 ;Article 6%%%, -ec. &<:
4he /8ecutive po,er shall be e8ercised by the Prime Minister ,ith the assistance of the Cabinet.4
;Article %D, -ec. &<: 4he Prime Minister shall be elected by a majority from among themselves.4
4;Article %D, -ec. A<: 4he Prime Minister shall appoint the Members of the Cabinet ,ho shall be the
heads of ministries at least a majority of ,hom shall come from the ?ational Assembly. Members of
the Cabinet may be removed at the discretion of the Prime Minister.4 ;Article %D, -ec. J<.
hus, ,e no, have a Parliamentary system of government under the ?e, Charter. An essential
feature thereof is the direct responsibility of the Prime Minister and the members of his Cabinet to the
?ational Assembly, for they hold their positions only for as long as they enjoy the confidence of the
Assembly. More accurately, Article 6%%%, -ec. &A ;&< provides for the ,ithdra,al of confidence through
the election of a successor or a ne, Prime Minister by a majority vote of all members of the ?ational
Assembly.
A Prime Minister under the ne, Charter must al,ays take into account the desires of the ?ational
Assembly ,hen he makes important decisions. As a matter of fact, he and the majority of his cabinet
are also members of the ?ational Assembly. %n fact, they are the leaders of the predominant party in
the legislature. hey control legislative policy. he Prime Minister is responsible to the ?ational
Assembly and must e8ecute its ,ill on the one hand and he is its political leader and helps shape that
,ill on the other. 3rave public issues ,ill be handled by the /8ecutive and the +egislature acting
together. En!er t*e ne) Constitution, (artial la) )ill #e a 5oint responsi#ilit o, t*e t)o political
!epart(ents :e6ecutive an! le+islative< even i, its ,or(al procla(ation is veste! solel in t*e Pri(e
'inister.
Before % could release this opinion, % ,as able to get the 4ranscript of the Proceedings of the &22C
man -pecial Committee & Meeting ?o. &, 0ctober *J, &('*4 ,hich fully sustains my vie,, and %
#uote7
!A?-C!%P 01 >/ P!0C//D%?3- 01 >/ &22CMA?
-P/C%A+ C0MM%// K M//%?3 ?0. &
0C0B/! *J, &('*
O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O
P3GE && P @O0. I@I O NO. &
D/+/3A/ =PA5 ;A.<7 -ection J K
>/ P!%M/ M%?%-/! ->A++ B/ >/ C0MMA?D/!C%?CC>%/1 01 A++ A!M/D 10!C/- 01 >/
P>%+%PP%?/- A?D, E>/?/6/! % B/C0M/- ?/C/--A!@, >/ MA@ CA++ 0= -=C> A!M/D
10!C/- 0 P!/6/? 0! -=PP!/-- +AE+/-- 6%0+/?C/, %?6A-%0?, %?-=!!/C%0?, 0!
!/B/++%0?. %? CA-/ 01 %?6A-%0?, %?-=!!/C%0?, 0! !/B/++%0?, 0! %MM%?/? DA?3/!
>/!/01, E>/? >/ P=B+%C -A1/+@ !/P=%!/- %, >/ MA@ -=-P/?D >/ P!%6%+/3/ 01 >/
E!% 01 C3"E3S CO>PES, 0! P+AC/ >/ P>%+%PP%?/- 0! A?@ PA! >/!/01 =?D/!
MA!%A+ +AE.
his provision is an e8act copy of a provision in the present Constitution. his provision complements
-ection &B, Article %6 on the Bill of !ights of this draft. May %, therefore, move for its approval, Mr.
ChairmanI
C>A%!MA? D/ 3=5MA? ;A<7 Any observation or commentI @es, 3entleman from BatangasI
D/+/3A/ +/6%-/ ;0.<7 hank you, Mr. Chairman. Ee notice, @our >onor, that in these t,o sections,
-ection &B of the Bill of !ights and -ection &* of Article %D, ,e are, in a ,ay of speaking, remedying the
seeming discrepancy bet,een similar provisions in the present Constitution. Both provisions ,ill no,
contain the phrase 4or in case of imminent danger thereof4. Eith such a change, % believe that no conflict
as to the true intent ,ill arise in the future. But allo, me, @our >onor, to recall, briefly, our recent
jurisprudence on the matter of the declaration of martial la, and of the suspension of the privilege of the
,rit of *a#eas corpus. @our >onor ,ill recall that under the .ones Act, the 3overnorC3eneral of the
Philippines ,as given the po,er to suspend the privilege of the ,rit of *a#eas corpus and to declare
martial la,. Ehen such po,er ,as #uestioned in court, the -upreme Court came out ,ith the decision, in
the case of "arcelon vs. "a-er, that the findings of the Chief /8ecutive on the e8istence of the grounds
for the declaration of martial la, or the suspension of the privilege of the ,rit of *a#eas corpus are
conclusive and may not be in#uired into by the courts. Ehen the Philippine Common,ealth ,as
established under the &(AB Constitution, the President thereof ,as like,ise given the po,er to suspend
the privilege of the ,rit of *a#eas corpus and to proclaim or declare martial la, for any of the causes
enumerated in the pertinent provisions. -ometime in the &(B9$s, then President Puirino suspended the
privilege of the ,rit of *a#eas corpus. Ehen a case arose, that of 'ontene+ro vs. CastaAe!a, the
-upreme Court affirmed its stand in "arcelon vs. "a-er, that the assessment by the Chief /8ecutive of
the e8istence of the cause or causes giving rise to the proclamation of martial la, or the suspension of
the ,rit of *a#eas corpus is conclusive and may not be contested in the courts. !ecently, ho,ever, only a
little less than a year ago, ,hen President Marcos suspended the privilege of the ,rit of *a#eas corpus,
the -upreme Court ruled, in the case of 0ansan+ vs. Garcia and other companion cases, that the
e8istence of insurrection, rebellion, invasion, or imminent danger thereof, may be properly in#uired into by
the courts. ?o,, % ,ould like to pose before this body, ,hether this Convention should no, affirm the
latest doctrine or ,hether ,e should revert to the old theory and doctrine in the t,o cases of "arcelon vs.
"a-er and 'ontene+ro vs. CastaAe!a.
D/+/3A/ =PA5 ;A.<7 %n vie, of the fact that Chairman de 3u"man is also the Chairman of -ubC
council %% on Citi"ens$ !ights ,hich conducted an e8haustive study on this matter of martial la,, may %
re#uest that he be the one to ans,er #ueries on this pointI
C>A%!MA? D/ 3=5MA? ;A.<7 %n that case, may % re#uest Delegate upa" to act as Chairman in the
meantimeI ;At this point, Chairman De 3u"man yielded the Chair to Delegate Antonio upa" <
D/+/3A/ D/ 3=5MA? ;A.<7 % am personally in favor of abandoning the doctrine laid do,n in the case
of 0ansan+ vs. Garcia, and % ,ould recommend such a vie, to this Committee, and to the Convention as
a ,hole. At this very moment, the -olicitor 3eneral, in representation of President Marcos is urging the
-upreme Court that such a doctrine be abandoned and that ,e revert to the old theory laid do,n in the
cases mentioned by @our >onor. %ndeed, our courts, especially the -upreme Court, ,here these cases
are invariably taken up, are illCe#uipped to make findings on the e8istence of rebellion, insurrection, or
la,lessness.
D/+/3A/ +/6%-/ ;0.<7 But is not @our >onor a,are that there are a number of resolutions filed in the
Convention that the Chief /8ecutive may suspend the privilege of the ,rit of *a#eas corpus or proclaim
and declare martial la, only for a limited period andFor ,ith the concurrence of the +egislatureI
D/+/3A/ D/ 3=5MA? ;A.<7 @es, @our >onor, but ,e are not bound. his Committee is not bound by
those resolutions. As already agreed upon ,hen the &22CMan -pecial Committee ,as created, that
Committee of ,hich ,e are a part ,as merely advised to take into consideration such resolutions. Ee
should bear in mind also that ,e are adopting the parliamentary system ,here there is more, rather than
less, fusion of legislative and e8ecutive po,ers. Ee are adopting, @our >onor, the concept and principle
of an e8ecutive more directly and immediately responsible to the +egislature so that the e8ercise by the
Chief /8ecutive of any of his po,ers ,ill be subject to the ever present scrutiny of the +egislature.
D/+/3A/ +/6%-/ ;0.<7 But my point, @our >onor, is to emphasi"e the fact that the filing of those
resolutions re#uiring even the concurrence of the ?ational Assembly for the valid e8ercise by the Prime
Minister of these e8traordinary constitutional prerogative indicates that there is a sentiment among the
Delegates to further restrict, rather than e8pand, the po,ers. And % ,ould say that the decision of the
-upreme Court in 0ansan+ vs. Garcia ,hich repudiated the doctrine earlier laid do,n in Baker and
CastaLeda lends support to that sentiment.. %f ,e are to interpret the provision under consideration in the
,ay @our >onor ,ould ,ant it interpreted, in the sense that the factual findings of the Chief /8ecutive for
the suspension of the privilege of the ,rit of *a#eas corpus or the declaration of martial la, ,ould be
conclusive insofar as the .udicial Department is concerned, then ,e are retrogressing and, in effect,
going against the sentiment to further restrict the e8ercise of these great constitutional po,ers.
D/+/3A/ D/ 3=5MA? ;A.<7 % can go along ,ith @our >onor$s arguments if, as % have already stated,
this Convention opted for the presidential form of government. But as ,e have already opted and chosen
the parliamentary system, % think further restrictions on the po,ers of the Chief /8ecutive ,ill no longer be
justified. %t may be trite to repeat here, but % repeat them nevertheless, the arguments in favor of a
parliamentary form of government7 that this system is for a strong e8ecutive, but one ,ho is immediately
and instantly ans,erable to his peers at all times. hus, should a Prime Minister suspend the privilege of
the ,rit of *a#eas corpus or declare martial la, arbitrarily or, even perhaps, irrationally, % don$t think that
there can be any better or more immediate check on such arbitrary and irrational e8ercise of po,er than
the Parliament itself. he courts cannot pretend to be in a better position than the Parliament in this
regard. 1or the Parliament on the very day, or perhaps even on the very hour, that the Prime Minister
proclaims martial la, or suspends the privilege of the ,rit of *a#eas corpus may file a motion to depose
him and should this motion be successful, then the prevailing party ,ith its Prime Minister ,ill just issue
another proclamation restoring normalcy and order.
D/+/3A/ +/6%-/ ;0.<7 hank you, @our >onor. 1or the moment, Mr. Chairman, % have no more
#uestions to ask.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Are there any further comments or interpellationsI
D/+/3A/ P=%!%?07 .ust one #uestion, Mr. Chairman, in connection ,ith the point raised by Delegate
+eviste.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @ou may proceed.
D/+/3A/ P=%!%?07 Before % ask my #uestion, @our >onor, let me state my position clearly lest % be
misunderstood. % am asking this #uestion not because % disagree ,ith @our >onor$s position but only for
the purpose of enriching this debate ,ith e8changes of vie,s for future researchers and scholars. ?o,, if,
as @our >onor puts it, the decision of the Prime Minister on the e8istence of grounds justifying the
declaration of martial la, or the suspension of the privilege of the ,rit of *a#eas corpus ,ould no longer
be opened to judicial scrutiny, ,ould that not enable the Prime Minister to abuse his po,ersI
D/+/3A/ D/ 3=5MA? ;A.<7 @our >onor ,as not listening. % just stated that there is a more immediate
check on the part of the Parliament, and aside from this practical check, it must be understood that an act
of the Chief /8ecutive suspending the privilege of the ,rit of *a#eas corpus or proclaiming martial la, is
political act, the remedy must also be political, in a political forum, be in Parliament or directly before our
people. And it must be stated that there is no po,er ,hich may not be abused. % think, @our >onor, ,e
should once and for all agree as to the nature of this po,er ,e are investing in the Chief /8ecutive. 0nce
and for all, ,e should agree that this po,er is eminently political and e8ecutive in nature. he .udiciary, %
submit, is not the best, much less is it the most practical agency, to possess, to e8ercise, or to limit this
po,er, the need for ,hich cannot be denied.
D/+/3A/ P=%!%?07 Eell, @our >onor, % am not a la,yer, so % hope you ,ill pardon me if cannot fully
appreciate ,hat you are talking about. Because, to me, an act is political if it is done by a politician. hat$s
all, Mr. Chairman.
P!/-%D%?3 011%C/! =PA5 ;A.<7 +et$s be serious, please. All right, are there further interpretations or
commentsI @es, Delegate 0rti", ,hat is it that you ,ant to askI
D/+/3A/ 0!%5 ;!.<7 Eell, Mr. Chairman, this is not a #uestion but just additional observations. %t is
unfortunate really that the doctrine first laid do,n in "arcelon vs. "a-er and affirmed more than half a
century later in 'ontene+ro vs. CastaAe!a ,as reversed by the -upreme Court in 0ansan+ vs. Garcia. %
say it is unfortunate because more than anyone else, only the President is in the best position to evaluate
and the e8istence of the causes ,hich ,ould ,arrant the e8ercise of this constitutional po,er. As it ,ere,
the Prime Minister is the head of the /8ecutive Department. More than that, he is the CommanderCinC
Chief of all the armed forces of the Philippines. >e has, therefore, all the resources and facilities not
available to any other official of the government, much less to the -upreme Court, to make authoritative
findings and assessments of the threats to national security. But even in the +ansang case, % ,ould say
that the Court had to rely on the findings of the /8ecutive Department. % have here a copy of the decision
of the -upreme Court in that case, and % ,ould say that the Court had to rely on the findings of the
/8ecutive Department. % have here a copy of the decision of the -upreme Court in that case, and % ,ould
like to #uote a portion thereof. %n this decision, the -upreme Court stated, and % #uote7
%n the year &(2(, the ?PA had K according to the records of the Department of ?ational
Defense K conducted raids, resorted to kidnapping and taken part in other violent
incidents, summing over *A9, in ,hich it inflicted J9J casualties and, in turn, suffered *JA
losses. %n &('9, its record of violent incidents ,as about the same but the ?PA casualties
more than doubled.
% ,ish to call the attention of the Members of this Committee to the phrase appearing in this portion of
court$s decision, namely, 4according to the records of the Department of ?ational Defense4. his
phrase is, to me, significant in the sense that even the -upreme Court itself had to rely on the records
of an agency of the /8ecutive Department, ,hich only proves or, at least indicates an admission on
the part of the Court that by itself, it is not in a position to make its o,n factual findings on the grounds
justifying the suspension of the privilege of the ,rit of *a#eas corpus in the +ansang case. %n short,
even in the +ansang case ,here the -upreme Court repudiated the conclusiveness of e8ecutive
findings on facts to justify the e8ercise of the po,er, the same court, nonetheless, had to resort to
such findings made by an arm of the /8ecutive Department. %f % may further add, % ,ould like to say
that, to my recollection, during that hearing ,hen the -upreme court received this evidence, or
perhaps ,e may call them pieces of information, from the military, ,hich information ,as classified,
there ,ere objections on the part of some counsel ,ho ,ere e8cluded from the hearing, to the effect
that they should also be afforded the opportunity of hearing such information. All of these, of course,
merely sho, the impracticability on the part of any court, be it the -upreme Court or a lo,er court, to
receive evidence ,hich is, perhaps, not even acceptable under the !ules of Court and, thereafter, to
determine for itself ,hether such evidence or information is legally sufficient for the President or the
Prime Minister to act upon. Ee are therefore here abandoning the +ansang doctrine.
-0M/ D/+/3A/-7 ?o objectionW ?o objectionW
D/+/3A/ AD%+7 -o, it is then the understanding of this Committee, and % take it to be its position, that
,hen the Prime Minister suspends the privilege of the ,rit of *a#eas corpus or declares martial la,, the
findings by the Prime Minister on the causes that justify such suspension or proclamation are conclusive
and may not, therefore, be in#uired into by the courts.
D/+/3A/ D/ 3=5MA? ;A.<7 May not be in#uired into by the courts or by anyone, and the Chief
/8ecutive is fully responsible for his acts. he courts, of course, are po,erless to take remedies against
any arbitrary acts of the Chief /8ecutive, but such arbitrary act, if there be any, may he checked by the
political branch or department of the government and, ultimately, by the people themselves.
D/+/3A/ +/6%-/ ;0.<7 %f that is our understanding, @our >onor, ,hy don$t ,e put it here, in black and
,hite, that the findings of the Prime Minister on the e8istence of the grounds for the suspension of the
privilege of the ,rit of *a#eas corpus or the proclamation of martial la, are conclusive upon the courtsI
P!/-%D%?3 011%C/! =PA5 ;A.<7 @our >onor, % suppose you are a,are that ,e are here drafting a
Constitution and not annotating an e8isting one. %f ,e are to include in this document every intent and
interpretation ,e have on each provision, % cannot imagine the kind of bulk of such Constitution ,hich ,e
shall submit to our people.
D/+/3A/ +/6%-/ ;0.<7 % made that suggestion, @our >onor, because % ,ant to leave no doubt on our
position regarding this point.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eell, % think the records of our deliberations here suffice to erase that
doubt.
D/+/3A/ +/6%-/ ;0.<7 ?o,, Mr. Chairman, if % may go to another point, % ,ould like to in#uire
,hether this provision on the po,ers of the Chief /8ecutive or the Prime Minister concerning the
declaration of martial la, is limited to the #uelling of the suppression of rebellion, insurrection, invasion or
la,lessness, or ,hether such a po,er includes in it the establishment of a ne, order of things, a ne,
society. % say this, @our >onor, because on the evening President Marcos announced the proclamation of
martial la,, he underscored his action by saying that he proclaimed martial la, in order according to him,
4to save the !epublic and form a ?e, -ociety4.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Delegate De 3u"man ,ill please ans,er that.
operations but essentially and principally of the nature of ameliorative social action.
,hich ,e are not ready to accept, and President Marcos, a,are, as he is, that the 1ilipino people ,ill not
back of the rebel elements but to form a ?e, -ociety, to create a ne, atmosphere, ,hich ,ill not be a
provoked the President in declaring martial la, may be #uantified. %n fact, it is completely different from a
case of invasion ,here the threat to national security comes from the outside. he martial la, declared by
the President ,as occasioned by the acts of rebellion, subversion, la,lessness and chaos that are
,idespread in the country. heir origin, therefore, is internal. here ,as no threat from ,ithout, but only
from ,ithin. But these acts of la,lessness, rebellion, and subversion are mere manifestations of more
serious upheavals that beset the deepest core of our social order. %f ,e shall limit and constrict martial la,
to its traditional concept, in the sense that the military ,ill be merely called upon to discharge civilian
functions in areas ,here the civil functionaries are not in a position to perform their normal duties or,
better still, to #uell la,lessness and restore peace and order, then martial la, ,ould be a mere temporary
palliative and ,e shall be helpless if bound by the old ma8im that martial la, is the public la, of military
necessity, that necessity calls it forth, that necessity justifies its e8istence, and necessity measures the
e8tent and degrees to ,hich it may be employed. My point here, @our >onor, is that beyond martial
necessity lies the graver problem of solving the maladies ,hich, in the first place, brought about the
conditions ,hich precipitated the e8ercise of his martial authority, ,ill be limited to merely taking a military
measure to #uell the rebellion and eliminating la,lessness in the country and leave him ,ith no means to
create an enduring condition of peace and order, then ,e shall have failed in providing in this Constitution
the basic philosophy of martial la, ,hich, % am sure, ,e are embodying in it for the great purpose of
preserving the -tate. % say that the preservation of the -tate is not limited merely to eliminating the threats
that immediately confront it. More than that, the measure to preserve the -tate must go deeper into the
root causes of the social disorder that endanger the general safety.
D/+/3A/ D/ 3=5MA? ;A.<7 % need not add more, Mr. Chairman, to the very convincing remarks of my
good friend and colleague, !elegate 0rti". And % take it, Mr. Chairman, that is also the position of this
Committee.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @es, also of this Committee.
,ould oblige.
,hich authori"es such proclamation, is set aside or that at least some provisions of the Constitution are
suspendedI
D/+/3A/ D/ 3=5MA? ;A.<7 he Constitution is not set aside, but the operation of same of its
provisions must, of necessity, be restricted, if not suspended, because their continuance is inconsistent
Constitution provides martial la, as its ,eapon for survival, and ,hen the occasion arises ,hen such is at
stake, prudence re#uires that certain individual rights must have to be sacrificed temporarily. 1or indeed,
the destruction of the Constitution ,ould mean the destruction of all the rights that flo, from it.
detained by the military authorities, % cannot avail of the normal judicial processes to obtain my liberty and
guaranty cannot definitely be had unless the -tate is in a position to assert and enforce its authority.
statutes, regulating, as they do, various and numerous norms of conduct of both the private and the public
D/+/3A/ D/ 3=5MA? ;A.<7 Certainly, and that is the position of this Committee. As martial la,
/8ecutive must not be harmstrung or limited to his traditional po,ers as Chief /8ecutive. Ehen martial
la, is declared, the declaration gives rise to the birth of po,ers, not strictly e8ecutive in character, but
may be safe.
has nothing to do ,ith the invasion, insurrection, rebellion or imminent danger thereof. My point, @our
>onor, is that this measure basically has nothing to do ,ith the restoration of peace and order or the
#uelling of rebellion or insurrection. >o, could ,e validly say that the President$s assumption of such
po,ers is justified by the proclamation of martial la,I
D/+/3A/ D/ 3=5MA? ;A.<7 As % have repeatedly stated, @our >onor, ,e have no, to abandon the
traditional concept of martial la, as it is understood in some foreign te8tbooks. Ee have to look at martial
la, not as an immutable principle, !ather, ,e must vie, it in the light of our contemporary e8perience
and not in isolation thereof. he #uelling of rebellion or la,lessness or, in other ,ords, the restoration of
peace and order may admittedly be said to be the immediate objective of martial la,, but that is to beg
the #uestion. 1or ho, could there really be an enduring peace and order if the very causes ,hich
spa,ned the conditions ,hich necessitated the e8ercise of martial po,ers are not remediedI @ou cite as
an e8ample the decree on land reform. @our >onor ,ill have to admit that one of the major causes of
social unrest among peasantry in our society is the deplorable treatment society has given to our
peasants. As early as the &(A9$s, the peasants have been agitating for agrarian reforms to the e8tent that
during the time of President Puirino they almost succeeded in overthro,ing the government by force.
Eere ,e to adopt the traditional concept of martial la,, ,e ,ould be confined to merely putting do,n one
peasant uprising after another, leaving unsolved the maladies that in the main brought forth those
uprisings. %f ,e are really to establish an enduring condition of peace and order and assure through the
ages the stability of our Constitution and the !epublic, % say that martial la,, being the ultimate ,eapon of
survival provided for in the Constitution, must penetrate deeper and seek to alleviate and cure the ills and
the seething furies deep in the bo,els of the social structure. %n a very real sense, therefore, there is a
profound relationship bet,een the e8ercise by the martial la, administrator of legislative and judicial
po,ers and the ultimate objective of martial la,. And % may add that in the ultimate analysis, the only
kno,n limitation to martial la, po,ers is the convenience of the martial la, administrator and the
judgment and verdict of the people and, of course, the verdict of history itself.
D/+/3A/ +/6%-/ ;0.<7 @our >onor, just for purpose of discussion, may % kno, from you ,hether
there has been an occasion in this country ,here any past President had made use of his martial la,
po,erI
that ,e are of the impression that since its incorporation into the &(AB Constitution, the martial la,
provision has never been availed of by the President. % recall, @our >onor, that during the .apanese
occupation, President +aurel had occasion to declare martial la,, and % recall that ,hen President +aurel
declared martial la,, he also assumed legislative and judicial po,ers. Ee must, of course, reali"e that
during the time of President +aurel, the threats to national security ,hich precipitated the declaration
came from the outside. he threats therefore, ,ere not internal in origin and character as those ,hich
prompted President Marcos to issue his historic proclamation. %f, in case K as ,hat happened during the
time of President +aurel K the declaration of martial la, necessitated the e8ercise of legislative po,ers
by the martial la, administrator, % say that greater necessity calls forth the e8ercise of that po,er ,hen
the threats to national security are posed not by invaders but by the rebellious and seditious elements,
both of the left and right, from ,ithin. % say that because every rebellion, ,hether in this country or in other
foreign countries, is usually the product of social unrest and dissatisfaction ,ith the established order.
!ebellions or the acts of rebellion are usually preceded by long suffering of those ,ho ultimately choose
to rise in arms against the government. A rebellion is not born overnight. %t is the result of an accumulation
of social sufferings on the part of the rebels until they can no longer stand those sufferings to the point
that, like a volcano, it must sooner erupt. %n this conte8t, the stamping out of rebellion must not be the
main and only objective of martial la,. he Martial la, administrator should, nay, must, take steps to
remedy the crises that lie behind the rebellious movement, even if in the process, he should e8ercise
legislative and judicial po,ers. 1or ,hat benefit ,ould it be after having put do,n a rebellion through the
e8ercise of martial po,er if another rebellion is again in the offing because the root causes ,hich
propelled the movement are ever presentI 0ne might succeed in capturing the rebel leaders and their
follo,ers, imprison them for life or, better still, kill in the field, but someday ne, leaders ,ill pick up the
torch and the tattered banners and lead another movement. 3reat causes of every human undertaking do
not usually die ,ith the men behind those causes. =nless the root causes are themselves eliminated,
there ,ill be a resurgence of another rebellion and, logical the endless and vicious e8ercise of martial la,
authority. his reminds me of the ,ise ,ords of an old man in our to,n7 hat if you are going to clear your
field of ,eeds and grasses, you should not merely cut them, but dig them out.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eith the indulgence of the 3entleman from +a =nion, the Chair
%t is for the foregoing reasons that % find continued martial la, to be a political #uestion under the ne,
Charter. he present Constitution does not give the -upreme Court any po,er to $cheek the e8ercise
of a supremely political prerogative. %f there is any checking or revie, of martial la,, the Constitution
gives it, not to the -upreme Court, but to the ?ational Assembly. =ltimately, the checking function is
vested in the people. Ehether the ?ational Assembly e8presses displeasure and ,ithdra,s its
confidence from the Prime Minister through election of a successor or the Prime Minister asks the
President to dissolve the ?ational Assembly under Article 6%%%, -ection &A, the issue of martial la,
ultimately rests ,ith the people. Anything dependent upon the popular ,ill is, of course, political.
Although the interim ?ational Assembly has not yet been convened, the intent of the Constitutional
Convention to make the #uestion political is clear.
/8clusive of the ransitory Provisions, other provisions of the present Charter may be cited. he Bill
of !ights, Article %6, -ection &B had added 4or imminent danger thereof4 to the &(AB provision. %t no,
reads K
-/C. &B. he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, rebellion, or i((inent !an+er t*ereo,, ,hen the public safety re#uires it.
Article %D, -ection &2, another ne, provision reads K
-/C. &2. All po,ers vested in the President of the Philippines under the nineteen hundred and thirtyCfive
Constitution and the la,s of the land ,hich are not herein provided for or conferred upon any official shall
be deemed, and are hereby, vested in the Prime Minister, unless the ?ational Assembly provides
other,ise.
All the foregoing features of the ne, Constitution strengthen and do not decrease the e8clusivity and
political nature of the po,er to proclaim martial la, and to lift it.
D%6
G>3NTING TC3T TCE CONTINE3TION OF
'3>TI30 03K IS NOT PO0ITIC30 "ET
JESTICI3"0E, IT IS STI00 @30I. EN.E>
TCE TEST OF 3>"IT>3>INESS
/ven if ,e grant that the continuation of martial la, and the determination ,hen to lift it are justiciable
in character, 0ur decision is still the same. Correctness of the President$s acts, % must repeat, is not
the test. Assuming that the Court has jurisdiction to determine ,hen martial la, should he lifted, the
test is still arbitrariness.
Aside from asserting that there ,as no basis for the initial proclamation of martial la,, the petitioners
insist there is no real emergency in the country today. Petitioner Diokno cites various ne,spaper
items reporting statements of the President and defense officials. Among them are assurances of the
President that reservists ,on$t undergo combat duty, statements of Defense -ecretary Ponce /nrile
citing gains in peace and order, disclosures of commanding generals that the Mindanao rebellion is
crushed and arlac is no, peaceful, and reports from ?ueva /cija that the rebel backbone is broken.
;-upplemental Petition and Motion for %mmediate !elease dated .une *(, &('A.<
he petitioners assert that the 4actual state of ,ar aspect ,as dropped from general orders as early
as -eptember A9, &('* and that the transformation of a ?e, -ociety has become the ne, theme.
%t is the second purpose K the building of a ?e, -ociety K that is no, being emphasi"ed every,here.
he instruments of mass communication that have been allo,ed to often drum this theme ,ithout
ceasing. 6ery little space and time is devoted no, to the idea of saving the !epublic. 0ne can, of course,
handle this difficulty by a semantic manipulation, namely, that the building of a ?e, -ociety is the only
,ay of saving the !epublic.
%n a Manifestation dated .uly 2, &('J, petitioner Diokno cites other circumstances sho,ing that peace
and order conditions in the country are normal.
&. he President left the country a fe, ,eeks ago for a meeting at Menado ,ith President -uharto of
%ndonesia, something he obviously ,ould not have done if there really ,as an emergency.
*. ourists and foreign investors are coming to our shores in hordes, not just to Manila but also its
environs and outlaying provinces, ,hich they ,ould certainly not do if they ,ere not assured of security
and stability.
A. Basketball, chess, s,imming and even karate international tournaments are being held in the
Philippines. he President even attended the latter event.
J. he &('J Miss =niverse contest is scheduled to be held in Manila this month ,ith e8penses in
preparation therefor amounting to millions of pesos. he 3overnment ,ould not have been so thoughtless
as to spend so much money for such an unnecessary affair, if there is really an 4actual and imminent
danger of insurrection and rebellion.4
B. -ince the proclamation of martial la,, the Philippines has hosted several international conferences, the
latest being the =nited ?ations Development Program sessions ,hich ,ere attended by delegates and
observers from si8tyCsi8 ;22< countries, t,entyCsi8 ;*2< =nited ?ations Agencies, and the =.?.D.P.
-ecretariat. he event last mentioned brought in so many visitors that facilities of no less than fourteen
;&J< hotels had to be utili"ed. his can only happen in a country ,here peace and tran#uility prevail.
hese circumstances, K some bordering on the frivolous, couple! )it* t*e Presi!ent clear an! repeate!
assurances t*at t*ere is 1no real e(er+enc to!a1 :.ail E6press, June 22, $%77< an! t*at 1actuall Ke
*ave re(ove!1 (artial la) ;ime Maga"ine, April &B, &('J< K all confirm that the conditions under ,hich
4persons may be detained ,ithout ,arrant but ,ith due process4 ;to use the #uotation from petitioner$s
cited by respondents<, no longer e8ist, if indeed they ever e8isted, and that, therefore, the po,er of
indefinite detention claimed by the -olicitor 3eneral and the respondents for the President in their last t,o
pleadings, is actually and patently 4beyond the pale of the la, because it is violative of the human rights
guaranteed by the Constitution.4
Ehile % believe that the continuation of a state of martial la, is a political #uestion under the ne,
Constitution, these arguments deserve ans,er for the sake of our people ,ho ,ill read the Court$s
decision.
% am not convinced, at this stage of martial la, that the President is acting arbitrarily in not lifting the
proclamation.
A Manifestation dated May &A, &('J from the respondents states7
a. Pursuant to the President$s constitutional po,ers, functions, and responsibilities in a state of martial
la,, he periodically re#uires to be conducted a continuing assessment of the factual situation ,hich
necessitated the promulgation of Proclamation ?o. &9)& on -eptember *&, &('* and the continuation of
martial la, through Proclamation ?o. &&9J, dated .anuary &', &('A:
b. he 3overnment$s current and latest assessment of the situation, including evidence of the subversive
activities of various groups and individuals, indicates that there are still pockets of actual armed
insurrection and rebellion in certain parts of the country. Ehile in the major areas of the active rebellion
the military challenge to the !epublic and its duly constituted 3overnment has been overcome and
effective steps have been and are being taken to redress the centuriesCold and deepCseated causes upon
,hich the fires of insurrection and rebellion have fed, the essential process of rehabilitation and
renascence is a slo, and delicate process. 0n the basis of said current assessment and of consultations
,ith the people, the President believes that the e8igencies of the situation, the continued threat to peace,
order, and security, the dangers to stable government and to democratic processes and institutions, the
re#uirements of public safety, and the actual and imminent danger of insurrection and rebellion all re#uire
the continuation of the e8ercise of po,ers incident to martial la,:
c. he majority of persons ,ho had to be detained upon the proclamation of martial la, have been
released and are no, engaged in their normal pursuits. >o,ever, the President has deemed that,
considering the overall situation described above and in vie, of ade#uate evidence ,hich can not no, be
declassified, the continued detention of certain individuals ,ithout the filing of formal charges in court for
subversive and other criminal acts is necessary in the interest of national security and defense to enable
the 3overnment to successfully meet the grave threats of rebellion and insurrection. %n this regard, the
-ecretary of ?ational Defense and his authori"ed representatives have acted in accordance ,ith
guidelines relating to national security ,hich the President has prescribed.
he President believes that the continued threat to peace and order, the dangers to stable
government and democratic institutions and the actual and imminent danger of insurrection and
rebellion re#uire continuation of martial la,. his finding is based on a continuing assessment of the
factual situation ,hich resulted in Proclamation ?o. &9)&. 0n the other hand, petitioners believe
other,ise.
%n the e8ercise of judicial revie,, one reasonable mind assessing the factual situation no, obtaining
could probably agree ,ith the petitioners. Another reasonable mind, ho,ever, vie,ing the same
factual situation could very understandably arrive at an opposite conclusion. Assuming Ee have the
Po,er, Ee should not try to ,eigh evidence on either side and determine ,ho is correct and ,ho is
,rong. As stated earlier, the test of validity is arbitrariness and not correctness % do not doubt the
President$s sincerity and good faith in making the determination outlined in the respondent$s
Manifestation. here can, therefore, be no finding that he is acting arbitrarily in not lifting martial la,.
he 4evidence4 present by petitioner Diokno ,eakens his arguments. %f, as he claims, the mass
media are controlled, the ne,s items on rebellion that he cites should not be accorded strong
probative value. %t is possible that the ne,s about rebels and insurrectionist activities is deliberately
played do,n as part of the peace and order campaign under martial la,. he ne,s could be intended
to convince those ,ho may ,aver bet,een seeking amnesty or prolonging the rebellion to take the
first course of action.
%n fact, there is over,helmingly a greater number of reasonable men and ,omen ,ho agree , ,ith the
President$s findings than ,ith the petitioners$ convictions. 0n .uly *', &('A and .uly *), &('A, voters
in a national referendum ,ere asked K Do you ,ant President Marcos to continue beyond &('A and
finish the reforms he has initiated under martial la,I he Commission on /lections has reported that
&),B9B,*&2 voters ans,ered 4@es4 and &,)B2,'JJ voted 4?o4. he vote of the &),B9B,*&2 people
from all parts of the country ,ho ans,ered 4@es4 can clearly be interpreted as sustaining the finding
that the President is not acting arbitrarily. %n fact, it can be read in no other ,ay but to confirm even
the correctness of the President$s determination on the continuing need for martial la,. And since
other referenda are forthcoming, a more reliable gauge of arbitrariness and correctness than press
clippings is available to our people as they judge the President.
he petitioners, in urging this Court to decide the petitions and to decide them in their favor, raise the
alarm that unless Ee do so, Ee may never he able to decide at all. Ee are ,arned that 4in the face
of an assault on the .udiciary, it ,ould be ridiculous, if it ,ere not tragic, if this Court did not even so
much as defend itself. ... %n the face of a dismantling of the entire constitutional order of ,hich the
.udiciary is a vital, indispensable part, ho, can it even afford the lu8ury of ac#uiescence in its o,n
ruinI And ho, can it continue to inspire the high respect of the people, if it merely indulges in
sculptured rhetoric and fails to protect their civil liberties in live, concrete petitions such as thisI4
;!eply Memorandum for Petitioners dated ?ovember A9, &('*, page J9<. he petitioners speak of
4constitutional suicide4 ;I#i!, p. 29< and allege that 4the gloom deepens and is encircling, and only a
fe, lights remain. 0ne remaining light is that provided by this -upreme ribunal. he entire nation
no, looks in its direction and prayerfully hopes it ,ill continue burning4 ;i#i!, p. )&<.
% do not share the same doomsday impressions about martial la,. My decision is based not alone on
my sincere conviction about ,hat the Constitution commands and ,hat the relevant constitutional
provisions mean. >appily, my reading of the Constitution as a legal document coincides ,ith ,hat %
feel is right, morally and conscienceC,ise, for our country and people. %t confirms my lifeClong
conviction that there is indeed ,isdom, profundity and even genius in the seemingly short and
uncomplicated provisions of our fundamental la,.
D6
'3>TI30 03K 3N. TCE SESPENSION OF
TCE K>IT OF C3"E3S CO>PES
Another issue in the instant petitions is ,hether the privilege of the ,rit of *a#eas corpus is
suspended upon a proclamation of martial la,. he ans,er is obviously in the affirmative.
he proclamation of martial la, is conditioned on the occurrence of the gravest contingencies. he
e8ercise of a more absolute po,er necessarily includes the lesser po,er especially ,here it is
needed to make the first po,er effective. 4he suspension enables the e8ecutive, ,ithout interference
from the courts or the la, to arrest and imprison persons against ,hom no legal crime can be proved
but ,ho may, nevertheless, be effectively engaged in morning the rebellion or inviting the invasion, to
the imminent danger of the public safety.4 ;Barcelon v. Baker, B Phil. )', &&*<. %t ,ould negate the
effectivity of martial la, if detainees could go to the courts and ask for release under the same
grounds and follo,ing the same procedures obtaining in normal times. he President in the
dispositive paragraph of Proclamation ?o. &9)& ordered that all persons presently detained or others
,ho may thereafter be similarly detained for the crimes of insurrection and rebellion and all other
crimes and offenses committed in furtherance or on the occasion or in connection there,ith shall be
kept under detention until other,ise ordered released by him or his duly designated representative.
=nder 3eneral 0rder ?o. *CA, the President ordered the arrest and taking into custody of certain
individuals. 3eneral 0rder ?o. *CA directs that these arrested individuals ,ill be held in custody until
other,ise ordered by the President or his duly designated representative. hese general orders
clearly sho, that the President ,as precluding court e8amination into these specified arrests and
court orders directing release of detained individuals.
Martial la, is intended to overcome the dangers from rebellion or insurrection. he purpose ,ould be
subverted if martial la, is declared and yet individuals committing acts of direct rebellion and
insurrection or acts ,hich further the goals of the rebels cannot be detained ,ithout filing charges. %f
the President decides to proclaim martial la, and to use all the military forces of the Philippines to
preserve the !epublic and safeguard the interests of the people, it is sophistry to state that the lesser
po,er of suspending the privilege of the ,rit of *a#eas corpus is not included. his is especially true
,here, as in these cases, the President has specifically ordered the detention ,ithout filing of charges
of individuals ,ho further or might further the rebellion. his appears clear from Proclamation ?o.
&9)& itself and from pertinent general orders issued pursuant to it.
D6%
TCE EFFECT OF 3>TIC0E I@II, SEC 7
:2< OF TCE NEK CONSTITETION
here is another reason for denying the instant petitions.
Article D%% -ection A, -ubsection ;*< of the present Constitution ;ratified on .anuary &', &('A< has a
transitory provision ,hich reads7
superseded by subse#uent proclamations, or other acts of the incumbent President, or unless e8pressly
and e8plicitly modified or repealed by the regular ?ational Assembly.
%t is noted from the foregoing that all proclamations and orders of the President, specifically
Proclamation ?o. &9)& and the relevant orders and decrees affecting the herein petitioners and
others similarly situated, are by the e8press ,ords of the Constitution, part of the la, of the land. %n
fact, the transitory provision considers them valid, legal, binding and effective even after lifting of
martial la, or the ratification of this Constitution. hey are valid not only at the inception of but also
during martial la,. 0nly an e8press and e8plicit modification or repeal by the regular ?ational
Assembly may modify, revoke, and supersede the proclamations, orders, decrees, instructions or
other acts of the incumbent President under martial la,. his transitory provision does not, as many
people believe, merely validate Proclamation ?o. &9)&. his section confirms the validity of the
proclamation under the old Constitution and its continuing validity under the ?e, Constitution. he
Constitutional Convention concurred ,ith the President and declared that the proclamation ,as
validly issued under the old Charter and continues to be constitutional under the ne, Constitution. 0n
the basis of the constitutional provision alone, the declaration of martial la, under Proclamation ?o.
&9)& may, therefore, be justified and validated. -imilarly, the orders of the President on the continued
detention of the petitioners and, in effect, the suspension of the privilege of the ,rit of *a#eas corpus
have been definitely declared valid and constitutional.
% ,ish to add that ,ith the aboveCcited portion of the ransitory Provision, the Constitutional
Convention ,anted to foreclose any constitutional attack on the validity of 4all proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President4 mentioned
therein. As a matter of fact, during the discussions of this portion of the ransitory Provision before
the &22Cman special committee, formed to finally draft the Constitution of ,hich % ,as a member,
;being the 6iceCChairman of the panel of floor leaders<, ans,ering a #uery from Delegate +eviste,
Delegate Pacificador said7
T>3NSC>IPT OF TCE P>OCEE.INGS OF TCE $//4'3N SPECI30 CO''ITTEE K 'EETING
No. 77
NO@E'"E> 2/, $%72
By the provisions of -ubsection *, ,e are rendering the decrees of the incumbent President as more than
mere statutes. Ee are constituting them as highly political acts, the validity of ,hich cannot be in#uired
into even by our courts, but are appealable only to the people themselves. here ,ill be no other ,ay of
revoking or repealing such decrees e8cept by the t,o ,ays mentioned in -ubsection * of -ection A.
.ustifying martial la, and the suspension of the privilege of the ,rit of *a#eas corpus by citing the
transitory provisions of the present Constitution leads to another argument in the petitions. According
to petitioner Diokno, the statements in the dispositive portion of the decision in the ratification cases
that 4there is no further judicial obstacle to the ne, Constitution being considered in force and effect4
is clearly not a ruling that the ?e, Constitution is legally in force and effect. Petitioner Diokno
stresses ho, carefully the Court has chosen its language. According to him, the Court does not say
that there is no further le+al obstacle and that it says merely that there is no further 5u!icial obstacle.
Petitioner finds a ,orld of difference bet,een a legal and a judicial obstacle. /very illegal act,
according to him, is per se barred by a legal obstacle but not necessarily by a judicial obstacle. he
petitioner points out that the Court does not state that the ne, Constitution is in force and effect. %t
merely speaks of the ne, Constitution #ein+ consi!ere! in force and in effect. >e alleges that
bet,een 4being4 and 4being considered4, there is again a ,orld of difference. 1rom the decision of the
-upreme Court in the ratification cases, the petitioner believes that the Court ,as trying to make it as
plain as circumstances permitted that it had not decided that the ne, Constitution is legally and
factually in force.
0ther pleadings submitted in these cases have raised basically the same major issues that ,ere
raised in the ratification cases already decided by the Court.
o my mind, the dispositive portion of the -upreme Court$s decision is best interpreted by the
-upreme Court itself. ?o amount of argumentation, submission of pleadings, play of ,ords, and
semantic niceties can overcome or ignore the fact that the -upreme Court is interpreting and applying
the ne, Constitution. he members have taken an oath to defend this ne, Constitution. By both
action and ,ords, all the members of this Court have made it plain beyond any shado, of doubt that
the ne, Constitution is legally and factually in force. he justices of this Court ,ould be the last
persons to interpret and enforce something they do not consider valid, legitimate, and effective. %t is
not alone the taking of an oath to support and defend the ne, Constitution that indicates clearly ,hat
the Court meant ,hen it rendered the Javellana vs. E6ecutive Secretar ;+CA2&J*< decision. he
meaning of the decision is #uite clear from the fact that the Court has been enlarged beyond its
earlier composition. %t has reorgani"ed itself into t,o divisions. /ach division is no, trying cases
pursuant to the ?e, Constitution. All courts are under the administrative supervision of the -upreme
Court. An e8amination of decisions rendered by the Court since the Javellana vs. E6ecutive
Secretar decision ,ill sho, that there is constant reference to the &('A Constitution. %ts provisions
form the basis for its authority to interpret and e8pound on the la,s. Ehenever a provision of the
Constitution is invoked, the Court turns to the &('A Constitution as the present Constitution. % can see
no clearer interpretation of a decision of this Court than these various acts of the Court itself.
D6%%
3 FEK OTCE> POINTS
here are a fe, other points ,hich % ,ould like to ans,er briefly. Petitioner 1rancisco $-oc$ !odrigo
states that ,hile he ,as released from detention on December B, &('*, his release is conditional and
subject to some restrictions. >e is not allo,ed to leave the confines of the 3reater Manila area unless
specifically authori"ed by the military. >e states that his petition for *a#eas corpus is not moot and
academic cause of his release.
Considering my opinion on the constitutionality of Proclamation ?o. &9)&, it follo,s that the release of
petitioners .ose E. Diokno and Benigno -. A#uino may not be ordered. he petitions for their
release, as in the case of detainees already released, must be directed to the President. > %f such is
the case ,ith petitioners ,ho are actually detained and confined, ,ith more reason should the
principles herein enunciated apply to those no longer confined or detained.
%n the case of former -enator Benigno -. A#uino, criminal charges have been filed against him. As a
rule, a petition for the ,rit of *a#eas corpus is satisfactorily ans,ered by a sho,ing that a prisoner is
detained on the basis of valid criminal charges. >o,ever, petitioner A#uino challenges the jurisdiction
of the military tribunal and the validity of the charges filed against him.
herefore, insofar as all issues in the case of "eni+no S. 3;uino vs. 'ilitar Co((ission ?o. *, +C
A'A2J, ,hich are common to the issues in these instant petitions are concerned, this decision
applies. 0n any other issue not common to the issues in these Petitions, % am reserving my opinion
for +CA'A2J.
D6%%%
TCE >E'E.IES 3G3INST C0E3> 3"ESE OF POKE> .
he general remedy against an arbitrary, ,himsical, or capricious e8ercise of the martial la, po,er of
the President, as it is the remedy on all political #uestions, is the voice of the people in an election
,hen one is held, or through the Barangays ,hich the President himself has consulted in the .uly *'
and *), &('A referendum on ,hether the people ,anted President Marcos to continue beyond &('A
and finish the reforms he has initiated under martial la,. he President has officially announced a
number of times that he ,ould consult ,ith the Barangays periodically. =nder this remedy, the
people, in the e8ercise of their sovereign po,er, can base their decision, not only on ,hether the acts
of the President has been arbitrary, ,himsical, or capricious: they can base their decision on a
broader basis and K that is ,hether, in their o,n opinion, the President acted correctly or not.
0r if and ,hen the interim assembly is convened, a majority of the members thereof, as
representatives of the people, can also remedy an arbitrary, ,himsical, capricious, or even an un,ise
e8ercise of the po,er, by so advising the Prime Minister to lift martial la, under pain of being
deposed as Prime Minister.
As ,e declare the proclamation and the continuation of martial la, political and therefore nonC
justiciable in nature, Ee are only ackno,ledging the constitutional limitation of that po,er to
justiciable #uestions only, just as ,e had defined the constitutional limitations of the po,ers of
Congress and of the /8ecutive. As the interpreter of the Constitution, the Court has to lead in
respecting its boundaries.
0ur jurisprudence is replete ,ith e8amples ,here this Court e8ercised its judicial po,er in
appropriate cases ;Avelino vs. Cuenco, )A Phil. &': Araneta vs. Dinglasan, )J Phil. A2): ?ationalists
Party vs. Bautista, )B Phil. &9&: !odrigue" vs. 3ella, (* Phil. 29A: !utter vs. /steban, (A Phil. 2):
Aytona vs. Castillo, J -C!A BAA, to name only the fe,<, ,hich should more than prove that no matter
ho, grave or urgent, delicate or formidable and novel or uncommon a legal problem is, the Court ,ill
kno, ,hen and ho, to resolve it. -pecifically, it ,ill kno, ,hat to do if, as petitioners fear, a
President may someday ,ake up and out of the blue proclaim martial la,. 0f course, this is already
almost an impossibility under the parliamentary system established by the ?e, Constitution.
D%D
C O N C 0 E S I O N
he voluminous pleadings and the lengthy arguments supporting the petitions are generally couched
in erudite and elo#uent language. %t is regrettable that they have been tainted in a number of
instances ,ith fren"ied and biting statements indicative of a sense of e8asperation. % am certain,
ho,ever, that these statements cannot affect the high sense of impartiality of the members of the
Court as they give their opinion in these cases.
he President is the highest elective official in the country. %t ,as no casual or perfunctory choice
,hich elevated him to the position. %t is his duty, no less than that of this Court, to save the !epublic
from the perils of rebellion and insurrection. %n order to preserve public safety and good order, he has
been forced to proclaim a state of martial la,. o insure the continuation of civilian authority and
democratic institutions, he has utili"ed the armed forces to #uell the armed challenge and to remedy
the ancient evils upon ,hich rebellion and insurrection flourish.
he petitioners dispute the President$s determination and #uestion his motives. o them the e8ercise
of his constitutional po,ers is an abuse of e8ecutive po,ers and assumption of a dictatorship.
%nasmuch as the real reason for the imposition of martial la,, according to petitioner Diokno, is not to
preserve the nation but to keep the President in po,er, there is only one decision the Court should
make. %t should invalidate Proclamation ?o. &9)&. he dire conse#uences are given by the petitioner
K eventual resort to arms, shedding of blood. destruction of property and irreparable loss of
invaluable lives K ,hich, of course, are the same conse#uence sought to be avoided ,hen martial
la, ,as proclaimed.
he -upreme Court may be the highest court of the land. %t is not, ho,ever, a super Being over and
above the /8ecutive, the +egislature and the Constitution, deciding cases on an infallible sense of
ruth and a faculty of divination. Principles of liberty, right, and justice are not interpreted in an
abstract and dogmatic form. hey are applied in the manner the sovereign people adopted our
institutions of government and formulated our ,ritten Constitution.
he -upreme Court can rule on the proclamation of martial la, only insofar as its validity under the
Constitution is raised as an issue. %f the Constitution, as the e8pression of sovereign ,ill, vests the
determination of the necessity for martial la, in the President, the Court shall so declare and respect
it.
>o,ever, the determination of the ,isdom or the propriety of the proclamation must rest ,ith the
people. Eisdom and propriety in the making of supremely political decisions and in the e8ercise of
political functions are for the people to assess and determine. =nder our constitutional form of
government, no official or department can effectively e8ercise a po,er unless the people support it.
!evie, by the people may not be as clearcut and fre#uent as judicial revie, but it is actual, present,
and most affective.
he constitutional process and the rule of la, are interpreted and enforced by the -upreme Court but
their viability and strength depend on the support and faith of the people. Conse#uently, if our people
allo, the system of government to be changed, no pronouncements of this Court can reverse the
change or topple an alleged dictator from po,er. 0nly the people can do it.
1ortunately, the trend of present events clearly sho,s that martial la,, instead of destroying
constitutional government as advanced by the petitioners, is, in fact, saving and strengthening it.
E>/!/10!/, % vote to render judgment7 ;&< o grant the Diokno motion to ,ithdra, his petition for
*a#eas corpus:
;*< Declaring that the decision to proclaim martial la, is a political #uestion and the Court may not
e8amine the grounds upon ,hich Proclamation ?o. &9)& is based: granting that the Court may do so,
there is sufficient constitutional factual basis for the same and certainly the President has not acted
arbitrarily, ,himsically or capriciously in issuing the Proclamation: that on both grounds, said
Proclamation ?o. &9)& is constitutional:
;A< Declaring that the privilege of the ,rit of *a#eas corpus is ipso facto suspended upon a
proclamation of martial la,: and in effect, 3eneral 0rder ?o. *CA suspended said privilege:
;J< Declaring that the continuation of the state of martial la, is similarly a political #uestion and that it
is for the President or the Prime Minister, under the ?e, Constitution, to determine ,hen it may be
lifted: and granting that this Court may e8amine the factual basis for the continuation of martial la,,
Ee find sufficient basis for the same: and
;B< Dismissing the various petitions for the ,rit of *a#eas corpus of petitioners still detained, or under
4community arrest,4 ,ithin the 3reater Manila area, ,ithout costs. .

M"DO1 .ALMA, J.:
*. %n 3.!. +CABBA(, Carmen %. Diokno, in behalf of her husband, .ose E. Diokno, petitioner7
>e 1'otion to Kit*!ra) Petition1 !ate!
.ece(#er 2%, $%77=
% shall e8plain ,hy % voted to +rant t*e (otion. % believe that a petition for *a#eas corpus basically
involves the life and liberty of the petitioner, and, if for reasons of his o,n K the ,isdom andFor
correctness of ,hich are best left to him to determine K he desires to ,ithdra, the same and leave
his present condition of indefinite detention as it is, such is his right ,hich % as a fello,Chuman being
and as a magistrate of the la, should not deny him. My distinguished colleagues ,ho opted to deny
said 4Motion to Eithdra,4 argue mainly that to grant the motion of petitioner Diokno is for the Court to
accept the truth of his allegations and deny itself the opportunity to act on and resolve the basic
issues raised in the Petition for *a#eas corpus ,hich issues are of 4utmost public importance4 and
involve 4the very life and e8istence of the present 3overnment under the ne, Constitution.4 Ehat %
can say is that the other Petitions for *a#eas corpus no, being decided jointly in this Decision afford
a forum ,here the legal and constitutional #uestions presented in Diokno$s petition can very ,ell he
discussed, dissected to their minutes details, and decided by the Court. Ehat concerns this ,riter
most is that the thrust of Diokno$s motion to ,ithdra, is his belief that he 4cannot reasonably e8pect
either right or reason, la, or justice4 from this Court it being a ne, Court under the ne, Constitution,
a different Court from the -upreme Court to ,hich he originally applied for his release.
1
%n plain and
simple language, petitioner Diokno is bereft of faith in this Court and prefers that his fate be left
undecided: ,ho are ,e then to impose our ,ill on him and force him to litigate under a cloud of
distrust ,here his life and liberty are ine8tricably involvedI .ust as love is an emotion ,hich springs
spontaneously from the heart and never coerced into e8istence, so also is faith, trust, born and
nurtured in freedom and never under compulsion. hus, to deny petitioner Diokno$s motion is to
compel him to have faith in this Court: can ,e do so ,hen faith has to be earned, and cannot be
forced into beingI >ence, my vote.
On t*e 'erits o, t*e Petition
Because petitioner Diokno$s 4Motion to Eithdra, Petition4 ,as considered denied as only seven
.ustices voted to grant it,
4
and his Petition for *a#eas corpus ,as to be decided on its merits, and at
the time of the ,riting of this 0pinion Diokno ,as in custody for almost t,o years ,ithout charges
having been filed against him, % resolved to treat his Petition differently from that of the other
petitioners ,ho, during the pendency of these cases, ,ere conditionally released from the prison
camps of respondents. >o,ever, after completion of my 0pinion but before the Decision in these
cases could be promulgated on -eptember &*, &('J, as scheduled, President 1erdinand /. Marcos
ordered the release of petitioner, .ose E. Diokno, on -eptember &&, &('J. > his development led the
Court to dismiss the Petition of .ose E. Diokno for having become moot and academic, and forced
me to revise my 0pinion as it became unnecessary to discuss the issue of Diokno$s continued
detention.
TCE F3CTS
0n -eptember *&, &('*, President 1erdinand /. Marcos signed ,hat is no, kno,n as Proclamation
?o. &9)& proclaiming a state of martial la, in the Philippines, based inter alia on the follo,ing
consideration7
... the rebellion and armed action undertaken by these la,less elements of the communist and other
armed aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and force
have assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines:
he Proclamation thus concluded7
vested upon me by Article 6%%, -ection &9, Paragraph ;*< of the Constitution, do *ere# place t*e entire
P*ilippines as !e,ine! in 3rticle I, Section $ o, t*e Constitution un!er (artial la) and, in my capacity as
%n addition, I !o *ere# or!er t*at all person presentl !etaine!, as ,ell as all ot*ers )*o (a *erea,ter
#e si(ilarl !etaine! ,or the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in, connection there,ith, for
public officers, and for such other crimes as ,ill be enumerated in 0rders that % shall subse#uently
other,ise ordered released by me or by my duly designated representative. ;emphasis supplied<
0n -eptember **, 3eneral 0rder ?o. & ,as issued from ,hich ,e #uote7
E>/!/A-, martial la, has been declared under Proclamation ?o. &9)& dated -ept. *&, &('* and is no,
in effect throughout the land:
888 888 888
?0E, >/!/10!/, %, 1erdinand /. Marcos, President of the Philippines, by virtue of the po,ers vested
in me by the Constitution as CommanderCinCChief of the Armed 1orces of the Philippines, do hereby
proclaim that % shall govern the nation and direct the operation of the entire 3overnment, including all its
agencies and instrumentalities, in my capacity and shall e8ercise all the po,ers and prerogatives
appurtenant and incident to my position as such CommanderCinCChief of all the armed forces of the
Philippines.
Also on -eptember **, 3eneral 0rder ?o. * ,as signed by the President ,hich provided7
3

CommanderCinCChief of all the Armed 1orces of the Philippines, % *ere# or!er ou as -ecretary of
?ational Defense to ,ort*)it* arrest and ta-e into our custo! the individuals named in the attached lists
for being participants or *avin+ +iven ai! an! co(,ort in the conspiracy to sei"e political and state po,er
in the country and to take over the government by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against our people and our legitimate government and in order to prevent
them from further committing acts that are inimical or injurious to our people, the government and our
national interest, and to hold said individuals until other,ise so ordered by me or by my duly designated
representative. ;emphasis supplied< .
%mplementing 3eneral 0rder ?o. *, respondent -ecretary of ?ational Defense, >on. .uan Ponce
/nrile, immediately effected the arrest of a good number of individuals among ,hom ,ere the herein
petitioners ,ho, by reason of their arrest ,ithout charges having been filed against them, came to this
Court to seek relief through their respective Petitions for *a#eas corpus, the earliest of ,hich, +C
ABBA), ,as filed in the morning of -eptember *A, &('*.
5
he Court in the respective Petitions
promptly issued the Erit returnable to it, and re#uired respondents to ans,er. Eith e#ual dispatch
respondents filed their 4!eturn to Erit and Ans,er to the Petition4 in all the cases ,hich contained a
common 4-pecial and Affirmative Defenses4 reading as follo,s7
B. Pursuant to said proclamation, the President issued 3eneral 0rders ?os. &, *, A, ACA, J, B, 2, and '
and +etters of %nstructions ?os. &, * and A. rue copies of these documents are hereto attached and
made integral parts hereof as Anne8es *, A, J, B, 2, ', ), (, &9, and &&. A copy of the President$s
statement to the country on -eptember *A, &('* is also attached as Anne8 &*:
2. 1inally, the petition states no cause of action. ;p. *&, rollo +CABBJ2<
he Ans,er prayed that the petition be dismissed.
Pending resolution of these Petitions, petitioners, e8cept for t,o, ,ere released from custody on
different dates under a 4Conditional !elease4 0rder of the same tenor as the follo,ing7 >
B December &('*
Any violation of these provisions ,ould subject you to immediate;ly< arrest and confinement.
0ffice indicating the provincial address and e8pected duration of stay thereat. Contact this office through
;-3D.< MA!%A?0 3. M%!A?DA +t. Colonel PA 3roup Commander
P0E.GE
% >/!/B@ P+/D3/ to conduct myself accordingly and ,ill not engage in any subversive activity. % ,ill
immediately report any subversive activity that ,ill come to my kno,ledge.
;-3D.< 1. !0D!%30
Address7 29 .uana !odrigue" Pue"on City
el. ?o. '9C*BC22: '9CJ(C*9 '9C*'CBB
;p. 2*&, rollo +CABBJ2<
?ot,ithstanding their release from detention, petitioners concerned did not ,ithdra, their respective
Petitions for *a#eas corpus, ,hile petitioner 1rancisco !odrigo filed a Manifestation dated ?ovember
*', &('A stating that his release did not render his Petition moot and academic. ;p. 2*9, rollo +C
ABBJ2< he t,o petitioners ,ho have not been released up to the present are -enator Benigno -.
A#uino, .r. against ,hom in the meantime certain criminal charges have been filed ,ith Military
Commission ?o. * and -enator .ose E. Diokno ,ho has not been charged neither before a civil court
nor a military tribunal or commission. >
TCE ISSEES
hese petitions being essentially for the issuance of the ,rit of *a#eas corpus the ,un!a(ental issue
is the le+alit of the detention of petitioners, and ,hen ,e say detention, that includes the state of
those petitioners ,ho have been conditionally released from the prison camps of respondent for it is
claimed that their conditional release still constitutes a restraint on their personal liberty.
he purpose of the ,rit of *a#eas corpus is to in#uire into the cause or reason ,hy a person is being
restrained of his liberty against his ,ill, and if there is no legal andFor valid justification sho,n for such
restraint the ,rit ,ill forth,ith issue to restore to that person his liberty or freedom. %t 4e8ists as a
speedy and effectual remedy to relieve persons from unla,ful restraint, and as the best and only
sufficient defense of personal freedom ... ,hose principal purpose is to set the individual at liberty.4
5

?oted authors have elo#uently described the ,rit as 4the ,rit of liberty4,
:
as 4the most important and
most immediately available safeguard of that liberty4,
7
as 4the greatest of the safeguards erected by
the civil la, against arbitrary and illegal imprisonment by ,homsoever detention may be e8ercised or
ordered4,
8
and as 4the great bul,ark of personal liberty.4
9
hese concepts of the ,rit of *a#eas
corpus bring out the blessed sacred truth that personal liberty is one of the basic freedoms of man
jealously protected by any civili"ed society by a fundamental la,, ,ritten or un,ritten, and any
deprivation or curtailment of that personal liberty must find a basis in la,, substantive or procedural.
10
%n the petitions under consideration respondents justify the arrest and detention of petitioners by
virtue of the proclamation of martial la, in the country. !espondents aver ;&< that the e8ercise of the
po,er granted to the President of the !epublic by -ee. &9 ;*<, Art. 6%% of the &(AB Philippine
Constitution, to place the country or any part thereof under martial la,, is not subject to judicial
revie,: ;*< that even if said e8ecutive po,er may be in#uired into, there is factual bases for the
President$s action: and ;A< that the proclamation of martial la, carries ,ith it the automatic
suspension of the ,rit of *a#eas corpus and conse#uently these petitions should be dismissed.
11

Eith the ne, Constitution having been adopted in the meantime, respondents pose in subse#uent
pleadings additional grounds for dismissal, and these are7 ;&< that Art. %D, -ec. &*, of the &('A
Constitution adopted in toto the CommanderCinCChief clause of the &(AB Constitution, and ;*< that Art.
D6%%, section A ;*< e8pressly and categorically declares that 4t*e procla(ations, or!ers, an! !ecrees,
Instructions an! acts issue! or !one # t*e incu(#ent Presi!ent are to ,or( 1part o, t*e la) o, t*e
lan!1 an! are to 1re(ain vali! le+al, #in!in+, an! e,,ective even a,ter t*e li,tin+ o, (artial la) or t*e
rati,ication o, t*is Constitution4, and that means the present martial la, regime and all the measures
taken under it, particularly Proclamation ?o. &9)& and 3eneral 0rders & and *, as amended.
14

0n the other hand, petitioners vigorously assert ;&< a martial la, proclamation is justiciable: ;*<
conditions in the country as of -eptember *&, &('*, did not justify a proclamation of martial la,: ;A<
assuming that Proclamation ?o. &9)& is valid, 3eneral 0rders ?os. &, *, A, and ACA are violative of
the Constitution and are void: and ;J< the return is palpably insufficient to justify continued detention
of petitioners.
13
1or petitioner Diokno, additional arguments ,ere submitted, viz7 ;a< e8isting
conditions today do not ,arrant the continuance of martial la,, assuming that the proclamation ,as
initially justified: and ;b< the uncertainty of petitioner$s fate renders his e8ecutive imprisonment
oppressive and la,less.
15

%
Ee shall first dispose of the issue of the alleged insufficiency of the !eturn. .
Petitioners contend that respondents$ 4!eturn to Erit4 ,hich is #uoted in page 2 of this 0pinion is
fatally insufficient because a return must assert facts and not conclusions as to the basis of the
detention, and must be supplemented by affidavits or ,ith evidence at the *a#eas corpus hearing,
citing Carlson vs. 0an!on, &)2 1. *d. &)A.
he pertinent provision of -ec. &9, !ule &9*, !ules of Court, on the contents of the return re#uires
that it must state plainly and une#uivocably ,hether the officer to ,hom the ,rit is addressed has or
has not the party in his custody or po,er or under restraint, and if he has the party in his custody or
po,er or under restraint, the authority and the true and ,hole cause thereof, set forth at large, ,ith a
copy of the ,rit, order, e8ecution, or other process, if any, upon ,hich the party is held. ;pars. a and
b< All that this provision of the !ules of Court re#uires therefore is that the return must state if the
subject of the ,rit is in custody or under restraint and if so, the authority for such restraint and the
cause thereof. %t is not necessary for or indispensable to the validity of the return that the evidentiary
facts supporting the cause for the restraint be given or enumerated therein. %n the petitions at bar the
return sufficiently complies ,ith the re#uirements of the aforementioned provision of the !ules of
Court because it states the authority and the cause for the detention of petitioners ,hich after all is
the purpose or object of a return. he authority for the detention lies in the statement in the return that
the President e8ercising his po,ers under Art. 6%%, -ec. &9 ;*< of the Philippine Constitution
15

proclaimed martial la, in the country and pursuant to such proclamation issued 3eneral 0rders % to '
inclusive and +etters of %nstruction & to A, copies of ,hich are all attached to the return as anne8es &
to &&, ,hile the cause for the arrest of petitioners is given in 3eneral 0rder ?o. * ;Anne8 A< ,herein it
is stated that said petitioners are participants or have given aid and comfort in the conspiracy to sei"e
political and state po,er in the country, etc. At any rate, any deficiency in the aforesaid return
constitutes a mere technical violation ,hich is to be disregarded in vie, of the substantial issues
involved in the cases under consideration. %mperfections of form and technicalities of procedure are to
be disregarded unless substantial rights ,ould other,ise be prejudiced,
1:
and in the instant cases
there is no such prejudice as petitioners are sufficiently informed of the authority and cause of their
detention.
%%
he ne8t issue is K is this Court ,ith jurisdiction to in#uire into the constitutional sufficiency of the
proclamation of martial la,I
Petitioners assert the authority of this Court to in#uire into the necessity of placing the country under
martial la, in the same manner that it in#uired into the constitutional sufficiency of the suspension of
the privilege of the ,rit of *a#eas corpus in 0ansan+ vs. Garcia.
1:
> !espondents affirm, ho,ever, that
the determination of the e8istence of invasion, insurrection, rebellion, or imminent danger thereof,
,hen the public safety re#uires it is lodged ,ith the President under Art. 6%%, -ec. &9 ;*<, &(AB
Constitution, and the President$s determination is conclusive on all persons, including the courts:
hence, this Court is ,ithout jurisdiction to resolve on the constitutional sufficiency, of the basis for the
e8ercise of that presidential po,er, it being a purely political #uestion.
he Constitutional provision referred to reads7
he President shall be the CommanderCinCChief of all armed forces of the Philippines and, ,henever it
invasion, insurrection or rebellion. %n case of invasion, insurrection, or rebellion, or imminent danger
thereof, ,hen the public safety re#uires it, he may suspend the privilege of the ,rit of *a#eas corpus, or
17

!espondents cite a host of American authorities and principally fall back on the rulings of this Court in
"arcelon vs. "a-er, B Phil. )', ;&(9B< and 'ontene+ro vs. CastaAe!a, (& Phil. ))*, ;&(B*<
18
,hich
held that t*e aut*orit to !eci!e ,hether the e8igency has arisen re#uiring the suspension of the ,rit
of *a#eas corpus belongs to the President and his declaration is final and conclusive upon the courts
and upon all other persons.
he opinions of my colleagues lengthily discuss this issue of justiciability or nonCjusticiability of the
e8ercise of e8ecutive po,er to proclaim martial la, and % ,ill not repeat the arguments for one or the
other. % adopt by reference their dissertation on the leading American jurisprudence and Constitutional
+a, authorities on the matter, but % conclude for my part that the decision of this Court in 0ansan+ vs.
Garcia is the better rule to adopt. %n +ansang, the Court held that it has the authority under the
Constitution to in#uire into the e8istence of a factual basis for the issuance of a presidential
proclamation suspending the privilege of the ,rit of *a#eas corpus for the purpose of determining the
constitutional sufficiency thereof.
19
%f this Court can make that in#uiry in the event of suspension of
the privilege of the ,rit of *a#eas corpus, a ,ortiori, the Court can in#uire into the factual basis for the
proclamation of martial la, considering the more e8tensive effects of the latter on the individual rights
of the citi"enry, for it cannot be denied that martial la, carries ,ith it curtailment and infringement not
only of one$s liberty but also of property rights, rights of free e8pression and assembly, protection
against unreasonable searches and sei"ures, privacy of communication and correspondence, liberty
of abode and of travel, etc., ,hich justify judicial intervention to protect and uphold these liberties
guaranteed under the Constitution.
19
>
%n 0ansan+, the Court said in the ,ords of Chief .ustice !oberto Concepcion7
%ndeed, the grant of po,er to suspend the privilege is neither absolute nor un#ualified. he authority
conferred by the Constitution, both under the Bill of !ights and under the /8ecutive Department, is limited
and conditional. he precept in the Bill of !ights establishes a general rule, as ,ell as an e8ception
thereto. Ehat is more, it postulates the former in the ne+ative, evidently to stress its importance, by
providing that $;t<he privilege of the ,rit of *a#eas corpus shall not be suspended ....$ %t is only by ,ay of
e6ception that it permits the suspension of the privilege in cases of invasion, insurrection, or rebellion$ K
or, under Art. 6%% of the Constitution, $imminent danger thereof$ K $,hen the public safety re#uires it, in
any of ,hich events the same may be suspended ,herever during such period the necessity for such
suspension shall e8ist.$ A13 1or from being full and plenary, the authority to suspend the privilege of the ,rit
is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions
essential to its e8istence, but, also, as regards the time ,hen and the place ,here it may be e8ercised.
hese factors and the aforementioned setting or conditions mark, establish and define the e8tent, the
confines and the limits of said po,er, beyond ,hich it does not e8ist. And, like the limitations and
restrictions imposed by the 1undamental +a, upon the legislative department, a!*erence t*ereto an!
co(pliance t*ere)it* (a, )it*in proper #oun!s, #e in;uire! into # courts o, 5ustice. 0ther,ise, the
e8plicit constitutional provisions thereon ,ould be meaningless. -urely, the framers of our Constitution
could not have intended to engage in such a ,asteful e8ercise in futility. ....
888 888 888
Article 6%% of the Constitution vests in the /8ecutive the po,er to suspend the privilege of the ,rit of
*a#eas corpus under specified conditions. Pursuant to the principle of separation of po,ers underlying
the system of government, the /8ecutive$s supreme ,ithin his o,n sphere. >0E/6/!, >/
-/PA!A%0? 01 P0E/!-, =?D/! >/ C0?-%=%0?, %- ?0 AB-0+=/, E>A %- M0!/, %
30/- >A?D %? >A?D E%> >/ -@-/M 01 C>/CN- A?D BA+A?C/-, =?D/! E>%C> >/
/D/C=%6/ %- -=P!/M/, A- !/3A!D- >/ -=-P/?-%0? 01 >/ P!%6%+/3/, B= 0?+@ IF
A?D KCEN >/ AC- KITCIN >/ -P>/!/ A++0/D 0 >%M B@ >/ BA-%C +AE, A?D >/
A=>0!%@ 0 D//!M%?/ E>/>/! 0! ?0 >/ >A- -0 AC/D %- 6/-/D %? >/ .=D%C%A+
D/PA!M/?, E>%C>, IN TCIS >ESPECT, %-, %? =!?, C0?-%=%0?A++@ SEP>E'E. ;J*
-C!A, pp. J'ACJ'J,J'(CJ)9, capitali"ation 0urs<
Ee are no, called upon by respondents to reCe8amine the aboveC#uoted ruling, abandon it, and
return to the principle laid do,n in "a-er and 'ontene+ro.
40
o do that, ho,ever, ,ould be to
retrogress, to surrender a momentous gain achieved in judicial history in this country. Eith +ansang,
the highest Court of the land takes upon itself the grave responsibility of checking e8ecutive action
and saving the nation from an arbitrary and despotic e8ercise of the presidential po,er granted under
the Constitution to suspend the privilege of the ,rit of *a#eas corpus andFor proclaim martial la,: that
responsibility and duty of the Court must be preserved and fulfilled at all costs if Ee ,ant to maintain
its role as the last bul,ark of democracy in this country. o some, the Court could have gone further
in delineating its function in the determination of the constitutional sufficiency of a proclamation
suspending the privilege of the ,rit of *a#eas corpus: ,hile that may be true, as it is, the +ansang
decision is a 4giant leap4 in the interest of judicial supremacy in upholding fundamental rights
guaranteed by the Constitution, and for that reason % cannot agree that Ee discard said decision or
emasculate it so as to render its ruling a farce. he test of arbitrariness of e8ecutive action adopted in
the decision is a sufficient safeguard: ,hat is vital to the people is the manner by ,hich the test is
applied by the Court in both instances, i.e., suspension of the privilege of the ,rit of *a#eas corpus
andFor proclamation of martial la,.
%%%
Ee come to the third issue K the validity of Proclamation &9)&. !espondents contend that there is
factual basis for the President to proclaim martial la, in the country, ,hile petitioners assert
other,ise.
0n this point, % agree ,ith respondents that the e8treme measure taken by the President to place the
entire country under martial la, ,as necessary. he President$s action ,as neither capricious nor
arbitrary. An arbitrary act is one that arises from an unrestrained e8ercise of the ,ill, caprice, or
personal preference of the actor ;Eebster$s Ard ?e, %nternational Dictionary, p. &&9<, one ,hich is
not founded on a fair or substantial reason ;Bedford %nv. Co. vs. 1olb, &)9 P. *d A2&, A2*, cited in
Eords M Phrases, Permanent /d., 6ol. ACA, p. B'A<, is ,ithout ade#uate determining principle, nonC
rational, and solely dependent on the actor$s ,ill. ;-,eig vs. =.-., D.C. e8., 29 1. -upp. ')B, Eords
M Phrases, supra, p. B2*< -uch is not the case ,ith the act of the President, because the
proclamation of martial la, ,as the result of conditions and events, not of his o,n making, ,hich
undoubtedly endangered the public safety and led him to conclude that the situation ,as critical
enough to ,arrant the e8ercise of his po,er under the Constitution to proclaim martial la,.
As found by this Court in 0ansan+ vs. Garcia7 the communist activities in the country aimed principally
at incitement to sedition or rebellion became #uite evident in the late t,enties to the early thirties ,ith
the first convictions dating 0ctober *2, &(A*, in People vs. Evan+elista, et al. B' Phil. A'B, and
People vs. Guiller(o Capa!ocia, et al. B' Phil. A2J: ,hile there ,as a lull in such communist
activities upon the establishment of the Common,ealth of the Philippines there ,as a resurgence of
the communist threat in the late forties and on .une *9, &(B', Congress approved !epublic Act &'99
other,ise kno,n as the AntiC-ubversion Act ,hich in effect outla,ed the soCcalled Communist Party
of the Philippines ;CPP<: in &(2(, the Communist Party ,as reorgani"ed and split into t,o groups,
one of ,hich, composed mainly of young radicals constituting the Maoist faction, established a ?e,
People$s Army: the CPP managed to infiltrate or control nine major labor organi"ations, e8ploited the
youth movement and succeeded in making communist fronts of eleven major student or youth
organi"ations, so that there are about thirty mass organi"ations actively advancing the CPP interests,
among ,hich are the Malayang -amahan ng Magsasaka ;MA-ANA<, the Nabataang Makabayan
;NM<, the Movement for the Advancement of ?ationalism ;MA?<, the -amahang Demokratiko ng
Nabataan ;-DN<, the -amahang Molave ;-M<, and the Malayang Pagkakaisa ng Nabataang Pilipino
;MPNP<.
41

A recital of contemporary events from &(2( to &('* taken from reports of leading ne,spapers in the
country ,ill give the factual background of the proclamation of martial la, and, ,ith the indulgence of
the reader, % am giving it hereunder7
$%/%
Januar 7, Evenin+ Ne)s7 >uks ambushed five persons including a former mayor of Bagac, Bataan,
along the national road in the province and investigation of the Philippine Constabulary revealed that
the ambushers ,ere members of a >uk li#uidation s#uad.
44
Januar J, i#i!7 Army %ntelligence
sources disclosed that the >uks ,ere regrouping and steadily building up strength through a vigorous
recruitment and training program. Januar $F, i#i!7 An encounter occurred in -itio Bilaong, -ibul,
0rani Bataan, ,hich ,as considered the biggest encounter bet,een the Armed 1orces and >uks in
recent years resulting in the killing of a number of dissidents. Januar 2J, 28, 2%, an! 7$, i#i!7 %n the
City of Manila school campuses ,ere not spared from clashes during riotous demonstrations held by
more than &,B99 students of the 1ar /astern =niversity, the number increasing to about &9,999 of
them, and at the +yceum of the Philippines classes ,ere suspended because of a bloody students$
demonstration resulting in the ,ounding of at least one student. Fe#ruar $, i#i!7 he night before,
scores of students ,ere injured during a demonstration at the Mapua %nstitute of echnology initiated
by radical elements. Fe#ruar 2J an! 2&, i#i!7 >uks continued to strike at government forces in -an
1ernando, Pampanga, and arlac, arlac. 3pril $%, 'anila C*ronicle7 A demonstration of about B,999
farmers from arlac reinforced by Nabataang Makabayan members clashed ,ith riot policemen after
they had stoned the =- /mbassy on !o8as Boulevard, Manila, shattered glass ,indo,s of the
building, and put to torch an American flag. 'a $%, P*ilippines Ceral!7 he church ,as not spared
from the onslaught of student activism ,hen a march of activists ,as held to Manila$s prominent
Catholic churches. June $2, an! $J, Manila Chronicle7 Assaults ,ere intensified by government
troops on >uk liars in the provinces of Pampanga and arlac. Jul J, Philippines >erald7 he >uks
practically ,ere in control of si8 to,ns in the province of arlac. Jul 27, i#i!7 he Nabataang
Makabayan ,hich according to the Armed 1orces %ntelligence sources had a tieCup ,ith the >uks
staged a tumultuous demonstration during a state dinner at MalacaLang in honor of =- President
!ichard ?i8on ,hich resulted in a freeCforCall fight and injuries to several demonstrators. Septe(#er
2, %, an! $F, 'anila, .ail "ulletin7 6iolent student demonstrations ,ere staged including a oneCday
noisy siege of MalacaLang Palace. Octo#er 7, an! $$, 'anila C*ronicle7 Bloody demonstrations
continued near the gates of the =- /mbassy on !o8as Boulevard during ,hich at least *9 persons
including 2 policemen, A ne,smen and several bystanders ,ere injured. Nove(#er $&, 'anila .ail
"ulletin7 A jeeploads of >uks raided the poblacion of Porac, Pampanga, killing seven and ,ounding
si8teen. Nove(#er 2F, i#i!7 More persons ,ere killed in the continuing carnage in Pampanga.
Nove(#er 28, i#i!7 >uks killed t,o more persons in Pampanga and arlac even after constabulary
soldiers saturated the provinces on orders of President Marcos. .ece(#er 8, i#i!7 1ive persons ,ere
massacred by >uks in Pampanga.
$%7F
Januar $%, P*ilippines Ceral!7 J99 students demonstrated at MalacaLang Palace against po,er
groups in the country. Januar 22, i#i!7 A bomb e8ploded at the .oint =- Military Advisory 3roup
>ead#uarters in Pue"on City injuring a Philippine Army enlisted man. Januar 27, i#i!7 -tudent
demonstrators mauled a palace guard. Januar 2J, i#i!7 -ome A,999 students demonstrated at
MalacaLang for the second day and the ?ational -tudents +eague announced a nation,ide boycott
of classes. Januar 27, i#i!7 0pening session of the -eventh Congress ,as marred by riotous
demonstrations by thousands of students and ,orkers in front of the +egislative building during ,hich
President and Mrs. Marcos ,ere the target of stones and missiles as they ,alked to their car and '*
persons ,ere injured in that demonstration. Januar 7$, i#i!7 Mob attacked MalacaLang Palace ,ith
ignited bottles and fought ,ith military and police troops until early morning. June $2 an! $J, 'anila
Ti(es7 ?ilo ayag, Chairman of the Nabataang Makabayan ,as arrested for subversion and a
submachinegun and documents concerning Communism ,ere confiscated from him. Jul 8, /, 7, $7,
$%, 2$, 27, 28, 2/, 27, an! 7$, i#i!7 Continued demonstrations ,ere held in front of the =- embassy
building, in the campus of the 1ar /astern =niversity and the =niversity of the /ast, ,hile violent
bet,een the army and the >uks in Central +u"on c continued unabated. Septe(#er $8, $&, 2F, 28,
2/, 27 an! 2%, i#i!7 6iolent strikes and student demonstrations ,ere reported. Octo#er $, 7, J, /, &,
$7, 27 an! 2J, i#i!7 Demonstrations continued ,ith e8plosions of pillbo8es in at least t,o schools.
he =niversity of the Philippines ,as not spared ,hen its &),999 students boycotted their classes to
demand academic and nonCacademic reforms in the -tate =niversity resulting in the 4occupation4 of
the office of the President of the =niversity by student leaders. 0ther schools ,hich ,ere scenes of
violent demonstrations ,ere -an -ebastian College, =niversity of the /ast, +etran College, Mapua
%nstitute of echnology, =niversity of -to. omas, and 1eati =niversity. -tudent demonstrators even
succeeded in 4occupying the office of the -ecretary of .ustice 6icente Abad -antos for at least seven
hours4. Nove(#er /, 7, & an! $&, i#i!: he Armed 1orces continued its encounters ,ith the >uks in
Central +u"on and ,ith the leaders of the ?e, People$s Army. .ece(#er 8, % an! $F, i#i!7 More
instances of violent student demonstrations in the City ,ere, reported, the most violent of ,hich
occurred after an indignation rally at Pla"a +a,ton ,here pillbo8es and other e8plosives ,ere thro,n
resulting in the ,ounding of several students, policemen and bystanders. ,o Catholic schools and
t,o government buildings in Calbayog City ,ere blasted ,ith dynamite. .ece(#er $J, $8, $&, 27 an!
2&, i#i!7 1ighting ,as reported in the province of Cotabato bet,een ,ellCarmed tribesmen and the
local police forces, as ,ell as in %locos -ur, ,hile in Cavite the Police Chief and t,o of his men ,ere
shot to death in front of the >all of .ustice building. .ece(#er 7$, i#i!7 %n Baguio City, +t. 6ictor ?.
Corpus joined the ?e, People$s Army and effected a raid on the Philippine Military Academy and fled
,ith AB highCpo,ered guns ,ith ammunition.
$%7$
Januar $J, 'anila Ti(es7 1our students died during a rally at Pla"a Miranda of this city. Januar 2$,
i#i!7 -tudents picketed the Philippine Constabulary Camp at Camp Crame to e8press their protest on
the use of the military forces against students, and to demand the impeachment of President Marcos.
Januar 27, i#i!7 0il firms in the city ,ere the object of bombings resulting in death to at least t,o
persons and injuries to others. Januar 27, I#i!7 A hand grenade ,as hurled at the to,er of the AB-C
CB? Broadcasting Corporation in Pue"on City. Fe#ruar 2, i#i!7 A freshman student of the =niversity
of the Philippines ,as shot and critically ,ounded, AB injured, *2 ,ere arrested in violent incidents at
the campus ,hich at that time ,as in barricades, ,hile in do,nto,n Manila more than *.999 students
occupied and barricaded Claro M. !ecto Avenue and &2 persons ,ere injured in separate clashes
bet,een the police and students. Fe#ruar 7, i#i!7 A senior engineering student ,as shot ,hen
government forces drove into the heart of the =niversity of the Philippines campus to disperse
students ,ho had set up barricades in the area, and at least A9 ,omen students ,ere ,ounded in the
clima8 of the dayClong pitch battle in the =niversity bet,een students and the local police and
soldiers. Fe#ruar J, 8, / an! 7, i#i!7 %n do,nto,n Manila, fighting continued bet,een the police and
student demonstrators resulting in the death of at least t,o students and ,ounding of scores of
demonstrators and policemen. Fe#ruar $$, i#i!7 he =.P. +os BaLos Armory ,as blasted by an
e8plosion. Fe#ruar $7, i#i!7 he =nited -tates /mbassy ,as again bombed. Fe#ruar $7, i#i!7 %n
the province of Davao student riots erupted in the =niversity of Mindanao killing at least one student.
Fe#ruar 27, i#i!7 At least &) persons ,ere killed in Cotabato during encounters bet,een government
forces and the soCcalled rebels. 'arc* $7, $&, $% an! 28, i#i!7 6iolent demonstrations and indignation
rallies ,ere held in Manila as ,ell as in the province of arlac. 3pril 27, Evenin+ Ne)s7 ,o
Constabulary troopers ,ere ambushed by >uks under Commander Dante in the poblacion of Capas,
arlac. 3pril 7F, i#i!7 A bomb e8ploded in Pue"on City destroying the statue symboli"ing friendship
bet,een the 1ilipinos and the Americans. 'a 2 an! 7, P*ilippines Ceral!7 he month of May ,as a
bloody one. +abor Day, May &, ,as celebrated by the ,orkers and student activists ,ith a
demonstration before Congress, and a clash bet,een the demonstrators and the Police and
Metrocom forces resulted in death to several demonstrators and injuries to many. 'a 7, i#i!7 ,o
army troopers and at least ) >uks including a Commander ,ere killed during military operations
against the communist ?e, People$s Army in %sabela. June 2J, 28 an! 2/, 'anila ti(es7 Peace and
order situation in Mindanao ,orsened. Continued clashes bet,een government forces and rebels
resulted in the evacuation of thousands of Muslims and Christians alike from several to,ns in
Cotabato and a band of B9 gunmen attacked a party of top government officials led by Defense
-ecretary .uan /nrile ,hile inspecting a Mos#ue ,here B2 Muslims ,ere reportedly massacred in
Barrio Manalili, Carmen, Cotabato. June 22, Evenin+ Ne)s7 6iolence continued to be unabated in
Manila ,ith a Pue"on City activist shot dead and A drivers involved in the jeepney strike bombed and
injured. 3u+ust 2$, i#i!7 A public meeting being held at Pla"a Miranda, Manila, by the +iberal Party for
the presentation of its candidates in the general elections scheduled for ?ovember ), &('& ,as
marred by ,hat is no, kno,n as the brutal Pla"a Miranda incident ,here ) persons ,ere killed and
scores ,ere injured including the candidates of the party, caused by the thro,ing of t,o hand
grenades at the platform. 3u+ust 27, i#i!7 President Marcos issued a proclamation suspending the
privilege of the ,rit of *a#eas corpus.
$%72
Januar $2, 'anila Ti(es7 President Marcos restored the privilege of the ,rit of *a#eas corpus in the
entire country. Januar 2%, I#i!7 %n the meantime, in Congress a bill ,as introduced to repeal the antiC
subversion la,. Fe#ruar 2, 7, 8 an! $F, I#i!7 6iolent demonstrations in the school belt resumed.
Fe#ruar J, i#i!7 %n the province of 5ambales an encounter bet,een PC troopers and the ?e,
People$s Army ,as reported. March &, I#i!7 he province of Cavite ,as placed under Philippine
Constabulary control because of the rash of killings in ,hich local officials ,ere the victims, one of
,hom ,as Cavite City Mayor !o8as. 'arc* 2, i#i!7 A raid ,as conducted by the Philippine
Constabulary in a house in Pue"on City resulting in the sei"ure of A2 highCpo,ered firearms, * hand
grenades and a dismantled machinegun ,hile in the province of %sabela 2 persons including a nonC
commissioned officer of the &9th %nfantry Battalion ,ere killed in a gun battle bet,een government
soldiers and the ?e, People$s Army. 'arc* 8, i#i!7 he ?e, People$s Army raided Capas, arlac,
destroying a portion of the to,n hall. 'arc* %, i#i!7 More person died in Cotabato and +anao due to
continued violence. 'arc* $J, $/, $&, 2$ an! 27, i#i!7 he student demonstration on its ,ay to
Congress to agitate for the repeal of the antiCsubversion la, resulted in injuries to a good number of
student demonstrators ,hen they clashed ,ith security guards in front of the =niversity of -to.
omas. %n another violent demonstration in front of Arellano =niversity at least one student ,as killed
and others ,ere ,ounded in an encounter bet,een the demonstrators and security guards. Pillbo8
e8plosives ,ere hurled at the gate of MalacaLang Palace and a mysterious e8plosion sparked a fire
that gutted the northern ,ind of the 3reater Manila erminal 1ood Market in aguig, !i"al, ,hich had
been preceded by other mysterious e8plosions ,hich shattered portions of the Arca building on aft
Avenue, Pasay, during ,hich propaganda leaflets ,ere found sho,ing that radical elements ,ere
behind the bombings, ,hile ( sticks of dynamite ,ere found dumped in front of the -ecurity Bank and
rust Company branch office in /spaLa -treet. 'arc* 27, i#i!7 Another public official, Mayor !odolfo
3an"on of %loilo City ,as ,ounded in an ambush and J of his companions ,ere killed. 'arc* 2/, i#i!7
-i8 more persons ,ere killed as government troopers clashed ,ith the ?e, People$s Army in the
province of %sabela. 3pril $/ an! $7, i#i!7 Clashes continued bet,een the Army troops and the ?e,
People$s Army in %sabela ,hich led the government to send more troops to that province. 3pril 2F an!
28, i#i!7 he =- /mbassy ,as again bombed ,hile strikes in factories ,ere joined by soCcalled
activists. 3pril 2/, i#i!7 >and grenades in the to,n of Cabugao, %locos -ur ,ere thro,n resulting in
the death of &A. 3pril 27, i#i!7 Clashes continued bet,een government troopers and the ?e,
People$s Army in the %locos provinces as ,ell as in the provinces of +anao and 5ambales. 3pril 7F,
i#i!7 he ?e, People$s Army invaded the provinces of -amar and +eyte. 'a J, i#i!7 ,o big
shipments of dynamite sticks estimated at &9,999 pieces had already been shipped to %locos -ur
before a third shipment ,as intercepted on a bus bound for Cabugao. 'a $2 an! $/, i#i!7 More
pillbo8 e8plosions occurred in the =- /mbassy during ,hich at least B persons ,ere hurt ,hile the
pickets at the embassy led by the Nabataang Makabayan continued. 'a 2$, i#i!7 At least A9
persons ,ere ,ounded ,hen radical vanguards of about B,999 demonstrators clashed ,ith about
*99 Metrocom troopers in the vicinity of the =- /mbassy. June $7, i#i!7 he Philippine %ndependence
Day ,as marred by rallies of youth and ,orker groups ,hich denounced =- imperialism, ,ith
demonstrators numbering about &9,999 from -outhern +u"on, Central +u"on and the 3reater Manila
area converging at Pla"a Miranda and during the demonstration e8plosions of pillbo8 bombs
occurred. June $&, i#i!7 he situation in Mindanao ,as critical and had ,orsened. June 2J, i#i!7 A
time bomb e8ploded in one of the rooms in the second floor of the Court of %ndustrial !elations
building in Manila. Jul J, i#i!7 An e8plosion shattered the ,estern section of the Philamlife building in
/rmita, Manila. Jul 8, i#i!7 hirtyCfive persons ,ere ,ounded in pillbo8 e8plosions ,hen * groups of
demonstrators clashed ,ith each other at +i,asang Bonifacio, then ,ith policemen near the =-
/mbassy, as the protest rallies against =- imperialism held in conjunction ,ith the .uly Jth
celebration came to a bloody end. Deputy Police Chief Col. .ames Barbers ,ho suffered J9 pellet
,ounds on the left side of the body ,as among the victims. Jul /, i#i!7 !aiders killed BA in
5amboanga: fighting ,as also going on in +anao del ?orte. Defense -ecretary .uan Ponce /nrile
yesterday described the Mindanao developments as 4grave4. Jul 7, i#i!7 President Marcos ordered
5amboanga drive: Armed 1orces of the Philippines landCseaCair operations ,ere launched ,hile
Mayor Diogracias Carmona of Dimataling, 5amboanga del -ur, ,as killed in a ne, clash. Jul &, i#i!7
A panel of la,yers have advised President Marcos that it ,ould be perfectly legal for him to declare
martial la,, suspend elections, and continue in office beyond &('A, if the 4proper4 situation develops
ne8t year. Jul %, i#i!7 President Marcos said that the Communist infiltration of feuding Muslim and
Christian groups in Mindanao could be just a ploy to dra, a,ay government troops from Central
+u"on and thus leave Manila open to a !ed attack. President Marcos ordered the PC and the army to
counterCattack and recapture Digoyo Point, Palanan, %sabela: upon receipt of reports that
outnumbered government troopers battling ?e, People$s Army guerrillas in Palanan ,ere forced to
,ithdra,. >e said that the primary target should be the suspected ammunition dump and supply
depot of the ?e, People$s Army on Digoyo Point. -i8teen PC officers and enlisted men ,ere rescued
from &99 ?e, People$s Army guerrillas ,ho had pinned them do,n on board a ship during a sea and
air operations. he occupied the ship named 4Nuya Maru Naragatan4 reported to be of ?orth Norean
origin. Ehile inspecting the ship, some &99 ?e, People$s Army guerrillas massed on the beach and
fired at them. Jul $F, i#i!7 President Marcos said that the vessel ,hich landed off Palanan, %sabela,
allegedly ,ith military supplies and e#uipment for the ?e, People$s Army is o,ned by 1ilipinos and is
registered under Philippine la,s. he President also sa, in the landing incident evidence of a tieCup
bet,een local Communists and foreign suppliers of ,eapons. Jul $8, i#i!7 Camp Crame, ?ational
PC head#uarters, announced a report from ask 1orce -aranay that government troopers had found
hundreds of ,eapons of American make, including J2' MC&J rifles, in * abandoned camps in Digoyo
Point, Palanan, %sabela. August &(, I#i!7 !allies ,ere held to mark the first year of the Pla"a Miranda
bombing and suspension of the ,rit of *a#eas corpus by the Movement of Concerned Citi"ens for
Civil +iberties ,hich declared August *& as a national day of protest against militari"ation. 3u+ust 7$,
i#i!7 he Department of ?ational Defense at a conference of defense and military officials e8posed a
plan of the ?e, People$s Army to so, terror and disorder in the major cities of the country before the
end of the year &('*, and because of several bombing incidents at the Department of 1oreign Affairs,
Philamlife building, 4he Daily -tar 0ffice4 a ne,spaper publication, the %P% building and an armored
car of the Philippine Banking Corporation, the Philippine Constabulary declared a red alert in the
metropolitan area. Septe(#er 7, i#i!7 -i8 army soldiers ,ere killed ,hen they ,ere ambushed by the
?e, People$s Army in Ca,ayan, %sabela. -eptember 2, I#i!7 0ne ,oman ,as killed and 29 others
,ere injured ,hen a time bomb e8ploded in a department store in Cariedo -treet, Puiapo, Manila, at
about )7A9 in the evening of -eptember B ,hich incident ,as the most serious in the series of
bombings ,hich took place in greater Manila and ,hich according to Army %ntelligence sources ,as
the ,ork of 4subversive elements out to so, fear, confusion and disorder in the heart of the
population.4 Septe(#er $F, i#i!7 errorist bombers struck again the night before destroying three vital
offices in the ground floor of the City hall of Manila and ,ounding * telephone operators. Septe(#er
$2, i#i!7 A gun battle ensued bet,een the ?e, People$s Army and Metrocom soldiers at Pandacan,
Manila, near the 0il refineries ,hich led to the sending of Army troops to guard oil depots. Septe(#er
$7, i#i!7 President Marcos ,arned that he has under consideration the necessity for e8ercising his
emergency po,ers under the Constitution in dealing ,ith intensified activities of local Maoists.
Septe(#er $%, i#i!7 As if in ans,er to this ,arning of the President, t,o time bombs e8ploded in the
Pue"on City >all ,hich disrupted the plenary session of the constitutional Convention and a
subversion case Court of 1irst %nstance .udge .ulian +ustre.
he foregoing events together ,ith other data in the possession of the President as CommanderCinC
Chief of the Armed 1orces led him to conclude that 4there is throughout the land a state of anarchy
and la,lessness, chaos and disorder, turmoil and destruction of a magnitude e#uivalent to an actual
,ar bet,een the force of our duly constituted government and the ?e, People$s Army and their
satellite organi"ations ... in addition to the aboveCdescribed social disorder, there is also the e#ually
serious disorder in Mindanao and -ulu resulting from the unsettled conflict bet,een certain elements
of the Christian and Muslim population of Mindanao and -ulu, bet,een the Christian $%laga$ and the
Muslim $Barracudas$, and bet,een our government troops, and certain la,less organi"ations such as
the Mindanao %ndependence Movement ...4, that this state of 4rebellion and armed action4 caused
4serious demorali"ation among our people and have made the public apprehensive and fearful4 and
that 4public order and safety and the security of the nation demand that immediate, s,ift, decisive and
effective action be taken to protect and insure the peace, order and security of the country and its
population and to maintain the authority of the government.4 ;see Proclamation &9)&<
Petitioners vigorously dispute all the above conclusions of the President and maintain that the
situation in the country as of -eptember *&, &('*, did not ,arrant a proclamation of martial la,: thus,
Congress ,as in session, the courts ,ere open, the Constitutional Convention of &('& ,as in
progress, etc. Petitioners invoke in their favor the 4open court rule4 espoused in the American cases
of E6 Parte 'illi+an, J Eallace *, &)22, and .uncan vs. Ga*ana(o-u, A*' =.-. A9J, &(JB, (9 +. /d.
2)). %n Milligan the majority of five .ustices of the -upreme Court held among others that 4;M<artial
rule can never e8ist ,here the courts are open and in the proper and unobstructed e8ercise of their
jurisdiction4, ,hich ruling ,as reCaffirmed in .uncan.
Much has been said and ,ritten by my Colleagues on the merits and demerits of the 'illi+an and
.uncan jurisprudence. 1or my part % shall simply state that % do not vie, these t,o cases as
controlling authority on ,hat is the test of an 4actual and real necessity4 for martial la, to e8ist
because these t,o cases ,ere mainly concerned ,ith the jurisdiction of a military commission
;Milligan case< and a military tribunal ;Duncan case< to try civilians for offenses generally cogni"able
by civil courts, and the decision in these t,o cases simply upholds the principle that ,here courts are
open to e8ercise their jurisdiction, these civilians must not be denied their rights guaranteed under the
Bill of !ights one of ,hich is trial by jury in a civil court. 4%n other ,ords, the civil courts must be utterly
incapable of trying criminals or dispensing justice in their usual manner before the Bill of !ights may
be temporarily suspended.4 ;Duncan vs. Nahanamoku supra, p. '9A< 1urthermore, % ,ould ans,er
the arguments of petitioners ,ith the follo,ing critical observation of Professor Eilloughby on the
'illi+an ruling based on the dissent of four .ustices in the case, and % #uote7
... he statement is too absolutely made that $martial la, cannot arise from a threatened invasion. he
deposes the civil administration.$ %t is correct to say that $the necessity must be actual and present,$ but it
is not correct to sa t*at t*is necessit cannot #e present e6cept )*en t*e courts are close! an! !epose!
,ro( civil a!(inistration, ,or, as the minority justices correctly pointed out, t*ere (a #e ur+ent necessit
,or (artial rule even )*en t*e courts are open. he better doctrine, then, is, not for the court to attempt to
determine in advance ,ith respect to any one element, ,hat does, and ,hat does not create a necessity
for martial la,, but, as in all other cases of the e8ercise of official authority, to test the legality of an act by
its special circumstances. Certainly the fact that the courts are open and undisturbed ,ill in all cases
furnish a po,erful presumption that there is no necessity for a resort to martial la,, but it should not
furnish an irrebuttable presumption. ;Eilloughby, Constitution of the =nited -tates, 6ol. A, */d., p. &29*,
emphasis supplied<
o stress his point, Professor Eilloughby gave the follo,ing e8ample7
he /nglish doctrine of martial la, is substantially similar to this, and an e8cellent illustration of the point
under discussion is given by certain events gro,ing out of the late BritishCBoer ,ar.
During that struggle martial la, ,as proclaimed by the British 3overnment throughout the entire e8tent of
Cape Colony, that is, in districts ,here no active military operations ,ere being conducted and ,here the
courts ,ere open and undisturbed, but ,here considerable sympathy ,ith the Boers and disaffection ,ith
the /nglish rule e8isted. -ir 1rederick Pollock, discussing the proper la, of the subject ,ith reference to
the arrest of one Marais, upholds the judgment of the .udicial Committee of the Privy Council ;A.C. &9(,
&(9*< in ,hich that court declined to hold that the absence of open disorder, and the undisturbed
operation of the courts furnished conclusive evidence that martial la, ,as unjustified. ;i#i!, pp. &29*C
&29A<
Coming back to our present situation, it can be said, that the fact that our courts ,ere open on
-eptember *&, &('*, did not preclude the e8istence of an 4actual and present necessity4 for the
proclamation of martial la,. As indicated earlier, the state of communist activities as ,ell as of other
dissident movements in this country summari"ed by this Court in 0ansan+ vs. Garcia and manifested
in the recital of events given in this 0pinion constituted the 4actual and present necessity4 ,hich led
the President to place the entire country under martial la,.
%6
Contrary to respondent$s claim, the proclamation of martial la, in the country did not carry ,ith it the
automatic suspension of the privilege of the ,rit of *a#eas corpus for these reasons7 First, from the
very nature of the ,rit of *a#eas corpus ,hich as stressed in the early portion of this 0pinion is a 4,rit
of liberty4 and the 4most important and most immediately available safeguard of that liberty4, the
privilege of the ,rit cannot be suspended # (ere i(plication. he Bill of !ights ;Art. &&&, -ec. &;&J<,
&(AB Constitution, Art. %6, -ec. &B, &('A Constitution< categorically states that the privilege of the ,rit
of *a#eas corpus shall not be suspended e6cept for causes therein specified, and the proclamation of
martial la, is not one of those enumerated.
43
Secon!, the soCcalled CommanderCinCChief clause,
either under Art. 6%%, -ec. &9;*<, &(AB Constitution, or Art. %D, -ec. &*, &('A Constitution, provides
specifically for three different modes of e8ecutive action in times of emergency, and one mode does
not necessarily encompass the other, viz, ;a< calling out the armed forces to prevent or suppress
la,lessness, etc., ;b< suspension of the privilege of the ,rit of *a#eas corpus, and ;e< placing the
country or a part thereof under martial la,. %n the latter t,o instances even if the causes for the
e8ecutive action are the same, still the e8igencies of the situation may ,arrant the suspension of the
privilege of the ,rit but not a proclamation of martial la, and vice versa. hird, there can be an
automatic suspension of the privilege of the ,rit ,hen, ,ith the declaration of martial la,, there is a
total collapse of the civil authorities, the civil courts are closed, and a military government takes over,
in ,hich event the privilege of the ,rit is necessarily suspended for the simple reason that there is no
court to issue the ,rit: that, ho,ever, is not the case ,ith us at present because the martial la,
proclaimed by the President upholds the supremacy of the civil over the military authority,
45
and the
courts are open to issue the ,rit.
6
!espondents argue that ,ith a valid proclamation of martial la,, all orders, decrees, and other acts of
the President pursuant to said proclamation are like,ise valid7 that these acts ,ere e8pressly
declared legal and binding in Art. D6%%, -ec. A;*<, of the &('A Constitution ,hich is no, in full force
and effect, and conse#uently the arrest of petitioners is legal, it having been made in accordance ,ith
3eneral 0rder ?o. * of the President.
% cannot give my un#ualified assent to respondents$ s,eeping statement ,hich in effect upholds the
vie, that ,hatever defects, substantive or procedural, may have tainted the orders, decrees, or other
acts of the President have been cured by the confirmatory vote of the sovereign people manifested
through their ratification of the &('A Constitution. % cannot do so, because % refuse to believe that a
people that have embraced the principles of democracy in 4blood, s,eat, and tears4 ,ould thus thro,
a,ay all their precious liberties, the sacred institutions enshrined in their Constitution, for that ,ould
be the result if ,e say that the people have stamped their approval on all the acts of the President
e8ecuted after the proclamation of martial la, irrespective of any taint of injustice, arbitrariness,
oppression, or culpable violation of the Constitution that may characteri"e such acts. -urely the
people acting through their constitutional delegates could not have ,ritten a fundamental la, ,hich
guarantees their rights to life, liberty, and property, and at the same time in the same instrument
provided for a ,eapon that could spell death to these rights. ?o less than the man concerned,
President 1erdinand /. Marcos, has time and again emphasi"ed the fact that not,ithstanding the
e8istence of martial la, ours is a government run under the Constitution and that the proclamation of
martial la, is un!er t*e >ule o, 0a).
45
%f that is so, and that is ho, it should be, then all the acts of
the President must bo, to the mandates of the Constitution.
hat this vie, that ,e take is the correct one can be seen from the very te8t of -ee. A;*<, Art. D6%% of
the &('A Constitution ,hich provides7
President s*all #e part o, t*e la) o, t*e lan!, and shall remain valid, legal, binding, and effective even
after lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or superseded
by subse#uent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or
unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly. ;emphasis
supplied<
As stated in the aboveC#uoted provision, all the proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part o, t*e la) o, t*e lan!: the te8t
did not say that they shall be part of the fundamental or basic la, K the Constitution. %ndeed, the
framers of the ne, Constitution ,ere careful in their choice of phraseology for implicit therein is the
Court$s po,er of judicial revie, over the acts of the incumbent President in the e8ercise of his martial
la, po,ers during the period of transition from the Presidential to the Parliamentary regime. 1or the
effect of the aforementioned transitory provision is to invest upon said proclamations, orders,
decrees, and acts of the President the imprimatur of a la, but not a constitutional mandate. +ike any
other la, or statute enacted by the legislative branch of the government, such orders, decrees, etc.
are subject to judicial revie, ,hen proper under the Constitution: to claim the contrary ,ould be
incongruous to say the least for ,hile the acts of the regular ?ational Assembly ,hich is the
permanent repository of legislative po,er under the ne, Constitution are subject to judicial revie,,
the acts of its temporary substitute, that is, the incumbent President, performed during the transitory
period are not.
%t is contended ho,ever that the true intention of the Constitutional Delegates in providing for -ection
A;*<, Article D6%%, in the &('A Constitution ,as to foreclose any judicial in#uiry on the validity not only
of Proclamation &9)& but also of all subse#uent orders, decrees issued and acts performed by the
incumbent President. %f that ,as the intent, then ,hy did that particular provision not state so in clear
and une#uivocal terms, especially since the effect ,ould be to restrict if not to deprive the judicial
branch of the government of its po,er of judicial revie, in these instancesI As it is, that is, as
presently ,orded, this particular provision ,as ratified by the people believing that although the acts
of the incumbent President ,ere being (a!e part o, t*e la) o, t*e lan! they still had a recourse to the
judicial branch of their government for protection or redress should such acts turn out to be arbitrary,
unjust, or oppressive.
3oing back to 3eneral 0rder ?o. *, its validity is assailed by petitioners on the ground that it ordered
their arrest and detention ,ithout charges having been filed against them before the competent court
nor ,arrants for their arrest issued by the latter, all in violation of their constitutional right to due
process of la,.
A state of martial la, vests upon the President not only the po,er to call the military or armed forces
to repel an invasion, prevent or suppress an insurrection or rebellion, ,henever public safety re#uires
it, but also the authority to take such measures as may be necessary to accomplish the purposes of
the proclamation of martial la,. 0ne such measure is the arrest and detention of persons ,ho are
claimed to be participants or suspected on reasonable grounds to be such, in the commission of
insurrection or rebellion, or in the case of an invasion, ,ho give aid and comfort to the enemy, the
arrest being necessary to insure public safety. %t is this element of necessity present in the case ,hich
justifies a curtailment of the rights of petitioners and so long as there is no sho,ing of arbitrariness or
oppression in the act complained of, the Court is duty bound to sustain it as a valid e8ercise of the
martial la, po,ers of the President. Eith the foregoing #ualification, % agree ,ith the follo,ing
statement7
Ehen it comes to a decision by the head of the -tate upon a matter involving its life, the ordinary rights of
individuals must yield to ,hat he deems the necessities of the moment. Public danger ,arrants the
substitution of e8ecutive process for judicial process. ;Moyer vs. Peabody, *&* =.-. '), BA +. /d., pp.
J&&, J&'<
he issuance of 3eneral 0rder ?o. * therefore ,as a valid initial step taken by the President to
render effective the suppression of armed resistance to our duly constituted government.
hus, % vote for the dismissal of the petitions for *a#eas corpus of those ,ho have been conditionally
released, because7 ;&< he arrest of said petitioners ,as effected by respondents under a valid 0rder
of the President. ;*< he petitioners concerned have been ordered released from detention. he
prime object of a ,rit of *a#eas corpus is to relieve a person from physical restraint and this has been
accomplished on respondent -ecretary$s initiative, ;A< Ehile it is true that the release of petitioners is
subject to certain conditions such as restrictions on petitioners$ freedom of movement, such
restrictions are reasonable precautionary measures in the face of public danger, and % do not see any
arbitrariness in the imposition of said restrictions.
Eith respect to the case of petitioner A#uino, % concur in the dismissal of his petition for reasons that7
;&< criminal charges have been filed against him before a military commission and ;*< the legal issues
posed by him ,hich are germane to this *a#eas corpus proceeding are disposed of and resolved in
the manner indicated in this 0pinion. As regards the other issues submitted by A#uino, % agree ,ith
my Colleagues that the same are to be resolved in the prohibition and certiorari case filed by him
,hich is no, pending before the Court.
CONC0ESION
%n closing, may % state that it ,as necessary for me to ,rite this separate 0pinion because % found
myself at variance ,ith my Colleagues on certain issues posed by these Petitions for *a#eas corpus.
o recapitulate7 ;&< %s the constitutional sufficiency of a proclamation of martial la, by the President a
political #uestionI K % hold that it is not a political, but is a justiciable one. ;*< Did the proclamation of
martial automatically suspend the privilege of the ,rit of *a#eas corpusI ?o, is my ans,er. ;A< Did
-ec. A;*<, Art. D6%% of the ransitory Provisions of the &('A Constitution foreclose judicial in#uiry into
the validity of all decrees, orders and acts of the incumbent President e8ecuted after the proclamation
of martial la, and during the ransitory PeriodI % say7 ?0, because those acts are still subject to the
po,er of judicial revie, if and ,hen they are sho,n to be arbitrary, oppressive, or unjust, in violation
of the Constitution andFor the generally accepted principles of %nternational +a,, usage$s and
customs.
My conclusions may not be supported by e8isting jurisprudence or may even be contrary to the
multiple authorities cited by my senior Colleagues in the Court: nonetheless, % humbly offer and
submit them as the spontaneous reactions of my conscience to the issues ,hich in the ,ords of my
distinguished Colleague, Mr. .ustice Antonio P. Barredo, affect not the petitioners alone but the ,hole
country and all our people.

S+(a,at+ O(%%os
CASTRO, J.:
%
hese nine cases are applications for ,rits of *a#eas corpus. he petitions aver in substance that on
-eptember *&, &('* the President of the Philippines placed the country under martial la,
;Proclamation &9)&<: that on various dates from -eptember ** to -eptember A9, &('*, the petitioners
or the persons in ,hose behalf the applications ,ere made ,ere arrested by the military authorities
and detained, some at 1ort Bonifacio in Makati, !i"al, others at Camp Aguinaldo and still others at
Camp Crame, both in Pue"on City: and that the arrest and detention of the petitioners ,ere illegal,
having been effected ,ithout a valid order of a competent court of justice.
Erits of *a#eas corpuz ,ere issued by the Court directing the respondents -ecretary of ?ational
Defense, Chief of -taff of the Armed 1orces of the Philippines, and Chief of the Philippine
Constabulary, to produce the bodies of the petitioners in Court on designated dates and to make
returns to the ,rits. %n due time the respondents, through the -olicitor 3eneral, filed their returns to
the ,rits and ans,ers to the petitions. Admitting that the petitioners had been arrested and detained,
the respondents nevertheless justified such arrest and detention as having been legally ordered by
the President of the Philippines pursuant to his proclamation of martial la,, the petitioners being
regarded as participants or as having given aid and comfort 4in the conspiracy to sei"e political and
state po,er and to take over the government by force.4 he respondents traversed the petitioners$
contention that their arrest and detention ,ere unconstitutional.
>earings ,ere held on -eptember *2 and *( and 0ctober 2, &('*, at ,hich the petitioners ,ere
produced in Court. hereafter the parties filed memoranda.
Mean,hile, some of the petitioners, ,ith leave of Court, ,ithdre, their petitions:
1
others, ,ithout
doing so, ,ere subse#uently released from custody under certain restrictive conditions.
4
/nri#ue
6oltaire 3arcia %%, the sole petitioner in +CABBJ' and one of those released, having died shortly after
his release, the action ,as deemed abated as to him.
As of this date only .ose E. Diokno, in ,hose behalf the petition in +CABBA( ,as filed, and Benigno -.
A#uino, .r. in +ABBJ2, are still in military custody.
0n August *A, &('A the petitioner A#uino filed an action for certiorari and prohibition ,ith this Court
alleging that on August &&, &('A charges of murder, subversion and illegal possession of firearms
,ere filed against him ,ith a military commission: that his trial by the military court ,hich ,as to be
held on August *', *( and A&, &('A ,as illegal because the proclamation of martial la, ,as
unconstitutional: and that he could not e8pect a fair trial because the President of the Philippines,
having prejudged his case, could reverse any judgment of ac#uittal by the military court and sentence
him to death. hat action, docketed as +CA'A2J and entitled 4"eni+no S. 3;uino, Jr. vs. 'ilitar
Co((ission ?o. *,4 is still pending consideration and decision.
0n the other hand, .ose E. Diokno, on December *), &('A, filed a motion to ,ithdra, the petition
filed in his behalf, imputing delay in the disposition of his case, and asseverating that because of the
decision of the Court in the !atification Cases
3
and the action of the members of the Court in taking
an oath to support the ne, Constitution, he cannot 4reasonably e8pect to get justice in this case.4 he
respondents oppose the motion on the grounds that there is a public interest in the decision of these
cases and that the reasons given for the motion to ,ithdra, are untrue, unfair and contemptuous.
%%
he threshold #uestion is ,hether to allo, the ,ithdra,al of the petition in
+CABBA( filed in behalf of Diokno. %n his letter to his counsel, ,hich is the basis of the motion to
,ithdra,, Diokno states the follo,ing considerations7 ,irst, the delay in the disposition of his case:
secon!, the dismissal of the petitions in the !atification Cases, contrary to the Court$s ruling that the
&('A Constitution ,as not validly ratified: and t*ir!, the action of the members of the Court in taking
an oath of allegiance to the ne, Constitution. Diokno asserts that 4a conscience that allo,s a man to
rot behind bars for more than one year and three months ,ithout trial K of course, ,ithout any
charges at all K is a conscience that has become stunted, if not stultified4 and that 4in s,earing to
support the ne, $Constitution,$ the five members of the Court ,ho had held that it had not been validly
ratified, have not fulfilled our e8pectations.4 >e goes on to say7 4% do not blame them. % do not kno,
,hat % ,ould have done in their place. But, at the same time, % can not continue to entrust my case to
them: and % have become thoroughly convinced that our #uest for justice in my case is futile.4
As already noted, the -olicitor 3eneral, in behalf of the respondents, opposes the ,ithdra,al of the
petition on the ground of public interest, adding that the motion to ,ithdra, cannot be granted by the
Court ,ithout in effect admitting the 4unfair, untrue and contemptuous4 statements contained therein.
Eithout passing on the liability of any party in this case for contemptuous statements made, the Court
;by a vote of B to '< denied the motion.
% voted for the denial of the motion to ,ithdra, for inescapable reasons that % no, proceed to
e8pound.
he general rule is that in the absence of a statute e8pressly or impliedly prohibiting the ,ithdra,al of
an action, the party bringing such action may dismiss it even ,ithout the consent of the defendant or
respondent ,here the latter ,ill not be prejudiced, although it may be necessary to obtain leave of
court. But there are recogni"ed e8ceptions7 ,hen the pu#lic interest or ;uestions o, pu#lic i(portance
are involved.
5
1or e8ample, the fact that a final determination of a #uestion involved in an action is
needed or ,ill be useful as a guide for the conduct of public officers or tribunals is a sufficient reason
for retaining an action ,hich ,ould or should other,ise be dismissed. +ike,ise, appeals may be
retained if the #uestions involved are likely to arise fre#uently in the future unless they are settled by
a court of last resort.
hus, in Gonzales vs. Co((ission on Elections,
:
an action for declaratory judgment impugning the
validity of !epublic Act ?o. J))9 ,hich prohibits the early nomination of candidates for elective
offices and early election campaigns or partisan political activities became moot by reason of the
holding of the &(2' elections before decision could be rendered. ?onetheless the Court treated the
petition as one for prohibition and rendered judgment in vie, of 4the paramount public interest and
the undeniable necessity for a ruling, the national elections Gof &(2(H being barely si8 months a,ay.
%n Griven-o vs. >e+ister o, .ee!s,
7
the Court denied the petition to ,ithdra,, an appeal in vie, of the
public importance of the #uestions involved, and lest 4the constitutional mandate Gproscribing the sale
of lands to aliensH ... be ignored or misconceived ,ith all the harmful conse#uences ... upon the
national economy.4
he petitioner Diokno has made allegations to the effect that the President has 4arrogated4 unto
himself the po,ers of government by 4usurping4 the po,ers of Congress and 4ousting4 the courts of
their jurisdiction, thus establishing in this country a 4virtual dictatorship.4 Diokno and his Counsel have
in fact stressed that the present trend of events in this country since the proclamation of martial la,
bears a resemblance to the trend of events that led to the establishment of a dictatorship in 3ermany
under >itler. here is thus a profound public interest in the resolution of the #uestions raised in the
cases at bar, #uestions that, in the phrase of Chief .ustice Marshall in 'ar#ur vs. 'a!ison,
8
are
4deeply interesting to the nation.4 % apprehend that in vie, of the import of the allegations made by
Diokno and his counsel, incalculable harm or, in the very least, great disservice may be caused to the
national interest if these cases are not decided on the merits. As the -olicitor 3eneral has observed,4
petitioner$s GDiokno$sH arrest and detention have been so e8ploited in the hate campaign that the only
,ay to protect the integrity of the government is to insist on a decision of this case in the forum in
,hich the petitioner had chosen to bring them. 0ther,ise, like festering sores, the issues stirred up by
this litigation ,ill continue to agitate the nation.4
Prescinding from the policy considerations just discussed, % am gladdened that the Court has not
shunted aside ,hat % regard as the inescapable moral constraints in the petitioner Diokno$s motion to
,ithdra, his petition for *a#eas corpus.
9
he Court repudiated the facile recourse of avoiding
resolution of the issues on the prete8t that Diokno insists on ,ithdra,ing his petition. %t is thus not a
mere happenstance that, not,ithstanding that seven members of the Court are of the vie, that
Diokno has an absolute right to ,ithdra, his petition, the Court has confronted the issues posed by
him, and no, resolves them s#uarely, definitively and courageously. ?o respectable legal historian or
responsible chronicler of the nation$s destiny ,ill therefore have any reason to level the indictment
that once upon a grave national crisis the Court abdicated its constitutional prerogative of adjudication
and fors,ore the sacred trust reposed in it as the nation$s ultimate arbiter on transcendental, farC
reaching justiciable #uestions.
Eith respect to the reasons given for the motion to ,ithdra,, the Court is mindful that it has taken
some time to resolve these cases. %n e8planation let it be said that the issues presented for resolution
in these cases are of the utmost gravity and delicateness. ?o #uestion of the a,esome magnitude of
those here presented has ever confronted the Court in all its history. % am not a,are that any other
court, e8cept possibly the Circuit Court in E6 parte 'err(an,
10
has decided like #uestions during the
period of the emergency that called for the proclamation of martial la,.
But then in 'err(an the Court there held that under the =.-. 1ederal Constitution the President did
not have po,er to suspend the privilege of the ,rit of *a#eas corpus. 0ther,ise, ,here the #uestion
involved not po,er but rather the e8ercise of po,er, courts have declined to rule against the duly
lasted. As Court 3lendon -chubert noted, the =.-. -upreme Court 4,as un,illing to Gdo soH until the
,ar ,as over and +incoln ,as dead.4
hus, in E6 parte 'illi+an,
11
the decision voiding the petitioner$s trial by a military court ,as not
announced until December &J, &)22, after the Civil Ear ,as over. he Civil Ear began on May A,
&)2& ,ith the capture of 1ort -umter by Confederate forces. +ambdin Milligan ,as charged before a
military commission ,ith aiding rebels, inciting insurrection, disloyal practices and violation of the la,s
of ,ar. >is trial ran from -eptember to December &)2*: he ,as convicted on 0ctober *&, &)2J and
ordered e8ecuted on May &(, &)2B. 0n May &9, &)2B he applied for a ,rit of *a#eas corpus from the
Circuit Court of %ndianapolis. 0n May &&, .ustice Davis and .udge McDonald certified that they
differed in opinion and, therefore, pursuant to the statute of &)9*, elevated their #uestions to the
-upreme Court. 0n .une A, &)2B the death sentence ,as commuted to life imprisonment by
President .ohnson ,ho had succeeded to the Presidency after the assassination of +incoln. he
-upreme Court heard the parties$ arguments for eight days, on March B, 2, ', ), (, &* and &A, and
April A, &)22. 0n December &J, &)22 the decision of the -upreme Court voiding Milligans trial ,as
announced. .
%n In >e 'oer,
14
martial rule ,as proclaimed in Colorado on March *A, &(9J. Application for a ,rit of
*a#eas corpus ,as filed ,ith the -tate -upreme Court on April &J, &(9J, seeking the release of
Moyer ,ho had been detained under the Colorado governor$s proclamation. 0n .une 2, &(9J the
complaint ,as dismissed and the petitioner ,as remanded to the custody of the military authorities.
he Court held that as an incident to the proclamation of martial la,, the petitioner$s arrest and
detention ,ere la,ful. Moyer subse#uently brought an action for damages for his imprisonment from
March A9 to .une &B, &(9J. he complaint ,as dismissed by the Circuit Court. 0n ,rit of error, the
=.-. -upreme Court affirmed, holding that 4-o long as such arrests are made in good faith and in the
honest belief that they are needed in order to head the insurrection off, the governor is the final judge
and cannot be subjected to an action after he is out of office, on the ground that he had no
13

1inally, in .uncan vs. Ga*ana(o-u,
15
>a,aii ,as placed under martial rule on December ', &(J&,
after the .apanese sneak attack on Pearl >arbor. he petitioner Duncan ,as tried by a provost court
on March *, &(JJ, and found guilty on April &A of assault on t,o marine sentries. he other petitioner,
Ehite, ,as charged on August *B, &(J*, also before a provost court, ,ith embe""ling stocks
belonging to another civilian. Ehite and Duncan #uestioned the po,er of the military tribunals in
petitions for *a#eas corpus filed ,ith the District Court of >a,aii on March &J and April &J, &(JJ,
respectively. Erits ,ere granted on May *, &(JJ, and after trial the District Court held the military
trials void and ordered the release of Duncan and Ehite. 0n 0ctober *J, &(JJ the privilege of the ,rit
of *a#eas corpus ,as restored and martial la, ,as terminated in >a,aii. 0n appeal, the decision of
the District Court ,as reversed.
15
Certiorari ,as granted by the =.-. -upreme Court on 1ebruary &*,
&(JB. &2 0n 1ebruary *B, &(J2 the Court held that the trials of Ehite and Duncan by the military
tribunals ,ere void.
%n truth, as the Court in 'illi+an recogni"ed, its decision could not have been made ,hile the Civil
Ear lasted. .ustice Davis ,rote7
During the Eicked !ebellion, the temper of the times did not allo, that calmness in deliberation and
discussion so necessary to a correct conclusion of a purely judicial #uestion. hen, considerations of
safety ,ere mingled ,ith the e8ercise of po,er: and feelings and interests prevailed ,hich are happily
terminated. ?o, that the public safety is assured, this #uestion as ,ell as all others, can be discussed
and decided ,ithout passion or the admi8ture of an clement not re#uired to form a legal judgment. Ee
approached the investigation of this case fully sensible of the magnitude of the in#uiry and the of full and
cautious deliberation.
17

?o doubt there is a point, although controversial, in the observation that in the instances just
e8amined a successful challenge ,as possible only retroactively, after the cessation of the hostilities
,hich ,ould under any circumstances have justified the judgment of the military.
18

?or did it offend against principle or ethics for the members of this Court to take an oath to support
the &('A Constitution. After this Court declared that, ,ith the dismissal of the petitions #uestioning the
validity of the ratification of the ne, Constitution, there ,as 4no longer any judicial obstacle to the ne,
Constitution being considered in force and effect,4
19
it became the duty of the members of the Court,
let alone all other government functionaries, to take an oath to support the ne, Constitution. Ehile it
is true that a majority of si8 justices declared that the &('A Constitution ,as not validly ratified, it is
e#ually true that a majority of si8 justices held that the issue of its e,,ectivit ,as a political #uestion,
,hich the Court ,as not e#uipped to determine, depending as it did on factors for ,hich the judicial
process ,as not fit to resolve. !esolution of this #uestion ,as dispositive of all the issues presented
in the !atification Cases. %t thus became untenable for the members of the Court ,ho held contrary
opinions to press their opposition beyond the decision of those cases. 1undamental respect for the
rule of la, dictated that the members of the Court take an oath to uphold the ne, Constitution. here
is nothing in that solemn oath that debases their individual personal integrity or renders them
un,orthy or incapable of doing justice in these cases. ?or did the environmental milieu of their
adjuration in any manner demean their high offices or detract from the legitimacy of the Court as the
highest judicial collegium of the land.
%%%
1rom its AngloC-a8on origin and throughout its slo, evolution, the concept, scope and boundaries,
application, limitations and other facets of martial la, have been the subject of misunderstanding,
controversy and debate.
40
o the legal scholar interested in set legal principles and precise
distinctions, martial la, could be a frustrating subject. 0n the matter of its definition alone, it is kno,n
to have as many definitions as there are numerous authors and court decision s ;not to discount the
dissenting opinions< on the subject. he doctrinal development of martial la, has relied mainly on
case la,,
41
and there have been relatively fe, trul !istinctive types of occasions ,here martial la,,
being the e8traordinary remedy that it is, has been resorted to.
%n the Philippines, the only other notable instance ,hen martial la, ,as declared ,as on -eptember
**, &(JJ, per Proclamation ?o. *( promulgated by President .ose P. +aurel. But this ,as pursuant to
the constitution of the shortClived .apanese 0ccupation !epublic, and the event has not been kno,n
to be productive of any jurisprudential pronouncements emanating from the high court of the land.
?ot,ithstanding the confused state of jurisprudence on the subject of martial la, in /ngland and in
the =nited -tates, and, conse#uently, in the Philippines, a useful kno,ledge of the la, on the subject
can fairly be had from a study of its historical background and its rationale, its doctrinal development,
applicable constitutional and statutory provisions, and authoritative court decisions and
commentaries.
+egal scholars trace the genesis of martial la, to /ngland starting from the age of the udors and the
-tuarts in the &Jth century ,hen it ,as first utili"ed for the suppression of rebellions and disorders. %t
later came to be employed in the British colonies and dominions ,here its fre#uent e8ercise against
British subjects gave rise to the criticism that it ,as being e8ploited as a ,eapon to enhance British
imperialism.
44

%n the =nited -tates, martial la, ,as declared on numerous occasions from the revolutionary period
to the Civil Ear, and after the turn of the century. 0ne of the earliest instances in American history
,as the declaration of martial la, by 3en. Andre, .ackson before the Battle of ?e, 0rleans in &)&J.
1earing that the ?e, 0rleans legislature might capitulate to the British, he placed the -tate under
4strict martial la,4 and forbade the -tate legislature to convene. Martial la, ,as lifted after the
American victory over British arms. he Civil Ear period sa, the declaration of martial la, on many
occasions by both the Confederate and the =nion authorities. %t has also been resorted to in cases of
insurrection and rebellion, as e8emplified by the Ehiskey rebellion ;&'(J in Pennsylvania and
6irginia< and the Dorr$s rebellion ;&)J* in !hode %sland<. Martial la, has also been utili"ed during
periods of disaster, such as the -an 1rancisco earth#uake and fire of &(92, and in industrial disputes
involving violence and disorder. %t has like,ise been variously instituted to police elections, to take
charge of ticket sales at a football game, to prevent the foreclosure of mortgages to close a race
track. %n an e8treme case, the governor of 3eorgia proclaimed martial la, around a government
building to e8clude from its premises a public official ,hom he ,as enjoined from removing.
43

At the close of the Eorld Ear %, the term 4martial la,4 ,as erroneously employed to refer to the la,
administered in enemy territory occupied by the allied forces pending the armistice . *& Eilliam
Einthrop states that the earlier confusion regarding the concept of martial la,, resulting partly from
the ,rong definition of the term by the Duke of Eellington ,ho had said that 4it is nothing more nor
less than the ,ill of the general,4 had misled even the -upreme Court of the =nited -tates.
45
%n the
leading case of E6 Parte 'illi+an,
4:
ho,ever, Chief .ustice Chase, in his dissenting opinion, clarified
and laid do,n the classic distinctions bet,een the types of (ilitar 5uris!iction in relation to the terms
4martial la,,4 4military la,4 and 4military government,4 ,hich to a great e8tent cleared the confusion in
the application of these terms.
hese distinctions ,ere later incorporated in the Manual for CourtsCMartial of the =nited -tates Army,
47
after ,hich the Manual for CourtsCMartial of the Armed 1orces of the Philippines, promulgated on
December &', &(A) pursuant to /8ecutive 0rder ?o. &'), ,as patterned. %n essence, these
distinctions are as follo,s7
a. Military jurisdiction in relation to the term (ilitar la) is that e8ercised by a government 4in the
e8ecution of that branch of its municipal la, ,hich regulates its military establishment.4 ;%n the =.-. and
the Philippines, this refers principally to the statutes ,hich embody the rules of conduct and discipline of
members of their respective armed forces. %n the Philippines ,e have for this purpose Common,ealth Act
?o. J9), as amended, other,ise kno,n as 4he Article of Ear4<.
b. Military jurisdiction in relation to the term (artial la) is that e8ercised in time of rebellion and civil ,ar
by a government temporarily governing the civil population of a locality through its military forces, ,ithout
the authority of ,ritten la,, as necessity may re#uire.
48

c. Military jurisdiction in relation to the ter( (ilitar +overn(ent is that 4e8ercised by a belligerent
occupying an enemy$s territory.4
49
;A familiar e8ample of a military government ,as, of course, that
established and administered by the .apanese armed forces in the Philippines from &(J* to &(JB<.
Ehat is the universally accepted fundamental justification of martial la,I Eiener in 3 Practical
'anual 'artial 0a),
30
ventures this justification7 4Martial +a, is the public la, of necessity. ?ecessity
calls it forth, necessity justifies its e8istence, and necessity measures the e8tent and degree to ,hich
it may be employed.4
Martial la, is founded upon the principle that the state has a right to protect itself against those ,ho
,ould destroy it, and has therefore been likened to the right of the individual to selfCdefense.
31
%t is
invoked as an e8treme measure, and rests upon the basic principle that every state has the po,er of
selfCpreservation, a po,er inherent in all states, because neither the state nor society ,ould e8ist
,ithout it.
34

%6
% no, proceed to discuss the issues posed in these cases.
%n Proclamation &9)&, dated -eptember *&, &('*, the President of the Philippines declared that
la,less elements, supported by a foreign po,er, ,ere in 4armed insurrection and rebellion against the
3overnment of the Philippines in order to forcibly sei"e political and state po,er, overthro, the duly
constituted government and supplant our e8isting political, social, economic and legal order ,ith an
entirely ne, one ... based on the Mar8istC+eninistCMaoist teachings and beliefs.4 >e enumerated
many and varied acts of violence committed in pursuance of the insurrection and rebellion. >e
therefore placed the Philippines under martial la,, commanded the armed forces to suppress the
insurrection and rebellion, enforce obedience to his decrees, orders and regulations, and arrest and
detain those engaged in the insurrection and rebellion or in other crimes 4in furtherance or on the
occasion thereof, or incident thereto or in connection there,ith.4 he President invoked his po,ers
under article 6%% section &9;*< of the &(AB Constitution 4to save the !epublic and reform our society.4
33

By 3eneral 0rder ?o. * the President directed the -ecretary of ?ational Defense to 4forth,ith arrest
or cause the arrest ... the individuals named in the attached lists for being participants or for having
given aid and comfort in the conspiracy to sei"e political and state po,er in the country and to take
over the government by force ... in order to prevent them from further committing acts that are inimical
or injurious ...4 he -ecretary ,as directed to hold in custody the individuals so arrested 4until
other,ise so ordered by me or by my duly designated representative.4 he arrest and detention of the
petitioners in these cases appear to have been made pursuant to this order.
% cannot blink a,ay the stark fact of a continuing Communist rebellion in the Philippines. he Court
has repeatedly taken cogni"ance of this fact in several eases decided by it. %n &('&, in 0ansan+ vs.
Garcia,
35
the Court, after revie,ing the history of the Communist movement in the country since the
&(A9s, concluded7 4Ee entertain, therefore, no doubts about the e8istence of a si"eable group of men
,ho have publicly risen in arms to overthro, the government and have thus been and still are
engaged in rebellion against the 3overnment of the Philippines.4 %t affirmed this finding in &('* AB in
sustaining the validity of the AntiC-ubversion Act ;!epublic Act &'99<. he Act is itself a
congressional recognition and acute a,areness of the continuing threat of Communist subversion to
democratic institutions in this country. /nacted in &(B', it has remained in the statute books despite
periodic agitation in many #uarters for its total e8cision.
At times the rebellion re#uired no more than ordinary police action, coupled ,ith criminal
prosecutions. hus the &(A* Communist trials resulted in the conviction of the ,ellCkno,n
Communists of the day7 Crisanto /vangelista, .acinto 3. Manahan, Dominador .. Ambrosio,
3uillermo Capadocia, %gnacio ?abong and .uan 1eleo, among others, for crimes ranging from illegal
association to rebellion and sedition.
3:

he end of Eorld Ear %% sa, the resurgence of the Communist rebellion. ?o, ,ith an army forged
out of the former >ukbalahaps ;the armed resistance against the .apanese< and renamed Cu-#on+
'apa+palaa n+ "aan or >MB, the threat to the security of the state became so malevolent that on
0ctober **, &(B9, President /lpidio Puirino ,as impelled to suspend the privilege of the ,rit of
*a#eas corpus. his enabled the 3overnment to effect the apprehension of top Communist Party
leaders 3uillermo Capadocia, 1lavio ?ava, Amado 6. >ernande", .esus +ava, .ose +ava, Angel
Baking and -imeon !odrigue", among others.
37
Ehen challenged by one of those detained under the
Presidential proclamation the suspension of the privilege of the ,rit of *a#eas corpus ,as sustained
by the Court.
38

he beginning of the &('9s ,as marked by the rise of student activism. his phenomenon s,ept
around the globe, and did not spare our o,n colleges and universities. -oon the campuses became
staging grounds for student demonstrations that generally ended in bloody and not infre#uently lethal
street riots.
%n Navarro vs. @ille+as,
39
in upholding the po,er of the Mayor of Manila to determine the place and
time for the holding of public assemblies, this Court noted K
hat e8periences in connection ,ith present assemblies and demonstrations do not ,arrant the Court$s
disbelieving respondent Mayor$s appraisal that a public rally at Pla"a Miranda, as compared to one at the
-unken 3ardens as he suggested, poses a clearer and more imminent danger of public disorders,
breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and
petitioner has manifested that it has no means of preventing such disorders:
hat, conse#uently, every time that such assemblies are announced, the community is placed in such a
state of fear and tension that offices are closed early and employees dismissed storefronts boarded up,
classes suspended, and transportation disrupted to the general detriment of the public.
!iding on the crest of student unrest, the Communist rebellion gained momentum. As the Court noted
in 0ansan+ vs. Garcia,
50

GHhe reorgani"ed Communist Party of the Philippines has, moreover, adopted Mao$s concept of
protracted people$s ,ar, aimed at the paraly"ation of the ,ill to resist of the government, of the political,
economic and intellectual leadership, and of the people themselves: that conformably to such concept the
Party has placed special emphasis upon most e8tensive and intensive program of subversion by the
CPP interests, among ,hich are the Malayang -amahan ng Magsasaka ;MA-ANA< the Nabataang
ng Nabataan ;-DN<, the -amahang Molave ;-M<, and the Malayang Pagkakaisa ng Nabataang Pilipino
throughout the Philippines, of ,hich seventyCthree ;'A< ,ere in the 3reater Manila Area, si8ty ;29< in
demonstrations, of ,hich about thirtyCthree iAA< ended in violence, resulting in fifteen ;&B< killed and over
but ,ellCtrained group of armed agitators: that the number of demonstrations heretofore staked in &('&
has already e8ceeded those in &('9: and that t,entyCfour ;*J< of these demonstrations ,ere violent, and
he mounting level of violence necessitated the suspension, for the second time, of the privilege of
the ,rit of *a#eas corpus on August *&, &('&. he 3overnment$s action ,as #uestioned in 0ansan+
vs. Garcia. his Court found that the intensification and spread of Communist insurgency imperiled
the state. he events after the suspension of the privilege of the ,rit confirmed the alarming e8tent of
the danger to public safety7
-ubse#uent events K as reported K have also proven that petitioner$s counsel have underestimated the
threat to public safety posed by the ?e, People$s Army. %ndeed, it appears that, since 3u+ust 2$, $%7$, it
t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one ;&< NMC-DN leader, an
unidentified dissident, and Commander Panchito, leader of dissident group, ,ere killed: that on August
*2, &('&, there ,as an encounter in the Barrio of -an Pedro, %riga City, Camarines -ur, bet,een the PC
and the ?PA, in ,hich a PC and t,o ;*< NM members ,ere killed: that the current disturbances in
Cotabato and the +anao provinces have been rendered more comple8 by the involvement of the
CPPF?PA for, in midC&('&, a NM group headed by .ovencio /sparago"a, contacted the >igaConan tribes,
in their settlement in Magsaysay, Misamis 0riental, and offered them books, pamphlets and brochures of
Mao se ung, as ,ell as conducted teachCins in the reservation: that /sparago"a ,as reportedly killed
on -eptember **, &('&, in an operation of the PC in said reservation: and that there are no, t,o ;*< ?PA
cadres in Mindanao.
%t should, also, be noted that adherents of the CPP and its front organi"ation are accordingly to
that the bomb used in the Constitutional Convention >all ,as a $clay more$ mine, a po,erful e8plosive
device used by the =.-. Arm believed to have been one of many pilfered from the -ubic ?aval Base a
.ulyCAugust Plan involving a ,ave of assassinations, kidnappings, terrorism and miss destruction of
discharges other functions: and that the e8pansion of the CPP activities from Central +u"on to other parts
of the country particularly Manila and its suburbs the Cagayan 6alley, %fugao, 5ambales, +aguna, Pue"on
and Bicol !egion, re#uired that the rest of our armed forces be spread thin over a ,ide area.
51

By virtue of these findings, the Court, led by Chief .ustice !oberto Concepcion, unanimously upheld
the suspension of the privilege of the ,rit of *a#eas corpus. he Court said7
Considering that the President ,as in possession of the above data K e8cept those related to events that
happened after August *&, &('& K ,hen the Pla"a Miranda prompting, took place, the Court is not
prepared to held that the /8ecutive had acted arbitrarily or gravely abused his discretion ,hen he then
concluded that public safety and national security re#uired the suspension of the privilege of the ,rit,
particularly if the ?PA ,ere to strike simultaneously ,ith violent demonstrations staged by the t,o
hundred fortyCfive ;*JB< NM chapters, all over the Philippines, ,ith the assistance and cooperation of the
do"ens of CPP front organi"ations, and the bombing of ,ater mains and conduits, as ,ell as electric
po,er plants and installations K a possibility ,hich, no matter ho, remote, he ,as bound to forestall,
and a danger he ,as under obligation to anticipate and at rest.
>e had consulted his advisers and sought their vie,s. >e had reason to feel that the situation ,as critical
K as, indeed, it ,as K and demanded immediate action. his he took believing in good faith that public
safety re#uired it. And, in the light of the circumstances adverted to above, he had substantial grounds to
entertain such belief.4
54

he suspension of the privilege of the ,rit ,as lifted on .anuary ', &('*, but soon thereafter chaos
engulfed the nation again. A large area of the country ,as in open rebellion. he authority of the
3overnment ,as frontally challenged by a coalition of forces. %t ,as against this backdrop of violence
and anarchy that martial la, ,as proclaimed on -eptember *&, &('*.
Personally % take notice of this condition, in addition to ,hat the Court has found in cases that have
come to it for decision, and there is no cogent reason for me to say as a matter of la, that the
President e8ceeded his po,ers in declaring martial la,. ?or do % believe that the -olicitor 3eneral$s
manifestation of May &A, &('J to the effect that ,hile on the ,hole the military challenge to the
!epublic has been overcome there are still large areas of conflict ,hich ,arrant the continued
imposition of la,, can be satisfactorily controverted by or by any perceptive observer of the national
scene.
As % ,ill point out in this opinion, the fact that courts are open be accepted as proof that the rebellion
and ,hich compellingly called for the declaration of martial la,, no longer imperil the public safety.
?or are the many surface indicia adverted to by the petitioners ;the increase in the number of tourists,
the choice of Manila as the conferences and of an international beauty contest< to be regarded as
evidence that the threat to public safe has abated. here is actual armed combat, attended by the
somber panoply ,ar, raging in -ulu and Cotabato, not to not mention the region and Cagayan 6alley.
53
% am hard put to say, therefore, that the 3overnment$s claim is baseless.
% am not insensitive to the plea made here in the name of individual liberty. But to paraphrase E6
parte 'oer,
55
if it ,ere the liberty alone of the petitioner Diokno that is. in issue ,e ,ould probably
resolve the doubt in his favor and grant his application. But the -olicitor 3eneral, ,ho must be
deemed to represent the President and the /8ecutive Department in this case,
55
has manifested that
in the President$s judgment peace and tran#uility cannot be speedily restored in the country unless
the petitioners and others like them meantime remain in military custody. 1or, indeed, the central
matter involved is not merely the liberty of isolated individuals, but the collective peace, tran#uility and
security of the entire nation. 6.
he &(AB Constitution committed to the President the determination of the public e8igency or
e8igencies re#uiring the proclamation of martial la,. %t provided in article 6%%, section &9;*< that K
5:

invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or eminent danger
57

%n the &(AJ Constitutional Convention it ,as proposed to vest the po,er to suspend the privilege of
the ,rit of *a#eas corpus in the ?ational Assembly. he proposal, sponsored by Delegate Araneta,
,ould give this po,er to the President only in cases ,here the Assembly ,as not in session and then
only ,ith the consent of the -upreme Court. But the majority of the delegates entertained the fear that
the 3overnment ,ould be po,erless in the face of danger.
58
hey rejected the Araneta proposal and
adopted instead the provisions of the .ones +a, of &(&2. he framers of the Constitution reali"ed the
need for a strong /8ecutive, and therefore chose to retain the provisions of the former organic acts,
59

,hich, adapted to the e8igencies of colonial administration , naturally made the 3overnor 3eneral a
strong /8ecutive.
Construing a similar provision of the Philippine Bill of &(9* ,hich authori"ed the 3overnor 3eneral,
,ith the approval of the Philippine Commission, to suspend the privilege of the ,rit of *a#eas corpus
4,hen in cases of rebellion, insurrection, or invasion the public safety may re#uire it,4 this Court held
that the 3overnor 3eneral$s finding as to the necessity for such action ,as 4conclusive and final4 on
the judicial department.
50
his ruling ,as affirmed in &(B* in 'ontene+ro vs. CastaAe!a,
51
this Court
stating that K
the authority to decide ,hether the e8igency has arisen re#uiring, the suspension belongs to the
President and $his decision is final and conclusive$ upon the courts and upon all other persons.
%t is true that in 0ansan+ vs. Garcia
54
there is language that appears to detract from the uniform
course of judicial construction of the CommanderCinCChief Clause. But a close reading of the opinion
in that case sho,s that in the main there ,as adherence to precedents. o be sure, the Court there
asserted the po,er to in#uire into the 4e8istence of the factual bases Gfor the suspension of the
privilege of the ,rit of *a#eas corpusH in order to determine the sufficiency thereof,4 But this broad
assertion of po,er is #ualified by the Court$s unambiguous statement that 4the function of the Court
is, merely to check not to K supplant K the /8ecutive, or to ascertain (erel )*et*er *e *as +one
#eon! the constitutional limits of his jurisdiction, not to e6ercise t*e po)er veste! in *i( or to
determine the ,isdom of his act.4 1or this reason this Court announced that the test ,as not ,hether
the President acted correctl but ,hether he acted arbitrarily. %n fact this Court read "arcelon and
'ontene+ro as authori"ing judicial in#uiry into 4,hether or not there really ,as a rebellion, as stated
in the proclamation therein contested.4
0f course the judicial department can determine the e6istence of the conditions for the e8ercise of the
President$s po,ers and is not bound by the recitals of his proclamation. But ,hether in the
circumstances obtaining public safety re#uires the suspension of the privilege of the ,rit of *a#eas
corpus or the proclamation of martial la, is initially for the President to decide. Considerations of
commitment of the po,er to the e8ecutive branch of the 3overnment and the lack of accepted
standards for dealing ,ith incommensurable factors, suggest the ,isdom of considering the
President$s finding as to necessit persuasive upon the courts. his conclusion results from the
nature of the po,er vested in the President and from the evident object contemplated. 1or that po,er
is intended to enable the 3overnment to cope ,ith sudden emergencies and meet great occasions of
state under circumstances that may be crucial to the life of the nation.
53

he fact that courts are open and in the unobstructed discharge of their functions is pointed to as
proof of the absence of any justification for martial la,. he ruling in 'illi+an
55
and .uncan
55
is
invoked. %n both cases the =.-. -upreme Court reversed convictions by military commissions. %n
Milligan the Court stated that 4martial la, cannot arise from a threatened invasion. he necessity
must be actual and present, the invasion real, such as effectually closes the courts and deposes the
civil administration.4 %n .uncan a similar e8pression ,as made7 4he phrase $martial la,$ ... ,hile
intended to authori"e the military to act vigorously for the maintenance of an orderly civil government
and for the defense of the %slands against actual or threatened rebellion or invasion, ,as not intended
to authori"e the supplanting of courts by military tribunals.4
But 'illi+an and .uncan ,ere decided on the basis of a ,idely disparate constitutional provision.
Ehat is more, to the e8tent that they may be regarded as embodying ,hat the petitioners call an
4open court4 theory, they are of doubtful applicability in the conte8t of present4!a su#version.
=nlike the detailed provision of our Constitution, the =.-. 1ederal Constitution does not e8plicitly
authori"e the =.-. President to proclaim martial la,. %t simply states in its article %%, section * that 4the
President shall be CommanderCinCChief of the Army and ?avy of the =nited -tates, and of the Militia
of the several -tates, ,hen called into the actual -ervice of the =nited -tates. ...4 0n the other hand,
our Constitution authori"es the proclamation of martial la, in cases not only of actual invasion,
insurrection or rebellion but also of 4imminent danger4 thereof.
%t is true that in .uncan the =.-. -upreme Court dealt ,ith a =.-. statute that in terms ,as similar to
the Philippine Constitution. -ection 2' of the >a,aiian 0rganic Act provided that 4Gthe erritorial
3overnorH may, in case of invasion, or imminent danger thereof, ,hen public safety re#uires it,
suspend the privilege of the ,rit of *a#eas corpus, or place the erritory, or any part thereof under
martial la, until communication can be had ,ith the President Gof the =nited -tatesH and his decision
thereof made kno,n.4 %n fact the >a,aiian 0rganic Act, that of Puerto !ico, and the .ones la, of
&(&2, from ,hich latter la,, as % have earlier noted, the CommanderCinCChief Clause of our
Constitution ,as adopted, ,ere part of the legislation of the =.-. Congress during the colonial period.
But again, unlike the .ones +a,, the >a,aiian 0rganic Act also provided in its section B that the =.-.
1ederal Constitution 4shall have the same force and effect in the territory Gof >a,aiiH as else,here in
the =nited -tates. 1or this reason it ,as held in .uncan that 4imminent danger4 of invasion or
rebellion ,as not a ground for authori"ing the trial of civilians by a military tribunal. >ad .uncan been
decided solely on the basis of section 2' of the >a,aiian 0rganic Act and had the petitioners in that
case been tried for offenses connected ,ith the prosecution of the ,ar,
5:
the prison sentences
imposed by the military tribunals ,ould in all probability had been upheld. As a matter of fact those
,ho argued in .uncan that the po,er of the >a,aiian governor to proclaim martial la,
comprehended not only actual rebellion or invasion but also 4imminent danger thereof4 ,ere faced
,ith the problem of reconciling, the t,o parts of the >a,aiian 0rganic Act. hey contended that 4if
any paint of section 2' ,ould other,ise be unconstitutional section B must be construed as e8tending
the G=.-.H Constitution to >a,aii subject to the #ualifications or limitations contained in section 2'.4
57

1orsooth, if the po,er to proclaim martial la, is at all recogni"ed in American federal constitutional
la,, it is only by implication from the necessity of selfCpreservation and then subject to the narro,est
possible construction.
?or is there any -tate Constitution in the =nited -tates, as the appended list indicates ;see
3ppen!i6<, ,hich in scope and e8plicitness can compare ,ith the CommanderCinCChief Clause of our
Constitution. he Alaska Constitution, for e8ample, authori"es the governor to proclaim martial la,
,hen the public safety re#uires it in case of rebellion or actual or imminent invasion. But even then it
also provides that martial la, shall not last longer than t,enty days unless approved by a majority of
the legislature in joint session. 0n the other hand, the present Constitution of >a,aii does not grant to
the -tate governor the po,er to suspend the ,rit of *a#eas corpus or to proclaim martial la, as did
its 0rganic Act before its admission as a -tate to the American =nion.
An uncritical reading of 'illi+an and .uncan is likely to overlook these crucial differences in te8tual
concepts bet,een the Philippine Constitution, on the one hand, and the 1ederal and -tate
Constitutions of the =nited -tates, on the other. %n our case then the inclusion of the 4imminent
danger4 phrase as a ground for the suspension of the privilege of the ,rit of *a#eas corpus and for
the proclamation of martial la, ,as a matter of deliberate choice and renders the language of Milligan
;4martial la, cannot arise from a t*reatene! invasion4< inapposite and therefore inapplicable.
he Philippine Bill of &(9* provided in its section *, paragraph ' K
that the privilege of the ,rit of *a#eas corpus shall not be suspended unless ,hen in cases of rebellion,
suspended by the President, or by the 3overnor 3eneral ,ith the approval of the Philippine Commission,
,herever during such period the necessity for such suspension shall e8ist.
he .ones +a, of &(&2 substantially reenacted this provision. hus section A, paragraph ' thereof
provided7
suspended by the President or by the 3overnor 3eneral, ,herever during such period the necessity for
%n addition, the .ones +a, provided in its section *& that K
... Ghe 3overnor 3eneralH may, in case of rebellion or invasion, or imminent danger thereof, ,hen the
public safety re#uires it, suspend the privileges of the ,rit of *a#eas corpus or place the %slands, or any
part thereof, under martial la,7 Provi!e! hat ,henever the 3overnor 3eneral shall e8ercise this
authority, he shall at once notify the President of the =nited -tates thereof, together ,ith the attending
facts and circumstances, and the President shall have po,er to modify or vacate the action of the
3overnor 3eneral.
?ote that ,ith respect to the suspension of the privilege of the ,rit of *a#eas corpus, section *&
mentions, as ground therefor, 4imminent danger4 of invasion or rebellion. Ehen the Constitution ,as
drafted in &(AJ, its framers, as % have already noted, decided to adopt these provisions of the .ones
+a,. Ehat ,as section A, paragraph ', in the .ones +a, became section &;&J< of article %%% ;Bill of
!ights< of the Constitution: and ,hat ,as section *& became article 6%%, section &9;*< ;CommanderC
inCChief Clause<. hus, the Bill of !ights provision reads7
he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, or rebellion, ,hen the public safety re#uires it, in any of $,hich events the same may be
suspended ,herever during such period the necessity for such suspension shall e8ist.
0n the other hand, the CommanderCinCChief Clause states7
he attention of the &(AJ Convention ,as dra,n to the apparent inconsistency bet,een the Bill of
!ights provision and the CommanderCinCChief Clause. -ome delegates tried to harmoni"e the t,o
provisions by inserting the phrase 4imminent danger thereof4 in the Bill of !ights provision, but on
reconsideration the Convention deleted the phrase from the draft of the Bill of !ights provision, at the
same time retaining it in the CommanderCin Chief Clause.
Ehen this apparent inconsistency ,as raised in a suit
58
#uestioning the validity of President Puirino
suspension of the privilege of the ,rit of *a#eas corpus, this Court sustained the President$s po,er to
suspend the privilege of the ,rit even on the ground of imminent danger of invasion, insurrection or
rebellion. %t held that as the CommanderCinCChief Clause ,as last in the order of time and local
position it should be deemed controlling. his rationali"ation has evoked the criticism that the
Constitution ,as approved as a ,hole and not in parts, but in result the decision in that case is
certainly consistent ,ith the conception of a strong /8ecutive to ,hich the &(AJ Constitutional
Convention ,as committed.
he &('A Constitution like,ise authori"es the suspension of the privilege of the ,rit of *a#eas corpus
on the ground of imminent danger of invasion, insurrection and rebellion.
he soCcalled 4open court4 theory does not apply to the Philippine situation because our &(AB and
&('A Constitutions e8pressly authori"e the declaration of martial la, even ,here the danger to public
safety arises merely from the imminence of invasion, insurrection, or rebellion. Moreover, the theory
is too simplistic for our day, )*at )it* t*e universall reco+nize! insi!ious nature o, Co((unist
su#version an! its covert operations.
%ndeed the theory has been dismissed as unrealistic by perceptive students of Presidential po,ers.
Charles 1airman says7
hese measures are unprecedented but so is the danger that called them into being. 0f course ,e are
not ,ithout la,, even in time of crisis. @et the cases to ,hich one is cited in the digests disclose such
confusion of doctrine as to perple8 a la,yer ,ho suddenly tries to find his bearings. >asty recollection of
E6 parte 'illi+an recalls the dictum that $Martial rule cannot arise from a threatened invasion. he
deposes the civil administration.$ ?ot even the aerial attack upon Pearl >arbor closed the courts or of its
o,n force deposed the civil administration: yet it ,ould be the common understanding of men that those
agencies ,hich are charged ,ith the national defense surely must have authority to take on the spot
some measures ,hich in normal times ,ould be ultra vires. And ,hilst college sophomores are taught
that the case stands as a constitutional landmark, the hard fact is that of late governors have fre#uently
declared $martial la,$ and $,ar$ and have been judicially sustained in their measures. =ndoubtedly, many
of these cases involving the suspension of strikers ,ent much too far. But just as certainly K so it ,ill be
argued here K the doctrine of the majority in /8 parte 'illi+an does not go far enough to meet the
conditions of modern ,ar.
59

Clinton !ossiter ,rites7
%t is simply not true that $martial la, cannot arise from a threatened invasion,$ or that martial rule can
never e8ist ,here the courts are open.$ hese statements do not present an accurate definition of the
allo,able limits of the martial po,ers of the President and Congress in the face of alien threats of internal
disorder. ?or ,as Davis$ dictum on the specific po,er of Congress in this matter any more accurate. And,
ho,ever elo#uent #uotable his ,ords on the untouchability of the Constitution in time of actual crisis, and
did not then, e8press the realities of American constitutional la,.
:0

Eilliam Einthrop makes these thoughtful observations7
%t has been declared by the -upreme Court in E6 parte 'illi+an that martial la,$ is confined to the locality
of actual ,ar,$ and also that it $can never e8ist ,hen the courts are open and in the proper and
unobstructed e8ercise of their 5uris!iction.$ But this ruling ,as made by a bare majority K five K of the
court, at a time of great political e8citement and the opinion of the four other members, as delivered by
the Chief .ustice, ,as to the effect that martial la, is not necessarily limited to time of ,ar, but may be
e8ercised at other periods of $public danger,$ and that t*e ,act t*at t*e civil courts are open is not
controllin+ a+ainst suc* e6ercise, since they $might be open and undisturbed in the e8ecution of their
functions and yet ,holly incompetent to avert threatened danger or to punish ,ith ade#uate promptitude
and certainty the guilty.$ %t is the opinion of the author that the of t*e vie) o, t*e (inorit o, t*e court is t*e
soun!er an! (ore reasona#le one, and that the dictum of the majority ,as influenced by a confusing of
martial la, proper ,ith that (ilitar +overn(ent ,hich e8ists only at a time and on the theater of ,ar, and
,hich ,as clearly distinguished from martial la, by the Chief .ustice in the dissenting opinion K the first
complete judicial definition of the subject.
:1
;emphasis supplied<
%n ?ueen vs. "e--er ;on the occasion of the Boer Ear< .ustice Maasdorp categorically affirmed that
4the e8istence of civil courts is no proof that martial la, has become unnecessary.
:4

6%
3iven then the validity of the proclamation of martial la,, the arrest and detention of those reasonably
believed to be engaged in the disorder or in formenting it is ,ell nigh beyond #uestioning. ?egate the
po,er to make such arrest and detention, and martial la, ,ould be 4mere parade, and rather
encourage attack than repel it.4
:3
hus, in 'oer vs. Pea#o!,
:5
the Court sustained the authority of a
-tate governor to hold temporarily in custody one ,hom he believed to be engaged in formenting
trouble, and denied recovery against the governor for the imprisonment. %t ,as said that, as the
governor 4may kill persons ,ho resist,4 he may use the milder measure of sei"ing the bodies of those
,hom he considers in the ,ay of restoring peace. -uch arrests are not necessarily for punishment,
but are by ,ay of precaution to prevent the e8ercise of hostile po,er. -o long as such arrests are
made in good faith and in the honest belief that they are needed in order to head the insurrection off,
the 3overnor is the final judge and cannot be subjected to an action after he is out of office on the
ground that he had no reasonable ground for his belief.4
%t is true that in Sterlin+ vs. Contantin
:5
the same Court set aside the action of a -tate governor taken
under martial la,. But the decision in that case rested on the ground that the action set aside had no
direct relation to the #uelling of the uprising. here the governor of e8as issued a proclamation
stating that certain counties ,ere in a state of insurrection and declaring martial la, in that territory.
he proclamation recited that there ,as an organi"ed group of oil and gas producers in insurrection
against conservation la,s of the -tate and that this condition had brought such a state of public
feeling that if the -tate government could not protect the public$s interest they ,ould take the la, into
their o,n hands. he proclamation further recited that it ,as necessary that the !ailroad Commission
be given time to make orders regarding oil production. Ehen the Commission issued an order limiting
oil production, the complainants brought suit iii the District Court ,hich issued restraining orders,
,hereupon 3overnor -terling ordered 3eneral Eolters of the e8as ?ational 3uards to enforce a
limit on oil production. %t ,as this order of the -tate governor that the District Court enjoined. 0n
appeal the =.-. -upreme Court affirmed. After assuming that the governor had the po,er to declare
martial la,, the Court held that the order restricting oil production ,as not justified by the e8igencies
of the situation.
... 1undamentally, the #uestion here is not the po,er of the governor to proclaim that a state of
insurrection, or tumult or riot, or breach of the peace e8ists, and that it is necessary to call military force to
the aid of the civil po,er. ?or does the #uestion relate to the #uelling of disturbance and the overcoming
of unla,ful resistance to civil authority. he #uestion before us is simply ,ith respect to the 3overnor$s
attempt to regulate by e8ecutive order the la,ful use of complainants$ properties in the production of oil.
%nstead of affording them protection in the e8ercise of their rights as determined by the courts, he sought,
by his e8ecutive orders, to make that e8ercise impossible.
0n the other hand, ,hat is involved here is the validity of the detention order under ,hich the
petitioners ,ere ordered arrested. -uch order is, as % have already stated, a valid incident of martial
la,. Eith respect to such #uestion Constantin held that 4measures, conceived in good faith, in the
face of the emergency and directly related to the #uelling of the disorder or the prevention of its
continuance, fall ,ithin the discretion of the /8ecutive in the e8ercise of his authority to maintain
peace.4
%n the cases at bar, the respondents have justified the arrest and detention of the petitioners on the
ground of reasonable belief in their complicity in the rebellion and insurrection. /8cept Diokno and
A#uino, all the petitioners have been released from custody, although subject to defined restrictions
regarding personal movement and e8pression of vie,s. As the danger to public safety has not
abated, % cannot say that the continued detention of Diokno and A#uino and the restrictions on the
personal freedoms of the other petitioners are arbitrary, just as % am not prepared to say that the
continued imposition of martial rule is unjustified.
As the Colorado -upreme Court stated in denying the ,rit of *a#eas corpus in 'oer=
::

>is arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a
continuation of the conditions ,hich the governor, in the discharge of his official duties and in the e8ercise
of the authority conferred by la,, is endeavoring to suppress.
6%%
Ehile courts may in#uire into or take judicial notice of the e6istence of conditions claimed to justify the
e8ercise of the po,er to declare martial la,,
:7
the determination of the necessit for the e8ercise of
such po,er is ,ithin the periphery of the constitutional domain of the President: and as long as the
measures he takes are reasonably related to the occasion involved, interference by the courts is
officious.
% am confirmed in this construction of Presidential po,ers by the consensus of the &('& Constitutional
Convention to strengthen the concept of a strong /8ecutive and by the confirmation of the validity of
acts taken or done after the proclamation of martial la, in this country. he &('A Constitution
e8pressly authori"es the suspension of the privilege of the ,rit of *a#eas corpus as ,ell as the
imposition of martial la, not only on the occasion of actual invasion, insurrection or rebellion, but also
,here the danger thereof is imminent. 2) Acrimonious discussion on this matter has thus become
pointless and should therefore cease.
he ne, Constitution as ,ell provides that K
after lifting of martial la, or the ratification of this constitution, unless modified, revoked, or superseded by
unless e8pressly aid e8plicitly modified or repealed by the regular ?ational Assembly.
:9

he effectivity of the ne, Constitution is no, beyond all manner of debate in vie, of the Court$s
decision in the !atification Cases '9 as ,ell as the demonstrated ac#uiescence therein by the
1ilipino people in the historic .uly &('A national referendum.
6%%%
%t is thus evident that suspension of the privile+e of the ,rit of *a#eas corpus is unavoidable
subsumed in a declaration of martial la,, since one basic objective of martial rule is to neutrali"e
effectively K by arrest and continued detention ;and possibly trial at the proper and opportune time<
K those ,ho are reasonably believed to be in complicity or are particeps cri(inis in the insurrection
or rebellion. hat this is so and should be so is ineluctable to deny this postulate is to negate the very
fundamental of martial la,7 the preservation of society and the survival of the state. o recogni"e the
imperativeness and reality of martial la, and at the same time dissipate its efficacy by ,ithdra,ing
from its ambit the suspension of the privilege of the ,rit of *a#eas corpus is a proposition % regard as
fatuous and therefore repudiate.
%nvasion and insurrection, both of them conditions of violence, are the factual prere#uisites of martial
la, ... he rights of person and property present no obstruction to the authorities acting under such a
regime, if the acts ,hich encroach upon them are necessary to the preservation or restoration of public
order and safety. Princeps et res pu#lica e6 5usta causa possunt re( (ea( au,erre. All the procedures
,hich are recogni"ed adjuncts of e8ecutive crisis government ... are open to the persons ,ho bear official
authority under martial la,. he government may ,ield arbitrary po,ers of police to allay disorder, arrest
and detain ,ithout trial all citi"ens taking part in this disorder and even punish them ;in ot*er )or!s,
suspen! t*e Mprivile+e o, t*eN )rit o, *a#eas corpus<, institute searches and sei"ures ,ithout ,arrant,
forbid public assemblies, set curfe, hours, suppress all freedom of e8pression, institute courts martial for
the summary trial of crimes perpetrated in the course of this regime and calculated to defeat its
purposes ...
71
;emphasis supplied<
he point here is ,hether martial la, is simply a shorthand e8pression denoting the suspension of the
,rit, or ,hether martial la, involves not only the suspension of the ,rit but much more besides. ... he
latter vie, is probably sounder because martial la, certainly in the present state of its development, is not
at all dependent on a suspension of the ,rit of *a#eas corpus. ... Ehere there has been violence or
disorder in fact, continued detention of offenders by the military is so far proper as to result in a denial by
the courts of ,rits releasing those detained. ...
74

%D.
Although the respondents, in their returns to the ,rits and in their ans,ers to the several petitions,
have insisted on a disclaimer of the jurisdiction of this Court, on the basis of 3eneral 0rders ?os. A
and ACA,
73
their subse#uent manifestations urging decision of these cases amount to an
abandonment of this defense. %n point of fact President Marco has ,ritten, in unmistakable phrase,
that 40ur martial la, is uni#ue in that it is based on the supremacy of the civilian authority over the
military and on complete submission of the decision of the -upreme Court. ... 1or ,ho is the dictator
,ho ,ould submit himself to a higher body like the -upreme Court on the #uestion of the
constitutionality or validity of his actionsI4
75
Construing this avo,al of the President and the repeated
urgings of the respondents in the light of the above#uoted provision of the &('A Constitution ;Art.
D6%%, sec. A;*<<, it is my submission that 3eneral 0rders ?os. A and ACA must be deemed revoked in
so far as they tended to oust the judiciary of jurisdiction over cases involving the constitutionality of
proclamations, decrees, orders or acts issued or done by the President.
D
%n sum and substance, % firmly adhere to these vie,s7 ;&< that the proclamation of martial la, in
-eptember &('* by the President ,as ,ell ,ithin the aegis of the &(AB Constitution: ;*< that because
the Communist rebellion had not abated and instead the evil ferment of subversion had proliferated
throughout the archipelago and in many places had e8ploded into the roar of armed and searing
conflict ,ith all the sophisticated panoply of ,ar, the imposition of martial la, ,as an 4imperative of
national survival:4 ;A< that the arrest and detention of persons ,ho ,ere 4participants or gave aid and
comfort in the conspiracy to sei"e political and state po,er and to take over the government by force,4
,ere not unconstitutional nor arbitrary: ;J< that subsumed in the declaration of martial la, is the
suspension of the privile+e of the ,rit of *a#eas corpus: ;B< that the fact that the regular courts of
justice are open cannot be accepted as proof that the rebellion. and insurrection, ,hich compellingly
called for the declaration of martial la,, no longer imperil the public safety: ;2< that actual armed
combat has been and still is raging in Cotabato, +anao, -ulu and 5amboanga, not to mention the
Bicol !egion and Cagayan 6alley, and nation,ide Communist subversion continues unabated: ;'<
that the host of doubts that had plagued this Court ,ith respect to the validity of the ratification and
conse#uent effectivity of the &('A Constitution has been completely dispelled by every rational
evaluation of the national referendum of .uly &('A, at ,hich the people conclusively albeit #uietly,
demonstrated nation,ide ac#uiescence in. the ne, Constitution: and ;)< that the issue of the validity
and constitutionality of the arrest and detention of all the petitioners and of the restrictions imposed
upon those ,ho ,ere subse#uently freed, is no, foreclosed by the transitory provision of the &('A
Constitution ;Art, D6%%. -ec. A;*<< ,hich efficaciously validates all acts made, done or taken by the
President, or by others upon his instructions, under the regime of martial la,, prior to the ratification
of the said Constitution.
D%
%t is not a mere surreal suspicion on the part of the petitioner Diokno that the incumbent members of
this highest ribunal of the land have removed themselves from a level of conscience to pass
judgment upon his petition for *a#eas corpus or afford him relief from his predicament. >e has
actually articulated it as a formal indictment. % venture to say that his obsessional preoccupation on
the ability of this Court to reach a fair judgment in relation to him has been, in no small measure,
engendered by his melancholy and bitter and even perhaps traumatic detention. And even as he
makes this serious indictment, he at the same time ,ould ,ithdra, his petition for *a#eas corpus K
hoping thereby to achieve martyrdom, albeit dubious and amorphous. As a commentary on this
indictment, % here that for my part K and % am persuaded that all the other members of this Court are
situated similarly K % avo, fealt to the full intendment and meaning of the oath % have taken as a
judicial magistrate. =tili"ing the modest endo,ments that 3od has granted me, % have endeavored in
the past eighteen years of my judicial career K and in the future ,ill al,ays endeavor K to discharge
faithfully the responsibilities appurtenant to my high office, never fearing, ,avering or hesitating to
reach judgments that accord ,ith my conscience.
ACC0!D%?3+@, % vote to dismiss all the petitions.
APP/?D%D to -eparate 0pinion of
.ustice 1red !ui" Castro
ST3TE CONSTITETION30 P>O@ISIONS
>EG3>.ING '3>TI30 03K
A+A-NA C0?-., art. %%%, sec. *97
-ec. *9. 'artial 0a). he governor may proclaim martial la, ,hen the public safety re#uires it in
case of rebellion or actual or imminent invasion. Martial la, shall not continue for longer than t,enty
days ,ithout the approval of a majority of the members of the legislature in joint session.
MA%?/ C0?-., art. %, sec. &J7
-ec. &J. Corporal punis*(ent un!er (ilitar la). ?o person shall be subject to corporal punishment
under military la,, e8cept such as are employed in the army or navy, or in the militia ,hen in actual
service in time of ,ar or public danger.
MA!@+A?D C0?-., art. A*7
Art. A*. 'artial 0a). hat no person e8cept regular soldiers, marines, and mariners in the service of
this -tate, or militia, ,hen in actual service, ought in any case, to be subject to, or punishable by
Martial +a,.
MA--AC>=-/- C0?-., art. DD6%%%7
Art. DD6%%%. Citizens e6e(pt ,ro( la) (artial. ?o person can in any case be subjected to la, martial,
or to any penalties or pains, by virtue of that la,, e8cept those employed in the army or navy, and
e8cept the militia in actual service, but by authority of the legislature.
?/E >AMP->%!/, Pt %%, arts. AJ and B&7
Art. AJth. 'artial la) li(ite!. ?o person can, in any case, be subjected to la, martial, or to any pains
or penalties by virtue of that la,, e8cept those employed in the army or navy, and e8cept the militia in
actual service, but by authority of the legislature.
Art. B&st. Po)ers an! !uties o, +overnor as co((an!er4in4c*ie,9 li(itation. he governor of this state
for the time being. shall be commanderCinCchief of the army and navy, and all the military forces of the
state by sea and land: and shall have full po,er by himself, or by any chief commander, or other
officer, or officers, from time to time, to train, instruct, e8ercise and govern the militia and navy: and
for the special defense and safety of this state, to assemble in martial array, and put in ,arClike
posture, the inhabitants thereof, and to lead and conduct them, and ,ith them to encounter, repulse,
repel resist and pursue by force of arms, as ,ell by sea as by land, ,ithin and ,ithout the limits of this
state7 and also kill, slay. destroy, if necessary, and con#uer by all fitting ,ays, enterprise and means,
all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or
enterprise the destruction, invasion, detriment or annoyance of this state: and to use and e8ercise
over the army and navy, and over the militia in actual service, the la, martial in time of ,ar invasion,
and also in rebellion, declared by the legislature to e8ist, as occasion shall necessarily re#uire7 And
surprise, by all ,ays and means ,hatsoever, all and every such person or persons, ,ith their ships,
arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading,
con#uering or annoying this state: and in fine the governor hereby is entrusted ,ith all other po,ers
incident to the office of the captainCgeneral and commanderCinCchief, and admiral, to be e8ercised
agreeably to the rules and regulations of the constitution, and the la,s of the land: provided, that the
3overnor shall not, at any time hereafter, by virtue of any po,er by this constitution granted, or
hereafter to be granted to him by the legislature, transport any of the inhabitants of this state, or
oblige them to march out of the limits of the same, ,ithout their free and voluntary consent, or the
consent of the general court, nor grant commissions for e8ercising the la, martial in any case,
,ithout the advise and the consent of the council.
!>0D/ %-+A?D C0?-., art. %, sec. &)7 .
-ec. &). 'ilitar su#or!inate9 (artial la). he military shall be held in strict subordination to the civil
authority. And the la, martial shall be used and e8ercised in such cases only as occasion shall
necessarily re#uire.
/??/--// C0?-., art. &, sec. *B7
-ec. *B. Punis*(ent un!er (artial an! (ilitar la). hat no citi"en of this -tate, e8cept such as are
employed in the army of the =nited -tates, or militia in actual service, shall be subjected to
punishment under the martial or military la,. hat martial la,, in the sense of the unrestricted po,er
of military officers, or others, to dispose of the persons, liberties or property of the citi"en, is
inconsistent ,ith the principles of free government, and is not confided to any department of the
government of this -tate.
@E>'ONT CONST., c*. $, art. $7=
3rt. $7t*. 'artial la) restricte!. hat no person in this state can in any case be subjected to la,
martial, or to any penalties or pains by virtue of that la, e8cept those employed in the army and the
militia in actual service.
E/- 6%!3%?%A, art, %%%, sec. &*7
Art. %%%, sec. &*. 'ilitar su#or!inate to civil po)er. -tanding armies, in time of peace, should be
avoided as dangerous to liberty. he military shall be subordinate to the civil po,er: and no citi"en,
unless engaged in the military service of the -tate, shall be tried or punished by any military court, for
any offense that is cogni"able by the civil courts of the -tate. ?o soldier shall, in time of peace, be
#uartered in any house, ,ithout the consent of the o,ner, nor in time of ,ar, e8cept in the manner to
be prescribed by la,. .

he issue involved in these *a#eas corpus petitions is the preCeminent problem of the times K the
primacy to be accorded the claims of liberty during periods of crisis. here is much that is novel in
,hat confronts the Court. A traditional orientation may not suffice. he approach taken cannot be
characteri"ed by rigidity and infle8ibility. here is room, plenty of it, for novelty and innovation.
Doctrines deeply rooted in the past, that have stood the test of time and circumstance, must be made
adaptable to present needs and, hopefully, serviceable to an unkno,n future, the events of ,hich, to
recall -tory, are locked tip in the inscrutable designs of a merciful Providence. %t is essential then that
in the consideration of the petitions before us there be objectivity, calmness, and understanding. he
deeper the disturbance in the atmosphere of security, the more compelling is the need for tran#uility
of mind, if reason is to prevail. ?o legal carrier is to be interposed to th,art the efforts of the
/8ecutive to restore normalcy. >e is not to be denied the po,er to take that for him may be
necessary measures to meet emergency conditions. -o the realities of the situation dictate. here
should be on the part of the judiciary then, sensitivity to the social forces at ,ork, creating conditions
of grave unrest and turbulence and threatening the very stability not to say e8istence, of the political
order. %t is in that setting that the crucial issue posed by these petitions is to be appraised. %t may be
that this clash bet,een the primacy of liberty and the legitimate defense of authority is not susceptible
of an definite, clearCcut solution. ?onetheless, an attempt has to be made. Eith all due recognition of
the merit apparent in the e8haustive, scholarly and elo#uent dissertations of .ustice Barredo and my
other brethren as ,ell as the ease and lucidity ,ith ,hich the Chief .ustice clarified the comple8
issues and the vie,s of members of the Court, % ,ould like to give a brief e8pression to my thoughts
to render clear the points on ,hich % find myself, ,ith regret, unable to be of the same persuasion.
% concur in the dismissal of the *a#eas corpus petition of Benigno -. A#uino, .r. solely on the ground
that charges had been filed and dissent in part in the dismissal of the petition of 1rancisco !odrigo
and others, > ,ho joined him in his plea for the removal of the conditions on their release, on the vie,
that as far as freedom of travel is concerned, it should be, on principle, left unrestricted. As originally
prepared, this opinion like,ise e8plained his dissent in the denial of the motion to ,ithdra, in the
petition filed on behalf of .ose E. Diokno, a matter no, moot and academic.
&. Ee have to pass on *a#eas corpus petitions. he great ,rit of liberty is involved. !ightfully, it is
latitudinarian in scope. %t is ,ideCranging and allCembracing in its reach. %t can dig deep into the facts
to assure that there be no toleration of illegal restraint. Detention must be for a cause recogni"ed by
la,. he ,rit imposes on the judiciary the grave responsibility of ascertaining ,hether a deprivation of
physical freedom is ,arranted. he party ,ho is keeping a person in custody has to produce him in
court as soon as possible. Ehat is more, he must justify the action taken. 0nly if it can be
demonstrated that there has been no violation of one$s right to liberty ,ill he be absolved from
responsibility. 1ailing that, the confinement must thereby cease. ?or does it suffice that there be a
court process, order, or decision on ,hich it is made to rest. %f there be a sho,ing of a violation of
constitutional rights, the jurisdiction of the tribunal issuing it is ousted. Moreover, even if there be a
valid sentence, it cannot, even for a moment, be e8tended beyond the period provided for by la,.
Ehen that time comes, he is entitled to be released. %t is in that sense then, as so ,ell put by >olmes,
that this great ,rit 4is the usual remedy for unla,ful imprisonment.4
1
%t does afford to borro, from the
language of Birkenhead 4a s,ift and imperative remedy in all cases of illegal restraint or
confinement.4
4
?ot that there is need for actual incarceration. A custody for ,hich there is no support
in la, suffices for its invocation. he party proceeded against is usually a public official, the runCofC
theCmill petitions often coming from individuals ,ho for one reason or another have run afoul of the
penal la,s. Confinement could like,ise come about because of contempt citations,
3
,hether from the
judiciary or from the legislature. %t could also be due to statutory commands, ,hether addressed to
cultural minorities
5
or to persons diseased.
5
hen, too, this proceeding could be availed of by citi"ens
subjected to military discipline
:
as ,ell as aliens seeking entry into or to be deported from the country.
7
/ven those outside the government service may be made to account for their action as in the case
of ,ives restrained by their husbands or children ,ithheld from the proper parent or guardian.
8
%t is
thus apparent that any deviation from the legal norms calls for the restoration of freedom. %t cannot be
other,ise. %t ,ould be sheer mockery of all that such a legal order stands for, if any person$s right to
live and ,ork ,here he is minded to, to move about freely, and to be rid of any un,arranted fears that
he ,ould just be picked up and detained, is not accorded full respect. he significance of the ,rit then
for a regime of liberty cannot be overemphasi"ed.
9

*. ?or does the fact that, at the time of the filing of these petitions martial la, had been declared, call
for a different conclusion. here is of course imparted to the matter a higher degree of comple8ity. 1or
it cannot be gainsaid that the reasonable assumption is that the President e8ercised such an
a,esome po,er, one granted admittedly to cope ,ith an emergency or crisis situation, because in his
judgment the situation as thus revealed to him left him ,ith no choice. Ehat the President did
attested to an e8ecutive determination of the e8istence of the conditions that called for such a move.
here ,as, in his opinion, an insurrection or rebellion of such magnitude that public safety did re#uire
placing the country under martial la,. hat decision ,as his to make it: it is not for the judiciary. he
assessment thus made, for all the sympathetic consideration it is entitled to, is not, ho,ever,
impressed ,ith finality. his Court has a limited sphere of authority. hat, for me, is the teaching of
+ansang.
10
he judicial role is difficult, but it is unavoidable. he ,rit of liberty has been invoked by
petitioners. hey must be heard, and ,e must rule on their petitions.
A. his Court has to act then. he liberty enshrined in the Constitution, for the protection of ,hich
*a#eas corpus is the appropriate remedy, imposes that obligation. %ts task is clear. %t must be
performed. hat is a trust to ,hich it cannot be recreant Ehenever the grievance complained of is
deprivation of liberty, it is its responsibility to in#uire into the matter and to render the decision
appropriate under the circumstances. Precisely, a *a#eas corpus petition calls for that response. 1or
the significance of liberty in a constitutional regime cannot be sufficiently stressed. Eitness these
,ords from the then .ustice, later Chief .ustice, Concepcion7 41urthermore, individual freedom is too
basic, to be denied upon mere general principles and abstract consideration of public safety. %ndeed,
the preservation of liberty is such a major preoccupation of our political system that, not satisfied ,ith
guaranteeing its enjoyment in the very first paragraph of section ;&< of the Bill of !ights, the framers
of our Constitution devoted Gt,elve otherH paragraphs GthereofH to the protection of several aspect of
freedom.4
11
A similar sentiment ,as given e8pression by the then .ustice, later Chief .ustice,
Beng"on7 4+et the rebels have no reason to apprehend that their comrades no, under custody are
being railroaded into Muntinlupa ,ithout benefit of those fundamental privileges ,hich the e8perience
of the ages has deemed essential for the protection of all persons accused of crime before the
tribunals of justice. 3ive them the assurance that the judiciary, ever mindful of its sacred mission ,ill
not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of 3overnmental po,er
in diminution of individual rights, but ,ill al,ays cling to the principle uttered long ago by Chief .ustice
Marshall that ,hen in doubt as to the construction of the Constitution, $the Courts ,ill favor personal
liberty$ ....4
14
he pertinence of the above e8cerpt becomes #uite manifest ,hen it is recalled that its
utterance ,as in connection ,ith a certiorari proceeding ,here the precise point at issue ,as ,hether
or not the right to bail could be availed of ,hen the privilege of the ,rit of *a#eas corpus ,as
suspended. here ,as no decisive outcome, although there ,ere five votes in favor of an affirmative
ans,er to only four against.
13
-uch pronouncements in cases arising under the &(AB Constitution
should occasion. no surprise. hey merely underscore ,hat ,as so vigorously emphasi"ed by the
then Delegate .ose P. +aurel, Chairman of the Committee on the Bill of !ights, in his sponsorship
address of the draft provisions. hus7 4he history of the ,orld is the history of man and his ardous
struggle for liberty. ... %t is the history of those brave and able souls ,ho, in the ages that are past,
have labored, fought and bled that the government of the lash K that symbol of slavery and
despotism C might endure no more. %t is the history of those great selfCsacrificing men ,ho lived and
suffered in an age of cruelty, pain and desolation so that every man might stand, under the protection
of great rights and privileges, the e#ual of every other man.
15
-o should it be under the present
Constitution. ?o less a person than President Marcos during the early months of the &('&
Constitutional Convention categorically affirmed in his To!as >evolution7 Democracy7 4Eithout
freedom, the ,hole concept of democracy falls apart.4
15
-uch a vie, has support in history. A
statement from Dr. !i"al has a contemporary ring7 43ive liberties, so that no one may have a right to
conspire.4
1:
Mabini listed as an accomplishment of the illCfated revolution against the Americans the
manifestation of 4our love of freedom guaranteeing to each citi"en the e8ercise of certain rights ,hich
make our communal life less constricted, ....4
17

J. /#ually so, the decisive issue is one of liberty not only because of the nature of the petitions but
also because that is the mandate of the Constitution. hat is its philosophy. %t is a regime of liberty to
,hich our people are so deeply and firmly committed.
18
he fate of the individual petitioners hangs in
the balance. hat is of great concern. Ehat is at stake ho,ever, is more than that K much more.
here is a paramount public interest involved. he momentous #uestion is ho, far in times of stress
fidelity can be manifested to the claims of liberty. -o it is ordained by the Constitution, and it is the
highest la,. %t must be obeyed. ?or does it make a crucial difference, to my mind, that martial la,
e8ists. %t may call for a more cautious approach. he simplicity of constitutional fundamentalism may
not suffice for the comple8 problems of the day. -till the duty remains to assure that the supremacy of
the Constitution is upheld. Ehether in good times or bad, it must be accorded the utmost respect and
deference. hat is ,hat constitutionalism connotes. %t is its distinctive characteristic. 3reater restraints
may of course be imposed. Detention, to cite the obvious e8ample, is not ruled out under martial la,,
but even the very proclamation thereof is dependent on public safety making it imperative. he
po,ers, rather e8pansive, perhaps at times even latitudinarian, allo,able the administration under its
aegis, ,ith the conse#uent diminution of the sphere of liberty, are justified only under the assumption
that thereby the beleaguered state is in a better position to protect, defend and preserve itself. hey
are hardly impressed ,ith the element of permanence. hey cannot endure longer than the
emergency that called for the e8ecutive having to make use of this e8traordinary prerogative. Ehen it
is a thing of the past, martial la, must be at an end. %t has no more reason for being. %f its
proclamation is open to objection, or its continuance no longer ,arranted, there is all the more
reason, to follo, +aski, to respect the traditional limitation of legal authority that freedom demands.
19

Eith these *a#eas corpus petitions precisely rendering peremptory action by this Court, there is the
opportunity for the assessment of liberty considered in a concrete social conte8t. Eith full
appreciation then of the comple8ities of this era of turmoil and dis#uiet, it can hopefully contribute to
the delineation of constitutional boundaries. %t may even be able to demonstrate that la, can be
timeless and yet timely.
B. here are relevant #uestions that still remain to be ans,ered. Does not the proclamation of martial
la, carry ,ith it the suspension of the privilege of the ,rit of *a#eas corpusI %f so, should not the
principle above enunciated be subjected to further refinementI % am not too certain that the first
#uery. necessarily calls for an affirmative ans,er. Preventive detention is of course allo,able.
%ndividuals ,ho are linked ,ith invasion or rebellion may pose a danger to the public be safety. here
is nothing inherently unreasonable in their being confined. Moreover, ,here it is the President
himself, as in the case of these petitioners, ,ho personally directed that they be taken in, it is not
easy to impute arbitrariness. %t may happen though that officers of lesser stature not impressed ,ith
the high sense of responsibility ,ould utili"e the situation to cause the apprehension of persons
,ithout sufficient justification. Certainly it ,ould be, to my mind, to sanction oppressive acts if the
validity of such detention cannot be in#uired into through *a#eas corpus petitions. %t is more than just
desirable therefore that if such be the intent, there be a specific decree concerning the suspension of
the privilege of the ,rit of *a#eas corpus. /ven then, ho,ever, such proclamation could be
challenged. %f vitiated by constitutional infirmity, the release may be ordered. /ven if it ,ere
other,ise, the applicant may not be among those as to ,hom the privilege of the ,rit has been
suspended. %t is pertinent to note in this connection that Proclamation ?o. &9)& specifically states
4that all persons presently detained as ,ell as all others ,ho may hereafter be similarly detained for
the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or
on the occasion thereof, or incident thereto, or in connection there,ith, for crimes against national
security and the la, of nations, crime against the fundamental la,s of the -tate, crimes against public
order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as ,ill be enumerated in
0rders that % shall subse#uently promulgate, as ,ell as crimes as a conse#uence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction shall
be kept under detention until other,ise ordered released by me or by duly designated
representative.4
40
he implication appears at unless the individual detained is included among those
to ,hom any of the above crime or offense may be imputed, he is entitled to judicial protection.
+astly, the #uestion of ,hether or not there is ,arrant for the vie, that martial la, is at an end may be
deemed proper not only in the light of radically altered conditions but also because of certain
e8ecutive acts clearly incompatible ,ith its continued e8istence. =nder such circumstances, an
element of a justiciable controversy may be discerned.
2. hat brings me to the political #uestion doctrine. %ts accepted signification is that ,here the matter
involved is left to a decision by the people acting in their sovereign capacity or to the sole
determination by either or both the legislative or e8ecutive branch of the government, it is beyond
judicial cogni"ance.
41
hus it ,as that in suits ,here the party proceeded against ,as either the
President or Congress, or any of its branches for that matter, the courts refused to act.
44
=nless such
be the case, the action taken by any or both the political branches ,hether in the form of a legislative
act or an e8ecutive order could be tested in court. Ehere private rights are affected, the judiciary has
the duty to look into its validity. here is this further implication of the doctrine. A sho,ing that plenary
po,er is granted either department of government may not be an obstacle to judicial in#uiry. %ts
improvident e8ercise or the abuse thereof may give rise to a justiciable controversy.
43
Ehat is more, a
constitutional grant of authority is not usually unrestricted.
45
+imitations are provided for as to ,hat
may be done and ho, it is to he accomplished. ?ecessarily then, it becomes the responsibility of the
courts to ascertain ,hether the t,o coordinate branches have adhered to the mandate of the
fundamental la,. he #uestion thus posed is judicial rather than political.
'. !eference at this point to the epochal opinion in the aforecited 0ansan+ v. Garcia decision, ,here
the validity of the suspension of the privilege of the ,rit of *a#eas corpus ,as sustained by this Court,
is not amiss. 1or in both in the &(AB and in the present Constitutions, the po,er to declare martial la,
is embraced in the same provision ,ith the grant of authority to suspend the privilege of the ,rit of
*a#eas corpus, ,ith the same limits to be observed in the e8ercise thereof.
45
%t ,ould follo,,
therefore, that a similar approach commends itself on the #uestion of ,hether or not the finding made
by the President in Proclamation ?o. &9)& as to the e8istence of 4rebellion and armed action
undertaken by these la,less elements of the communist and other armed aggrupations organi"ed to
overthro, the !epublic of the Philippines by armed violence and force Gimpressed ,ith theH
magnitude of an actual state of ,ar against GtheH people and the !epublic ...4
4:
is open to judicial
in#uiry. !eference to the opinion of Chief .ustice Concepcion ,ould prove illuminating7 4%ndeed, the
grant of po,er to suspend the privilege is neither absolute nor un#ualified. he authority conferred by
the Constitution, both under the Bill of !ights and under the /8ecutive Department, is limited and
conditional. he precept in the Bill of !ights establishes a general rule, as ,ell as an e8ception
thereto. Ehat is more, it postulates the former in the negative, evidently to stress its importance, by
providing that $;t<he privilege of the ,rit of *a#eas corpus shall not be suspended. ....$ %t is only by ,ay
of e8ception that it permits the suspension of the privilege $in cases of invasion, insurrection, or
rebellion$ K or, under Art. 6%% of the Constitution, 4imminent danger thereof4 K $,hen the public safety
re#uires it, in any of ,hich events the same may be suspended ,herever during such period the
necessity for such suspension shall e8ist.$ 1ar from being full and plenary, the authority to suspend
the privilege of the ,rit is thus circumscribed, confined and restricted not only by the prescribed
setting or the conditions essential to its e8istence, but also as regards the time ,hen and the place
,here it may be e8ercised. hese factors and the aforementioned setting or conditions mark,
establish and define the e8tent, the confines and the limits of said po,er, beyond ,hich it does not
e8ist. And, like the limitations and restrictions imposed by the 1undamental +a, upon the legislative
department, adherence thereto and compliance there,ith may, ,ithin proper bounds, be in#uired into
by courts of justice. 0ther,ise, the e8plicit constitutional provisions thereon ,ould be meaningless.
-urely, the framers of our Constitution could not have intended to engage in such a ,asteful e8ercise
in futility.4
47
-uch a vie, ,as fortified by the high estate accorded individual freedom as made clear in
the succeeding paragraph of his opinion7 4Much less may the assumption be indulged in ,hen ,e
bear in mind that our political system is essentially democratic and republican in character and that
the suspension of the privilege affects the most fundamental element of that system, namely,
individual freedom. %ndeed, such freedom includes and connotes, as ,ell as demands, the right of
every single member of our citi"enry to freely discuss and dissent from, as ,ell as critici"e and
denounce, the vie,s, the policies and the practices of the government and the party in po,er that he
deems un,ise, improper or inimical to the common,ealth, regardless of ,hether his o,n opinion is
objectively correct or not. he untrammelled enjoyment and e8ercise of such right K ,hich, under
certain conditions, may be a civic duty of the highest order K is vital to the democratic system and
essential to its successful operation and ,holesome gro,th and development.4
48

he ,riter ,rote a concurring and dissenting opinion. >e ,as fully in agreement ,ith the rest of his
brethren as to the lack of conclusiveness attached to the presidential determination. hus7 4he
doctrine announced in 'ontene+ro v. CastaAe!a that such a #uestion is political has thus been laid to
rest. %t is about time too. %t o,ed its e8istence to the compulsion e8erted by "arcelon v. "a-er, a &(9B
decision. his Court ,as partly misled by an undue reliance in the latter case on ,hat is considered
to be authoritative pronouncement from such illustrious American jurists as Marshall, -tory, and
aney. hat is to misread ,hat ,as said by them. his is most evident in the case of Chief .ustice
Marshall, ,hose epochal 'ar#ur v. 'a!ison ,as cited. Ehy that ,as so is difficult to understand.
1or it speaks to the contrary. %t ,as by virtue of this decision that the function of judicial revie, o,es
its origin not,ithstanding the absence of any e8plicit provision in the American Constitution
empo,ering the courts to do so. hus7 $%t is emphatically the province and duty of the judicial
department to say ,hat the la, is. hose ,ho apply the rule to particular cases, must of necessity
e8pound and interpret that rule. %f t,o la,s conflict ,ith each other, the courts must decide on the
operation of each. -o if a la, be in opposition to the constitution: if both the la, and the constitution
apply to a particular case, so that the court must either decide that case conformably to the la,
disregarding the constitution: or conformably to the constitution, disregarding the la,, the court must
determine ,hich of these conflicting rules governs the case. his is of the very essence of judicial
duty. %f, then, the courts are to regard the constitution, and the constitution is superior to any ordinary
act of legislature, the constitution, and not such ordinary act, must govern the case to ,hich they both
apply.4
49

). o refer to +ansang ane,, this Court sustained the presidential proclamation suspending the
privilege of the ,rit of *a#eas corpus as there ,as no sho,ing of arbitrariness in the e8ercise of a
prerogative belonging to the e8ecutive, the judiciary merely acting as a check on the e8ercise of such
authority. -o Chief .ustice Concepcion made clear in this portion of his opinion7 4Article 6%% of the
Constitution vests in the /8ecutive po,er to suspend the privilege of the ,rit of habeas c under
specified conditions. Pursuant to the principle of separation of po,ers underlying our system of
government, the /8ecutive is supreme ,ithin his o,n sphere. >o,ever, the separation of po,ers,
under the Constitution, is not absolute. Ehat is more, it goes hand in hand ,ith the system of checks
and balances, under ,hich the /8ecutive is supreme, as regards the suspension of the privilege, but
only if and ,hen he acts ,ithin the sphere allotted to him by the Basic +a,, and the authority to
determine ,hether or not he has so acted is vested in the .udicial Department, ,hich, in t*is respect,
is, in turn, constitutionally supre(e. %n the e8ercise of such authority, the function of the Court is
merely to check not to supplant K the /8ecutive, or to ascertain (erel )*et*er *e *as +one #eon!
the constitutional limits of his jurisdiction, not to e6ercise t*e po)er veste! in *i( or to determine the
,isdom of his act. o be sure, the po,er of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable ,ith, its po,er over ordinary civil or
criminal cases elevated thereto by ordinary appeal from inferior courts, in ,hich cases the appellate
court has all of the po,ers of the court of origin.4
30
he test then to determine ,hether the
presidential action should be nullified according to the -upreme Court is that of arbitrariness. Absent
such a sho,ing, there is no justification for annulling the presidential proclamation.
0n this point, the ,riter, in a separate opinion, had this to say7 4Eith such presidential determination
of the e8istence of the conditions re#uired by the Constitution to justify a suspension of the privilege
of the ,rit no longer conclusive on the other branches, this Court may thus legitimately in#uire into its
validity. he #uestion before us, it bears repeating, is ,hether or not Proclamation ?o. ))( as it no,
stands, not as it ,as originally issued, is valid. he starting point must be a recognition that the po,er
to suspend the privilege of the ,rit belongs to the /8ecutive, subject to limitations. -o the Constitution
provides, and it is to be respected. he range of permissible in#uiry to be conducted by this ribunal
is necessarily limited then to the ascertainment of ,hether or not such a suspension, in the light of the
credible information furnished the President, ,as arbitrary. -uch a test met ,ith the approval of the
chief counsel for petitioners, -enator .ose E. Diokno. o paraphrase 1rankfurter, the #uestion before
the judiciary is not the correctness but the reasonableness of the action taken. 0ne ,ho is not the
/8ecutive but e#ually kno,ledgeable may entertain a different vie,, but the decision rests ,ith the
occupant of the office. As ,ould be immediately apparent even from a cursory perusal of the data
furnished the President, so impressively summari"ed in the opinion of the Chief .ustice, the
imputation of arbitrariness ,ould be difficult to sustain. Moreover, the steps taken by him to limit the
area ,here the suspension operates as ,ell as his instructions attested to a firm resolve on his part
to keep strictly ,ithin the bounds of his authority. =nder the circumstances, the decision reached by
the Court that no finding of unconstitutionality is ,arranted commends itself for approval. he most
that can be said is that there ,as a manifestation of presidential po,er ,ellCnigh touching the
e8treme borders of his conceded competence, beyond ,hich a forbidden domain lies. he re#uisite
sho,ing of either improvidence or abuse has not been made.4
31

(. he +ansang doctrine for me is decisive on the various issues raised in this case, my discussion
being confined to petitioner !odrigo, as ,ell as others similarly situated, for under my vie, that the
petition in A#uino should be dismissed because charges had been filed, and the petition in Diokno
should be considered ,ithdra,n, there need be no further in#uiry as to the merits of their respective
contentions.
?o,, first as to the validity of the proclamation itself. %t ,ould seem that it is beyond #uestion in the
light of this particular transitory provision in the present Constitution7 4All proclamations, orders,
of the la, of the land, and shall remain valid, legal, binding, and effective even after lifting of martial
la, or the ratification of this Constitution, unless modified, revoked, or superseded by subse#uent
proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless
e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.4
34
%ndependently of
such provision, such presidential proclamation could not be characteri"ed as arbitrary under the
standard set forth in the +ansang decision. >e did act 4on the basis of carefully evaluated and verified
information, G,hichH definitely established that la,less elements ,ho are moved by a common or
similar ideological conviction, design strategy and goal and enjoying the active moral and material
support of a foreign po,er and being guided and directed by intensely devoted, ,ellCtrained,
determined and ruthless groups of men and seeking refuge +inder the protection of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and
banded their resources and forces together for the prime purpose of, and in fact they have been and
are actually staging, undertaking and ,aging an armed insurrection and rebellion against the
3overnment of the !epublic of the Philippines in order to forcibly sei"e political state po,er in the
country overthro, the duly constituted and supplant our e8isting political, social, economic, and legal
order ,ith an entirely ne, one ,hose form of government, ,hose system of la,s, ,hose conception
of 3od and religion, ,hose notion of individual rights and family relations, and ,hose political, social,
economic, legal and moral precepts are based on the Mar8istC+eninistCMaoist teachings and
beliefs: ....4
33

-ubse#uent events did confirm the validity of such appraisal. /ven no,, from the pleadings of the
-olicitor 3eneral, the assumption that the situation has not in certain places radically changed for the
better cannot be stigmati"ed as devoid of factual foundation. As of the present, even on the vie, that
the courts may declare that the crisis conditions have ended and public safety does not re#uire the
continuance of martial la,, there is not enough evidence to ,arrant such a judicial declaration. his is
not to deny that in an appropriate case ,ith the proper parties, and, in the language of .ustice +aurel,
,ith such issue being the very lis (ota, they may be compelled to assume such an a,esome
responsibility. A sense of realism as ,ell as sound 5uristic theory ,ould place such delicate task on
the shoulders of this ribunal, the only constitutional court. -o % ,ould read >utter v. Este#an.
35

here, ,hile the Moratorium Act
35
,as at first assumed to be valid, ,ith this Court in such suit being
persuaded that its 4continued operation and enforcement4 under circumstances that developed later,
became 4unreasonable and oppressive,4 and should not be prolonged a minute longer, ... Git ,asH
4declared null and void and ,ithout effect.4
3:
%t goes ,ithout saying that before it should take such a
step, e8treme care should be taken lest the maintenance of public peace and order, the primary duty
of the /8ecutive, be attended ,ith e8treme difficult . %t is like,ise essential that the evidence of public
safety no longer re#uiring martial la, be of the clearest and most satisfactory character. %t cannot be
too strongly stressed that ,hile liberty is a prime objective and the judiciary is charged ,ith the duty of
safeguarding it, on a matter of such gravity during periods of emergency, the e8ecutive appraisal of
the situation is deserving of the utmost credence. %t suffices to recall the stress laid by Chief .ustice
Concepcion in +ansang that its function 4is merely to c*ec- K not to supplant4 the latter. he
allocation of authority in the Constitution made by the people themselves to the three departments of
government must be respected. here is to be no intrusion by any one into the sphere that belongs to
another. Precisely because of such fundamental postulate in those cases, and there may be such,
but perhaps rather rare, it could amount to judicial abdication if no in#uiry ,ere deemed permissible
and the #uestion considered political.
he last point is, ,hile the detention of petitioners could have been validly ordered, as dictated by the
very proclamation itself, if it continued for an unreasonable length of time, then his release may be
sought in a *a#eas corpus proceeding. his contention is not devoid of plausibility. /ven in times of
stress, it cannot just be assumed that the indefinite restraint of certain individuals as a preventive
measure is unavoidable. %t is not to be denied that ,here such a state of affairs could be traced to the
,ishes of the President himself, it carries ,ith it the presumption of validity. he test is again
arbitrariness as defined in +ansang. %t may happen that the continued confinement may be at the
instance merely of a military official, in ,hich case there is more lee,ay for judicial scrutiny.
&9. A ,ord more on the ,ithdra,al of a *a#eas corpus petition. 0n the basic assumption that
precisely the great ,rit of liberty is available to a person subjected to restraint so that he could
challenge its validity, % find it difficult not to yield assent to a plea by the applicant himself that he is no
longer desirous or pursuing such remedy. >e had a choice of ,hether or not to go to court. >e ,as
free to act either ,ay. he fact that at first he did so, but that later he ,as of a different mind, does
not, in my opinion, alter the situation. he matter, for me, is still one left to his free and unfettered ,ill.
he conclusion then for me at least, is that a court must accede to his ,ishes. %t could like,ise be
based on his belief that the realities of the situation compel the conclusion that relief could come from
the /8ecutive. hat decision ,as his to make. %t must be respected. Moreover, if only because of
humanitarian considerations, considering the illCeffects of confinement on his state of health, there is
e#ually legal support for the vie, that his conditional release as in the case of the other detainees
,ould not be inappropriate.
%f his motion for ,ithdra,al contained phraseology that is offensive to the dignity of the court, then
perhaps the corresponding disciplinary action may be taken. 1or that purpose, and for that purpose
alone, the petition may be considered as still ,ithin judicial cogni"ance. %t is true in certain cases that
the issues raised may be so transcendental that there is ,isdom in continuing the proceeding. he
,ithdra,al, even then, for me, is not fraught ,ith pernicious conse#uences. %f the matter ,ere that
significant or important, the probability is that the #uestion ,ill soon be ventilated in another petition.
here is, to deal briefly ,ith another point, the matter of the rather harsh and bitter language in ,hich
the motion for ,ithdra,al ,as couched. hat is a matter of taste. /ven if it ,ent beyond the bounds of
the permissible, the ,ithdra,al should be granted. his for me is the principle that should obtain. he
rather uncharitable vie, e8pressed concerning the ability of certain members of the Court to act justly
on the matter should not give rise, in my opinion, to undue concern. hat is one$s belief, and one is
entitled to it. %t does not follo, that thereby the person thus unjustifiably maligned should suffer any
loss of selfCesteem. After all, it is a truism to say that a man on the bench is accountable only to his
conscience and, in the ultimate analysis, to his Maker. here is all the more reason then not to be
unduly bothered by the remarks in #uestion. Moreover, they emanated from a source suffering from
the pangs of desperation born of his continued detention. %t could very ,ell be that the disappointment
of e8pectations and frustration of hopes did lead to such an intemperate outburst. here is, for meat
least, relevance to this e8cerpt from an opinion by .ustice 1rankfurter7 4-ince courts, although
representing the la,, ... are also sitting in judgment, as it ,ere, on their o,n function in e8ercising
their po,er to punish for contempt, it should be used only in flagrant cases and ,ith the utmost
forbearance. %t is al,ays better to err on the side of tolerance and even of disdainful indifference.4
37

there: it has on function in e8ercising their po,er to punish for contempt, it should be used only in
flagrant cases and ,ith the utmost forbearance. %t is al,ays better to err on the side of tolerance and
even of disdainful indifference.4
there: it has fallen do,n. Ehat is there to penetrateI hat is just the point, petitioner !odrigo
complains. hat is not really true, or only true partially. here are physical as ,ell as intellectual
restraints on his freedom. >is release is conditional. here are things he cannot say places he cannot
go. hat is not liberty in a meaningful sense. his great ,rit then has not lost its significance for him,
as ,ell as for others similarly situated. he ,ay he developed his argument calls to mind Cardo"o$s
,arning that in a ,orld of reality, a juridical concept may not al,ays be pressed to the limit of its logic.
here are countervailing considerations. he fact that he ,as among those ,hose detention ,as
ordered by the President is one of them. here ,as then an e8ecutive determination on the highest
level that the state of affairs marked by rebellious activities did call for certain individuals being
confined as a preventive measure. =nless there is a sho,ing of the arbitrariness of such a move, the
judiciary has to respect the actuation. %t must be assumed that ,hat ,as to be done ,ith them
thereafter must have been given some attention. At one e8treme, their preventive detention could be
terminated and their full freedom restored. At the other, it could be continued if circumstances did so
,arrant. >ere, there ,as a middle ,ay chosen. Petitioner !odrigo as ,ell as several others ,ere
released subject to conditions. %t cannot be dogmatically maintained that such a solution ,as an
affront to reason. ?ot only for the person locked up, but perhaps even more so for his family, the end
of the incarceration ,as an eagerly a,aited and highly ,elcome event. hat is #uite understandable.
%t did justify petitioner$s assertion that in so agreeing to the conditions imposed, he ,as not acting of
his o,n free ,ill. !ealistically, be had no choice or one minimal at most. ?onetheless, it cannot be
denied that he ,as a recipient of ,hat at the very least ,as a clear manifestation of the Philippine
brand of martial la, being impressed ,ith a mild character.
his being a *a#eas corpus petition, the appropriate #uestion for judicial in#uiry is the validity of the
limits set to the conditional release of petitioner !odrigo. he guiding principle is supplied by this
ringing affirmation of .ustice Malcolm7 4Any restraint ,hich ,ill preclude freedom of action is
sufficient.4
38
he implication for me is that there may be instances of the propriety of the invocation of
the ,rit even ,ithout actual incarceration. his is one of them. %t is heartening that the Court so vie,
it. %t is, to my mind, regrettable though that there appears to be full acceptance of the po,er of the
military to impose restrictions on petitioner !odrigo$s physical liberty. here is need, it ,ould seem to
me, for a more discriminating appraisal, especially ,here it could be sho,n that the order to that
effect proceeds from a source lo,er than the President. he e8tremely high respect justifiably
accorded to the action taken by the highest official of the land, ,ho by himself is a separate and
independent department, not to mention the one constitutional official authori"ed to proclaim martial
la,, is not indicated. here should be, of course, no casual or unreasoned disregard for ,hat the
military may deem to be the appropriate measure under the circumstances. his reflection, though,
gives me pause. Petitioner !odrigo and others similarly situated ,ere released. hat step ,ould not
have been taken if circumstances did not justify it. %t seems then reasonable to assume that full,
rather than restricted, freedom ,as ,arranted. he matter may be put forth more categorically, but %
refrain from doing so. he reason is practical. o insist that it should be thus may curb ,hat appears
to be the commendable tendency to put an end to the preventive detention of those in actual
confinement. As for restraints on intellectual liberty embraced in freedom of speech and of press, of
assembly, and of association, deference to controlling authorities compel me to say that the ,rit of
*a#eas corpus is not the proper case for assailing them. %t does not mean that judicial in#uiry is
foreclosed. 1ar from it. All that is intended to be conveyed is that this remedy does not lend itself to
that purpose. %n so advocating this approach, % am not unmindful that it might be looked upon as lack
of a,areness for the mischief that may be caused by irresponsible elements, not to say the rebels
themselves. he ,ords of Eilloughby, ,hose vie, on martial la, is the most sympathetic to the
primacy of liberty, furnish the antidote7 4As long as the emergency lasts then, they must upon pain of
arrest and subse#uent punishment refrain from committing acts that ,ill render more difficult the
restoration of a state of normalcy and the enforcement of la,.
39

&*. !eliance, as is #uite evident from the foregoing, is ,ellnigh solely placed on Philippine authorities.
Ehile the persuasive character of American Constitutional la, doctrines is not entirely a thing of the
past, still, the novelty of the #uestion before us, compels in my vie, deference to the trend indicated
by our past decisions, read in the light not only of specific holdings but also of the broader principles
on ,hich they are based. /ven if they do not precisely control, they do furnish a guide. Moreover,
there seems to be a dearth of =nited -tates -upreme Court pronouncements on the subject of
martial la,, due no doubt to absence in the American Constitution of any provision concerning it. %t is
understandable ,hy no reference ,as made to such subject in the earliest classic on American
constitutional la, ,ritten by .ustice -tory.
50
Ehen the landmark &)22 Milligan case
51
made its
appearance, and much more so after -terling
54
follo,ed in &(A* and Duncan
53
in &(J2, a discussion
thereof became unavoidable. -o it is evident from subse#uent commentaries and case books.
55

Cooley though, in his e#ually famous ,ork that ,as first published in &)2) contented himself ,ith
footnote references to Milligan.
55
Eatson vie,ed it in connection ,ith the suspension of the privilege
of the ,rit of *a#eas corpus.
5:
%n the nineteen t,enties, there ,as a fuller treatment of the #uestion of
martial la,. Burdick anticipated Eilloughby ,ith this appraisal7 4-oCcalled martial la,, e8cept in
occupied territory of an enemy, is merely the calling in of the aid of military forces by the e8ecutive,
,ho is charged ,ith the enforcement of the la,, ,ith or ,ithout special authori"ation by the
enforce the la, is simply part of the police po,er. %t is only justified ,hen it reasonably appears
necessary, and only justifies such acts as reasonably appear necessary to meet the e8igency,
including the arrest, or in e8treme cases the killing of those ,ho create the disorder or oppose the
liable for acts done beyond the scope of reasonable necessity. Ehen honestly and reasonably coping
riot, be free by ,rit of *a#eas corpus.
57

Eilloughby, as already noted, ,as partial to the claims of liberty. his is #uite evident in this e8cerpt
in his opus7 4here is, then, strictly speaking, no such thing in American la, as a declaration of
martial la, ,hereby military la, is substituted for civil la,. -oCcalled declarations of martial la, are,
indeed, often made but their legal effect goes no further than to ,arn citi"ens that the military po,ers
have been called upon by the e8ecutive to assist him in the maintenance of la, and order, and that,
,hile the emergency lasts, they must, upon pain of arrest and punishment not commit any acts ,hich
,ill in any ,ay render more difficult the restoration of order and the enforcement of la,. -ome of the
authorities stating substantially this doctrine are #uoted in the footnote belo,.4
58
Eillis spoke similarly7
4Martial la, proper, that is, military la, in case of insurrection, riots, and invasions, is not a substitute
for the civil la,, but is rather an aid to the e8ecution of civil la,. Declarations of martial la, go no
further than to ,arn citi"ens that the e8ecutive has called upon the military po,er to assist him in the
maintenance of la, and order. Ehile martial la, is in force, no ne, po,ers are given to the e8ecutive
and no civil rights of the individual, other than the ,rit of *a#eas corpus, are suspended. he relations
bet,een the citi"en and his state are unchanged.4
59

%t is readily evident that even ,hen Milligan supplied the only authoritative doctrine, Burdick and
Eilloughby did not ignore the primacy of civil liberties. Eillis ,rote after -terling. %t ,ould indeed be
surprising if his opinion ,ere other,ise. After Duncan, such an approach becomes even more
strongly fortified. -ch,art", ,hose treatise is the latest to be published, has this summary of ,hat he
considers the present state of American la,7 4he 'illi+an and .uncan cases sho, plainly that
martial la, is the public la, of necessity. ?ecessity alone calls it forth: necessity justifies its e8ercise:
and necessity measures the e8tent and degree to ,hich it may be employed. %t is, the high Court has
are concerned, may never be pushed beyond ,hat the e8igency re#uires. %f martial rule survives the
necessity on ,hich alone it rests, for even a single minute, it becomes a mere e8ercise of la,less
violence.4
50
1urther7 4Sterlin+ v. Constantin is of basic importance. Before it, a number of decisions,
including one by the highest Court, ,ent on the theory that the e8ecutive had a free hand in taking
martialCla, measures. =nder them, it had been ,idely supposed that a martialCla, proclamation ,as
so far conclusive that any action taken under it ,as immune from judicial scrutiny. Sterlin+ v.
Constantin, definitely discredits these earlier decisions and the doctrine of conclusiveness derived
from them. =nder Sterlin+ v. Constantin, ,here martial la, measures impinge upon personal or
property rights K normally beyond the scope of military po,er, ,hose intervention is la,ful only
because an abnormal situation has made it necessary K the e8ecutive$s ipse di8it is not of itself
conclusive of the necessity.4
51

%t is not to be lost sight of that the basis for the declaration of martial la, in the Philippines is not mere
necessity but an e8plicit constitutional provision. 0n the other hand, Milligan, ,hich furnished the
foundation for -terling
54
and Duncan
53
had its roots in the /nglish common la,. here is pertinence
therefore in ascertaining its significance under that system. According to the noted /nglish author,
Dicey7 4 $Martial la,,$ in the proper sense of that term, in ,hich it means the suspension of ordinary
la, and the temporary government of a country or parts of it by military tribunals, is unkno,n to the
la, of /ngland. Ee have nothing e#uivalent to ,hat is called in 1rance the $Declaration of the -tate of
-iege,$ under ,hich the authority ordinarily vested in the civil po,er for the maintenance of order and
police passes entirely to the army ;autorite militaire<. his is an unmistakable proof of the permanent
supremacy of the la, under our constitution.4
55
here ,as this #ualification7 4Martial la, is sometimes
employed as a name for the common la, right of the Cro,n and its servants to repel force by force in
the case of invasion, insurrection, riot, or generally of any violent resistance to the la,. his right, or
po,er, is essential to the very e8istence of orderly government, and is most assuredly recogni"ed in
the most ample manner by the la, of /ngland. %t is a po,er ,hich has in itself no special connection
,ith the e8istence of an armed force. he Cro,n has the right to put do,n breaches of the peace.
/very subject, ,hether a civilian or a soldier, ,hether ,hat is called a $servant of the government,$
such for e8ample as a policeman, or a person in no ,ay connected ,ith the administration, not only
has the right, but is, as a matter of legal duty, bound to assist in putting do,n breaches of the peace.
?o doubt policemen or soldiers are the persons ,ho, 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.4
55

he picture ,ould be incomplete, of course, if no reference ,ere made to !ossiter. %n his ,ork on
Constitutional Dictatorship, ,here he discussed crisis governments in the 1rench !epublic, in 3reat
Britain and in the =nited -tate he spoke of martial rule. 1or him, it 4is an emergency device designed
for use in the crises of invasion or rebellion. %t may be most precisely defined as an e8tension of
military government to the civilian population, the substitution of the ,ill of a military commander for
the ,ill of the people$s elected government. %n the event of an actual or imminent invasion b a hostile
po,er, a constitutional government may declare martial rule in the menaced area. he result is the
transfer of all effective po,ers of government from the civil authorities to the military, or often merely
the assumption of such po,ers by the latter ,hen the regular government has ceased to function. %n
the event of a rebellion its initiation amounts to a governmental declaration of ,ar on those citi"ens in
insurrection against the state. %n either case it means military dictatorship K government by the army,
courtsCmartial, suspension of civil liberties, and the ,hole range of dictatorial action of an e8ecutive
nature. %n the modern democracies the military e8ercises such dictatorship ,hile remaining
subordinate and responsible to the e8ecutive head of the civil government. Martial rule has a variety
of forms and pseudonyms, the most important of ,hich are (artial la), as it is kno,n in the civil la,
countries of the British /mpire and the =nited -tates, and the state o, sie+e, as it is kno,n in the civil
la, countries of continental /urope and +atin America. he state of siege and martial la, are t,o
edges to the same s,ord, and in action they can hardly be distinguished. he institution of martial
rule is a recognition that there are times in the lives of all communities ,hen crisis has so completely
disrupted the normal ,orkings of government that the military is the only po,er remaining that can
restore public order and secure the e8ecution of the la,s.
5:

>appily for the Philippines, the declaration of martial la, lends itself to the interpretation that the
relevance. %t cannot be said that the martial rule concept of !ossiter, latitudinarian in scope, has been
on the Constitution and that the validity of acts taken thereunder could be passed upon by the
-upreme Court. 1or me, that is #uite reassuring, persuaded as % am like,ise that the vie, of !ossiter
is opposed to the fundamental concept of our polity, ,hich puts a premium on freedom. ?o undue
concern need then be felt as to the continuing reliance on 'oer v. Pea#o!,
57
,here .ustice >olmes
speaking for the Court, stated that the test of the validity of e8ecutive arrest is that they be made 4in
good faith and in the honest belief that they are needed in order to head the insurrection off ...4
58
>e
did state like,ise7 4Ehen it comes to a decision by the head of the state upon a matter involving its
life, the ordinary rights of individuals must yield to ,hat he deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. -ee Geel v.
San!ers, (( =- JJ&, JJ2, *B + ed. A*', A*), his ,as admitted ,ith regard to killing men in the
actual clash of arms and ,e think it obvious, although it ,as disputed, that the same is true of
temporary detention to prevent apprehended harm.4
59
?or ,as this to manifest less than full regard
for civil liberties. >is other opinions indicated the contrary. More specifically, it ,as from his pen, in
C*astleton Corporation v. Sinclair,
:0
,here the doctrine that the judiciary may in#uire into ,hether the
emergency ,as at an end, ,as given e8pression. hus7 4Ee repeat ,hat ,as stated in "loc- v.
Cirs*, ..., as to the respect due to a declaration of this kind by the legislature so far as it relates to
present facts. But, even as to them, a court is not a liberty to shut its eyes to an obvious mistake,
,hen the validity of the la, depends upon the truth of ,hat is declared. ... And still more obviously, so
far as this declaration looks to the future, it can be no more than prophecy, and is liable to be
controlled by events. A la, depending upon the e8istence of an emergency or other certain state of
facts to uphold it may cease to operate if the emergency ceases or the facts change, even though
valid ,hen passed.4
:1

&A. %t may safely be concluded therefore that the role of American courts concerning the legality of
acts taken during a period of martial la, is far from minimal. Ehy it must he so ,as e8plained by
Dean !osto, in this ,ise7 4=nless the courts re#uire a sho,ing, in cases like these, of an intelligible
relationship bet,een means and ends, society has lost its basic protection against the abuse of
military po,er. he general$s good intention must be irrelevant. here should be evidence in court
that his military judgment had a suitable basis in fact. As Colonel 1airman, a strong proponent of
,idened military discretion, points out7 $Ehen the e8ecutive fails or is unable to satisfy the court of the
evident necessity for the e8traordinary measures it has taken, it can hardly e8pect the court to
assume it on faith.4
:4
his is the ,ay +ass,ell ,ould summari"e the matter7 40n the ,hole, ,e can
conclude that the courts of this country have a body of ancient principles and recent precedents that
can be used to keep at a minimum unnecessary encroachments upon private rights by the e8ecutive,
civil or military. he vigor and sensitiveness ,ith ,hich the due process clause has been affirmed in
the last t,o decades is, in particular, an important development.4
:3

&J. %t may be that the approach follo,ed may for some be indicative of lack of full a,areness of
today$s stern realities. %t is my submission that to so vie, the transcendental issues before us is to
adhere as closely as possible to the ideal envisioned in /8 parte Milligan7 4he Constitution is a la,
for rulers and for people e#ually in ,ar and peace and covers ,ith the shield of its protection all
classes of men at all times and under all circumstances.4
:5
%t is ever timely to reiterate that at the core
of constitutionalism is a robust concern for individual rights. his is not to deny that the judicial
process does not take place in a social void. he #uestions that call for decision are to be e8amined
in the total social conte8t ,ith full appreciation of the environmental facts, ,hether vie,ed in its
temporal or other relevant aspects. hey have to reconcile timeCtested principles to contemporary
problems. +egal norms cannot al,ays stand up against the pressure of events. he great
un#uestioned verities may thus prove to be less than ade#uate. -o much is conceded. ?onetheless,
even ,ith the additional difficulty that the Court today is compelled to enter terrain ,ith boundaries not
so clearly defined, carrying ,ith it the risk of e8ceeding the normal limits of judicial imprecision, % find
myself unable to resist the compulsion of constitutional history and traditional doctrines. he facts and
issues of the petitions before us and the mandates of the fundamental la,, as % vie, them in the light
of accepted concepts, blunt the edge of ,hat other,ise could be considerations of decisive impact. %
find myself troubled by the thought that, ,ere it other,ise, it ,ould amount to free"ing the flu8 of the
turbulent present ,ith its grave and critical problems in the icy permanence of juristic doctrines. As of
no,, such an uncomfortable thought intrudes. >ence this brief concurring and dissenting opinion.

TEE#AN6EE, J.:
Pre,ator state(ent7 his separate opinion ,as prepared and scheduled to be promulgated ,ith the
judgment of the Court ;penned by the Chief .ustice< on -eptember &*, &('J. -uch promulgation ,as
ho,ever overtaken by the ,elcome ne,s of the release from detention on -eptember &&, &('J of
petitioner .ose E. Diokno upon the order of President 1erdinand /. Marcos, and the Court then
resolved to defer promulgation until the follo,ing ,eek. >ence, Part % of this opinion dealing ,ith the
Diokno petition should be read in such time conte8t.
he t,o other parts thereof dealing ,ith the A#uino and !odrigo cases are to be read as of the actual
date of promulgation, since they reiterate a main theme of the opinion that the Court should adhere to
the ,ellCgrounded principle of not ruling on constitutional issues e8cept ,hen necessary in an
appropriate case. %n the ,riter$s vie,, the gratifying development in the Diokno case ,hich rendered
his petition moot by virtue of his release once more demonstrates the validity of this principle.
%. On t*e .io-no petition7 % vote for the granting of petitioner .ose E. Diokno$s motion of December
*(, &('A to ,ithdra, the petition for *a#eas corpus filed on -eptember *A, &('* on his behalf and
the supplemental petition and motions for immediate release and for oral argument of .une *(, &('A
and August &J, &('A filed in support thereof, as prayed for.
&. he present action is one of *a#eas corpus and the detainee$s o,n ,ithdra,al of his petition is
decisive. %f the detainee himself ,ithdra,s his petition and no longer ,ishes this Court to pass upon
the legality of his detention and cites the other pending *a#eas corpus cases ,hich have not been
,ithdra,n and ,herein the Court can rule on the constitutional issues if so minded,
1
such ,ithdra,al
of a *a#eas corpus petition should be granted practically as a matter of absolute right ;,hatever be
the motivations therefor< in the same manner that the ,ithdra,al motions of the petitioners in the
otherC cases ,ere previously granted by the Court.
4

-ince there ,ere seven ;'< members of the Court ,ho voted for granting the ,ithdra,al motion as
against five ;B< members ,ho voted for denying the same and rendering a decision,
3
submit that this
majority of seven ;'< out of the Court$s membership of t,elve ;&*< is a sufficient majority for granting
the )it*!ra)al prayed for. A simple majority of seven is legally sufficient for the granting of a
,ithdra,al of a petition, since it does not involve the rendition of a !ecision, on the merits. %t is only
,here a decision is to be rendered on the merits by the Court en #anc that the &('A Constitution
re#uires the concurrence of at least eight ;)< members.
5

% therefore dissent from the majority$s adhering to the fiveCmember minority vie, that the majority of
seven members is not legally sufficient for granting ,ithdra,al and that a decision on the merits be
rendered not,ithstanding the ,ithdra,al of the petition.
*. he granting of the ,ithdra,al of the petition is but in consonance ,ith the fundamental principle
on the e8ercise of judicial po,er ,hich, in the ,ords of the -olicitorC3eneral, 4as .ustice +aurel
emphasi"ed, is justifiable only as a necessity for the resolution of an actual case and controversy and
therefore should be confined to the very lis mota presented.4
5

-uch ,ithdra,al is furthermore in accord ,ith the respondents$ stand from the beginning urging the
Court not to take cogni"ance ;for ,ant of jurisdiction or as a matter of judicial restraint citing Brandeis$
injunction that 4he most important thing ,e decide is ,hat not to decide4
:
< or that 4at the very least,
this Court should postpone consideration of this case until the present emergency is over.4
7

Many of the other petitioners in the *a#eas corpus cases at bar ,ere granted leave to ,ithdra, their
petitions. Petitioner Diokno$s ,ithdra,al motion should like,ise be granted in line ,ith the ,ellC
established doctrine that the Court ,ill not rule on constitutional issues e8cept ,hen necessary in an
appropriate case.
A. But the -olicitorC3eneral no, objects to the ,ithdra,al on the ground of public interest and that
4this ribunal ... has been used as the open forum for underground propaganda by those ,ho have
political a8es to grind4 ,ith the circulation of the ,ithdra,al motion and that this Court ,ould be
4putting the seal of approval4 and in effect admit the 4unfair, untrue and contemptuous4 statements
made in the ,ithdra,al motion should this Court grant the ,ithdra,al.
8
% see no point in the position
taken by the -olicitorC3eneral of urging the Court to deny the ,ithdra,al motion only to render a
decision that ,ould after all dismiss the petition and sustain respondents$ defense of political ;uestion
and have the Court declare itself )it*out 5uris!iction to adjudicate the constitutional issues presented
9
and asking the Court to embrace the 4pragmatic method4 of Eilliam .ames ,hich 4rejects ... the a
priori assumption that there are immutable principles of justice. %t tests a proposition by its practical
conse#uences.4
10
he objections are untenable.
he public interest objection is met by the fact that there are still pending. other cases ;principally the
prohibition case of petitioner Benigno -. A#uino, .r. in another case, +CA'A2J #uestioning the filing of
grave charges under the AntiC-ubversion Act, etc. against him ,ith a military commission
11
and ,hich
is not yet submitted for decision< ,here the same constitutional issues may be resolved.
he other objections are tenuous7 he -olicitorC3eneral refutes his o,n objections in his closing
statement in his comment that 4for their part, respondents are confident that in the end they ,ould be
upheld in their defense, as indeed petitioner and counsel have practically con,esse! 5u!+(ent in this
case.4
14

he propaganda objection is not a valid ground for denying the ,ithdra,al of the petition and should
not be held against petitioner ,ho had nothing ,hatsoever to do ,ith it. he objection that granting
the ,ithdra,al motion ,ould amount to an admission of the 4unfair, untrue and contemptuous
statements4 made therein is untenable since it is patent that granting the ,ithdra,al motion per se
;regardless of petitioner$s reasons< does not amount to an admission of the truth or validity of such
reasons and as conceded by the -olicitorC3eneral, neither ,ill denying the ,ithdra,al motion per se
disprove the reasons.
13
he untruth, unfairness or costumacy of such reasons may best be dealt ,ith,
clarified or e8pounded by the Court and its members in the Court$s resolution granting ,ithdra,al or
in the separate opinions of the individual .ustices ;as has actually been done and ,hich the ,riter ,ill
no, proceed to do<.
J. Petitioner$s first reason for ,ithdra,al is subjective. After mentioning various factors, particularly,
the fact that five of the si8 .ustices ;including the ,riter< ,ho held in the !atification cases
15
that the
&('A Constitution had not been validly ratified had taken on 0ctober *(, &('A an oath to import and
defend the ne, Constitution, he e8presses his feeling that 4;%< cannot reasonably e8pect either right
or reason, la, or justice, to prevail in my case,4 that 4the unusual length of the struggle also indicates
that its conscience is losing the battle4 and that 4since % do not ,ish to be Va party to an % adverse
decision, % must renounce every possibility of favorable judgment.4
15
A party$s subjective evaluation of
the Court$s action is actually of no moment, for it has al,ays been recogni"ed that this Court,
possessed of neither the s,ord nor the purse, must ultimately and objectively rest its authority on
sustained public confidence in the truth, justice, integrity and moral force of its judgments.4
1:

Petitioner$s second reason for ,ithdra,al reads7 4;-<econd, in vie, of the ne, oath that its members
have taken, the present -upreme Court is a ne, Court functioning under a ne, $Constitution,$
different from the Court and the Constitution under ,hich % applied for my release. % ,as ,illing to be
judged by the old Court under the old Constitution, but not by the ne, Court under the ne,
Constitution, ....4
17

Petitioner is in error in his assumption that this Court is 4ne, Court functioning under a ne,
Constitution different from the Court and the Constitution under ,hich GheH applied for GhisH release.4
he same -upreme Court has continued save that it no, operates under Article D of the &('A
Constitution ,hich inter alia increased its component membership from eleven to fifteen and
transferred to it administrative supervision over all courts and personnel thereof ,ith the po,er of
discipline and dismissal over judges of inferior courts, in the same manner that the same !epublic of
the Philippines ;of ,hich the -upreme Court is but a part< has continued in e8istence but no,
operates under the &('A Constitution.
18

During the period of ninety days that the !atification cases ,ere pending before the Court until its
dismissal of the cases per its resolution of March A&, &('A became final on April &', &('A, the
/8ecutive Department ,as operating under the &('A Constitution in accordance ,ith President
1erdinand /. Marcos$ Proclamation ?o. &&9* on .anuary &', &('A announcing the ratification and
corning into effect of the &('A Constitution ,hile this Court as the only other governmental
department continued to operate tinder the &(AB Constitution pending its final resolution on the said
cases challenging the validity of Proclamation ?o. &&9* and enforcement of the ne, Constitution. ;As
per the Court resolution of .anuary *A, &('A, it declined to take over from the Department of .ustice
the administrative supervision over all inferior courts e8pressing its sense that 4it is best that the
status ;uo be maintained until the case aforementioned ;.avellana vs. /8ec. -ecretary< shall have
been finally resolved...4<
-uch a situation could not long endure ,herein the only t,o great departments of government, the
/8ecutive and the .udicial,
19
for a period of three months ,ere operating under t,o different
Constitutions ;presidential and parliamentary<. Ehen this Court$s resolution of dismissal of the
!atification cases by a majority of si8 to four .ustices became final and ,as entered on April &), &('A
4,ith the result that there ;,ere< not enough votes to declare that the ne, Constitution is not in force,4
40
the Court and particularly the remaining three dissenting .ustices ;not,ithstanding their vote ,ith
three others that the ne, Constitution had not been validly ratified
41
had to abide under the !ule of
+a, by the decision of the majority dismissing the cases brought to enjoin the enforcement by the
/8ecutive of the ne, Constitution and had to operate under it as the fundamental charter of the
government, unless they ,ere to turn from legitimate dissent to internecine dissidence for ,hich they
have neither the inclination nor the capability.
he Court as the head of the .udicial Department thenceforth assumed the po,er of administrative
supervision over all courts and all other functions and liabilities imposed on it under the ne,
Constitution. Accordingly, this and all other e8isting inferior courts continue to discharge their judicial
function and to hear and determine all pending cases under the old ;&(AB<Constitution
44
as ,ell as
ne, cases under the ne, ;&('A< Constitution ,ith the full support of the members of the %ntegrated
Bar of the Philippines ;none of ,hom has made petitioner$s claim that this is a 4ne, Court4 different
from the 4old Court4<.
A major liability imposed upon all members of the Court and all other officials and employees ,as that
under Article D6%%, section ( of the ransitory Provisions
43
,hich ,as destructive of their tenure and
called upon them 4to vacate their respective offices upon the appointment and #ualification of their
successors.4 heir taking the oath on 0ctober *(, &('A 4to preserve and defend the ne,
Constitution4 by virtue of their 4having been continued in office4
45
on the occasion of the oathCtaking of
three ne, members of the Court
45
pursuant to Article D6, section J
4:
,as meant to assure their
4continuity of tenure4 by ,ay of the President having e8ercised the po,er of replacement under the
cited provision and in effect replaced them ,ith themselves as members of the Court ,ith the same
order of seniority.
47

B. he ,ithdra,al in effect gives cause for judicial abstention and further opportunity ;pending
submittal for decision of the A#uino prohibition case in +CA'A2J< to ponder and deliberate upon the
host of grave and fundamental constitutional #uestions involved ,hich have thereby been rendered
unnecessary to resolve here and no,.
%n the benchmark case of 0ansan+ vs. Garcia
48
,hen the Court declared that the President did not
act arbitrarily in issuing in August, &('& Proclamation ?o. ))(, as amended, suspending the privilege
of the ,rit of *a#eas corpus for persons detained for the crimes of insurrection or rebellion and other
overt acts committed by them in furtherance thereof, the Court held through then Chief .ustice
Concepcion that 4our ne8t step ,ould have been the follo,ing7 he Court, or a commissioner
designated by it, ,ould have received evidence on ,hether K as stated in respondents$ $Ans,er and
!eturn$ K said petitioners had been apprehended and detained $on reasonable belief$ that they had
$participated in the crime of insurrection or rebellion.$
;>o,ever, since in the interval of t,o months during the pendency of the case, criminal complaints
had been filed in court against the petitionersCdetainees ;+u"vimindo David, 3ary 0livar, et al.<, the
Court found that 4it is best to let said preliminary e8amination andFor investigation be completed, so
that petitioners$ release could be ordered by the court of first instance, should it find that there is no
probable cause against them, or a ,arrant for their arrest could be issued should a probable cause
be established against them.4
49
he Court accordingly ordered the trial court 4to act ,ith utmost
dispatch4 in conducting the preliminary investigation for violation of the AntiC-ubversion Act and 4to
issue the corresponding ,arrants of arrest, if probable cause is found to e8ist against them, or
other,ise, to order their release.4<
Can such a procedure for reception of evidence on the controverted allegations concerning the
detention as indicated in 0ansan+ be like,ise applied to petitioner$s case considering his prolonged
detention for almost t,o years no, ,ithout chargesI
30
%t should also be considered that it is
conceded that even though the privilege of the ,rit of *a#eas corpus has been suspended, it is
suspended only as to certain specific crimes and the 4ans,er and return4 of the respondents ,ho
hold the petitioner under detention is not conclusive upon the courts ,hich may receive evidence and
determine as held in 0ansan+ ;and as also provided in the AntiC-ubversion Act G!epublic Act &'99H<
,hether a petitioner has been in ,act apprehended and detained arbitrarily or 4on reasonable belief4
that he has 4participated in the crime of insurrection or rebellion4 or other related offenses as may be
enumerated in the proclamation suspending the privilege of the ,rit.
Pertinent to this #uestion is the Court$s adoption in 0ansan+ of the doctrine of Sterlin+ vs. Constantin
31
enunciated through =.-. Chief .ustice >ughes that even ,hen the state has been placed under
martial la, 4... ;E<hen there is a su#stantial s*o)in+ t*at t*e e6ertion o, state po)er *as overri!!en
private ri+*ts secured by that Constitution, the subject is necessaril one ,or 5u!icial in;uir in an
appropriate proceeding directed against the individuals charged ,ith the transgression. o such a
case the 1ederal judicial po,er e8tends ;Art. A, sec. *< and, so e8tending, t*e court *as all t*e
aut*orit appropriate to its e6ercise. ...
/#ually pertinent is the Court$s statement therein announcing the members$ unanimous conviction
that 4it has the authority to in#uire into the e8istence of said factual bases Gstated in the proclamation
suspending the privilege of the ,rit of *a#eas corpus or placing the country under martial la, as the
case may be, since the re#uirements for the e8ercise of these po,ers are the same and are provided
in the very same clauseH in order to determine the constitutional sufficiency thereof.4
34
he Court
stressed therein that 4indeed, the grant of po,er to suspend the privilege is neither absolute nor
un#ualified. he authority conferred upon by the Constitution, both under the Bill of !ights and under
the /8ecutive Department, is limited and conditional. he precept in the Bill of !ights establishes a
general rule, as ,ell as an e8ception thereto. ,hat is more, it postulates the former in the ne+ative,
evidently to stress its importance, by providing that $;t<he privilege of the ,rit of *a#eas corpus shall
not be suspended ....$ %t is only by ,ay of e6ception that it permits the suspension of the privilege $in
cases of invasion, insurrection, or rebellion$ K or under Art. 6%% of the Constitution, $imminent danger
thereof$ K $,hen the public safety re#uires it, in any of ,hich events the same may be suspended
,herever during such period the necessity for such suspension shall e8ist.$ 1ar from being full and
plenary, the authority to suspend the privilege of the ,rit is thus circumscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its e8istence, but also, as
regards the time ,hen and the place ,here it may be e8ercised. hese factors and the
aforementioned setting or conditions mark, establish and define the e8tent, the confines and the limits
of said po,er, beyond ,hich it does not e8ist. And, like the limitations and restrictions imposed by the
1undamental +a, upon the legislative department, adherence thereto and compliance there,ith may,
,ithin proper bounds, be in#uired into by the courts of justice. 0ther,ise, the e8plicit constitutional
provisions thereon ,ould be meaningless. -urely, the frames of our Constitution could not have
intended to engage in such a ,asteful e8ercise in futility.4
33

Ehile a state of martial la, may bar such judicial in#uiries under the ,rit of *a#eas corpus in the
actual theater of ,ar, ,ould the proscription apply ,hen martial la, is maintained as an instrument of
social reform and the civil courts ;as ,ell as military commissions< are open and freely functioningI
Ehat is the e8tent and scope of the validating provision of Article D6%%, section A ;*< of the ransitory
Provisions of the &('A ConstitutionI
35

3ranting the validation of the initial preventive detention, ,ould the validating provision cover
indefinite detention thereafter or may in#uiry be made as to its reasonable relation to meeting the
emergency situationI
Ehat rights under the Bill of !ights, e.g. the rights to due process and to 4speedy, impartial and public
trial4
35
may be invoked under the present state of martial la,I
%s the e8ercise of martial la, po,ers for the institutionali"ation of reforms incompatible ,ith
recogni"ing the fundamental liberties granted in the Bill of !ightsI
he President is ,ell a,are of the layman$s vie, of the 4central problem of constitutionalism in our
contemporary society ... ,hether or not the Constitution remains an efficient instrument for the
moderation of conflict ,ithin society. here are t,o aspects of this problem. 0ne is the regulation of
freedom in order to prevent anarchy. he other is the limitation of po,er in order to prevent tyranny.4
3:

>ence, he has declared that 4he ?e, -ociety looks to individual rights as a matter of paramount
concern, removed from the vicissitudes of political controversy and beyond the reach of majorities.
Ee are pledged to uphold the Bill of !ights and as the e8igencies may so allo,, ,e are determined
that each provision shall be e8ecuted to the fullest,4
37
and has ackno,ledged that 4martial la,
necessarily creates a command society ... GandH is a te(porar constitutional e8pedient of
safeguarding the republic ...4
38

>e has thus described the proclamation of martial la, and 4the setting up of a corresponding crisis
government4 as constitutional authoritarianism,4 ,hich is a recognition that ,hile his government is
authoritarian it is essentially constitutional and recogni"es the supremacy of the ne, Constitution.
>e has further declared that 4martial la, should have legally terminated on .anuary &', &('A ,hen
the ne, Constitution ,as ratified4 but that 4the Popular clamor manifested in the referendum G,asH
that the ?ational Assembly he temporarily suspended4 and the reaction in the .uly, &('A referendum
4,as violently against stopping the use of martial la, po,ers,4 adding that 4% intend to submit this
matter at least notice a year to the people, and ,hen they say ,e should shift to the normal functions
of government, then ,e ,ill do so.4
39

he reali"ation of the prospects for restoration of normalcy and full implementation of each and every
provision of the Bill of !ights as pledged by the President ,ould then hopefully come sooner rather
than later and provides an additional ,eighty reason for the e8ercise of judicial abstention under the
environmental circumstances and for the granting of the ,ithdra,al motion.
%%. In t*e 3;uino case7 % maintain my original vote as first unanimously agreed by the Court for
dismissal of the *a#eas corpus petition of Benigno -. A#uino, .r. on the ground that grave charges
against him for violation of the AntiC-ubversion Act ;!epublic Act &'99<, etc. ,ere filed in August,
&('A and hence the present petition has been superseded by the prohibition case then filed by him
#uestioning the filing of the charges against him ,ith a military commission rather than ,ith the civil
courts ;,hich case is not yet submitted for decision<.
he said prohibition case involves the same constitutional issues raised in the Diokno case and more,
concerning the constitutionality of having him tried by a military commission for offenses allegedly
committed by him long before the declaration of martial la,. his is evident from the special and
affirmative defenses raised in respondents$ ans,er ,hich filed just last August *&, &('J by the
-olicitor ,hich reiterate the same defenses in his ans,er to the petition at bar. >ence, the same
constitutional issues may ,ell be resolved if necessary in the decision yet to be rendered by the Court
in said prohibition case.
% therefore dissent from the subse#uent vote of the majority to instead pass upon and resolve in
advance the said constitutional issues unnecessarily in the present case.
%%%. In t*e >o!ri+o case7 % submit that the *a#eas corpus petition of 1rancisco 4-oc4 !odrigo as ,ell as
the petitions of those others similarly released should be dismissed for having been rendered moot
and academic by virtue of their release from physical confinement and detention. hat their release
has been made subject to certain conditions ;e.g. not being allo,ed to leave the 3reater Manila area
,ithout specific authori"ation of the military authorities< does not mean that their action ,ould survive,
since 4;<he restraint of liberty ,hich ,ould justify the issuance of the ,rit must be more than a mere
moral restraint: it must be actual or physical .4
50
hey may have some other judicial recourse for the
removal of such restraints but their action for *a#eas corpus cannot survive since they are no longer
deprived of their physical liberty. 1or these reasons and those already e8pounded hereinabove, %
dissent from the majority vote to pass upon and resolve in advance the constitutional issues
unnecessarily in the present case.

%t is to my mind very unfortunate that, for reasons % cannot comprehend or do not deem convincing,
the majority of the Court has agreed that no main opinion be prepared for the decision in these,
cases. >onestly, % feel that the grounds given by the Chief .ustice do not justify a deviation from the
regular practice of a main opinion being prepared by one .ustice even ,hen the members of the
Court are not all agreed as to the grounds of the judgment as long as at least a substantial number of
.ustices concur in the basic ones and there are enough other .ustices concurring in the result to form
the re#uired majority. % do not see such varying substantial disparity in the vie,s of the members of
the Court regarding the different issues here as to call for a summari"ation like the one that ,as
done, ,ith controversial conse#uences, in .avellana. > Actually, the summari"ation made by the Chief
.ustice does not in my opinion portray accurately the spectrum of our vie,s, if one is to assay the
doctrinal value of this decision. he divergence$s stated are % think more apparent than real.
%n any event, it is my considered vie, that a historical decision like this, one likely to be sui +eneris, at
the same time that it is of utmost transcendental importance because it revolves around the proper
construction of the constitutional provisions securing individual rights as they may be, affected by
those empo,ering the 3overnment to defend itself against the threat of internal and e8ternal
aggression, as these are actually operating in the setting of the 0fficial proclamation of the /8ecutive
that rebellion endangering public safety actually e8ists, deserves better treatment from the Court.
%ndeed, % believe that our points of seeming variance respecting the #uestions before us could have
been threshed out, if only enough effort in that direction had been e8erted by all. he trouble is that
from the very beginning many members of the Court, myself included, announced our desire to have
our vie,s recorded for history, hence, individuali"ation rather than consensus became the order of
the day. %n conse#uence, the convenient solution ,as forged that as long as there ,ould be enough
votes to support a legally binding judgment, there need not be any opinion of the Court, everyone
could give his o,n vie,s and the Chief .ustice ,ould just try to analy"e the opinions of those ,ho
,ould care to prepare one and then make a certification of the final result of the voting. %t ,as only at
the last minute that, at my suggestion, supported by .ustice Castro, the Chief$s prepared certification
,as modified to assume the form of a judgment, thereby giving this decision a better semblance of
respectability.
As ,ill be seen, this separate opinion of concurrence is not due to any irreconcilable conflict of
conviction bet,een me and any other member of the Court. ruth to tell, at the early stages of our
efforts to decide these but after the Court had more or less already arrived at a consensus as to the
result, % ,as made to understand that % could prepare the opinion for the Court. Apparently, ho,ever,
for one reason or another, some of our colleagues felt that it is unnecessary to touch on certain
matters contained in the draft % had submitted, incomplete and unedited as it ,as, hence, the plan
,as abandoned. My e8planation that a decision of this import should be addressed in part to the
future and should attempt to ans,er, as best ,e can, not only the #uestions raised by the parties but
also the relevant ones that ,e are certain are bothering many of our countrymen, not to speak of
those ,ho are interested in the correct juridical implications of the unusual political developments
being ,itnessed in the Philippines these days, failed to persuade them. % still feel very strongly,
ho,ever, the need for articulating the thoughts that ,ill enable the ,hole ,orld to visuali"e and
comprehend the e8act length, breath and depth of the juridical foundations of the current
constitutional order and thus be better positioned to render its verdict thereon.
he follo,ing then is the draft of the opinion % prepared for the Court. % feel % need not adjust it to give
it the tenor of an individual opinion. -omething inside me dictates that % should let it stand as % had
originally prepared it. % am emboldened to do this by the conviction that actually, ,hen properly
analy"ed, it ,ill be reali"ed that ,hatever differences there might be in the various opinions ,e are
submitting individually, such differences lie only in the distinctive methods of approach ,e have each
preferred to adopt rather than in any basically substantial and irreconcilable disagreement. %f ,e had
only striven a little more, % am confident, ,e could have even found a common mode of approach. %
am referring, of course, only to those of us ,ho sincerely feel the urgency of resolving the
fundamental issues herein, regardless of purely technical and strained reasons there might be to
apparently justify an attitude of indifference, if not concealed antagonism, to the need for authoritative
judicial clarification of the juridical aspects of the ?e, -ociety in the Philippines.
0n -eptember &&, &('J, petitioner Diokno ,as released by the order of the President, 4under e8isting
rules and regulations.4 he Court has, therefore, resolved that his particular case has become moot
and academic, but this development has not affected the issues insofar as the other petitioners,
particularly -enator A#uino, are concerned. And inasmuch as the principal arguments of petitioner
Diokno, although presented only in the pleadings filed on his behalf, apply ,ith more or less e#ual
force to the other petitioners, % feel that my reference to and discussion of said arguments in my draft
may ,ell be preserved, if only to maintain the purported comprehensiveness of my treatment of all
the important aspects of these cases.
Before proceeding any further, % ,ould like to e8plain ,hy % am saying ,e have no basic
disagreements.
/8cept for .ustices Makasiar and /sguerra ,ho consider the recitals in the Proclamation to be
absolutely conclusive upon the courts and of .ustice eehankee ,ho considers it unnecessary to
e8press any opinion on the matter at this point, the rest or eight of us have actually in#uired into the
constitutional sufficiency of the Proclamation. Ehere ,e have differed is only as to the e8tent and
basis of the in#uiry. Eithout committing themselves e8pressly as to ,hether the issue is justiciable or
other,ise, the Chief .ustice and .ustice Castro unmistakably appear to have actually conducted an
in#uiry ,hich as far as % can see is based on facts ,hich are uncontradicted in the record plus
additional facts of judicial notice. ?o independent evidence has been considered, nor is any reference
made to the evidence on ,hich the President had acted. 0n their part, .ustices Antonio, 1ernande"
and A#uino are of the vie, that the Proclamation is not subject to in#uiry by the courts, but assuming
it is, they are of the conviction that the record amply supports the reasonableness, or lack of
arbitrariness, of the President$s action. Again, in arriving at this latter conclusion, they have relied
e8clusively on the same factual bases utili"ed by the Chief .ustice and .ustice Castro. .ustices
1ernando and MuLo" Palma categorically hold that the issue is justiciable and, on that premise, they
made their o,n in#uiry, but ,ith no other basis than the same undisputed facts in the record and facts
of judicial notice from ,hich the others have dra,n their conclusions. 1or myself, % am just making it
very clear that the in#uiry ,hich the Constitution contemplates for the determination of the
constitutional sufficiency of a proclamation of martial la, by the President should not go beyond facts
of judicial notice and those that may be stated in the proclamation, if these are by their very nature
capable of un#uestionable demonstration. %n other ,ords, eight of us virtually hold that the
/8ecutive$s Proclamation is not absolutely conclusive K but it is not to be interfered ,ith ,henever it
,ith facts undisputed in the record as ,ell as those of judicial notice or capable of un#uest
demonstration. hus, it is obvious that although ,e are split bet,een upholding justiciability or nonC
justiciability, those ,ho believe in the latter have nonetheless conducted an in#uiry, ,hile those ,ho
adhere to the former theory, insisting on follo,ing +ansang, have limited their in#uiry to the
uncontroverted facts and facts of judicial notice. %ndeed, the truth is that no one has asked for in#uiry
into the evidence before the President ,hich is ,hat the real import of justiciability means. %n the final
analysis, none of us has gone beyond ,hat in my humble opinion the Constitution permits in the
premises. %n other ,ords, ,hile a declaration of martial la, is not absolutely conclusive, the Court$s
in#uiry into its constitutional sufficiency may not, contrary to ,hat is implied in +ansang, involve the
reception of evidence to be ,eighed against those on ,hich the President has acted, nor may it
e8tend to the investigation of ,hat evidence the President had before him. -uch in#uiry must be
limited to ,hat is undisputed in the record and to ,hat accords or does not accord ,ith facts of
judicial notice.
1ollo,ing no, is my separate concurring opinion ,hich as % have said is the draft % submitted to the
Court$s approval7
his is a cluster of petitions for *a#eas corpus seeking the release of petitioners from detention, upon
the main ground that, allegedly, Proclamation &9)& issued by President 1erdinand /. Marcos on
-eptember *&, &('* placing the ,hole country under martial la, as ,ell as the general orders
subse#uently issued also by the President by virtue of the said proclamation, pursuant to ,hich
petitioners have been apprehended and detained, t,o of them until the present, ,hile the rest have
been released conditionally, are unconstitutional and null and void, hence their arrest and detention
have no legal basis.
he petitioners in 3. !. ?o. +CABBA) are all journalists, namely, .oa#uin P. !oces, eodoro M.
+ocsin, !olando 1adul, !osalind 3alang, 3o /ng 3uan, Ma8imo M. -oliven, !enato Constantino and
+uis !. Mauricio. heir petition ,as filed at about noon of -eptember *A, &('*.
Almost three hours later of the same day, the petition in 3. !. ?o. +CABBA( ,as filed, ,ith Carmen %.
Diokno, as petitioner, acting on behalf of her husband, .ose E. Diokno, a senator, ,ho is one of
those still detained.
,o days later, early in the morning of -eptember *B, &('*, the petition of Ma8imo 6. -oliven,
?apoleon 3. !ama and .ose Mari 6ele", all media men, ,as docketed as 3. !. ?o. +CABBJ9. he
last t,o ,ere also delegates to the Constitutional Convention of &('&.
%n all the three foregoing cases, the proper ,rits of *a#eas corpus ,ere issued returnable not later
than J799 p.m. of -eptember *B, &('*, and hearing of the petitions ,as held on -eptember *2, &('*.

1

+ate in the afternoon of -eptember *B, &('*, another petition ,as filed on behalf of -enators Benigno
-. A#uino, .r. and !amon 6. Mitra, .r., and former -enator 1rancisco 4-oc4 !odrigo, also a 6
commentator. ;Delegate ?apoleon !ama also appears as petitioner in this case.< %t ,as docketed as
3. !. ?o. +CABBJ2.
he ne8t day, -eptember *2, &('*, a petition ,as filed by 6oltaire 3arcia %%, another delegate to the
Constitutional Convention, as 3. !. ?o. +C ABBJ'.
4

%n this t,o cases the ,rits prayed for ,ere also issued and the petitions ,ere heard together on
-eptember *(, &('*.
%n 3. !. ?o. +CABBB2, the petition ,as filed by an Chin >ian and 6eronica +. @uyitung on -eptember
*', &('*, but the same ,as ,ithdra,n by the latter on 0ctober 2, &('* and the former on 0ctober (,
&('*, since they ,ere released from custody on -eptember A9, &('* and 0ctober (, &('*,
respectively. he Court allo,ed the ,ithdra,als by resolution on 0ctober &&, &('*.
0n 0ctober *, &('*, the petition of journalists Amando Doronila, .uan +. Mercado, >ernando ..
Abaya, /rnesto 3ranada, +uis Beltran, an Chin >ian, ;already a petitioner in 3. !. ?o. +CABBB2<
Bren 3uiao, ;for ,hom a subse#uent petition ,as also filed by his ,ife in 3. !. ?o. +CABB'&, but both
petitions on his behalf ,ere immediately ,ithdra,n ,ith the approval of the Court ,hich ,as given by
resolution on 0ctober &&, &('*< !uben Cusipag, !oberto 0rdoLe", Manuel Almario and Eillie Baun
,as filed in 3. !. ?o.
+CABB2'. All these petitioners, e8cept .uan +. Mercado, Manuel Almario, and !oberto 0rdoLe"
,ithdre, their petition and the Court allo,ed the ,ithdra,als by resolution of 0ctober A, &('*.
And on 0ctober A, &('*, /rnesto !ondon, also a delegate to the Constitutional Convention and a
radio commentator, filed his petition in 3. !. ?o.
+CABB'A.
Again, in all these last four cases, 3. !. ?os., +CABBB2, ABB2', ABB'& and ABB'A, the corresponding
,rits ,ere issued and a joint hearing of the petition ,as held 0ctober 2, &('*, e8cept as to the
petitioners ,ho had as of then announced the ,ithdra,al of their respective petitions.
he returns and ans,ers of the -olicitor 3eneral in all these nine cases, filed on behalf of the
principal respondents, the secretary of ?ational Defense, >on. .uan Ponce /nrile, the Chief of -taff
of the Armed 1orces of the Philippines, 3eneral !omeo /spino, and the Chief of the Philippine
Constabulary, 3eneral 1idel 6. !amos, ,ere practically identical as follo,s7
>ETE>N TO K>IT
an!
3NSKE> TO TCE PETITION
C0M/ ?0E respondents, by the undersigned counsel, and appearing before this >onorable Court
only for purposes of this action, as hereunder set forth, hereby state by ,ay of return to the ,rit and
ans,er to the petition, as follo,s7
3.'ISSIONSL.ENI30S
&. hey ADM% the allegation in paragraphs % and 6 of the Petition:
*. hey ADM% the allegations in paragraph %% of the Petition that the petitioners ,ere arrested on
-eptember **, &('* and are presently detained at 1ort Bonifacio, Makati, !i"al, but -P/C%1%CA++@
D/?@ the allegation that their detention is illegal, the truth being that stated in -pecial and Affirmative
Defenses of this Ans,er and !eturn:
A. hey -P/C%1%CA++@ D/?@ the allegations in paragraphs %%%, %6, 6% and 6%%, of the Petition, the truth of
the matter being that stated in the -pecial and Affirmative Defenses of this Ans,er and !eturn.
!espondents state by ,ay of
SPECI30 3N. 3FFI>'3TI@E .EFENSES
B. Pursuant to said Proclamation , the President issued 3eneral 0rders ?os. &, *, A, ACA, J, B, 2, and '
and +etters of %nstruction ?os. &, * and A. rue copies of these documents are hereto attached and made
integral parts hereof as Anne8es *, A, J, B, 2, ', ), (, &9 and &&. A copy of the President$s statement to
the country on -eptember *A, &('* is also attached as Anne8 &*:
2. 1inally, the petition states no cause of action.
P > 3 Y E >
%? 6%/E E>/!/01, it is respectfully prayed of this >onorable -upreme Court that the petition be
dismissed.
Manila, Philippines, -eptember *', &('*.
At the hearings, the follo,ing ,ellCkno,n and distinguished members of the bar appeared and argued
for the petitioners7 Petitioner Diokno argued on his o,n behalf to supplement the arguments of his
counsel of record: Attys. .oker D. Arroyo appeared and argued for the petitioners in +CABBA) and
+ABB2': 1rancis /. 3architorena, assisted by 0scar Diokno Pere", appeared and argued for the
petitioner in +CABBA(: !amon A. 3on"ales, assisted by Manuel B. %mbong appeared and argued for
the petitioners in
+CABBJ9: -enators 3erardo !o8as and .ovito !. -alonga, assisted by Attys. Pedro +. @ap, -edfrey
A. 0rdoLe", Custodio 0. Parlade, +eopoldo +. Africa, 1rancisco !odrigo .r., Magdaleno Palacol and
Dakila 1. Castro, appeared and argued for the petitioners in
+CABBJ2: Atty. /. 6oltaire 3arcia -r. appeared and argued in behalf of his petitioner son in +CABBJ':
Attys. !aul %. 3oco and eodulo !. Dino appeared for the petitioners in
+CABBB2: Atty. !oberto P. olentino appeared for the petitioner in +CABB'&: and Atty. A#uilino
Pimentel .r. assisted by Atty. Modesto !. 3alias .r. appeared and argued for the petitioner in +C
ABB').
0n 0ctober A&, &('*, former -enator +oren"o M. aLada, together ,ith his la,yerCsons, Attorneys
!enato and Eigberto aLada, entered their appearance as counsel for all the petitioners in 3. !. ?o.
+CABBA), e8cept 1adul, 3alang and 3o /ng 3uan, for petitioner Diokno in 3. !. ?o. +CABBA( and for
petitioners A#uino, Mitra, !odrigo and !ama in 3. !. ?o. +ABBJ2.
1or the respondents, -olicitor 3eneral /stelito P. Mendo"a, Assistant -olicitors 3eneral Bernardo P.
Pardo and !osalio A. de +eon ;both of ,hom are judges no,<, -olicitor !eynato -. Puno ;no,
Assistant -olicitor 3eneral< and -olicitors .ose A. !. Melo and .ose A. .anolo appeared in all the
cases, but only the -olicitor 3eneral argued. +ater, Assistant -olicitor 3eneral 6icente 6. Mendo"a
also appeared and coCsigned all the subse#uent pleadings and memoranda for respondents.
After the hearings of -eptember *2 and *( and 0ctober 2, &('*, the parties ,ere re#uired to file their
respective memoranda. 0n ?ovember (, &('* petitioners in all the filed their consolidated &9(Cpage
memorandum, together ,ith the ans,ers, contained in )2 pages, to some AA #uestions posed by the
Court in its resolution of -eptember *(, &('*, and later, on December &, &('*, an ))Cpage reply to
the memorandum of respondents, ,ith anne8es. %n a separate Manifestation of Compliance and
-ubmission filed simultaneously ,ith their reply, petitioners stressed that7
J. hat undersigned counsel for Petitioners did not ask for any e8tension of the period ,ithin ,hich to file
the !eply Memorandum for Petitioners, despite over,helming pressure of ,ork, because K
a. every day of delay ,ould mean one day more of indescribable misery and anguish on the part of
Petitioners and their families: .
b. any further delay ,ould only diminish ,hatever time is left K more than a month$s time K ,ithin ,hich
this Court can deliberate on and decide these petitions, having in mind some irreversible events ,hich
may plunge this nation into an entirely ne, constitutional order, namely, the approval of the draft of the
proposed Constitution by the Constitutional Convention and the $plebiscite$ ,as scheduled on .anuary &B,
&('A:
c. the proposed Constitution, if $ratified$ might prejudice these petitions, in vie, of the follo,ing transitory
provision7
All proclamations, orders, decrees , instructions, and acts promulgated, issued, or done by the incumbent
after the lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or
superseded by subse#uent proclamations, decrees, instructions, or other acts of the incumbent President,
or unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly. ;Article D6%%,
sec. A, par. * of the proposed Constitution<.
B. %n vie, of the fact that they ,ere arrested and detained allegedly in keeping ,ith the e8isting
Constitution, it is only humane and just that these petitions K to be accorded preference under !ule **,
section & of the !ules of Court K be disposed of ,hile there is still time left, in accordance ,ith the
present Constitution and not in accordance ,ith a ne, constitutional order being ushered in, under the
aegis of a martial rule, the constitutionality and validity of ,hich is the very point at issue in the instant
petitions:
2. -ince, according to the unanimous vie, of the authorities, as cited in their Memorandum, K the
overriding purpose of martial la, is K and cannot go beyond K the preservation of the constitutional
status ;uo, and not to alter it or hasten its alteration, it ,ould be e8tremely unjust and inhuman, to say the
least, to allo, these petitions for the great ,rit of liberty to be imperiled, by virtue of a ne, Constitution K
$submission$ and $ratification of ,hich are being pressed under martial la, K that ,ould purportedly ratify
all /8ecutive edicts issued and acts done under said regime something that has never been done as far
as is kno,n in the entire history of the AngloCAmerican legal system: ;pp. J&JCJ&2, !ollo, +CABBA(.<
At this juncture, it may be stated that as of 0ctober &&, &('*, the follo,ing petitioners had already
,ithdra,n7 Amando Doronila, >ernando .. Abaya, /rnesto 3ranada, +uis Beltran, Bren 3uiao,
!uben Cusipag, Eillie Baun, an Chin >ian and 6eronica +. @uyitung: hence, of the original nine
cases ,ith a total of A* petitioners,
3
only the si8 aboveCentitled cases remain ,ith &) petitioners.
5
he
remaining petitioners are7 .oa#uin P. !oces, eodoro M. +ocsin, -r., !olando 1adul, !osalind
3alang, 3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !. Mauricio, .ose E. Diokno
thru Carmen Diokno, ?apoleon 3. !ama, .ose Mari 6ele", Benigno -. A#uino, !amon 6. Mitra, .r.,
1rancisco -. !odrigo, .uan +. Mercado, !oberto 0rdoLe", Manuel Almario and /rnesto !ondon but
only -enators Diokno and A#uino are still in confinement, the rest having been released under
conditions hereinafter to be discussed. he case of petitioner 3arcia in 3. !. ?o. +CABBJ' is deemed
abated on account of his death.
0ver the opposition of these remaining petitioners, respondents$ counsel ,as given several
e8tensions of their period to file their memorandum, and it ,as not until .anuary &9, &('A that they
,ere able to file their reply of AB pages. Previously, their memorandum of '' pages ,as filed on
?ovember &', &('*. hus, the cases ,ere declared submitted for decision only on 1ebruary *2,
&('A, per resolution of even date, only to be reopened later, as ,ill be stated anon.
%n the mean,hile, practically the same counsel for petitioners in these cases engaged the
government la,yers in another and separate transcendental judicial tussle of t,o stages relative to
the ?e, Constitution. 0n December ', &('*, the first of the soCcalled Plebiscite Cases ;3. !. ?o. +C
AB(*B, Charito Planas vs. Comelec, 3. !. ?o.
+CAB(*(, Pablo C. -anidad vs. Comelec, 3. !. ?o. +CAB(J9, 3erardo !o8as et al. vs. Comelec, 3. !.
?o. +CAB(J&, /ddie B. Monteclaro vs. Comelec, 3. !. ?o. +CAB(J*, -edfrey A. 0rdoLe" vs.
reasurer, 3. !. ?o. +CAB(J), 6idal an vs. Comelec, 3. !. ?o. +CAB(BA, .ose E. Diokno et als. vs.
Comelec, 3. !. ?o. +CAB(2&, .acinto .imene" vs. Comelec, 3. !. ?o. +CAB(2B, !aul M. 3on"ales vs.
Comelec and 3. !. ?o. +CAB('(, /rnesto >idalgo vs. Comelec< ,as filed. hese cases took most of
the time of the Court until .anuary **, &('A, ,hen they ,ere declared moot and academic because
of the issuance of Proclamation &&9* on .anuary &', &('A, but on .anuary *9, &('A, as a se#uel to
the Plebiscite Cases, .osue .avellana filed Case ?o. 3. !. ?o. +CA2&J* against the /8ecutive
-ecretary and the -ecretaries of ?ational Defense, .ustice and 1inance. his started the second
series of cases kno,n as the !atification Cases, namely, said 3. !. ?o. +A2&J* and 3. !. ?o. +C
A2&2J, @i!al Tan vs. T*e E6ecutive Secretar et al., 3. !. ?o.
+CA2&2B, Gerar!o >o6as et al. vs. 3le5an!ro 'elc*or etc. et al., 3. !. ?o. +CA2*A2, E!!ie ".
'onteclaro vs. T*e E6ecutive Secretar, and 3. !. ?o. +CA2*)A, Napoleon @. .ila+ vs. T*e
Conora#le E6ecutive Secretar. he main thrust of these petitions ,as that the ?e, Constitution had
not been validly ratified, hence the 0ld Constitution continued in force and, therefore, ,hatever
provisions the ?e, Constitution might contain tending to validate the proclamations, orders, decrees,
and acts of the incumbent President ,hich are being relied upon for the apprehension and detention
of petitioners, have no legal effect. %n any event, the advent of a ne, constitution naturally entailed
the conse#uence that any #uestion as to the legality of the continued detention of petitioners or of any
restraint of their liberties may not be resolved ,ithout taking into account in one ,ay or another the
pertinent provisions of the ne, charter. Accordingly, the resolution of these t,o series of cases
became a prejudicial matter ,hich the Court had to resolve first. %t ,as not until March A&, &('A that
they ,ere decided adversely to the petitioners therein and it ,as only on April &', &('A that entry of
final judgment ,as made therein.
1rom April &), &('A, the membership of the Court ,as depleted to nine, in vie, of the retirement,
effective on said date, of then Chief .ustice !oberto Concepcion. Eith its nine remaining members,
doubts ,ere e8pressed as to ,hether or not the Court could act on constitutional matters of the
nature and magnitude of those raised in these cases, the re#uired #uorum for the resolution of issues
of unconstitutionality under the ?e, Constitution being ten members. ;-ection * ;*<, Article %D,
Constitution of the Philippines of &('A<. Prescinding from this point, it is a fact that even if it is not
re#uired e8pressly by the Constitution, by the Court$s o,n policy ,hich the Constitution authori"es it
to adopt, all cases involving constitutional #uestions are beard en #anc in ,hich the #uorum and at
the same time the binding vote is of eight .ustices. Eith only nine members out of a possible
membership of fifteen, it ,as not e8actly fair for all concerned that the court should act, particularly in
a case ,hich in truth does not involve only those ,ho are actual parties therein but the ,hole people
as ,ell as the 3overnment of the Philippines. -o, the Court, even as it ,ent on informally discussing
these cases from time to time, preferred to ,ait for the appointment and #ualification of ne,
members, ,hich took place only on 0ctober *(, &('A, ,hen .ustices /stanislao 1ernande", Cecilia
MuLo" Palma and !amon A#uino joined the Court.
Meantime, subse#uent to the resolution of 1ebruary *2, &('A, declaring these cases submitted for
decision, or, more particularly on .une *(, &('A, counsel for petitioner Carmen %. Diokno in 3. !. ?o.
filed a ((Cpage -upplemental Petition and Motion for %mmediate !elease ,hich the Court had to refer
to the respondents, on ,hose behalf, the -olicitor 3eneral filed an ans,er on .uly A9, &(,'A. 0n
August &J, &('A, counsel for petitioner Diokno filed a motion asking that the said petition and motion
be set for hearing, ,hich the Court could not do, in vie, precisely of the #uestion of #uorum. As a
matter of fact, in the related case of "eni+no S. 3;uino, Jr. vs. 'ilitar Co((ission ?o. * et al., 3. !.
?o. +CA'A2J, further reference to ,hich ,ill be made later, a preliminary hearing had to be held by the
Court on -unday, August *J, &('A, on the sole #uestion of ,hether or not ,ith its membership of
nine then, the Court could act on issues of constitutionality of the acts of the President.
At this point, it may be mentioned incidentally that thru several repeated manifestations and motions,
Counsel 1rancis /. 3architorena of Petitioner Diokno invited the attention of the Court not only to
alleged denial to his client of 4the essential access of and freedom to confer and communicate ,ith
counsel4 but also to alleged deplorable subChuman conditions surrounding his detention. And in
relation to said manifestations and motions, on 1ebruary &(, &('A, said petitioner, Diokno, together
,ith petitioner Benigno -. A#uino and joined by their common counsel, -enator +oren"o M. aLada
filed ,ith this Court a petition for mandamus praying that respondents be commanded 4to permit
petitioner aLada to visit and confer freely and actively ,ith petitioners Diokno and A#uino at
reasonable hours pursuant to the provisions of !A )B' and !A &9)A and in pursuance of such
decision, ;to direct said respondents< ;&< to clear the conference room of petitioners of all
representatives of the Armed 1orces and all un,anted third persons, and prohibit their presence: ;*<
to remove or cause the removal of all listening devices and other similar electronic e#uipment from
the conference room of petitioners, ,ith the further direction that no such instruments be hereafter
installed, and ;A< to desist from the practice of e8amining ;a< the notes taken by petitioner aLada of
his conferences ,ith petitioners Diokno and A#uino: and ;b< such other legal documents as petitioner
aLada may bring ,ith him for discussion ,ith said petitioners.4 ;3. !. ?o. +CA2A&B<. 1or obvious
reasons, said petition ,ill be resolved in a separate decision. %t may be stated here, ho,ever, that in
said 3. !. ?o. +CA2A&B, in attention to the complaint made by -enator aLada in his !eply dated
April *, &('A, that Mesdames Diokno and A#uino ,ere not being allo,ed to visit their husbands, and,
,orse, their very ,hereabouts ,ere not being made kno,n to them, on April 2, &('A, after hearing
the e8planations of counsel for therein respondents, the Court issued the follo,ing resolution7
=pon humanitarian considerations the Court !/-0+6/D unanimously to grant, pending further action by
this Court, that portion of the prayer in petitioners$ -upplement andFor Amendment to Petition$ filed on
April 2, &('A that the ,ives and minor children of petitioners Diokno and A#uino be allo,ed to visit them,
subject to such precautions as respondents may deem necessary.
Ee have taken pains to recite all the circumstances surrounding the progress of these cases from
their inception in order to correct the impression conveyed by the pleadings of petitioner Diokno, that
their disposition has been unnecessarily, it not deliberately, delayed. he Court cannot yield to
anyone in being concerned that individual rights and liberties guaranteed by the fundamental la, of
the land are duly protected and safeguarded. %t is fully cogni"ant of ho, important not only to the
petitioners but also to the maintainance of the rule of la, is the issue of legality of the continued
constraints on the freedoms of petitioners. =nder ordinary circumstances, it does not really take the
Court much time to determine ,hether a deprivation of personal liberty is legal or illegal. But, aside
from the unusual procedural setbacks related above, it just happens that the basic issues to resolve
here do not affect only the individual rights of petitioners. %ndeed, the importance of these cases
transcends the interests of those ,ho, like petitioners, have come to the Court. Actually, ,hat is
directly involved here is the issue of the legality of the e8isting government itself. Accordingly, Ee
have to act ,ith utmost care. Besides, in a sense, the legality of the Court$s o,n e8istence is also
involved here, and Ee do not ,ant anyone to even suspect Ee have hurried precipitately to uphold
0urselves.
%n addition to these considerations, it must be borne in mind that there are thousands of other cases
in the Court needing its continued attention. Eith its clogged docket. the Court, could ill afford to give
petitioners any preference that. ,ould entail corresponding injustice to other litigants before it.
Ehat is more, under the ?e, Constitution, the administrative jurisdiction overall lo,er courts,
including the Court Appeals, has been transferred from the Department of .ustice to the -upreme
Court, and because that Department refrained from attending to any administrative function over the
courts since .anuary &', &('A, on April &), &('A, after the !atification Cases became final, Ee found
in 0ur hands a vast accumulation of administrative matters ,hich had to be acted upon ,ithout
further delay, if the smooth and orderly functioning of the courts had to be maintained. And, of course.
the Court has to continuously attend to its ne, administrative ,ork from day to day, ,hat ,ith all
kinds of complaints and charges being filed daily against judges, clerks of court and other officers and
employees of the different courts all over the country, ,hich the Court en #anc has to tackle. %t should
not be surprising at all that a great portion of our sessions en #anc has to be devoted to the
consideration and disposition of such administrative matters.
1urthermore, in this same connection, account must also be taken of the fact that the transfer of the
administrative functions of the Department to the Court naturally entailed problems and difficulties
,hich consumed 0ur time, if only because some of the personnel had to ac#uaint themselves ,ith
the ne, functions entrusted to them, ,hile corresponding adjustments had to be made in the duties
and functions of the personnel affected by the transfer.
P!/+%M%?A!@ %--=/-
?o,, before proceeding to the discussion and resolution of the issues in the pending petitions, t,o
preliminary matters call for disposition, namely, first, the motion of petitioner .ose E. Diokno, thru
counsel -enator aLada, to be allo,ed to ,ithdra, his basic petition and second, the objection of
petitioner, 1rancisco 4-oc4 !odrigo, to the Court$s considering his petition as moot and academic as a
conse#uence of his having been released from his place of confinement in 1ort Bonifacio. !elated to
the latter is the e8press manifestation of the other petitioners7 .oa#uin P. !oces, eodoro M. +ocsin,
-r., !olando 1adul, !osalind 3alang, 3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !.
Mauricio, ?apoleon 3. !ama, .ose Mari 6ele". !amon 6. Mitra, .r., .uan +. Mercado, !oberto
0rdoLe", Manuel Almario and /rnesto !ondon to the effect that they remain as petitioners,
not,ithstanding their having been released ;under the same conditions as those imposed on
petitioner !odrigo thereby implying that they are not ,ithdra,ing, as, in fact, they have not ,ithdra,al
their petitions and ,ould ,ish them resolved on their merits.;Manifestation of counsel for petitioners
dated March &B, &('J.<
%
Anent petitioner Diokno$s motion to ,ithdra,, only seven members of the Court, namely, Chief
.ustice Makalintal and .ustices 5aldivar, 1ernando, eehankee, MuLo" Palma, A#uino and the ,riter
of this opinion, voted to grant the same. -aid number being short of the eight votes re#uired for
binding action of the Court en #anc even in an incident, pursuant to -ection && of !ule B2, the said
motion is denied, ,ithout prejudice to the right of each member of the Court to render his individual
opinion in regard to said motion.
5

0ne of the reason vigorously advanced by petitioner Diokno in his motion to ,ithdra, is that he
cannot submit his case to the -upreme Court as it is presently constituted, because it is different from
the one in ,hich he filed his petition, and that, furthermore, he is invoking, not the present or ?e,
Constitution of the Philippines the incumbent .ustices have no, s,orn to protect and defend but the
Constitution of &(AB
:
under ,hich they ,ere serving before. %ndeed, in the 4Manifestation of
Compliance and -ubmission4 filed by his counsel as early as December &, &('A, a similar feeling ,as
already indicated, as may be gathered from the portions thereof #uoted earlier in this opinion.
>ad petitioner reiterated and insisted on the position asserted by him in said manifestation shortly
after the ratification of the ?e, Constitution on .anuary &', &('A or even later, after the decision of
this Court in the !atification Cases became final on April &', &('A, perhaps, there could have been
some kind of justification for 0ur then and there declaring his petition moot and academic,
considering his personal attitude of refusing to recogni"e the passing out of the &(AB constitution and
of the -upreme Court under it. But the fact is that as late as .une *(, &('A, more than si8 months
after the ratification of the ?e, Constitution and more than t,o months after this Court had declared
that 4there is no more judicial obstacle to the ?e, Constitution being considered as in force and
effect4, petitioner Diokno, thru counsel aLada, riled a 4-upplemental Petition and Motion for
%mmediate !elease4 ,herein nary a ,ord may be found suggesting the point that both the
Constitution he is invoking and the Court he has submitted his petition to have already passed into
ine8istence. 0n the contrary, he insisted in this last motion that 4an order be issued ;by this Court<
directing respondents to immediately file charges against him if they have evidence supporting the
same.4 Be it noted, in this connection, that by resolution of the Court of .une &, &('A, it had already
implemented the provisions on the .udiciary of the ?e, Constitution and had constituted itself ,ith its
nine members into the 1irst Division, thereby making it unmistakably clear that it ,as already
operating as the -upreme Court under the ?e, Constitution. he fact no, capitali"ed by petitioner
that the .ustices took the oath only on 0ctober *(, &('A is of no signer, the truth being that neither
the .ustices$ continuation in office after the ?e, Constitution took effect nor the validity or propriety of
the Court$s resolution of .une &, &('A just mentioned ,ere #uestioned by him before. Accordingly,
the Motion in his motion to ,ithdra, relative to the ?e, Constitution and the present -upreme Court
appear to be obvious afterthoughts intended only to tend color to his refusal to have the issue of
alleged illegality of his detention duly resolved, reali"ing perchance the untenability thereof and the
inevitability of the denial of his petition, albeit none of this ,ill ever be admitted, as may be gathered
from his manifestation that he ,ould not ,ant to have anything to do ,ith any ruling of the Court
adverse to his pretensions. .ust the same, the ne, oaths of the .ustices and the applicability hereto
of the 0ld and the ?e, Constitution ,ill be discussed in another part of this opinion, if only to satisfy
the curiosity of petitioner.
Although the other petitioners have not joined the subject ,ithdra,al motion, it might just as ,ell be
stated, for ,hatever relevant purpose it may serve, that, ,ith particular reference to petitioner
!odrigo, as late as ?ovember *',&('A, after three ne, justices ,ere added to the membership of the
Court in partial obedience to the mandate of the ?e, Constitution increasing its total membership to
fifteen, and after the Court had, by resolution of ?ovember &B, &('A, already constituted itself into t,o
divisions of si8 .ustices each, said petitioner filed a Manifestation 4for the purpose of sho,ing that,
insofar as ;he< herein petitioner is concerned, his petition for *a#eas corpus is not moot and
academic.4 ?otably, this manifestation deals specifically ,ith the matter of his 4conditional release4 as
being still a ground for *a#eas corpus but does not even suggest the fundamental change of
circumstances relied upon in petitioner Diokno$s motion to ,ithdra,. 0n the contrary, said
manifestation indicates unconditional submission of said petitioner to the jurisdiction of this Court as
presently constituted. 0f similar tenor is the manifestation of counsel for the remaining petitioners in
these cases dated March &B, &('J. %n other ,ords, it appears #uite clearly that petitioners should be
deemed as having submitted to the jurisdiction of the -upreme Court as it is presently constituted in
order that it may resolve their petitions for *a#eas corpus even in the light of the provisions of the
?e, Constitution.
%%
Coming no, to the conditions attached to the release of the petitioners other than -enators Diokno
and A#uino, it is to be noted that they ,ere all given identical release papers reading as follo,s7
>/ADP=A!/!-
B> M%+%A!@ %?/++%3/?C/ 3!0=P, %-A1P
Camp 3eneral /milio Aguinaldo
Pue"on City
MB2P B December &('*
Any violation of these provisions ,ould subject you to immediate arrest and confinement.
0ffice indicating the provincial address and e8pected duration of stay thereat. Contact this 0ffice through
;-3D.< MA!%A?0 3. M%!A?DA
+t. Colonel PA
3roup Commander
P 0 E . G E
% >/!/B@ P+/D3/ to conduct myself accordingly and ,ill not engage in any subversive activity. %
,ill immediately report any subversive activity that ,ill come to my kno,ledge.
;-3D.< 1. !0D!%30
Address7 29 .uana !odrigue"
Pue"on City
el ?o. '9C*BC22: '9J(C*9
'9C*'CBB
%t is the submission of these petitioners that their release under the foregoing conditions is not
absolute, hence their present cases before the Court have not become moot and academic and
should not be dismissed ,ithout consideration of the merits thereof. hey claim that in truth they have
not been freed, because actually, ,hat has been done to them is only to enlarge or e8pand the area
of their confinement in order to include the ,hole 3reater Manila area instead of being limited by the
boundaries of the army camps ,herein they ,ere previously detained. hey say that although they
are allo,ed to go else,here, they can do so only if e8pressly and specifically permitted by the army
authorities, and this is nothing ne,, since they could also go out of the camps before ,ith proper
passes. hey maintain that they never accepted the above conditions voluntarily. %n other ,ords, it is
their position that they are in actual fact being still so detained and restrained of their liberty against
their ,ill as to entitle them in la, to the remedy of *a#eas corpus.
Ee find merit in this particular submittal regarding the reach of *a#eas corpus. Ee readily agree that
the fundamental la, of the land does not countenance the diminution or restriction of the individual
freedoms of any person in the Philippines ,ithout due process of la,. ?o one in this country may
suffer, against his ,ill, any kind or degree of constraint upon his right to go to any place not prohibited
by la,, ,ithout being entitled to this great ,rit of liberty, for it has not been designed only against
illegal and involuntary detention in jails, prisons and concentration camps, but for all forms and
degrees of restraint, ,ithout authority of la, or the consent of the person concerned, upon his
freedom to move freely, irrespective of ,hether the area ,ithin ,hich he is confined is small or large,
as long as it is not coCe8tensive ,ith that ,hich may be freely reached by anybody else, given the
desire and the means. More than half a century ago in &(&(, this Court already dre, the broad and
allCencompassing scope of *a#eas corpus in these une#uivocal ,ords7 4A prime specification of an
application for a ,rit of *a#eas corpus is restraint of liberty. he essential object and purpose of the
,rit of *a#eas corpus is to in#uire into all manners of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint ,hich ,ill
preclude freedom of action is sufficient.4
:
> here is no reason at all at this time, hopefully there ,ill
never be any in the future, to detract a ,hit from this noble attitude. Definitely, the conditions under
,hich petitioners have been released fall short of restoring to them the freedom to ,hich they are
constitutionally entitled. 0nly a sho,ing that the imposition of said conditions is authori"ed by la, can
stand in the ,ay of an order that they be immediately and completely ,ithdra,n by the proper
authorities so that the petitioners may again be free men as ,e are.
And so, Ee come to the basic #uestion in these cases7 Are petitioners being detained or other,ise
restrained of liberty, evidently against their ,ill, ,ithout authority of la, and due processI
TCE F3CTS
Aside from those already made reference to above, the other background facts of these cases are as
follo,s7
0n -eptember *&, &('*, President 1erdinand /. Marcos
7
signed the follo,ing proclamation7
P>OC03'3TION NO. $F&$
P!0C+A%M%?3 A -A/ 01 MA!%A+ +AE
%? >/ P>%+%PP%?/-
E>/!/A-, on the basis of carefully evaluated and verified information, it is definitely established that
la,less elements ,ho are moved by a common or similar ideological conviction, design, strategy and goal
and enjoying the active moral and material support of a foreign po,er and being guided and directed by
intensely devoted, ,ell trained, determined and ruthless groups of men and seeking refuge under the
protection of our constitutional liberties to promote and attain their ends, have entered into a conspiracy
and have in fact joined and banded their resources and forces together for the prime purpose of, and in
fact they have been and are actually staging, undertaking and ,aging an armed insurrection and rebellion
against the 3overnment of the !epublic of the Philippines in order to forcibly sei"e political and state
po,er in this country, overthro, the duly constituted 3overnment, and supplant our e8isting political,
social, economic and legal order ,ith an entirely ne, one ,hose form of government, ,hose system of
la,s, ,hose conception of 3od and religion, ,hose notion of individual rights and family relations, and
,hose political, social, economic, legal and moral precepts are based on the Mar8istC+eninistCMaoist
teachings and beliefs:
E>/!/A-, these la,less elements, acting in concert through seemingly innocent and harmless,
although actually destructive, front organi"ations ,hich have been infiltrated or deliberately formed by
them, have continuously and systematically strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of ne, adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such sustained and careful
recruitment and enlistment have succeeded in spreading and e8panding their control and influence over
almost every segment and level of our society throughout the land in their ceaseless effort to erode and
,eaken the political, social, economic, legal and moral foundations of our e8isting 3overnment, and to
influence, manipulate and move peasant, labor, student and terroristic organi"ations under their influence
or control to commit, as in fact they have committed and still are committing, acts of violence,
depredations, sabotage and injuries against our duly constituted authorities, against the members of our
la, enforcement agencies, and ,orst of all, against the peaceful members of our society:
E>/!/A-, in the fanatical pursuit of their conspiracy and ,idespread acts of violence, depredations,
sabotage and injuries against our people, and in order to provide the essential instrument to direct and
carry out their criminal design and unla,ful activities, and to achieve their ultimate sinister objectives,
these la,less elements have in fact organi"ed, established and are no, maintaining a Central
Committee, composed of young and dedicated radical students and intellectuals, ,hich is charged ,ith
guiding and directing the armed struggle and propaganda assaults against our duly constituted
3overnment, and this Central Committee is no, imposing its ,ill and asserting its sham authority on
certain segments of our population, especially in the rural areas, through varied means of subterfuge,
deceit, coercion, threats, intimidation$s, machinations, treachery, violence and other modes of terror, and
has been and is illegally e8acting financial and other forms of contributes from our people to raise funds
and material resources to support its insurrectionary and propaganda activities against our duly
constituted 3overnment and against our peaceCloving people:
E>/!/A-, in order to carry out, as in fact they have carried out, their premeditated plan to stage,
undertake and ,age a full scale armed insurrection and rebellion in this country, these la,less elements
have organi"ed, established and are no, maintaining a ,ell trained, ,ell armed and highly indoctrinated
and greatly e8panded insurrectionary force, popularly kno,n as the $?e, People$s Army$ ,hich has since
vigorously pursued and still is vigorously pursuing a relentless and ruthless armed struggle against our
duly constituted 3overnment and ,hose unmitigated forays, raids, ambuscades assaults and reign of
terror and acts of la,lessness in the rural areas and in our urban centers brought about the treacherous
and coldCblooded assassination of innocent civilians, military personnel of the 3overnment and local
public officials in many parts of the country, notably in the Cagayan 6alley, in Central +u"on, in the
-outhern agalog !egion, in the Bicol Area, in the 6isayas and in Mindanao and ,hose daring and
,anton guerrilla activities have generated and fear and panic among our people, have created a climate
of chaos and disorder, produced a state of political, social, psychological and economic instability in our
land, and have inflicted great suffering and irreparable injury to persons and property in our society:
E>/!/A-, these la,less elements, their cadres, fello,men, friends, sympathi"ers and supporters have
for many years up to the present time been mounting sustained, massive and destructive propaganda
assaults against our duly constituted 3overnment its intrumentalities, agencies and officials, and also
against our social, political, economic and religious institutions, through the publications, broadcasts and
dissemination$s of deliberately slanted and overly e8aggerated ne,s stories and ne,s commentaries as
,ell as false , vile, foul and scurrilous statements, utterances, ,ritings and pictures through the pressC
radioCtelevision media and through leaflets, college campus ne,spapers and some ne,spapers
published and still being published by these la,less elements, notably the $Ang Bayan,$ $Pulang Bandila$
and the $Ang Nomunista,$ all of ,hich are clearly ,ellCconceived, intended and calculated to malign and
discredit our duly constituted 3overnment, its instrumentalities, agencies and officials before our people,
and thus undermine and destroy the faith and loyalty and allegiance of our people in and alienate their
support for their duly constituted 3overnment, its instrumentalities, agencies and officials, and thereby
gradually erode and ,eaken as in fact they had so eroded and ,eakened the ,ill of our people to sustain
and defend our 3overnment and our democratic ,ay of life:
E>/!/A-, these la,less elements having taken up arms against our duly constituted 3overnment and
against our people, and having committed and are still committing acts of armed insurrection and
rebellion consisting of armed raids, forays, sorties, ambushes, ,anton acts of murders, spoilage, plunder,
looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless
civilian lives and property, all of ,hich activities have seriously endangered and continue to endanger
public order and safety and the security of the nation, and acting ,ith cunning and manifest precision and
deliberation and ,ithout regard to the health, safety and ,ellCbeing of the people, are no, implementing
their plan to cause ,ide spread, massive and systematic destruction and paraly"ation of vital public
utilities and service particularly ,ater systems, sources of electrical po,er, communication and
transportation facilities, to the great detriment, suffering, injury and prejudice of our people and the nation
and to generate a deep psychological fear and panic among our people:
E>/!/A-, the -upreme Court in the cases brought before it, docketed as 3. !. ?os. +CAA(2J, +CAA(2B,
+CAA('A, +CAA()*, +CAJ99J, +CAJ9&A, +CAJ9A(, +CAJ*2B, and +CAJAA(, as a conse#uence of the
suspension of the privilege of the ,rit of *a#eas corpus by me as President of the Philippines in my
Proclamation ?o. ))(, dated August *&, &('&, as amended, has found that in truth and in fact there e8ists
an actual insurrection and rebellion in the country by a si"eable group of men ,ho have publicly risen in
arms to overthro, the 3overnment. >ere is ,hat the -upreme Court said in its decision promulgated on
December &&, &('&7
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in
Manila, from the late t,enties to the early thirties, then aimed principally at incitement to sedition or
rebellion, as the immediate objective. =pon the establishment of the Common,ealth of the
Philippines, the movement seemed to have ,arned notably: but, the outbreak of Eorld Ear %% in the
Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms
concomitant ,ith the military occupation of the Philippines and its subse#uent liberation, brought
about, in the late forties, a resurgence of the Communist threat, ,ith such vigor as to be able to
organi"e and operate in Central +u"on an army K called >=NBA+A>AP, during the occupation, and
renamed >ukbong Mapagpalaya ng Bayan ;>MB< after liberation K ,hich clashed several times ,ith
the Armed 1orces of the !epublic. his prompted then President Puirino to issue Proclamation ?o.
*&9, dated 0ctober **, &(B9, suspending the privilege of the ,rit of *a#eas corpus the validity of
,hich ,as upheld in 'ontene+ro v. CastaAe!a. Days before the promulgation of said Proclamation,
or on 0ctober &), &(B9, members of the Communist Politburo in the Philippines ,ere apprehended in
Manila. -ubse#uently accused and convicted of the crime of rebellion, they served their respective
sentences.
approved, upon the grounds stated in the very preamble of said statute K that
... the Communist Party of the Philippines, although purportedly a political party, is in fact an organi"ed
conspiracy to overthro, the 3overnment of the !epublic of the Philippines, not only by force and violence
but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a
totalitarian regime subject to alien domination and control,
... the continued e8istence and activities of the Communist Party of the Philippines constitutes a clear,
present and grave danger to the security of the Philippines: and
... in the face of the organi"ed, systematic and persistent subversion, national in scope but international in
direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for
special legislation to cope ,ith this continuing menace to the freedom and security of the country ....
Committee of -even K copy of ,hich !eport ,as filed in these cases by the petitioners herein K
he years follo,ing &(2A sa, the successive emergence in the country of several mass organi"ations,
notably the +apiang Manggaga,a ;no, the -ocialist Party of the Philippines< among the ,orkers, the
Malayang -amahan ng mga Magsasaka ;MA-ANA< among the peasantry: the Nabataang Makabayan
;NM< among the youthFstudents: and the Movement for the Advancement of ?ationalism ;MA?< among
the intellectualsFprofessionals, the PNP has e8erted allCout effort to infiltrate, influence and utili"e these
organi"ations in promoting its radical brand of nationalism.
Democratic !evolution states, inter alia7
he Communist Party of the Philippines is determined to implement its general programme for a people$s
independent, democratic, united, just and prosperous ...
he central task of any revolutionary movement is to sei"e political po,er. he Communist Party of the
Philippines assumes this task at a time that both the international and national situations are favorable, to
taking the road of armed revolution ...
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over *A9, in
or to the Maoist faction, believe that force and violence are indispensable to the attainment of their main
and ultimate objective, and act in accordance ,ith such belief, although they disagree on the means to be
used at a given time and in a particular place: and ;b< there is a ?e, People$s Army, other, of course,
than the Armed 1orces of the !epublic and antagonistic thereto. -uch ?e, People$s Army is per se proof
of the e8istence of the rebellion, especially considering that its establishment ,as announced publicly by
the reorgani"ed CPP. -uch announcement is in the nature of a public challenge to the duly constitution
Authorities and may be likened to a declaration of ,ar, sufficient to establish a ,ar status or a condition of
belligerency even before the actual commencement of hostilities.
Ee entertain therefore, no doubts about the e8istence of a si"eable group of men ,ho have publicly risen
in arms to overthro, the 3overnment and have thus been and still are engage in rebellion against the
3overnment of the Philippines.
E>/!/A-, these la,less elements have to a considerable e8tent succeeded in impeding our duly
constituted authorities from performing their functions and discharging their duties and responsibilities in
accordance ,ith our la,s and our Constitution to the great damage, prejudice and detriment of the people
and the nation:
E>/!/A-, it is evident that there is throughout the land a state of anarchy and la,lessness, chaos and
disorder, turmoil and destruction of a magnitude e#uivalent to an actual ,ar bet,een the forces of our
duly constituted 3overnment and the ?e, People$s Army and their satellite organi"ations because of the
unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror,
deceits, coercions, threats, intimidation$s, treachery, machinations, arsons, plunders and depredations
committed and being committed by the aforesaid la,less elements ,ho have pledged to the ,hole nation
that they ,ill not stop their dastardly effort and scheme until and unless they have fully attained their
primary and ultimate purpose of forcibly sei"ing political and state po,er in this country by overthro,ing
our present duly constituted 3overnment, by destroying our democratic ,ay of life and our established
secular and religious institutions and beliefs, and by supplanting our e8isting political, social, economic,
legal and moral order ,ith an entirely ne, one ,hose form of government, ,hose motion of individual
rights and family relations, and ,hose political, social, economic and moral precepts are based Con the
Mar8istC+eninistCMaoist teachings and beliefs:
E>/!/A-, the -upreme Court in its said decision concluded that the unla,ful activities of the aforesaid
la,less elements actually pose a clear, present and grave danger to public safety and the security of the
nation and in support of that conclusion found that7
... the /8ecutive had information and reports K subse#uently confirmed, in many by the aboveCmentioned
!eport of the -enate Ad >oc Committee of -even C to the effect that the Communist Party of the
Philippines does not merely adhere to +enin$s idea of a s,ift armed uprising that it has, also, adopted >o
Chi Minh$s terrorist tactics and resorted to the assassination of uncooperative local officials that, in line
,ith this policy, the insurgents have killed B mayors, *9 barrio captains and A chiefs of police: that there
,ere fourteen ;&J< meaningful bombing incidents in the 3reater Manila Area in &('9: that the
Constitutional Convention >all ,as bombed on .une &*, &('&: that, soon after the Pla"a Miranda
incident, the ?AEA-A main pipe at the Pue"on CityC-an .uan boundary ,as bombed: that this ,as
follo,ed closely by the bombing of the Manila City >all, the C0M/+/C Building, the Congress Building
and the M/!A+C0 subCstation at Cubao, Pue"on City: and that the respective residences of -enator
.ose .. !oy and Congressman /duardo Cojuangco ,ere, like,ise, bombed, as ,ere the M/!A+C0
main office premises, along 0rtigas Avenue, and the Doctor$s Pharmaceuticals, %nc. Building, in Caloocan
City.
... the reorgani"ed Communist Party of the Philippines has, moreover, adopted Mao$s concept of
protracted people$s ,ar, aimed at the paraly"ation of the ,ill to resist of the 3overnment, of the political,
economic and intellectual leadership, and of the people themselves: that conformably to such concept,
the Party has placed special emphasis upon a most e8tensive and intensive program of subversion be the
CPP interests, among ,hich are the Malayang -amahan ng Magsasaka;MA-ANA<, the Nabataang
ng Nabataan ;-DN<, the -amahang Molave ;-M< and the Malayang Pagkakaisa ng Nabataang Pilipino
throughout the Philippines of ,hich seventyCthree ;'A< ,ere in the 3reater Manila Area, si8ty ;29< in
demonstrations, of ,hich about thirtyCthree ;AA< ended in violence, resulting in fifteen ;&B< killed and over
but ,ellCtrained group of armed agitators: that the number of demonstrations heretofore staged in &('&
has already e8ceeded those of &('9: and that t,entyCfour ;*J< of these demonstrations ,ere violent, and
-ubse#uent events ... have also proven ... the threat to public safety posed by the ?e, People$s Army.
%ndeed, it appears that, since August *&, &('&, it had in ?orthern +u"on si8 ;2< encounters and staged
one ;&< raid, in conse#uences of ,hich seven soldiers lost their lives and t,o ;*< others ,ere ,ounded,
,hereas the insurgents suffered five ;B< casualties: that on August *2, &('&, a ,ellCarmed group of ?PA,
trained by defector +t. 6ictor Corpus, attacked the very command post of 1 +AE%? in %sabela, destroying
t,o ;*< helicopters and one ;&< plane, and ,ounding one ;&< soldier: that the ?PA had in Central +u"on a
total of four ;J< encounters, ,ith t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one
;&< B-D= killed and three ;A< NM-DN leader, an unidentified dissident, and Commander Panchito, leader
of the dissident group ,ere killed that on August *2, &('&, there ,as an encounter in the barrio of -an
Pedro, %riga City, Camarines -ur, bet,een the PC and the ?PA, in ,hich a PC and t,o ;*< NM members
,ere killed: that the current disturbances in Cotabato and the +anao provinces have been rendered more
comple8 by the involvement of the CPPF?PA, for, in midC&('&, a NM group, headed by .ovencio
/sparago"a, contacted the >igaonan tribes, in their settlement in Magsaysay, Misamis 0riental, and
offered them books, pamphlets and brochures of Mao se ung, as ,ell as conducted teachCins in the
reservation: that /sparago"a ,as reportedly killed on -eptember **, &('&, in an operation of the PC in
said reservation: and that there are no, t,o ;*< ?PA cadres in Mindanao.
%t should, also be noted that adherents of the CPP and its front organi"ations are, according to
that the bomb used in the Constitutional Convention >all ,as a $Claymore$ mine, a po,erful e8plosive
device used by the =.-. Army, believed to have been one of many pilfered from the -ubic ?aval Base a
.ulyCAugust Plan involving a ,ave of assassinations, kidnappings, terrorism and mass destruction of
discharges other functions, and that the e8pansion of the CPP activities from Central +u"on to other parts
of the country, particularly Manila and its suburbs, the Cagayan 6alley, %fugao, 5ambales, +aguna,
Pue"on and the Bicol !egion, re#uired that the rest of our armed forces be spread thin over a ,ide area.
E>/!/A-, in the un,avering prosecution of their revolutionary ,ar against the 1ilipino people and their
duly constituted 3overnment, the aforesaid la,less elements have, in the months of May, .une and .uly,
&('*, succeeded in bringing and introducing into the country at Digoyo Point, Palanan, %sabela and at
other undetermined points along the Pacific coastline of +u"on, a substantial #uantity of ,ar material
consisting of MC&J rifles estimated to be some A,B99 pieces, several do"ens of J9 mm rocket launchers
,hich are said to be Chicom copies of a !ussian prototype rocket launcher, large #uantities of )9 mm
rockets and ammunitions, and other combat paraphernalia, of ,hich ,ar material some had been
discovered and captured by government military forces, and the bringing and introduction of such #uantity
and type of ,ar material into the country is a mute but elo#uent proof of the sinister plan of the aforesaid
la,yers elements to hasten the escalation of their present revolutionary ,ar against the 1ilipino people
and their legitimate 3overnment:
E>/!/A-, in the e8ecution of their overall revolutionary plan, the aforesaid la,less elements have
prepared and released to their various field commanders and Party ,orkers a document captioned
$!/3%0?A+ P!03!AM 01 AC%0? &('*,$ a copy of ,hich ,as captured by elements of the &&2th and
&&(th Philippine Constabulary Companies on .une &), &('* at Barrio aringsing, Cordon, %sabela, the
te8t of ,hich reads as follo,s7
!/3%0?A+ P!03!AM 01 AC%0? &('*
he follo,ing !egional Program of Action &('* is prepared to be carried out as part of the overall
plan of the party to foment discontent and precipitate the tide of nation,ide mass revolution. he
fascist Marcos and his reactionary of Congress is e8pected to prepare themselves for the &('A
hence7
.anuary K .une7
&. %ntensify recruitment of ne, party members especially from the ,orkersCfarmers class. Cadres are
being trained in order to organi"e the different regional bureaus. hese bureaus must concentrate on
mass action and organi"ation to advancement of the mass revolutionary movement. !eference is to the
$Borador ng Programa sa Pagkilos at =lat ng Panlipunang Pagsisiyasat$ as approved by the Central
Committee.
*. !ecruit and train armed city partisans and urban guerrillas and organi"e them into units under Party
cadres and activities of mass organi"ations. hese units must undergo speciali"ed training on e8plosives
and demolition and other and other forms of sabotage.
A. %ntensify recruitment and training of ne, members for the ?e, People$s Army in preparation for limited
offensive in selected areas in the regions.
J. -upport a more aggressive program of agitation and proraganda against the reactionary armed forces
and against the ConCCon.
.uly K August7
During this period the Party e8pects the puppet Marcos government to allo, increase in bus rates thus
aggravating further the plight of students, ,orkers and the farmers.
&. All !egional Party Committees must plan for a general strike movement. he !egional 0perational
Commands must plan for armed support if the fascist forces of Marcos ,ill try to intimidate the oppressed
1ilipino masses.
*. Conduct sabotage against schools, colleges and universities hiking tuition fees.
A. Conduct sabotage and agitation against puppet judges and courts hearing cases against top party
leaders.
J. Create regional chaos and disorder to dramati"e the inability of the fascist Marcos 3overnment to keep
and maintain peace and order thru7
a< !obbery and holdCup of banks controlled by American imperialists and those belonging
to the enemies of the people.
b< Attack military camps, =- bases and to,ns.
c< More violent strikes and demonstrations.
-eptember K 0ctober7
%ncrease intensity of violence, disorder and confusion7
&. %ntensify sabotage and bombing of government buildings and embassies and other utilities7
a< Congress.
b< -upreme Court.
c< ConCCon.
d< City >all.
e< =- /mbassy.
f< 1acilities of =- Bases.
g< Provincial Capitols.
h< Po,er Plants.
i< P+D.
j< !adio -tations.
*. -poradic attacks on camps, to,ns and cities.
A. Assassinate high 3overnment officials of Congress, .udiciary, ConCCon and private individuals
sympathetic to puppet Marcos.
J. /stablish provisional revolutionary government in to,ns and cities ,ith the support of the masses.
B. Eith the sympathetic support of our allies, establish provisional provincial revolutionary governments.
C/?!A+ C0MM%//
C0MM=?%- PA!@ 01 >/
P>%+%PP%?/-
E>/!/A-, in line ,ith their $!/3%0?A+ P!03!AM 01 AC%0? &('*,$ the aforesaid la,less elements
have of late been conducting intensified acts of violence and terrorism$s during the current year in the
3reater Manila Area such as the bombing of the Arca building at aft Avenue, Pasay City, on March &B:
of the 1ilipinas 0rient Air,ays board room at Domestic !oad, Pasay City on April *A: of the 6ietnamese
/mbassy on May A9: of the Court of %ndustrial !elations on .une *A: of the Philippine rust Company
branch office in Cubao, Pue"on City on .une *J: of the Philamlife building at =nited ?ations Avenue,
Manila, on .uly A: of the abacalera Cigar M Cigarette 1actory Compound at Mar#ue" de Comillas,
Manila on .uly *': of the P+D e8change office at /ast Avenue, Pue"on City, and of the Philippine -ugar
%nstitute building at ?orth Avenue, Diliman, Pue"on City, both on August &B: of the Department of -ocial
Eelfare building at -an !afael -treet, -ampaloc, Manila, on August &': of a ,ater main on Aurora
Boulevard and Madison Avenue, Pue"on City on August &(: of the Philamlife building again on August
A9: this time causing severe destruction on the 1ar /ast Bank and rust Company building nearby of the
armored car and building of the Philippine Banking Corporation as ,ell as the buildings of the %nvestment
Development, %nc. and the Daily -tar Publications ,hen another e8plosion took place on !ailroad -treet,
Port Area, Manila also on August A9: of .oe$s Department -tore on Cariedo -treet, Puiapo, Manila, on
-eptember B, causing death to one ,oman and injuries to some A) individuals: and of the City >all of
Manila on -eptember ): of the ,ater mains in -an .uan, !i"al on -eptember &*: of the -an Miguel
Building in Makati, !i"al on -eptember &J: and of the Pue"on City >all on -eptember &), &('*, as ,ell
as the attempted bombing of the Congress Building on .uly &), ,hen an une8ploded bomb ,as found in
the -enate Publication Division and the attempted bombing of the Department of 1oreign Affairs on
August A9:
E>/!/A-, in line ,ith the same $!/3%0?A+ P!03!AM 01 AC%0? &('*,$ the aforesaid la,less
elements have also fielded in the 3reater Manila area several of their $-parro, =nits$ or $-imbad =nits$ to
undertake li#uidation missions against ranking government officials, military personnel and prominent
citi"ens and to further heighten the destruction$s and depredations already inflicted by them upon our
innocent people, all of ,hich are being deliberately done to so, terror, fear and chaos amongst our
population and to make the 3overnment look so helpless and incapable of protecting the lives and
property of our people:
E>/!/A-, in addition to the aboveCdescribed social disorder, there is also the e#ually serious disorder
in Mindanao and -ulu resulting from the unsettled conflict bet,een certain elements of the Christian and
Muslim population of Mindanao and -ulu, bet,een the Christian $%lagas$ and the Muslim $Barracudas,$ and
bet,een our 3overnment troops, and certain la,less organi"ations such as the Mindanao %ndependence
Movement:
E>/!/A-, the Mindanao %ndependence Movement ,ith the active material and financial assistance of
foreign political and economic interests, is engaged in an open and unconcealed attempt to establish by
violence and force a separate and independent political state out of the islands of Mindanao and -ulu
,hich are historically, politically and by la, parts of the territories and ,ithin the jurisdiction and
sovereignty of the !epublic of the Philippines:
E>/!/A-, because of the aforesaid disorder resulting from armed clashes, killings, massacres, arsons,
rapes, pillages, destruction of ,hole villages and to,ns and the inevitable cessation of agricultural and
industrial operations, all of ,hich have been brought about by the violence inflicted by the Christians, the
Muslims, the $%lagas,$ the $Barracudas,$ and the Mindanao %ndependence Movement against each other
and against our government troops, a great many parts of the islands of Mindanao and -ulu are virtually
no, in a state of actual ,ar:
E>/!/A-, the violent disorder in Mindanao and -ulu has to date resulted in the killing of over &,999
civilians and about *,999 armed Muslims and Christians, not to mention the more than five hundred
thousand of injured displaced and homeless persons as ,ell as the great number of casualties among our
government troops, and the paraly"ation of the economy of Mindanao and -ulu:
E>/!/A-, because of the foregoing acts of armed insurrection, ,anton destruction of human and lives
and property, unabated and unrestrained propaganda attacks against the 3overnment and its institutions,
instrumentalities, agencies and officials, and the rapidly e8panding ranks of the aforesaid la,less
elements, and because of the spreading la,lessness and anarchy throughout the land all of ,hich
prevented the 3overnment to e8ercise its authority, e8tend its citi"enry the protection of its la,s and in
general e8ercise its sovereignty overall of its territories, caused serious demorali"ation among our people
and have made the apprehensive and fearful, and finally because public order and safety and the security
of this nation demand that immediate, s,ift, decisive and effective action be taken to protect and insure
the peace, order and security of the country and its population and to maintain the authority of the
3overnment:
E>/!/A-, in cases of invasion, insurrection or rebellion or imminent danger thereof, %, as President of
the Philippines, have under the Constitution, three course of action open to me, namely7 ;a< call out the
armed forces to suppress the present la,less violence: ;b< suspend the privilege of the ,rit of *a#eas
corpus to make the arrest and apprehension of these la,less elements easier and more effective: or ;c<
place the Philippines or any part thereof under martial la,:
E>/!/A-, % have already utili"ed the first t,o courses of action, first, by calling upon the armed forces to
suppress the aforesaid la,less violence, committing to that specific job almost B9S of the entire armed
forces of the country and creating several task forces for that purpose such as ask 1orce -aranay, ask
1orce Palanan, ask 1orce %sarog, ask 1orce Pagkakaisa and ask 1orce +ancaf and, second, by
suspending the privilege of the ,rit of *a#eas corpus on August *&, &('& up to .anuary &&, &('*, but in
spite of all that, both courses of action ,ere found inade#uate and ineffective to contain, much less solve,
the present rebellion and la,lessness in the country as sho,n by the fact that7
&. he radical left has increased the number and area of operation of its front organi"ations and has
intensified the recruitment and training of ne, adherents in the urban and rural areas especially from
among the youth:
*. he Nabataang Makabayan ;NM<, the most militant and outspoken front organi"ation of the radical left,
has increased the number of its chapters from *99 as of the end of &('9 to A&' as of .uly A&, &('* and
its membership from &9,999 as of the end of &('9 to &B,999 as of the end of .uly, &('*, sho,ing very
clearly the rapid gro,th of the communist movement in this country:
A. he -amahang Demokratiko ng Nabataan ;-DN<, another militant and outspoken front organi"ation of
the radical left, has also increased the number of its chapters from an insignificant number at the end of
&('9 to &B( as of the end of .uly, &('* and has no, a membership of some &,J(B highly indoctrinated,
intensely committed and almost fanatically devoted individuals:
J. he ?e, People$s Army, the most active and the most violent and ruthless military arm of the radical
left, has increased its total strength from an estimated 2,B99 composed of B29 regulars, &,B99 combat
support and J,J99 service support< as of .anuary &, &('* to about ',(99 ;composed of &,9*) regulars,
&,)99 combat support and B,9*B service support< as of .uly A&, &('*, sho,ing a marked increase in its
regular troops of over &99S in such a short period of si8 months:
B. he establishment of sanctuaries for the insurgents in %sabela, in 5ambales, in Camarines -ur, and in
some parts of Mindanao, a development heretofore unkno,n in our campaign against subversion and
insurgency in this country:
2. he disappearance and dropping out of school of some A,999 high school and college students and
,ho are reported to have joined ,ith the insurgents for training in the handling of firearms and e8plosives:
'. he bringing and introduction into the country of substantial ,ar material consisting of military hard,are
and supplies through the M6 Naragatan at Digoyo Point, Palanan, %sabela, and the fact that many of
these military hard,are and supplies are no, in the hands of the insurgents and are being used against
our 3overnment troops:
). he infiltration and control of the media by persons ,ho are sympathetic to the insurgents and the
conse#uent intensification of their propaganda assault against the 3overnment and the military
establishment of the 3overnment:
(. he formation at the grassCroot level of $political po,er organs,$ heretofore unkno,n in the history of the
Communist movement in this country, composed of Barrio 0rgani"ing Committees ;B0Cs< to mobili"e the
barrio people for active involvement in the revolution: the Barrio !evolutionary Committees ;B!Cs< to act
as $local governments in barrios considered as CPPF?PA baili,icks: the Eorkers 0rgani"ing Committees
;E0Cs< to organi"e ,orkers from all sectors: the -chool 0rgani"ing Committees ;-0Cs< to conduct
agitation and propaganda activities and help in the e8pansion of front groups among the studentry: and
the Community 0rgani"ing Committees ;C0Cs< ,hich operate in the urban areas in the same manner as
the ;B0Cs<:
E>/!/A-, the rebellion and armed action undertaken by these la,less elements of the communist and
other armed aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and
force have assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines:
Done in the City of Manila, this *&st day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o,
;-3D.< 1/!D%?A?D /. MA!C0-
President
0n -eptember **, &('* at ( o$clock in the evening, clearance for the implementation of the
proclamation ,as granted, and for ,ith, the follo,ing general order, among others, ,as issued7
GENE>30 O>.E> NO. 2
;0!D/!%?3 >/ -/C!/A!@ 01 ?A%0?A+ D/1/?-/ 0 A!!/- >/ P/!-0?- ?AM/D %?
>/ AAC>/D +%-, A- E/++ A- 0>/! P/!-0?- E>0 MA@ >A6/ C0MM%/D C!%M/- A?D
011/?-/- /?=M/!A/D %? >/ 0!D/!<.
Pursuant to Proclamation ?o. &9)&, dated -eptember *&, &('*, in my capacity as CommanderCinCChief
of all the Armed 1orces of the Philippines and for being active participants in the conspiracy and state
po,er in the country and to take over the 3overnment by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against our people and their legitimate 3overnment and in order to prevent
national interest, % hereby order you as -ecretary of ?ational Defense to for ,ith arrest or cause the arrest
and take into your custody the individuals named in the attached list and to hold them until other,ise so
ordered by me or by my duly designated representative.
+ike,ise, % do hereby order you to arrest and take into custody and to hold them until other,ise ordered
released by me or by my duly authori"ed representative, such persons as may have committed crimes
and offenses in furtherance or on the occasion of or incident to or in connection ,ith the crimes of
insurrection or rebellion, as ,ell as persons ,ho have committed crimes against national security and the
la, of nations, crimes against the fundamental la,s of the state, crimes against public order, crimes
involving usurpation of authority, title, improper use of name, uniform and insignia, including persons
guilty of crimes as public officers, as ,ell as those persons ,ho may have violated any decree or order
promulgated by me personally or promulgated upon my direction.
Done in the City of Manila, this **nd day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o.
;-3D.< 1/!D%?A?D /. MA!C0- P!/-%D/?
!/P=B+%C 01 >/ P>%+%PP%?/-
%n the list referred to in this order ,ere the names, among others, of all the petitioners herein. hus,
from shortly after midnight of -eptember **, &('* until they ,ere all apprehended, petitioners ,ere
taken one by one, either from their homes or places of ,ork, by officers and men of the Armed 1orces
of the Philippines, ,ithout the usual ,arrant of arrest, and only upon orders of the respondent
-ecretary of ?ational Defense directed to his coCrespondent, the Chief of -taff of the Armed 1orces.
hey have been since then confined either at Camp Bonifacio, Camp Crame or some other military
camp, until, as earlier adverted to, they ,ere released subject to certain conditions, ,ith the e8ception
of petitioners Diokno and A#uino, ,ho are still in custody up to the present.
T*e particular case o,
petitioner, 3;uino.
As regards petitioner A#uino, it appears from his allegations in his petition and supplemental petition
for prohibition in 3. !. ?o. +CA'A2J, already referred to earlier, ;&< that on August &&, &('A, si8
criminal charges, for illegal possession of firearms, etc., murder and violation of !A &'99 or the AntiC
-ubversion Act, ,ere filed against him ,ith Military Commission ?o. *, created under 3eneral 0rders
?os. ), &* and A(, ;*< that on August *), &('A, the President created, thru Administrative 0rder ?o.
ABB, a special committee to undertake the preliminary investigation or reinvestigation of said charges,
and ;A< that he #uestions the legality of his prosecution in a military commission instead of in a
regular civilian court as ,ell as the creation of the special committee, not only because of alleged
invalidity of Proclamation &9)& and 3eneral 0rder ?o. * and the orders authori"ing the creation of
military commissions but also because Administrative 0rder ?o. ABB constitutes allegedly a denial of
the e#ual protection of the la,s to him and to the others affected thereby.
1rom the procedural standpoint, these developments did not ,arrant the filing of a separate petition.
A supplemental petition in 3.!. ?o. +CABBJ2, ,herein he is one of the petitioners, ,ould have
sufficed. But inasmuch as petitioner A#uino has chosen to file an independent special civil action for
prohibition in said 3.!. ?o. +CA'A2J ,ithout ,ithdra,ing his petition for *a#eas corpus in 3.!. ?o. +C
ABBJ2, Ee ,ish to make it clear that in this decision, the Court is going to resolve, for purposes of the
*a#eas corpus petition of said petitioner, only the issues he has raised that are common ,ith those of
the rest of the petitioners in all these cases, thereby leaving for resolution in 3.!. ?o. +CA'A2J all the
issues that are peculiar only to him. %n other ,ords, insofar as petitioner A#uino is concerned, the
Court ,ill resolve in this decision the #uestion of legality of his detention by virtue of Proclamation
&9)& and 3eneral 0rder ?o. *, such that in 3.!. ?o. +CA'A2J, ,hat ,ill be resolved ,ill be only the
constitutional issues related to the filing of charges against him ,ith Military Commission ?o. *,
premised already on ,hatever ,ill be the Court$s resolution in the instant cases regarding
Proclamation &9)& and 3eneral 0rder ?o. *.
Eith respect to the other petitioners, none of them stands charged ,ith any offense before any court
or military commission. %n fact, they all contend that they have not committed any act for ,hich they
can be held criminally liable.
3oing back to the facts, it may be mentioned, at this juncture, that on the day Proclamation &9)& ,as
signed, the Congress of the Philippines ,as actually holding a special session scheduled to end on
-eptember **, &('*. %t had been in uninterrupted session since its regular opening in .anuary, &('*.
%ts regular session ,as adjourned on May &), &('*, follo,ed by three special session of thirty days
each,
8
from May &( to .une **, .une *A to .uly *' and .uly *) to August A&, and one special session
of t,enty days, from -eptember & to -eptember **. As a matter of fact, petitioner A#uino ,as in a
conference of a joint committee of the -enate and the >ouse of !epresentatives ,hen he ,as
arrested in one of the rooms of the >ilton >otel in Manila.
%t must also be stated at this point that on ?ovember A9, &('*, the Constitutional Convention of &('&,
,hich convened on .une &, &('& and had been in continuous session since then, approved a ?e,
Constitution: that on .anuary &', &('A, Proclamation &&9* ,as issued proclaiming the ratification
thereof: and that in the !atification Cases aforementioned, the -upreme Court rendered on March A&,
&('A, a judgment holding that 4there is no further judicial obstacle to the ?e, Constitution being
considered in force and effect.4 Among the pertinent provisions of the ?e, Constitution is -ection A
;*< of Article D6%% ,hich reads thus7
President, or unless e8pressly and e8plicitly modified or repeated by the regular ?ational Assembly.
Before closing this narration of facts, it is relevant to state that relative to petitioner Diokno$s motion to
,ithdra,, respondent filed under date of May &A, &('J the follo,ing Manifestation7
C0M/ ?0E respondents, by the undersigned counsel, and to this >onorable Court respectfully
submit this manifestation7
&. %n a Motion dated December *(, &('A petitioner, through counsel, prayed for the ,ithdra,al of the
aboveCentitled case, more particularly the pleadings filed therein, !espondents$ Comments dated .anuary
&', &('J, petitioners$ !eply dated March ', &('J, and respondents$ !ejoinder dated March *', &('J ,ere
subse#uently submitted to this >onorable Court7
*. he motion to ,ithdra, has been used for propaganda purposes against the 3overnment, including
the -upreme. Court +ately, the propaganda has been intensified and the detention of petitioner and the
pendency of his case in this Court have been e8ploited:
A. Ee are a,are that the issues raised in this case are of the utmost gravity and delicacy. his is the
reason ,e said that the decision in these cases should be postponed until the emergency, ,hich called
for the proclamation of martial la,, is over. Ehile this position is amply supported by precedents and is
based on sound policy considerations, ,e no, feel that to protect the integrity of government institutions,
including this Court, from scurrilous propaganda no, being ,aged ,ith relentlessness, it ,ould be in the
greater interest of the ?ation to have the motion to ,ithdra, resolved and if denied, to have the petition
itself decided:
J. his is not to say that the emergency is over, but only to e8press a judgment that in vie, of recent
tactics employed in the propaganda against the 3overnment, it is preferable in the national interest to
have the issues stirred by this litigation settled in this forum. 1or, indeed, ,e must state and reiterate that7
a. Pursuant to the President$s constitutional po,ers, functions, and responsibilities in a
state of martial la,, he periodically re#uires to be conducted a continuing assessment of
the factual situation ,hich necessitated the promulgation of Proclamation ?o. &9)& on
-eptember *&, &('* and the continuation of martial la, through Proclamation ?o. &&9J,
dated .anuary &', &('A:
b. he 3overnment$s current and latest assessment of the situation, including evidence of
the subversive activities of various groups and individuals, indicates that there are still
pockets of actual armed insurrection and rebellion in certain parts of the country. Ehile in
the major areas of the active rebellion the military challenge to the !epublic and its duly
constituted 3overnment has been overcome and effective steps have been and are
being taken to redress the centuriesCold and deepCseated causes upon ,hich the fires of
insurrection and rebellion have fed, the essential process of rehabilitation and
renascence is a slo, and delicate process. 0n the basis of said current assessment and
of consultations ,ith the people, the President believes that the e8igencies of the
situation, the continued threat to peace, order, and security, the dangers to stable
government and to democratic processes and institutions, the re#uirements of public
safety, and the actual and imminent danger of insurrection and rebellion all re#uire the
continuation of the e8ercise of po,ers incident to martial la,:
c. he majority of persons ,ho had to be detained upon the proclamation of martial la,
have been released and are no, engaged in their normal pursuits. >o,ever, the
President has deemed that, considering the overall situation described above and in vie,
of ade#uate evidence ,hich can not no, be declassified, the continued detention of
certain individuals ,ithout the filing of formal charges in court for subversive and other
criminal acts is necessary in the interest of national security and defense to enable the
3overnment to successfully meet the grave threats of rebellion and insurrection. %n this
regard, the -ecretary of ?ational Defense and his authori"ed representatives have acted
in accordance ,ith guidelines relating to national security ,hich the President has
prescribed.
!espectfully submitted.
Manila, Philippines, May &A, &('J.
;6ol. %%, !ollo, +CABBA(.<
and that earlier, in connection ,ith the issue of jurisdiction of the -upreme Court over the instant
cases, the respondents invoked 3eneral 0rders ?os. A and ACA reading, as follo,s7
GENE>30 O>.E> NO. 7
E>/!/A-, martial la, having been declared under Proclamation ?o. &9)&, dated -eptember *&, &('*
and is no, in effect throughout the land:
E>/!/A-, martial la,, having been declared because of ,anton destruction of lives and property,
,idespread la,lessness and anarchy and chaos and disorder no, prevailing throughout the country,
,hich condition has been brought about by groups of men ,ho are actively engaged in a criminal
conspiracy to sei"e political and state po,er in the Philippines in order to take over the 3overnment by
force and violence, they e8tent of ,hich has no, assumed the proportion of an actual ,ar against our
people and their legitimate 3overnment: and
E>/!/A-, in order to make more effective the implementation of the aforesaid Proclamation ?o. &9)&
,ithout unduly affecting the operations of the 3overnment, and in order to end the present national
emergency ,ithin the shortest possible time:
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, CommanderCinCChief of all the Armed 1orces of the
Philippines, and pursuant to Proclamation ?o. &9)&, dated -eptember *&, &('*, do hereby order that
henceforth all e8ecutive departments, bureaus, offices, agencies and instrumentalities of the ?ational
3overnment, governmentCo,ed or controlled corporations, as ,ell as all governments of all the provinces,
cities, municipalities and barrios throughout the land shall continue to function under their present officers
and employees and in accordance ,ith e8isting la,s, until other,ise ordered by me or by my duly
designated representative.
% do hereby further order that the .udiciary shall continue to function in accordance ,ith its present
organi"ation and personnel, and shall try and decide in accordance ,ith e8isting la,s all criminal and civil
cases, e8cept the follo,ing cases7
&. hose involving the validity, legality or constitutionality of any decree, order or acts issued, promulgated
or performed by me or by my duly designated representative pursuant to Proclamation ?o. &9)&, dated
-eptember *&, &('*.
*. hose involving the validity or constitutionality of any rules, orders, or acts issued, promulgated or
performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated
by me or by my duly designated representative pursuant to Proclamation ?o. &9)&, dated -eptember *&,
&('*.
A. hose involving crimes against national security and the la, of nations.
J. hose involving crimes against the fundamental la,s of the -tate.
B. hose involving crimes against public order.
2. hose crimes involving usurpation of authority, rank, title, and improper use of names, uniforms, and
insignia.
'. hose involving crimes committed by public officers.
Done in the City of Manila, this **nd day of -eptember, in the year of 0ur +ord, nineteen hundred
and seventyCt,o.
;-3D.< 1/!D%?A?D /. MA!C0- President !epublic of the Philippines4 .
GENE>30 O>.E> NO. 743 .
-ubCparagraph & of the second paragraph of the dispositive portion of 3eneral 0rder ?o. A, dated
-eptember **, &('*, is hereby amended to read as follo,s7
888 888 888
&. hose involving the validity, legality, or constitutionality of Proclamation ?o. &9)&, dated -eptember *&,
&('*, or of any decree, order or acts issued, promulgated or performed by me or by my duly designated
representative pursuant thereto.
888 888 888
Done in the City of Manila, this *Jth day of -eptember, in the year of 0ur +ord, nineteen hundred and
seventyCt,o.
+ike,ise relevant are the issuance by the President on .anuary &', &('A of Proclamation &&9J
reading thus7
P>OC03'3TION NO. $$FJ
D/C+A!%?3 >/ C0?%?=A%0? 01 MA!%A+ +AE.
E>/!/A-, Barangays ;Citi"ens Assemblies< ,ere created in barrios in municipalities and in
districtsF,ards in chartered cities pursuant to Presidential Decree ?o. )2, dated December A&, &('*,
composed of all persons ,ho are residents of the barrio, district or ,ard for at least si8 months, fifteen
years of age or over, citi"ens of the Philippines and ,ho are registered in the list of Citi"en Assembly
members kept by the barrio, district or ,ard secretary:
E>/!/A-, the said Barangays ,ere established precisely to broaden the base of citi"en participation in
the democratic process and to afford ample opportunities for the citi"enry to e8press their vie,s on
E>/!/A-, pursuant to Presidential Decree ?o. )2CA, dated .anuary B, &('A and Presidential Decree
?o. )2CB, dated .anuary ', &('A, the #uestion ,as posed before the Barangays7 Do you ,ant martial la,
to continueI
E>/!/A-, fifteen million t,o hundred t,entyCfour thousand five hundred eighteen ;&B,**J,B&)< voted
for the continuation of martial la, as against only eight hundred fortyCthree thousand fiftyCone ;)JA,9B&<
,ho voted against it:
me vested by the Constitution, do hereby declare that martial la, shall continue in accordance ,ith the
needs of the time and the desire of the 1ilipino people.
seventyCthree.
and the holding of a referendum on .uly *'C*), &('A ,hich as evidenced by the C0M/+/C
proclamation of August A, &('A resulted in the follo,ing7
Martial +a,I
&),9B*,9&2 C @/-
&,)B2,'JJ C ?0
;Phil. Daily /8press, August J, &('A<
TCE FEN.3'ENT30 ISSEES
1irst of all, petitioners challenge the factual premises and constitutional sufficiency of Proclamation
&9)&. %nvoking the Constitution of &(AB under ,hich it ,as issued, they vigorously maintain that
4,hile there may be rebellion in some remote as in %sabela, there is no basis for the nation,ide
imposition of martial la,, since7 ;a< no large scale rebellion or insurrection e8ists in the Philippines: ;b<
public safety does not re#uire it, inasmuch as no department of the civil government K is sho,n to
have been unable to open or function because of or due to, the activities of the la,less elements
described in the Proclamation: ;c< the /8ecutive has given the nation to understand K and there
e8ists no evidence to the contrary K that the armed forces can handle the situation ,ithout $utili"ing
the e8traordinary of the President etc.$: and ;d< the problem in the 3reater Manila Area ... ,here
petitioners ,ere sei"ed and arrested ,as, at the time martial la, ,as, plain la,lessness and
criminality.4 ;pp. 2(C'9 Petitioners$ Memorandum<. %n his supplemental petition, petitioner Diokno
individually posits that especially these days, ,ith the improved conditions of peace and order, there
is no more constitutional justification for the continuance of martial la,. %n other ,ords, petitioners
#uestion not only the constitutional sufficiency both in fact and in la, of the proclamation but also the
legality of their detention and constraints, independently of any finding of validity of the proclamation,
,hile in his supplemental petition petitioner Diokno individually submits that the Court should declare
that it has already become illegal to continue the present martial la, regime because the emergency
for ,hich it ,as proclaimed, if it ever e8isted, has already ceased, as attested by various public and
official declaration of no less than the President himself. 0n the other hand, respondents ,ould ,ant
the Court to lay its hands off the instant petitions, claiming that under 3eneral 0rders ?os. A and ACA,
afore#uoted, the President has ordered that the .udiciary shall not try and decide cases 4involving the
validity, legality or constitutionality4 of Proclamation &9)& and any order, decree or acts issued or
done pursuant to said Proclamation. hey contend most vehemently that this Court has no jurisdiction
to in#uire into the factual bases of the proclamation, any #uestion as to the propriety or constitutional
sufficiency of its issuance being, according to them, political and nonCjusticiable. hey point out, in
this connection, that in the aboveCmentioned referendum of .anuary &9C&B, &('A and more so in that
of .uly *'C*), &('A, the sovereign people impressed their seal of approval on the continuation of
martial la, for as long as the President may deem it ,ise to maintain the same. And on the
assumption the Court can make an in#uiry into the factual bases of the Proclamation, they claim there
,as more than efficient justification for its issuance, in the light of the criterion of arbitrariness
sanctioned by =s in 0ansan+ vs. Garcia, J* -C!A JJ). !espondents further maintain that it is only
by another official proclamation by the President, not by a declaration, that martial la, may be lifted.
Additionally, in their ans,er of .uly *2, &('A to petitioner Diokno$s supplemental petition, respondents
contend that the e8press provisions of the aboveC#uoted transitory provision of the ?e, Constitution,
have made indubitable that Proclamation &9)& as ,ell as all the impugned 3eneral 0rders are
constitutional and valid.
hus, the fundamental #uestions presented for the Court$s resolution are7
&. Does the -upreme Court have jurisdiction to resolve the merits of the instant petitionsI Put
differently, are not the issues herein related to the propriety or constitutional sufficiency of the
issuance of the Proclamation purely political, ,hich are not for the judiciary, but for the people and the
political departments of the government to determineI And vie,ed from e8isting jurisprudence in the
Philippines, is not the doctrine laid do,n by this Court in 0ansan+ vs. Garcia, supra, applicable to
these casesI
*. /ven assuming +ansang to be applicable, and on the basis of the criterion of arbitrariness
sanctioned therein, can it be said that the President acted arbitrarily, capriciously or ,himsically in
issuing Proclamation &9)&I
A. /ven assuming also that said proclamation ,as constitutionally issued, may not the -upreme
Court declare upon the facts of record and those judicially kno,n to it no, that the necessity for
martial la, originally found by the President to e8ist has already ceased so as to make further
continuance of the present martial la, regime unconstitutionalI
J. /ven assuming again that the placing of the country under martial la, is constitutional until the
President himself declares other,ise, is there any legal justification for the arrest and detention as
,ell as the other constraints upon the individual liberties of the petitioners, and, in the affirmative,
does such justification continue up to the present, almost t,o years from the time of their
apprehension, there being no criminal charges of any kind against them nor any ,arrants of arrest for
their apprehension duly issued pursuant to the procedure prescribed by la,I
B. 1inally, can there still be any doubt regarding the constitutionality of the issuance of Proclamation
&9)& and all the other proclamations and orders, decrees, instructions and acts of the President
issued or done by him pursuant to said Proclamation, considering that by the terms of -ection A ;*< of
Article D6%% of the Constitution of the Philippines of &('A, 4all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the incumbent President shall be part of the la,
of the land, and shall remain valid, legal, binding and effective4 until revoked or superseded by the
incumbent President himself or by the regular ?ational Assembly established under the same
ConstitutionI
%
TCE ISSEE OF JE>IS.ICTION
By its very nature, the issue of jurisdiction vigorously urged by the -olicitor 3eneral calls for prior
resolution. %ndeed, ,henever the authority of the Court to act is seriously challenged, it should not
proceed any further until that authority is clearly established. And it goes ,ithout saying that such
authority may be found only in the e8isting la,s andFor the Constitution.
1or a moment, ho,ever, there ,as a feeling among some members of the Court that the import of the
transitory provisions of the ?e, Constitution referred to in the fifth above has made the issue of
jurisdiction posed by the #uestion respondents of secondary importance, if not entirely academic.
=ntil, upon further reflection, a consensus emerged that for =s to declare that the transitory provision
invoked has rendered moot and academic any controversy as to the legality of the impugned acts of
the President is to assume that the issue is justiciable, thereby bypassing the very issue of
jurisdiction. Ee are asked to resolve. Ee feel that ,hile perhaps, such reliance on the transitory
provision referred to may legally suffice to dispose of the cases at bar, it cannot ans,er persistent
#ueries regarding the po,ers of the -upreme Court in a martial la, situation. %t ,ould still leave
unsettled a host of controversies related to the continued e8ercise of e8traordinary po,ers by the
President. Eithal, such assumption of justiciability ,ould leave the Court open to successive petitions
asking that martial la, be lifted, ,ithout 0ur having resolved first the correctness of such assumption.
%ndeed, nothing short of a categorical and definite ruling of this Court is imperative regarding the
pretended nonCjusticiability of the issues herein, if the people are to kno,, as they must, ,hether the
present governmental order has legitimate constitutional foundations or it is supported by nothing
more than naked force and selfCcreated stilts to keep it above the murky ,aters of unconstitutionality.
hus, it is but proper that Ee tackle first the #uestions about the authority of the Court to entertain
and decide these cases before discussing the materiality and effects of the transitory provision relied
upon by respondents.
As a matter of fact, it is not alone the matter of jurisdiction that Ee should decide. Beyond the purely
legal issues placed before =s by the parties, more fundamental problems are involved in these
proceedings. here are allCimportant matters ,hich a historical decision like this cannot ignore on the
prete8t that 0ur duty in the premises is e8clusively judicial. Ehether all the members of the Court like
it or not, the Court has to play its indispensable and decisive role in resolving the problems
confronting our people in the critical circumstances in ,hich they find themselves. After all, ,e cannot
dissociate ourselves from them, for ,e are 1ilipinos ,ho must share the common fate to ,hich the
denouement of the current situation ,ill consign our nation. he priority issue before =s is ,hether
Ee ,ill subject the assailed acts of the President to judicial scrutiny as to its factual bases or Ee ,ill
defer to his findings predicated on evidence ,hich are in the very nature of things officially available
only to him, but in either case, our people must kno, that 0ur decision has democratic foundations
and conforms ,ith the great principles for ,hich our nation e8ists.
he ?e, Constitution itself is in a large sense a product of the political convulsion no, shaking
precariously the unity of the nation. =pon the other hand, that those presently in authority had a hand
in one ,ay or another in its formulation, approval and ratification can hardly be denied. o justify,
therefore, the restraint upon the liberties of petitioners through an e8clusive reliance on the mandates
of the ne, charter, albeit logically and technically tenable, may not suffice to keep our people united
in the faith that there is genuine democracy in the e8isting order and that the rule of la, still prevails
in our land. -omeho, the disturbing thought may keep lingering ,ith some, if not ,ith many, of our
countrymen that by predicating 0ur decision on the basis alone of ,hat the ?e, Constitution ordains,
Ee are in effect allo,ing those presently in authority the dubious privilege of legali"ing their acts and
e8culpating themselves from their supposed constitutional transgressions through a device ,hich
might yet have been of their o,n furtive making.
Besides, Ee should not be as naive as to ignore that in troublous times like the present, simplistic
solutions, ho,ever solidly based, of constitutional controversies likely to have grave political
conse#uences ,ould not sound cogent enough unless they ring in complete harmony ,ith the tune
set by the founders of our nation ,hen they solemnly consecrated it to the ideology they considered
best conducive to the contentment and prosperity of all our people. And the commitment of the
Philippines to the ideals of democracy and freedom is ever evident and indubitable. %t is ,rit in the
martyrdom of our revolutionary forbears ,hen they violently overthro, the yoke of -panish dispotism.
%t is an indelible part of the history of our passionate and "ealous observance of democratic principles
and practices during the more than four decades that America ,as ,ith us. %t is reaffirmed in bright
crimson in the blood and the lives of the countless 1ilipinos ,ho fought and died in order that our
country may not be subjugated under the militarism and totalitarianism of the .apanese then, ,ho
,ere even enticing us ,ith the idea of a 3reater /ast Asia CoCProsperity -phere. And today, that our
people are sho,ing considerable disposition to suffer the imposition of martial la, can only be
e8plained by their belief that it is the last recourse to save themselves from the inroads of ideologies
antithetic to those they cherish and uphold.
Eithal, the eyes of all the peoples of the ,orld on both sides of the bamboo and iron curtains are
focused on ,hat has been happening in our country since -eptember *&, &('*. Martial la, in any
country has such a,esome implications that any nation under it is naturally an interesting study
subject for the rest of mankind. hose ,ho consider themselves to be our ideological allies must be
keeping apprehensive ,atch on ho, steadfastly ,e shall remain living and cherishing our common
fundamental political tenets and ,ays of life, ,hereas those of the opposite ideology must be eagerly
anticipating ho, soon ,e ,ill join them in the conviction that, after all, real progress and development
cannot be achieved ,ithout giving up individual freedom and liberty and unless there is concentration
of po,er in the e8ercise of government authority. %t is true the Philippines continues to enjoy
recognition of all the states ,ith ,hom it had diplomatic relations before martial la, ,as proclaimed
but it is not difficult to imagine that soon as it has became definite or any,ay apparent to those
concerned that the Philippines has ceased to adhere to the immutable concepts of freedom and
democracy enshrined in its o,n fundamental la, corresponding reactions ,ould manifest themselves
in the treatment that ,ill be given us by these states.
%n our chosen form of government, the -upreme Court is the department that most authoritatively
speaks the language of the Constitution. >ence, ho, the present martial la, and the constraints upon
the liberties of petitioners can be justified under our Constitution ,hich provides for a republican
democratic government ,ill be read by the ,hole ,orld in the considerations of this decision. 1rom
them they ,ill kno, ,hither ,e are going as a nation. More importantly, by the same token, history
and the future generations of 1ilipinos ,ill render their o,n judgment on all of us ,ho by the ,ill of
Divine Providence have to play our respective roles in this epochal chapter of our national life. By this
decision, everyone concerned ,ill determine ho, truly or other,ise, the Philippines of today is
keeping faith ,ith the fundamental precepts of democracy and liberty to ,hich the nation has been
irrevocably committed by our heroes and martyrs since its birth.
And ,e should not gloss over the fact that petitioners have come to this Court for the protection of
their rights under the provisions of the 0ld Charter that have remained unaltered by the ?e,
Constitution. %t ,ould not be fair to them, if the provisions invoked by them still mean ,hat they had
al,ays meant before, to determine the fate of their petitions on the basis merely of a transitory
provision ,hose consistency ,ith democratic principles they vigorously challenge.
%n this delicate period of our national life, ,hen faith in each other and unity among all of the
component elements of our people are indispensable, Ee cannot treat the attitude and feelings of the
petitioners, especially -enator Diokno > ,ho is still under detention ,ithout formal charges, ,ith
apathy and indifferent unconcern. heir pleadings evince #uite distinctly an apprehensive, nay a fast
d,indling faith in the capacity of this Court to render them justice. Bluntly put, their pose is that the
justice they seek may be found only in the correct construction of the &(AB Constitution, and they
make no secret of their fears that because the incumbent members of the Court have taken an oath
to defend and protect the ?e, Constitution, their hopes of due protection under the Bill of !ights of
the 0ld Charter may fall on deaf ears. Petitioner Diokno, in particular, ,ith the undisguised
concurrence of his chief counsel, former -enator aLada, despairingly be,ails that although they are
4convinced beyond any nagging doubt that ;they are< on the side of right and reason and la, and
justice, ;they are< e#ually convinced that ;they< cannot reasonably e8pect either right or reason, la,
or justice, to prevail in ;these< case;s<.4
o be sure, Ee do not feel bound to soothe the subjective despondency nor to cool do,n the
infuriated feelings of litigants and la,yers by means other than the sheer objectiveness and
demonstrated technical accuracy of our decisions. =nder the peculiar milieu of these cases, ho,ever,
it is perhaps best that Ee do not spare any effort to make everyone see that in discharging the grave
responsibility incumbent upon =s in the best light that 3od has given =s to see it, Ee have e8plored
every angle the parties have indicated and that Ee have e8hausted all jurisprudential resources
,ithin our command before arriving at our conclusions and rendering our verdict. %n a ,ay, it could
indeed be part of the nobility that should never be lost in any court of justice that no party before it is
left sulking ,ith the thought that he lost because not all his important arguments in ,hich he sincerely
believes have been duly considered or ,eighed in the balance.
But, of course, petitioners$ emotional misgivings are manifestly baseless. %t is too evident for anyone
to ignore that the provisions of the 0ld Constitution petitioners are invoking remain unaltered in the
?e, Constitution and that ,hen it comes to the basic precepts underlying the main portions of both
fundamental la,s, there is no disparity, much less any antagonism bet,een them, for in truth, they
are the same identical tenets to ,hich our country, our government and our people have al,ays been
ineradicably committed. %nsofar, therefore, as said provisions and their underlying principles are
concerned, the ne, oath taken by the members of the Court must be understood, not in the
disturbing sense petitioners take them, but rather as a continuing guarantee of the .ustices$
uns,erving fealty and steadfast adherence to the selfCsame tenets and ideals of democracy and
liberty embodied in the oaths of loyalty they took ,ith reference to the &(AB Constitution.
Contrary to ,hat is obviously the erroneous impression of petitioner Diokno, the fundamental reason
that impelled the members of the Court to take the ne, oaths that are causing him un,arranted
agony ,as precisely to regain their independence from the /8ecutive, inasmuch as the transitory
provisions of the &('A Constitution had, as a matter of course, subjected the judiciary to the usual
rules attendant in the reorgani"ation of governments under a ne, charter. =nder -ections ( and &9 of
Article D6%%, 4incumbent members of the .udiciary may continue in office until they reach the age of
seventy years unless sooner replaced4 by the President, but 4all officials ,hose appointments are by
this Constitution vested in the ;President< shall vacate their offices upon the appointment and
#ualification of their successors.4 %n other ,ords, under said provisions, the .ustices ceased to be
permanent. And that is precisely ,hy our ne, oaths containing the phrase 4na pinagpapatuloy sa
panunungkulan4, ,hich petitioner Diokno uncharitably ridicules ignoring its real import, ,as prepared
by the -ecretary of .ustice in consultation ,ith the Court, and not by the President or any other
subordinate in the /8ecutive office, purposely to make sure that the oath taking ceremony ,hich ,as
to be presided by the President himself ,ould connote and signify that thereby, in fact and in
contemplation of la,, the President has already e8ercised the po,er conferred upon him by the
afore#uoted transitory constitutional provisions to replace anyone of us ,ith a successor at anytime.
here ,as no Presidential edict at all for the .ustices to take such an oath. he President informed
the Court that he ,as determined to restore the permanence of the respective tenures of its
members, but there ,as a feeling that to e8tend ne, appointments to them as successors to
themselves ,ould sound someho, absurd, And so, in a conference among the President, the
-ecretary of .ustice and all the .ustices, a mutually acceptable construction of the pertinent transitory
provision ,as adopted to the effect that an official public announcement ,as to be made that the
incumbent .ustices ,ould be continued in their respective offices ,ithout any ne, appointment, but
they ,ould take a fittingly ,orded oath the te8t of ,hich ,as to be prepared in consultation bet,een
the -ecretary of .ustice and the Court. hus, by that oath taking, all the members of the Court, other
than the Chief .ustice and the three ne, Associate .ustices, ,ho because of their ne, appointment
are not affected by the transitory provisions, are no, e#ually permanent ,ith them in their
constitutional tenures, as officially and publicly announced by the President himself on that occasion.
0ther,ise stated, the reorgani"ation of the -upreme Court contemplated in the transitory provisions
referred to, ,hich, incidentally ,as also a feature of the transitory provisions of the &(AB Constitution,
albeit, limited then e8pressly to one year, ;-ection J, Article D6%< has already been accomplished,
and all the .ustices are no, unreachably beyond the presidential prerogative either e8plicit or implicit
in the terms of the ne, transitory provisions.
%t is, therefore, in these faith and spirit and ,ith this understanding, supported ,ith prayers for
guidance of Divine Providence, that Ee have deliberated and voted on the issues in these cases K
certainly, ,ithout any claim of monopoly of ,isdom and patriotism and of loyalty to all that is sacred to
the Philippines and the 1ilipino people.
%%
As already stated, the 3overnment$s insistent posture that the -upreme Court should abstain from
in#uiring into the constitutional sufficiency of Proclamation &9)& is predicated on t,o fundamental
grounds, namely, ;&< that under 3eneral 0rder ?o. A, as amended by 3eneral 0rder ?o. ACA, 4the
.udiciary;,hich includes the -upreme Court< shall continue to function in accordance ,ith its present
organi"ation and personnel, and shall try and decide in accordance ,ith e8isting la,s all criminal and
civil cases, e8cept the follo,ing7 &. hose involving the validity, legality or constitutionality of
Proclamation &9)& dated -eptember *&, &('* or of any decree, order or acts issued, promulgated or
performed by ;the President< or by ;his< duly designated representative pursuant thereto,4 and ;*< the
#uestions involved in these cases are political and nonCjusticiable and, therefore, outside the domain
of judicial in#uiry.
K A K
3/?/!A+ 0!D/!- ?0-. A A?D ACA >A6/ C/A-/D 0 B/ 0P/!A%6/ %?-01A! A- >/@
/?.0%? >/ .=D%C%A!@ 01 .=!%-D%C%0? 06/! CA-/- %?60+6%?3 >/ 6A+%D%@ 01 >/
P!0C+AMA%0?-, 0!D/!- 0! AC- 01 >/ P!/-%D/?.
Anent the first ground thus invoked by the respondents, it is not ,ithout importance to note that the
-olicitor 3eneral relies barely on the provisions of the general orders cited ,ithout elaborating as to
ho, the -upreme Court can be bound thereby. Considering that the totality of the judicial po,er is
vested in the Court by no less than the Constitution, both the 0ld and the ?e,, the absence of any
independent sho,ing of ho, the President may by his o,n fiat constitutionally declare or order
other,ise is certainly significant. %t may be that the -olicitor 3eneral considered it more prudent to
tone do,n any possible frontal clash ,ith the Court, but as Ee see it, the simplistic tenor of the
-olicitor 3eneral$s defense must be due to the fact too ,ell kno,n to re#uire any evidential proof that
by the President$s o,n acts, publici"ed here and abroad, he had made it plainly understood that
3eneral 0rders ?os. A and ACA are no longer operative insofar as they ,ere intended to divest the
.udiciary of jurisdiction to pass on the validity, legality or constitutionality of his acts under the aegis of
martial la,. %n fact, according to the President, it ,as upon his instructions given as early as
-eptember *J, &('*, soon after the filing of the present petitions, that the -olicitor 3eneral submitted
his return and ans,er to the ,rits Ee have issued herein. %t is a matter of public kno,ledge that the
president$s repeated avo,al of the 3overnment$s submission to the Court is being proudly acclaimed
as the distinctive characteristic of the soCcalled 4martial la, K Philippine style4, since such attitude
endo,es it ,ith the democratic flavor so dismally absent in the martial la, prevailing in other
countries of the ,orld.
Accordingly, even if it ,ere to be assumed at this juncture that by virtue of the transitory provision of
the ?e, Constitution making all orders of the incumbent President part of the la, of the land, 3eneral
0rders ?os. A and ACA are valid, the position of the respondents on the present issue of jurisdiction
based on said orders has been rendered untenable by the very acts of the President, ,hich in the
,ords of the same transitory provision have 4modified, revoked or superseded4 them. And in this
connection, it is important to note that the transitory provision just referred to te8tually says that the
acts of the incumbent President shall 4remain valid, legal, binding and effective ... unless modified,
revoked or superseded by subse#uent proclamations, orders, decrees, instructions or other acts of
the incumbent President, or unless e8pressly and e8plicitly modified, or repealed by the regular
?ational Assembly4, thereby implying that the modificatory or revocatory acts of the president need
not be as e8press and e8plicit as in the case of the ?ational Assembly. %n other ,ords, ,hen it comes
to acts of the President, mere demonstrated inconsistency of his posterior acts ,ith earlier ones
,ould be enough for implied modification or revocation to be effective, even if no statement is made
by him to such effect.
!ationali"ing his attitude in regard to the -upreme Court during martial la,, President Marcos has the
follo,ing to say in his book entitled 4?otes on the ?e, -ociety of the Philippines47
0ur martial la, is uni#ue in that it is based on the supremacy of the civilian authority over the military and
on complete submission to the decision of the -upreme Court, and most important of all, the people. ...
;p. &9A<.
888 888 888
hus, upon the approval by the Constitutional Convention of a ne, Constitution, % organi"ed the
barangays or village councils or citi"ens assemblies in the barrios ;a barrio is the smallest political unit in
the Philippines<. % directed the ne, Constitution to be submitted to the barangays or citi"ens assemblies in
a formal plebiscite from .anuary &9 to &B, &('A. he barangays voted almost unanimously to ratify the
Constitution, continue ,ith martial la, and ,ith the reforms of the ?e, -ociety.
his action ,as #uestioned in a petition filed before our -upreme Court in the cases entitled Javellana vs.
E6ecutive Secretar et al, 3.!. ?o. +CA2&JA,A2&2J, A2&2B, A2*A2 and A2*)A. he issue raised ,as
,hether % had the po,er to call a plebiscite: ,hether % could proclaim the ratification of the ne,
Constitution. %n raising this issue, the petitioners ;,ho, incidentally, ,ere +iberals or political opposition
leaders< raised the fundamental issue of the po,er of the President under a proclamation of martial la, to
issue decrees.
%nasmuch as the issues in turn raised the #uestion of the legitimacy of the entire 3overnment and also to
meet the insistent suggestion that, in the event of an adverse decision, % proclaim a revolutionary
government, % decided to submit to tile jurisdiction of the -upreme Court as % had done in the 0ansan+ vs.
Garcia case ;already #uoted< in &('& ,hen almost the same parties in interest #uestioned my po,ers as
President to suspend the privilege of the ,rit of *a#eas corpus. ;!efer to pp. &AC&'.< .
his ,ould, at the same time, calm the fears of every cynic ,ho had any misgivings about my intentions
and claimed that % ,as ready to set up a dictatorship. 1or ,ho is the dictator ,ho ,ould submit himself to
a higher body like the -upreme Court on the #uestion of the constitutionality or validity of his actionsI ;pp.
&9AC&9J.<
888 888 888
%t ,ill be noted that % had submitted myself to the jurisdiction of the -upreme Court in all cases
#uestioning my authority in &('& in the case of 0ansan+ vs. Garcia on the #uestion of the suspension of
the privilege of the ,rit of *a#eas corpus and in the case just cited on the proclamation of martial la, as
,ell as the other related cases. ;pp. &9BC&92.<
?othing could be more indicative, than these ,ords of the President himself, of his resolute intent to
render 3eneral 0rders ?os. A and ACA inoperative insofar as the -upreme Court$s jurisdiction over
cases involving the validity, legality or constitutionality of his acts are concerned. Actually, the tenor
and purpose of the said general orders are standard in martial la, proclamations, and the President$s
attitude is more of an e8ception to the general practice. Be that as it may, ,ith this development,
petitioners have no reason to charge that there is a 4disrobing4 of the -upreme Court. But even as the
President une#uivocally reaffirms, over and above martial la,, his respect for the -upreme Court$s
constitutionally assigned role as the guardian of the Constitution and as the final authority as to its
correct interpretation and construction, it is entirely up to the Court to determine and define its o,n
constitutional prerogatives visCaCvis the proclamation and the e8isting martial la, situation, given the
reasons for the declaration and its avo,ed objectives. .
K B K
MA@ >/ -=P!/M/ C0=! %?P=%!/ %?0 >/ 1AC=A+ BA-/- 01 >/ %--=A?C/ 01
P!0C+AMA%0? &9)& 0 D//!M%?/ %- C0?-%=%0?A+ -=11%C%/?C@I
he second ground vigorously urged by the -olicitor 3eneral is more fundamental, since, prescinding
from the force of the general orders just discussed, it strikes at the very core of the judicial po,er
vested in the Court by the people thru the Constitution. %t is claimed that insofar as the instant
petitions impugn the issuance of Proclamation &9)& as having been issued by the President in
e8cess of his constitutional authority, they raise a political #uestion not subject to in#uiry by the
courts. And ,ith reference to the plea of the petitioners that their arrest, detention and other
restraints, ,ithout any charges or ,arrants duly issued by the proper judge, constitute clear violations
of their rights guaranteed by the fundamental la,, the stand of the respondents is that the privilege of
the ,rit of *a#eas corpus has been suspended automatically in conse#uence of the imposition of
martial la,, the propriety of ,hich is left by the Constitution to the e8clusive discretion of the
President, such that for the proper e8ercise of that discretion he is accountable only to the sovereign
people, either directly at the polls or thru their representatives by impeachment.
?ever before has the -upreme Court of the Philippines been confronted ,ith a problem of such
transcendental conse#uences and implications as the present one entails. here is here an e8ertion
of e8treme state po,er involving the proclaimed assumption of the totality of government authority by
the /8ecutive, predicated on his o,n declaration that a state of rebellion assuming 4the magnitude of
an actual state of ,ar against our people and the !epublic of the Philippines4 e8ists ;**nd ,hereas of
Proclamation &9)&< and that 4the public order and safety and the security of this nation demand that
immediate, s,ift, decisive and effective action be taken to protect and insure the peace, order and
security of the country and its population and to maintain the authority of the government.4 ;&(th
,hereas, i!.< =pon the other hand, petitioners deny the factual bases of the Proclamation and insist
that it is incumbent upon the Court, in the name of democracy, liberty and the constitution, to in#uire
into the veracity thereof and to declare, upon finding them to be untrue, that the proclamation is
unconstitutional and void. !espondents counter ho,ever, that the very nature of the proclamation
demands but the court should refrain from making any such in#uiry, considering that, as already
stated, the discretion as to ,hether or not martial la, should be imposed is lodged by the Constitution
in the President e8clusively.
As Ee enter the e8tremely delicate task of resolving the grave issues thus thrust upon =s, Ee are
them is that the Constitution
9
is the supreme la, of the land. his means among others things all the
po,ers of the government and of all its officials from the President do,n to the lo,est emanate from
it. ?one of them may e8ercise any po,er unless it can be traced thereto either te8tually or by natural
and logical implication. .
he second is that it is settled that the .udiciary provisions of the Constitution point to the -upreme
Court as the ultimate arbiter of all conflicts as to ,hat the Constitution or any part thereof means.
Ehile the other Departments may adopt their o,n construction thereof, ,hen such construction is
he third is that in the same ,ay that the -upreme Court is the designated guardian of the
Constitution, the President is the specifically assigned protector of the safety, tran#uility and territorial
integrity of the nation. his responsibility of the President is his alone and may not be shared by any
other Department.
he fourth is that, to the end just stated, the Constitution e8pressly provides that 4in case of invasion,
insurrection or rebellion or imminent danger thereof, ,hen the public safety re#uires it, he ;the
/8ecutive< 4may ;as a last resort< ... place the Philippines or any part thereof under martial la,4.
10

Constitution is complete, total and unlimited, so also, the judicial po,er vested in the -upreme Court
and the inferior courts, is the very ,hole of that po,er, ,ithout any limitation or #ualification.
he si8th is that although the Bill of !ights in the Constitution strictly ordains that 4no person shall be
deprived of life, liberty or property ,ithout due process of la,4,
11
even this basic guarantee of
protection readily reveals that the Constitution$s concern for individual rights and liberties is not
entirely above that for the national interests, since the deprivation it enjoins is only that ,hich is
,ithout due process of la,, and la,s are al,ays enacted in the national interest or to promote and
safeguard the general ,elfare. 0f course, it is understood that the la, thus passed, ,hether
procedural or substantive, must afford the party concerned the basic elements of justice, such as the
right to be heard, confrontation, and counsel, inter alia.
And the seventh is that ,hereas the Bill of !ights of the &(AB Constitution e8plicitly enjoins that
4;<he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, or rebellion, ,hen the public safety re#uires it, in any of ,hich events the same may be
suspended ,herever during such period the necessity for such suspension shall e8ist4,
14
there is no
similar injunction ,hether e8pressed or implied against the declaration of martial la,.
reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a
conflict as to the correct construction of the Constitution, that is not contemplated to be ,ithin the
judicial authority of the courts to hear and decide. he judicial po,er of the courts being unlimited and
un#ualified, it e8tends over all situations that call for the ascertainment and protection of the rights of
any party allegedly violated, even ,hen the alleged violator is the highest official of the land or the
government itself. %t is, therefore, evident that the Court$s jurisdiction to take cogni"ance of and to
decide the instant petitions on their merits is beyond challenge.
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. %t is ingrained in the distribution of po,ers in the
fundamental la, that hand in hand ,ith the vesting of the judicial po,er 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, ,hen to refrain from imposing judicial
solutions and instead defer to the judgment of the latter. %t is in the very nature of republican
governments that certain matters are left in the residual po,er 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, ,hen one
studiously considers the basic junctions and responsibilities entrusted by the charter to each of the
great Departments of the government. o cite an obvious e8ample, the protection, defense and
preservation of the state against internal or e8ternal aggression threatening its veiny e8istence is far
from being ,ithin the ambit of judicial responsibility. he distinct role then of the -upreme 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 ,ay to the ultimate prerogative of the
people articulated thru suffrage or thru the acts of their political representatives they have elected for
the purpose.
attractive or popular opposite, judicial activism, ,hich is the fullest e8ertion of judicial po,er upon the
Court in varied forms and modes of projection in several momentous instances in the past,
13
and it is
the main support of the stand of the -olicitor 3eneral on the issue of jurisdiction in the case at bar. %t
is also referred to as the doctrine of judicial selfCrestraint or abstention. But as the nomenclatures
themselves imply, activism and selfCrestraint are both subjective attitudes, not inherent imperatives.
considered opinion is ,hat the Constitution envisions should be done in order to accomplish the
is secondary, respect for the acts of a coordinate, coCe#ual and coCindependent Department being the
alleged abuse of a Department$s o,n basic prerogatives.
%n the final analysis, therefore, Ee need not indulge in any further discussion as to ,hether or not the
Court has jurisdiction over the merits of the instant petitions. %t is definite that it has. !ather, the real
#uestion before =s is ,hether or not the Court should act on them. -tated differently, do Ee have
here that appropriate occasion for activism on the part of the Court, or, do the imperatives of the
situation demand, in the light of the reservations in the fundamental la, just discussed, that Ee defer
to the political decision of the /8ecutiveI After mature deliberation, and taking all relevant
circumstances into account, Ee are convinced that the Court should abstain in regard to ,hat is in all
probability the most important issue raised in them, namely, ,hether or not the Court should in#uire
into the constitutional sufficiency of Proclamation &9)& by receiving evidence tending to belie the
factual premises thereof. %t is 0ur considered vie, that under the Constitution, the discretion to
determine ultimately ,hether or not the Philippines or any part thereof should be placed under martial
la, and for ho, long is lodged e8clusively in the /8ecutive, and for this reason, it is best that Ee
defer to his judgment as regards the e8istence of the grounds therefor, since, after all, it is not
e8pected that the -upreme Court should share ,ith him the delicate constitutional responsibility of
defending the safety, security, tran#uility and territorial integrity of the nation in the face of a rebellion
or invasion. his is not abdication of judicial po,er, much less a violation of 0ur oaths 4to support and
defend the Constitution4: rather, this is deference to an act of the /8ecutive ,hich, in 0ur ,ellC
considered vie,, the Constitution contemplates the Court should refrain from revie,ing or interfering
,ith. o 0ur mind, the follo,ing considerations, inter alia, impel no other conclusion7
K & K
%t has been said that martial la, has no generally accepted definition, much less a precise meaning.
But as Ee see it, no matter ho, variously it has been described, a common element is plainly
recogni"able in ,hatever has been said about it K it does not involve e8ecutive po,er alone. o be
more e8act, martial la, is state po,er ,hich involves the totality of government authority, irrespective
of the Department or official by ,hom it is administered. his is because, as admitted by all, martial
la, is every government$s substitute for the established governmental machinery rendered
inoperative by the emergency that brings it forth, in order to maintain ,hatever legal and social order
is possible during the period of emergency, ,hile the government is engaged in battle ,ith the
enemy. 0ther,ise, ,ith the breakdo,n of the regular government authority or the inability of the usual
offices and officials to perform their functions ,ithout endangering the safety of all concerned,
anarchy and chaos are bound to prevail and protection of life and property ,ould be nil. Ehat is
,orse, the confusion and disorder ,ould detract the defense efforts. %t is indispensable therefore that
some kind of government must go on, and martial la, appears to be the logical alternative. >ence,
from the point of vie, of safeguarding the people against possible governmental abuses, it is not the
declaration of martial la, and ,ho actually administers it that is of supreme importance. -omeone
has of necessity to be in command as surrogate of the ,hole embattled government. %t is ,hat is
actually done by the administrator affecting individual rights and liberties that must pass constitutional
standards, even as these are correspondingly adjusted to suit the necessities of the situation. But this
is not to say that redress of constitutional offenses ,ould immediately and necessarily be available,
for even the procedure for securing redress, its form and time must depend on ,hat such necessities
,ill permit. 6ie,ed in depth, this is all that can be visuali"ed as contemplated in the supposedly
fundamental principle invoked by petitioners to the effect that necessity and necessity alone is the
justification and the measure of the po,ers that may be e8ercised under martial la,.
K * K
%n countries ,here there is no constitutional provision sanctioning the imposition of martial la,, the
po,er to declare or proclaim the same is nevertheless conceded to be the most vital inherent
prerogative of the state because it is a8iomatic that the right of the state to defend itself against
disintegration or subjugation by another cannot be less than an individual$s natural right of selfC
defense. he resulting repression or restraint of individual rights is therefore justified as the natural
contribution that the individual o,es to the state, so that the government under ,hich he lives may
survive. After all, such subordination to the general interest is supposed to be temporary, coincident
only ,ith the re#uirements of the emergency.
At the same time, under the general practice in those countries, it is considered as nothing but logical
that the declaration or proclamation should be made by the /8ecutive. -o it is that none of the cases
cited by petitioners, including those of Cearon vs. Calus &)A, -./. *J and 3llen vs. O-la*o(a Cit, B*
Pac. !ep. *nd -eries, pp. &9BJC&9B(, may be deemed as a binding precedent sustaining definitely
that it is in the po,er of the courts to declare an /8ecutive$s proclamation or declaration of martial la,
in case of rebellion or insurrection to be unconstitutional and unauthori"ed. 0ur o,n research has not
yielded any jurisprudence upholding the contention of petitioners on this point. Ehat is clear and
incontrovertible from all the cases cited by both parties is that the po,er of the /8ecutive to proclaim
martial la, in case of rebellion has never been challenged, not to say outla,ed. %t has al,ays been
assumed, even if the e8tent of the authority that may be e8ercise under it has been subjected to the
applicable provision of the constitution, ,ith some courts holding that the enforceability of the
fundamental la, ,ithin the area of the martial la, regime is un#ualified, and the others maintaining
that such enforceability must be commensurate ,ith the demands of the emergency situation. %n
other ,ords, there is actually no authoritative jurisprudential rule for =s to follo, in respect to the
specific #uestion of ,hether or not the /8ecutive$s determination of the necessity to impose martial
la, during a rebellion is revie,able by the judiciary. %f Ee have to go via the precedential route, the
most that Ee can find is that the legality of an /8ecutive$s e8ercise of the po,er to proclaim martial
la, has never been passed upon by any court in a categorical manner so as to leave no room for
doubt or speculation.
K A K
%n the Philippines, Ee do not have to resort to assumptions regarding any inherent po,er of the
government to proclaim a state of martial la,. Ehat is an implied inherent prerogative of the
government in other countries is e8plicitly conferred by our people to the government in une#uivocal
terms in the fundamental la,. More importantly in this connection, it is to the /8ecutive that the
authority is specifically granted 4in cases of invasion, insurrection or rebellion, ,hen public safety
re#uires it4, to 4place the Philippines or any part thereof under Martial +a,4. o be sure, petitioners
admit that much. But they insist on trying to sho, that the factual premises of the Proclamation are
not entirely true and are, in any event, constitutionally insufficient. hey urge the Court to pass on the
merits of this particular proposition of fact and of la, in their petitions and to order thereafter the
nullification and setting aside thereof.
Ee do not believe the Court should interfere.
he pertinent constitutional provision is e8plicit and une#uivocal. %t reads as follo,s7
;*< he President shall be commanderCinCchief of all armed forces of the Philippines and, ,henever it
place the Philippines or any part thereof under martial la, ;-ection &9;*<, Article 6%%, &(AB Constitution.<
;A< -/C. &*. he prime Minister shall be commanderCinCchief of all armed forces of the Philippines and,
corpus or place the Philippines or any part thereof under martial ;-ection &*, Article %D, &('A
Constitution.<
/8cept for the reference to the Prime Minister in the ?e, Constitution instead of to the President as in
the 0ld, the ,ording of the provision has remained unaltered ipssissi(is ver#is Accordingly, the t,o
Constitutions cannot vary in meaning, they should be construed and applied in the light of e8actly the
same considerations. %n this sense at least, petitioners$ invocation of the &(AB Constitution has not
been rendered academic by the enforcement of the ne, charter. 1or the purposes of these cases,
Ee ,ill in the main consider their arguments as if there has been no .avellana decision.
?o,, since in those countries ,here martial la, is an e8traCconstitutional concept, the /8ecutive$s
proclamation thereof, as observed above, has never been considered as offensive to the fundamental
la,, ,hether ,ritten or un,ritten, and, in fact, not even challenged, ,hat reason can there be that
here in the Philippines, ,herein the Constitution directly and definitely commits the po,er to the
/8ecutive, another rule should obtainI Are ,e 1ilipinos so incapable of electing an /8ecutive ,e can
trust not to unceremoniously cast aside his constitutionally ,orded oath solemnly and emphatically
imposing upon him the duty 4to defend and protect the Constitution4I 0r is the Court to be persuaded
by possible partisan prejudice or the subjective rationali"ation informing personal ambitionsI
!eserving for further discussion the effect of +ansang upon the compelling force of the opinions in
"arcelon vs. "a-er, B Phil. )' and 'ontene+ro vs. CastaAe!a, (& Phil. )2*, relative to the issue at
hand, Ee cannot lightly disregard the ponderous reasons discussed in said opinions supporting the
vie, that the /8ecutive$s choice of means in dealing ,ith a f rebellion should be conclusive. %n
Barcelon, this Court said7
hus the #uestion is s#uarely presented ,hether or not the judicial department of the 3overnment may
investigate the facts upon ,hich the legislative and e8ecutive branches of the 3overnment acted in
providing for the suspension and in actually suspending the privilege of the ,rit of *a#eas corpus in said
provinces. >as the 3overnorC3eneral, ,ith the consent of the Commission, the right to suspend the
privilege of the ,rit of *a#eas corpusI %f so, did the 3overnorC3eneral suspend the ,rit of *a#eas corpus
in the Provinces of Cavite and Batangas in accordance ,ith such authorityI
A paragraph of section B of the act of Congress of .uly &, &(9*, provides7
his provision of the act of Congress is the only provision giving the 3overnorC3eneral and the Philippine
Commission authority to suspend the privilege of the ,rit of *a#eas corpus. ?o #uestion has been raised
,ith reference to the authority of Congress to confer this authority upon the President or the 3overnorC
3eneral of these %slands, ,ith the approval of the Philippine Commission.
his provision of the act of Congress makes t,o conditions necessary in order that the President or the
3overnorC3eneral ,ith the approval of the Philippine Commission may suspend the privilege of the ,rit of
*a#eas corpus. hey are as follo,s7
;&< Ehen there e8ists rebellion, insurrection, or invasion: and
;*< Ehen public safety may re#uire it.
%n other ,ords, in order that the privilege of the ,rit of *a#eas corpus may be suspended, there must e8ist
rebellion, insurrection, or invasion, and the public safety must re#uire it. his fact is admitted, but the
#uestion is, Eho shall determine ,hether there e8ists a state of rebellion, insurrection, or invasion, and
that by reason thereof the public safety re#uires the suspension of the privilege of the ,rit of *a#eas
corpusI
%t has been argued and admitted that the 3overnorC3eneral, ,ith the approval of the Philippine
Commission, has discretion, ,hen insurrection, rebellion, or invasion actually e8ist, to decide ,hether the
public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus: but the fact ,hether
insurrection, rebellion, or invasion does actually e8ist is an open #uestion, ,hich the judicial department
of the 3overnment may in#uire into and that the conclusions of the legislative and e8ecutive departments
;the Philippine Commission and the 3overnorC3eneral< of the 3overnment are not conclusive upon that
#uestion.
%n other ,ords, it is contended that the judicial department of the 3overnment may consider an
application for the ,rit of *a#eas corpus even though the privileges of the same have been suspended, in
the manner provided by la,, for the purposes of taking proof upon the #uestion ,hether there actually
e8ists a state of insurrection, rebellion, or invasion.
he applicants here admit that if a state of rebellion, insurrection, or invasion e8ists, and the public safety
is in danger , then the President, or 3overnorC3eneral ,ith the approval of the Philippine Commission,
may suspend the privilege of the ,rit of *a#eas corpus.
%nasmuch as the President, or 3overnorC3eneral ,ith the approval of the Philippine Commission, can
suspend the privilege of the ,rit of *a#eas corpus only under the conditions mentioned in the said statute,
it becomes their duty to make an investigation of the e8isting conditions in the Archipelago, or any part
thereof, to ascertain ,hether there actually e8ists a state of rebellion, insurrection, or invasion, and that
the public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus. Ehen this
investigation is concluded, the President, or the 3overnorC3eneral ,ith the consent of the Philippine
Commission, declares that there e8ist these conditions, and that the public safety re#uires the suspension
of the privilege of the ,rit of *a#eas corpus, can the judicial department of the 3overnment investigate
the same facts and declare that no such conditions e8istI
he act of Congress, above #uoted, ,isely provides for the investigation by t,o departments of the
3overnment K the legislative and e8ecutive K of the e8isting conditions, and joint action by the t,o
before the privilege of the ,rit of *a#eas corpus can be suspended in these %slands.
district or province notifies the 3overnorC3eneral by telegraph ;%f this landing of troops and that the
people of the district are in collusion ,ith such invasion. Might not the 3overnorC3eneral and the
Commission accept this telegram as sufficient evidence and proof of the facts communicated and at once
take steps, even to the e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to
them to be necessary to repel such invasionI %t seems that all men interested in the maintainance and
stability of the 3overnment ,ould ans,er this #uestion in the affirmative.
furnishing proof to it concerning the e8istence or nonCe8istence of the facts proclaimed to e8ist by the
the la,.
the safety of the ,hole people. %f the judicial department of the 3overnment, or any officer in the
3overnment, has a right to contest the orders of the President or of the 3overnorC3eneral under the
conditions above supposed, before complying ,ith such orders, then the hands of the President or the
3overnorC3eneral may be tied until the very object of the rebels or insurrections or invaders has been
accomplished. But it is urged that the President, or the 3overnorC3eneral ,ith the approval of the
application for the ,rit of *a#eas corpus, that the legislative and e8ecutive branches of the 3overnment
might reach a ,rong conclusion from their investigations of the actual conditions, or might, through a
desire to oppress and harass the people, declare that a state of rebellion, insurrection, or invasion e8isted
and that public safety re#uired the suspension of the privilege of the ,rit of *a#eas corpus ,hen actually
and in fact no such conditions did e8ist. Ee can not assume that the legislative and e8ecutive branches
,ill act or take any action based upon such motives.
Moreover it can not be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
the condition of the =nion as to the prevalence of peace and disorder. he e8ecutive branch of the
the judicial department of the government, ,ith its very limited machinery for the purpose of investigating
any particular district, than the other branches of the governmentI Ee think not. ;At p. (&C(2.<
888 888 888
he same general #uestion presented here ,as presented to the -upreme Court of the =nited -tates
in the case of 'artin vs. 'ott, in .anuary, &)*'. An act of Congress of &'(B provided K
judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers
of the militia as he shall think proper.
%n this case ;Martin vs. Mott< the #uestion ,as presented to the court ,hether or not the President$s
action in calling out the militia ,as conclusive against the courts. he -upreme Court of the =nited
-tates, in ans,ering this #uestion, said7 .
he po,er thus confided by Congress to the President is, doubtless, of a very high and delicate nature. A
free people are naturally jealous of the e8ercise of military po,er: and the po,er to call the militia into
actual service is certainly felt to be one of no ordinary magnitude. But it is not a po,er ,hich can be
e8ecuted ,ithout corresponding responsibility. %t is, in its terms, a limited po,er, confined to cases of
actual invasion, or of imminent danger of invasion. %f it be a limited po,er, the #uestion arises, By ,hom
is the e8igency to be adjudged of and decidedI %s the President the sole and e8clusive judge ,hether the
e8igency has arisen, or is it to be considered as an open #uestion, upon ,hich every officer to ,hom the
orders of the President are addressed, may decide for himself, and e#ually open to be contested by very
militiaman ,ho shall refuse to obey the orders of the PresidentI Ee are all of the opinion that the
authority to decide ,hether the e8igency has arisen belongs e8clusively to the President and his decision
is conclusive upon all other persons. Ee think that this construction necessarily results from the nature of
the po,er itself and from the manifest object contemplated by the act of Congress. he po,er itself is to
be e8ercised upon sudden emergencies, upon great occasions of state and under circumstances ,hich
may be vital to the e8istence of the =nion. ... %f a superior officer has a right to contest the orders of the
President, upon his o,n doubts as to the e8igency having arisen, it must be e#ually the right of every
inferior officer and soldier .... -uch a course ,ould be subversive of all discipline and e8pose the best
disposed officer to the chances of erroneous litigation. Besides, in many instances, the evidence upon
,hich the President might decide that there is imminent danger of invasion might be of a nature not
constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state
,hich the public interest and even safety might imperiously demand to be kept in concealment.
Ehenever the statute gives a discretionary po,er to any person, to be e8ercised by him upon his o,n
opinion of certain facts it is a sound rule of construction that the statute constitutes him the sole and
e8clusive judge of the e8istence of those facts. And in the present case ,e are all of opinion that such is
the true construction of the act of &'(B. %t is no ans,er that such po,er may be abused, for there is no
po,er ,hich is not susceptible of abuse.$ ;Martin vs. Mott, &* Eheat., &( ;*B =.-.<: 6anderheyden vs.
@oung, && .ohns., ?.@. &B9.<
.ustice .oseph -tory for many years a member of the -upreme Court of the =nited -tates, in discussing
the #uestion ,ho may suspend the privilege of the ,rit of habeas: corpus under the Constitution of the
=nited -tates, said7
%t ,ould seem, as the po,er is given to Congress to suspend the ,rit of *a#eas corpus in cases of
rebellion, insurrection, or invasion, that the right to judge ,hether the e8igency has arisen must
conclusively belong to that body.$ ;-tory on the Constitution, Bth ed., see. &AJ*.<
.ustice .ames Net, for many years a justice of the supreme court of the -tate of ?e, @ork, in discussing
the same #uestion, cites the case of Martin vs. Mott, and says7 .
%n that case it ,as decided and settled by the -upreme Court of the =nited -tates that it belonged
e8clusively to the President to judge ,hen the e8igency arises in ,hich he had authority, under the
Constitution, to call forth the militia, and that his decision ,as conclusive upon all other persons. ;Nent$s
Commentaries, &Jth ed., vol. &, bottom p. A*A.<
.ohn !andolph ucker, for many years a professor of constitutional and international la, in Eashington
and +ee university, in discussing this #uestion, said7 .
By an act passed in &'(B Congress gave to the President po,er to call out the militia for certain
purposes, and by subse#uent acts, in &)9', po,er ,as given to him to be e8ercised ,henever he should
deem it necessary, for the purposes stated in the Constitution: and the -upreme Court ;=nited -tates<
has decided that this e8ecutive discretion in making the call ;for -tate militia< could not be judicially
#uestioned.$ ucker on the Constitution, 6ol. %%, p. B)&.<
.ohn ?orton Pomeroy, an eminent la, ,riter upon constitutional #uestions, said7 .
%n 'artin vs. 'ott it ,as decided that under the authority given to the President by the statute of &'(B,
calling forth the militia under certain circumstances, the po,er is e8clusively vested in him to determine
,hether those circumstances e8ist: and ,hen he has determined by issuing his call, no court can
#uestion his decision. ;Pomeroy$s Constitutional +a,, sec. J'2.<
>enry Campbell Black, a ,ellCkno,n ,riter on the Constitution, says7
By an early act of Congress it ,as provided that in case of an insurrection in any -tate
against the government thereof it shall be la,ful for the President of the =nited -tates, on
application of the legislature of such -tate, or of the e8ecutive ;,hen the legislature can
not be convened<, to call forth such a number of the militia of any other -tate or -tates as
may be applied for, as he may judge sufficient to suppress such insurrection. By this act
the po,er of deciding ,hether the e8igency has arisen upon ,hich the 3overnment of
the =nited -tates is bound to interfere is given to the President. ;Black$s Constitutional
+a,, p. &9*.<
.udge homas M. Cooley, in discussing the right of the judicial department of the 3overnment to interfere
,ith the discretionary action of the other departments of the 3overnment, in his ,ork on constitutional
la,, said7
Congress may confer upon the President the po,er to call them ;the militia< forth, and
this makes him the e8clusive judge ,hether the e8igency has arisen for the e8ercise of
the authority and renders one ,ho refuses to obey the call liable to punishment under
military la,. ;Cooley$s Principles of Constitutional +a,, p. &99.<.
But it may be argued by those ,ho contend for the contrary doctrine, to ,it, that the acts of the
3overnorC3eneral, ,ith the approval of the Philippine Commission, are not conclusive upon the
courts and that none of the foregoing citations are e8actly in point, that none of these cases or
authors treat of a case e8actly like the one presented. Ee are fortunate, ho,ever, in being able to
cite, in ans,er to that contention, the case of >enry Eilliam Boyle, ,here e8actly the same #uestion
,as presented to the supreme court of the -tate of %daho, ,hich the applicants present here and
,here the courts held the doctrine of the cases applied. %n the case of Boyle, he had been arrested
after the privilege of the ,rit of *a#eas corpus had been suspended. >e applied for a ,rit of *a#eas
corpus to the supreme court of %daho, alleging, among other things, in his application7
1irst7 hat $no insurrection, riot, or rebellion no, e8ists in -hoshone
County:$ and
-econd. hat $the 3overnor has no authority to proclaim martial la, or suspend the ,rit of *a#eas
corpus.
%n reply to this contention on the part of the applicant, Boyle, the court said7
Counsel have argued ably and ingeniously upon the #uestion as to ,hether the authority to suspend the
,rit of *a#eas corpus rests ,ith the legislative and e8ecutive po,ers of the 3overnment, but, from our
vie,s of this case, that #uestion cuts no figure. Ee are of the opinion that ,henever, for the purpose of
putting do,n insurrection or rebellion, the e8igencies of the case demand it, ,ith the successful
accomplishment of this end in vie,, it is entirely competent for the e8ecutive or for the military officer in
command, if there be such, either to suspend the ,rit or disregard it if issued. he statutes of this -tate
;%daho< make it the duty of the governor, ,henever such a state or condition e8ists as the proclamation of
the governor sho,s does e8ist in -hoshone County, to proclaim such locality in a state of insurrection and
to call in the aid of the military of the -tate or of the 1ederal 3overnment to suppress such insurrection
and reestablish permanently the ascendency of the la,. %t ,ould be an absurdity to say that the action of
the e8ecutive, under such circumstances, may be negatived and set at naught by the judiciary, or that the
action of the e8ecutive may be interfered ,ith or impugned by the judiciary. %f the courts are to be made a
sanctuary, a seat of refuge ,hereunto malefactors may fall for protection from punishment justly due for
the commission of crime they ,ill soon cease to be that palladium of the rights of the citi"en so ably
described by counsel.
0n application for a ,rit of *a#eas corpus, the truth of recitals of alleged facts in a proclamation issued by
the governor proclaiming a certain county to be in a state of insurrection and rebellion ,ill not be in#uired
into or revie,ed. he action of the governor in declaring -hoshone County to be in state of insurrection
and rebellion, and his action in calling to his aid the military forces of the =nited -tates for the purpose of
restoring good order and the supremacy of the la,, has the effect to put in force, to a limited e8tent,
martial la, in said county. -uch action is not in violation of the Constitution, but in harmony ,ith it, being
necessary for the preservation of government. %n such case the 3overnment may, like an individual acting
in selfCdefense, take those steps necessary to preserve its e8istence. %f hundreds of men can assemble
themselves and destroy property and kill and injure citi"ens, thus defeating the ends of government, and
the 3overnment is unable to take all la,ful and necessary steps to restore la, and maintain order, the
-tate ,ill then be impotent if not entirely destroyed, and anarchy placed in its stead.
%t having been demonstrated to the satisfaction of the governor, after some si8 or seven years of
e8perience, that the e8ecution of the la,s in -hoshone County through the ordinary and established
means and methods ,as rendered practically impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy of the la, and insuring the
punishment of those by ,hose unla,ful and criminal acts such a condition of things has been brought
about: and it is not the province of the courts to interfere, delay, or place obstructions in the path of duty
prescribed by la, for the e8ecutive, but rather to render him all the aid and assistance in their po,er, in
his efforts to bring about the consummation most devoutly prayed for by every good, la,Cabiding citi"en in
the -tate.$ ;%n re Boyle, JB +.!.A., &)((, )A*.< ;At pp. ((C&9J.<.
hese observations are follo,ed on pages &9J to &&B by a compilation of decided cases centrally
holding that 4,henever the Constitution or a statute gives a discretionary po,er to any person, to be
e8ercised by him upon his o,n opinion of certain facts, such person is to be considered the sole and
e8clusive judge of the e8istence of those facts.4 1or the sake of brevity, Ee shall not #uote the
discussion anymore. Ee are confident there can be no dissent insofar as the general proposition
stated is concerned.
?otably, in the unanimous decision of this Court in Montenegro, these vie,s are totally adopted in a
very brief passage thus7
B. %n his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. $here are$ he admits $intermittent sorties and lightning attacks by organi"ed
bands in different places$: but, he argues, $such sorties are occassional, locali"ed and transitory. And the
proclamation speaks no more than of overt acts of insurrection and rebellion, not of cases of invasion,
insurrection or rebellion or imminent danger thereof.$ 0n this subject it is noted that the President
concluded from the facts recited in the proclamation, and others connected there,ith, that $there is actual
danger of rebellion ,hich may e8tend throughout the country.$ -uch official declaration implying much
more than imminent danger of rebellion amply justifies the suspension of the ,rit.
o the petitioner$s unpracticed eye the repeated encounters bet,een dissident elements and military
troops may seem sporadic, isolated or casual. But the officers charged ,ith the ?ation$s security analy"ed
the e8tent and pattern of such violent clashes and arrived at the conclusion that they are ,arp and ,oof
of a general scheme to overthro, this government vi et ar(is, by force and arms.
thru Marshall, aney and -tory #uoted ,ith approval in Barcelon vs. Baker ;B Phil., )', pp. () an &99< the
authority to decide ,hether the e8igency has arisen re#uiring suspension belongs to the President and
$his decision is final and conclusive upon the courts and upon all other persons.
%ndeed as .ustice .ohnson said in that decision, ,hereas the /8ecutive branch of the 3overnment is
enabled thru its civil and military branches to obtain information about peace and order from every #uarter
and corner of the nation, the judicial department, ,ith its very limited machinery can not be in better
position to ascertain or evaluate the conditions prevailing in the Archipelago. ;At pp. ))2C))'.<
here are actually many more judicial precedents and opinions of kno,ledgeable and authoritative
te8t,riters, that can be copied here, maintaining ,ith ine8orable logic ,hy the /8ecutive is
incomparably best e#uipped and prepared to cope ,ith internal and e8ternal aggression and that,
indeed, the protection of the country against such contingencies is his sole responsibility not
supposed to be shared by the .udiciary. But the proposition appears to =s so plain and ineluctable
that to summon all of them to 0ur assistance could only open =s to the suspicion that the Philippine
-upreme Court has to depend on borro,ed thinking to resolve the most critical issues bet,een
individual rights, on the one hand, and state po,er e8erted as a matter of selfCdefense against
rebellion and subversion imperilling the country$s o,n survival, on the other. /mphatically, Ee don$t
have to. hank 3od Ee have enough native genius and indigenous means and resources to cope
,ith the most delicate problems of statehood. +et others listen to and abide by the platitudinous and
elegantly phrased dicta in Milligan, supra, Duncan and Ehite,
15
they ,ho are in and of the ,ealthiest
and mightiest po,er in the ,orld, that only actual military combat and related operations can justify
martial la,, but Ee, ,ho are in and of a small and ,eak developing nation, let us hearken and follo,
the homeCspun advice of our barrio folks cautioning everyone thus7
Nung ang bahay mo ay pa,id at ka,ayan pagdilim ng ulap at lumalakas na ang hanging magsara ka na
ng bintana at suhayan mo ang iyong bahay. ;Ehen your house is made of nipa and bamboo, and you see
the clouds darkening and the ,inds start blo,ing, it is time for you to close your ,indo,s and strengthen
the support of your house.<
his could e8plain ,hy under the Constitution, martial la, can be declared not only in case of actual
rebellion, but even only ,hen there is imminent danger thereof. And that is ,hy the open court rule
established in Milligan and reiterated in Duncan and Ehite is not controlling in this jurisdiction.
Besides, inasmuch as our people have included in the Constitution an e8press commitment of the
po,er to the President, ,hy do Ee have to resort to the pronouncements of other courts of other
countries ,herein said po,er is only impliedI !egardless of ,hat other courts believe their /8ecutive
may do in emergencies, our task is not to slavishly adopt ,hat those courts have said, for there is no
evidence that such ,as the intent of our constitutional fathers. gather, Ee should determine for
0urselves ,hat is best for our o,n circumstances in the Philippines, even if Ee have to give due
consideration to the e8perience other peoples have gone through under more or less similar crises in
the past.
%n any event, regardless of their ,eight insofar as the suspension of the privilege of the ,rit of *a#eas
corpus is concerned, Ee consider the reasons given in the aboveC#uoted opinions in Barcelon and
Montenegro of particular relevance ,hen it comes to the imposition of martial la,.
K J K
%t may be that the e8istence or nonCe8istence or imminence of a rebellion of the magnitude that ,ould
justify the imposition of martial la, is an objective fact capable of judicial notice, for a rebellion that is
not of general kno,ledge to the public cannot conceivably be dangerous to public safety. But
precisely because it is capable of judicial notice, no in#uiry is needed to determine the propriety of the
/8ecutive$s action.
Again, ,hile the e8istence of a rebellion may be ,idely kno,n, its real e8tent and the dangers it may
actually pose to the public safety are not al,ays easily perceptible to the unpracticed eye. %n the
present day practices of rebellion, its inseparable subversion aspect has proven to be more effective
and important than 4the rising ;of persons< publicly and taking arms against the 3overnment4 by
,hich the !evised Penal Code characteri"es rebellion as a crime under its sanction ;Art. &AJ,
!evised Penal Code<. -ubversion is such a covert kind of antiCgovernment activity that it is very
difficult even for army intelligence to determine its e8act area of influence and effect, not to mention
the details of its forces and resources. By subversion, the rebels can e8tend their field of action
unnoticed even up to the highest levels of the government, ,here no one can al,ays be certain of the
political comple8ion of the man ne8t to him, and this does not e8clude the courts. Arms, ammunitions
and all kinds of ,ar e#uipment travel and are transferred in deep secrecy to strategic locations, ,hich
can be one$s neighborhood ,ithout him having any idea of ,hat is going on. here are so many
insidious ,ays in ,hich subversives act, in fact too many to enumerate, but the point that immediately
suggests itself is that they are mostly incapable of being proven in court, so ho, are Ee to make a
judicial in#uiry about them that can satisfy our judicial conscienceI
he Constitution definitely commits it to the /8ecutive to determine the factual bases and to forth,ith
act as promptly as possible to meet the emergencies of rebellion and invasion ,hich may be crucial
to the life of the nation. >e must do this ,ith un,avering conviction, or any hesitancy or indecision on
his part ,ill surely detract from the needed precision in his choice of the means he ,ould employ to
repel the aggression. he apprehension that his decision might be held by the -upreme Court to be a
transgression of the fundamental la, he has s,orn to 4defend and preserve4 ,ould deter him from
acting ,hen precisely it is most urgent and critical that he should act, since the enemy is about to
strike the mortal blo,. Different men can honestly and reasonably vary in assessing the evidentiary
value of the same circumstance, and the prospect of being considered as a constitutional felon rather
than a saviour of the country should the .ustices disagree ,ith him, ,ould put the /8ecutive in an
unenviable predicament, certainly un,ise and imprudent for any Constitution to contemplate he
should be in. But ,hat is ,orse is that the Court is not e#uipped in any ,ay ,ith the means to
ade#uately appreciate the insidious practices of subversion, not to say that it cannot do it ,ith more
or at least e#ual accuracy as the /8ecutive. Besides, the Court ,ould then be acting already ,ith
considerable hindsight considerations ,hich can imperceptibly influence its judgment in overriding the
/8ecutive$s finding.
More than ever before, ,hen rebellion ,as purely a surface action, and vie,ing the matter from all
angles, it appears ineludible that the Court should refrain from interfering ,ith the /8ecutive$s delicate
decision. After all, the sacred rights of individuals enshrined in the Bill of !ights and the other
constitutional processes ever valuable to the people, but ,hich admittedly cannot, by the ,ay, be
more important than the very survival of the nation, are not necessarily s,ept a,ay by a state of
martial la,, for, as already pointed out earlier, the validity of the Proclamation is one thing, the
administration of the government under it is something else that has to be done ,ith the closest
adherence to the fundamental la, that the obvious necessities of the situation ,ill permit. As Ee see
it, it is in this sense that the Constitution is the supreme la, e#ually in times of peace and of ,ar and
for all classes of men, if Ee must refer again to petitioners$ reliance on Milligan. At the same time, let
us not overlook, in connection ,ith this favorite authority of petitioners, that the 1ederal -upreme
Court$s postulation therein, that it ,as 4happily proved by the result of the great effort to thro, off ;the<
just authority4 of the =nited -tates during the Civil Ear that the constitution of that country contains
,ithin itself all that is necessary for its preservation, is not factually accurate, for all the ,orld kno,s
that if the American =nion survived the ordeal of possible disintegration and is the great nation that
she is today, it ,as not because President +incoln confined himself strictly to the po,ers vested in the
presidency by the constitution, but because he ,as ,ise enough to resort to inherent
e8traconstitutional state prerogatives, e8ercisable by the /8ecutive alone, ,hich President Marcos
did not have to do, considering that our Constitution e8pressly confers upon him the authority to
utili"e such state po,er in defense of the nation.
K B K
he historical development of the po,ers of the Philippine /8ecutive unmistakably points to the same
direction. Practically all the constitutions that came into being during the revolutionary period before
the turn of the last century, of ,hich the Malolos Constitution is typical, either entrusted e8ecutive
po,er to a commission or made the /8ecutive largely dependent on the legislature. Ehen the
Americans ended their military occupation, after subduing the Aguinaldo forces of independence, they
had their o,n version of governmental po,ers. %n the Philippine Bill of &(9*, nothing ,as mentioned
about martial la,, and the po,er of the 3overnor 3eneral to suspend the privilege of the ,rit of
*a#eas corpus ,as conditioned on, among other things, the concurrence of the Philippine
Commission of ,hich, notably, the 3overnor 3eneral ,as the head. Ehen in &(9B, the 3overnor
3eneral suspended the Privilege in the provinces of Cavite and Batangas, the case of "arcelon vs.
"a-er, supra, arose. 0ver the dissent of .ustice Eillard ,ho invoked Milligan, the -upreme Court
held that the proclamation ordering such suspension ,as not revie,able by the .udiciary.
Eith a little touch of irony, in &(&2, ,hen the =nited -tates Congress, ,ith the avo,ed intent of
granting greater political autonomy to the Philippines, enacted the .ones +a,, it removed the need for
legislative concurrence in regards to the suspension of the Privilege, because the legislature ,as to
be in 1ilipino hands, and in addition to preserving such po,er of suspension, granted the 3overnorC
3eneral the sole authority to declare martial la,, subject only to revocation by the President of the
=nited -tates. Eithout forgetting that at that time, the 3overnorC3eneral being then an American,
those po,ers served as ,eapons of the coloni"er to consolidate its hold on the subject people, such
plenitude of po,er in the /8ecutive ,as to appear later to the 1ilipino leaders as something that
should be adopted in our fundamental la,. -o it ,as that in the Constitutional Convention of &(AJ,
the first the Philippines ever held in peace time, the delegates, dra,ing heavily from the e8perience of
the country during the autonomous period of the .ones +a,, and perchance persuaded in no small
measure by the personality of President Manuel +. Pue"on, lost no time in adopting the concept of a
strong e8ecutive. heir decision ,as studied and deliberate. %ndeed, it is the unanimous observation
of all students of our Constitution, that under it, ,e have in the Philippines the strongest e8ecutive in
the ,orld. 1ully a,are of this feature and appearing rather elated by the apparent success of the
delegates to reconcile the possible evils of dictatorship ,ith the need of an e8ecutive ,ho 4,ill not
only kno, ho, to govern, but ,ill actually govern4, President Claro M. !ecto of the Convention
remarked in his valedictory address adjourning the Assembly as follo,s7
During the debate on the /8ecutive Po,er it ,as the almost unanimous opinion that ,e had invested the
/8ecutive ,ith rather e8traordinary prerogatives. here is much truth in this assertion. But it is because
,e cannot be insensible to the events that are transpiring around us, events ,hich, ,hen all is said and
done, are nothing but history repeating itself. %n fact, ,e have seen ho, dictatorships, ,hether black or
red, capitalistic or proletarian, fascistic or communistic, ancient or modern, have served as the last refuge
of peoples ,hen their parliaments fail and they are already po,erless to save themselves from
misgovernment and chaos. +earning our lesson from the truth of history, and determined to spare our
people the evils of dictatorship and anarchy, ,e have thought it prudent to establish an e8ecutive po,er
,hich, subject to the fiscali"ation of the Assembly, and of public opinion, ,ill not only kno, ho, to govern,
but ,ill actually govern, ,ith a firm and steady hand, unembarrassed by ve8ations, interferences by other
departments, or by unholy alliances ,ith this and that social group. hus, possessed ,ith the necessary
gifts of honesty and competence, this /8ecutive ,ill be able to give his people an orderly and progressive
government, ,ithout need of usurping or abdicating po,ers, and cunning subterfuges ,ill not avail to
e8tenuate his failures before the bar of public opinion.4 ;4he Philippine Constitution K -ources, Making,
Meaning, and Application4 published by the Philippine +a,yers$ Association, p. BJ9.<
0f particular relevance to the present discussion is the fact that ,hen an attempt ,as made by a fe,
delegates led by Delegate -alvador Araneta of Manila to subject the /8ecutive$s po,er to suspend
the privilege of the ,rit of *a#eas corpus to concurrence or revie, by the ?ational Assembly and the
-upreme Court, the effort did not prosper, thereby strongly indicating, if it did not make it indubitably
definite, that the intent of the framers of the fundamental la, is that the /8ecutive should be the sole
judge of the circumstances ,arranting the e8ercise of the po,er thus granted. %n any event, the only
evidence of any thinking ,ithin the convention advocating the revocation of the Barcelon doctrine of
,hich together ,ith Milligan, they ,ere or ought to have been a,are, ,hat ,ith the best kno,n
la,yers in the Philippines in their midst, collapsed ,ith the rejection of the Araneta proposal.
%t ,as in the light of this historical development of the /8ecutive Po,er that in &(B&, the -upreme
Court decided unanimously the case of 'ontene+ro vs. CastaAe!a, supra, reiterating the doctrine of
conclusiveness of the /8ecutive$s findings in the Barcelon case.
1or all that it may be ,orthy of mention here, if only because practically the same 1ilipino minds, led
by President .ose P. +aurel, ,ere largely responsible for its formulation, the Constitution of the
-econd Philippine !epublic born under aegis of the .apanese occupation of the Philippines during
the -econd Eorld Ear, provided also for a strong e8ecutive. 0n this point, President +aurel himself
had the follo,ing to say7
he fundamental reason and necessity for the creation of a political center of gravity under the
!epublic is that, in any form of government K and this is especially true in an emergency, in a
national crisis K there must be a man responsible for the security of the state, there must be a man
,ith ade#uate po,ers, to face any given situation and meet the problems of the nation. here must
be no shifting of responsibility: there must be no evasion of responsibility: and if a government is to be
a real government and a scientific government there must be no t,o centers of gravity but one. ;*
0.3.G..M.A.H, )'A G&(JAH.<4 ;he Philippine Presidency by %rene !. Cortes, p. &J.<.
he foregoing is a logical follo,Cup of ,hat +aurel had said in the &(AJ Convention thus7
... A strong e8ecutive he is intended to be, because a strong e8ecutive ,e shall need, especially in
the early years of our independent, or semiCindependent e8istence. A ,eak e8ecutive is synonymous
,ith a ,eak government. >e shall not be a $monarch$ or a dictator in time of profound and 0ctavian
peace, #ut *e virtuall so #eco(es in an e6traor!inar e(er+enc: and ,hatever may be his position,
he bul,arks normally, the fortifications of a strong constitutional government, but abnormally, in
e8treme cases, he is suddenly ushered in as a Minerva, fullCgro,n and in full panoply of ,ar, to
occup t*e vanta+e +roun! 1 t*e rea! protector an! !e,en!er o, t*e li,e an! *onor o, *is nation.
;/mphasis supplied.< ;he Philippine Constitution, published by the Phil. +a,yers Association, 6ol. &,
&(2( /d., p. &)A.<.
hus, it is not surprising at all that ,ithout changing one ,ord in the provision granting to the
/8ecutive the po,er to cope ,ith the emergencies under discussion, the &('& Convention fortified
thru related provisions in the transitory portion of the Constitution the applicability of the Barcelon and
Montenegro concepts of the /8ecutive$s po,er, as applied to the imposition of martial la,, thereby
,eakening pro tanto as ,ill be seen in the follo,ing pages, the impact of 0ur +ansang doctrine, for
the purposes of the precise issue no, before =s.
At this juncture, it may be pointed out that the po,er granted to the /8ecutive to place the country or
any part thereof under martial la, is independent of the legislative grant to him of emergency Po,ers
authori"ed under the follo,ing provision of the &(AB Constitution7
-ec. *2. %n times of ,ar or other national emergency, the Congress may by la, authori"e the President,
for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and
regulations to carry out a declared national policy. ;Art. 6%, sec. *2, &(AB Constitution.<.
his provision is copied verbatim in the &('A Charter e8cept for the reference to the Prime Minister
instead of to the President and the addition of the follo,ing sentence indicating more emphatically the
temporary nature of the delegation7
=nless sooner ,ithdra,n by resolution of the ?ational Assembly, such po,ers shall cease upon its ne8t
adjournment. ;-ection &B, Article 6%%%, &('A Constitution of the Philippines.<
he point that immediately surges to the mind upon a reading of this provision is that in times of ,ar
or other national emergency it is definitely to the /8ecutive that the people thru the fundamental la,
entrust the running of the government, either by delegation of the legislative po,er to him thru an
e8press enactment of the +egislature to that effect or by direct authori"ation from the Constitution
itself to utili"e all the po,ers of government should he find it necessary to place the country or any
part thereof under martial la,. Additional evidence of such clear intent is the fact that in the course of
the deliberations in the Constitutional Convention of &(AJ of the proposal to incorporate the above
provision in the charter, Delegate Eenceslao 6in"ons of Camarines ?orte moved to delete the same
for fear that the concentration of po,ers in one man may facilitate the emergence of a dictatorship.
>e said in part7
he po,er to promulgate rules and regulations in times of emergency or ,ar is not recogni"ed in any
constitution e8cept, perhaps, the Constitution of Denmark, ,hich provides that in case of special urgency
the Ning may, ,hen the !eichstag is not in session, issue la,s of temporary application. -uch la,s,
ho,ever, shall not be contrary to the Constitution, and they shall be submitted to the !eichstag in its ne8t
session. -o, even in a kingdom like Denmark, the po,ers of the Ning are limited in times of emergency.
=nder the Constitution ,e are drafting no,, there is absolutely no limit e8cept ,hen the ?ational
Assembly specifies at the inception of the grant of po,er.
% ,ant to ,arn, Mr. President, of a future condition in our !epublic ,hen ,e shall no longer be under the
tutelage of any foreign po,er, ,hen ,e shall have to ,ork for our o,n destiny. % ,ant to say that % am not
very positive in stating here that ,e shall have a dictatorship because the structure of the government that
,e are creating permits its establishment, but the po,er to promulgate rules and regulations ,ill give rise
to a strong man ,ho may, in a desire to gratify his personal ambitions, sei"e the reins of government.4
;Page A(&, 6olume 1ive, he Philippine Constitution, %ts 0rigins, Making, Meaning, and Application, a
publication of the Philippine +a,yers Association, &('*.<.
Despite such elo#uent ,arning, the assembly voted do,n his motion.
%t is no, contended that instead of declaring martial la,, President Marcos should have sought from
Congress the approval of an emergency po,ers act similar to Common,ealth Acts 299 and 2'&
passed respectively on August &(, &(J9, long before the .apanese invasion, and December &2,&(J&,
,hen the ?ippon Army ,as already on its ,ay to Manila from +ingayen and other landing points in
the ?orth.
o start ,ith, Congress ,as not una,are of the ,orsening conditions of peace and order and of, at
least, evident insurgency, ,hat ,ith the numerous easily verifiable reports of open rebellious activities
in different parts of the country and the series of rallies and demonstrations, often bloody, in Manila
itself and other centers of population, including those that reached not only the portals but even the
session hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either
,ere indifferent or did not kno, ,hat to do under the circumstances. %nstead of taking immediate
measures to alleviate the conditions denounced and decried by the rebels and the activists, they
debated and argued long on palliatives ,ithout coming out ,ith anything substantial, much less
satisfactory in the eyes of those ,ho ,ere seditiously shouting for reforms. %n any event, in the face of
the inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that
urgently called for immediate action, the only alternative open to the President ,as to resort to the
other constitutional source of e8traordinary po,ers, the Constitution itself.
%t is significant to note that Common,ealth Act 2'& granted the President practically all the po,ers of
government. %t provided as follo,s7
-ec. &. he e8istence of ,ar bet,een the =nited -tates and other countries of /urope and Asia, ,hich
involves the Philippines, makes it necessary to invest the President ,ith e8traordinary po,ers in order to
meet the resulting emergency.
-ec. *. Pursuant to the provisions of Article 6%, section &2, of the Constitution, the President is hereby
authori"ed, during the e8istence of the emergency, to promulgate such rules and regulations as he may
deem necessary to carry out the national policy declared in section & hereof. Accordingly he is, among
other things, empo,ered ;a< to transfer the seat of the 3overnment or any of its subdivisions, branches,
departments, offices, agencies or instrumentalities: ;b< to reorgani"e the 3overnment of the
Common,ealth including the determination of the order of precedence of the heads of the /8ecutive
Departments: ;c< to create ne, subdivisions, branches, departments, offices, agencies or
instrumentalities of government and to abolish any of those already e8isting: ;d< to continue in force la,s
and appropriations ,hich ,ould lapse or other,ise become inoperative, and to modify or suspend the
operation or application of those of an administrative character: ;e< to impose ne, ta8es or to increase,
reduce, suspend, or abolish those in e8istence: ;f< to raise funds through the issuance of bonds or
other,ise, and to authori"e the e8penditure of the proceeds thereof: ;g< to authori"e the ?ational,
provincial, city or municipal governments to incur in overdrafts for purposes that he may approve: ;h< to
declare the suspension of the collection of credits or the payment of debts: and ;i< to e8ercise such other
po,ers as he may deem necessary to enable the 3overnment to fulfill its responsibilities and to maintain
and enforce its authority.
-ec. A. he President of the Philippines shall as soon as practicable upon the convening of the Congress
of the Philippines report thereto all the rules and regulations promulgated by him under the po,ers herein
granted.
-ec. J. his act shall take effect upon its approval, and the rules and regulations promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall other,ise provide.
1rom this e8tensive grant of immense po,ers, it may be deduced that the difference bet,een martial
la, and the delegation of legislative po,er could be just a matter of procedure in that the investment
of authority in the former is by the Constitution ,hile in the latter it is by the +egislature. he resulting
constitutional situation is the same in both government by the /8ecutive. %t can be said that even the
primacy of military assistance in the discharge of government responsibilities ,ould be covered by
the e8ercise of the delegated authority from Congress.
Ehat is most important, ho,ever, is that the Constitution does not prohibit the declaration of martial
la, just because of the authority given to the +egislative to invest the /8ecutive ,ith e8traordinary
po,ers. %t is not to be supposed that in the face of the inability or refusal of the +egislature to act, the
people should be left helpless and ,ithout a government to cope ,ith the emergency of an internal or
e8ternal aggression. Much less is it logical to maintain that it is the -upreme Court that is called upon
to decide ,hat measures should be taken in the premises. %ndeed, the fundamental la, looks to the
/8ecutive to make the choice of the means not only to repel the aggression but, as a necessary
conse#uence, to undertake such curative measures and reforms as are immediately available and
feasible to prevent the recurrence of the causes of the emergency.
Petitioners are capitali"ing on the pronouncements of this Court in +ansang. Ee feel, ho,ever, that
such e8cessive reliance is not altogether ,ell placed.
he e8act import of the +ansang doctrine is that it is ,ithin the constitutional prerogative of the
-upreme Court to in#uire into the veracity of the factual bases recited by the /8ecutive in a
proclamation ordering the suspension of the privilege of the ,rit of *a#eas corpus, for the purpose of
determining ,hether or not the /8ecutive acted arbitrarily in concluding from the evidence before him
that there ,as indeed a rebellion and that public necessity, as contemplated in the Constitution,
re#uired such suspension. %n other ,ords, Ee held therein that the issue of legality or illegality of a
proclamation suspending the Privilege is a justiciable one, in regard to ,hich the Court could make
independent findings based on the evidence on ,hich the President himself acted. Actually, ho,ever,
no real hearing ,as held for the purpose in that case. Ehat might perhaps be considered as such a
hearing ,as ,hat took place on 0ctober *) and *(,&('&, ,hen, because of the ,illingness
e8pressed by the respondents therein to impart to the Court classified information relevant to the
cases, subject to appropriate security measures, the Court met behind closed doors, and in the
presence of three attorneys representing the petitioners therein and the -olicitor 3eneral it ,as
briefed by the Chief of -taff of the Armed 1orces and other ranking military officials on said classified
information, after ,hich the parties ,ere granted time to file their respective memoranda of
observations on the matters revealed in the briefing, ,hich they did. ;-ee J* -C!A, at pp. J22CJ2'<.
%n the present cases there has been no such hearing, not even a briefing ,herein petitioners ,ere
represented. And it is gravely doubtful ,hether any move in that direction ,ould prosper, considering
there are not enough members of the Court, ,ho believe in the juridical relevance thereof, to
constitute the re#uired majority for a binding action to order such a hearing or even just a similar
briefing as before.
Be that as it may, the important point is that +ansang referred to the e8tent of the po,ers of the Court
in regard to a proclamation suspending the Privilege ,hereas ,hat is before =s no, is a
proclamation imposing martial la,. Ee hold that the po,ers of the /8ecutive involved in the t,o
proclamations are not of the same constitutional level and the prerogatives of the Court relative to
*a#eas corpus are distinct from those in the perspective of martial la,.
o start ,ith, it is too evident to admit of dispute that the afore#uoted constitutional provision touching
on the three po,ers of the /8ecutive, the calling of the armed forces, the suspension of the privilege
and the imposition of martial la, contemplates varying and ascending degrees of la,lessness and
public disorder. Ehile it is true that te8tually any of the three courses of action mentioned may be
taken by the /8ecutive on the occasion of an invasion, insurrection or rebellion, the degree of
resulting repression of individual rights under each of them varies so substantially that it cannot be
doubted that the constitution contemplates that the determination as to ,hich of them should be taken
should depend on the degree of gravity of the prevailing situation. %n other ,ords, it is the actual
magnitude of the rebellion to be suppressed and the degree and e8tent of danger to public safety
resulting therefrom that determines ,hether it should be the first, the second or the third that should
be taken in order that there may be a direct proportion bet,een the degree of gravity of the crisis and
the restraint of individual rights and liberties. Ehen the situation is not very serious but is
nevertheless beyond the control of the regular peace authorities of the place affected, then the armed
forces can be called. -hould the conditions deteriorate in such a ,ay as to involve a considerable
segment of the population, thereby making it difficult to maintain order and to differentiate the loyal
1rom the disloyal among the people, ,ithout detaining some of them, either preventively or for their
delivery to the proper authorities after the emergency or as soon as it eases, then the privilege of the
,rit of *a#eas corpus may also be suspended. But the moment the situation assumes very serious
proportions, to the e8tent that there is a breakdo,n of the regular government machinery either
because the officials cannot physically function or their functioning ,ould endanger public safety,
martial la, may be imposed. here is thus a marked gradation of the circumstances constituting
rebellion and danger to public safety in the provision, and it is to be supposed that the measure to be
adopted by the /8ecutive should be that ,hich the situation demands.
he calling of the armed forces is done by the /8ecutive in his capacity as CommanderCinCChief. he
po,er thus e8ercised is purely e8ecutive and does not cause any disturbance in the constitutional
order in the government. %n the case of suspension of the Privilege, individual rights guaranteed by
the Bill of !ights are restrained, but other,ise the regular constitutional machinery and the po,ers
and functions of the different officials of the government, including the courts, remain unaffected.
Moreover, the suspension of the Privilege, although premised on the demand of public safety, need
not be necessarily predicated on the re#uirements of national security as should be the case ,ith
martial la,. Again, the po,er e8ercised in suspension is e8ecutive po,er and nothing more. But
,hen martial la, is proclaimed, there is, as already observed earlier, a surrogation of the regular
government machinery by the constitutionally designated administrator ,ith the aid of the military.
Ehat is e8ercised in this instance is not e8ecutive po,er alone but state po,er ,hich involves the
totality of government authority, but ,ithout an actual military takeover, if only because the civilian
President remains at the head.
%n this connection, it is very important to note that ,hereas the Bill of !ights e8plicitly prohibits the
suspension of the Privilege of the ,rit of *a#eas corpus e8cept under the detailed circumstances
prescribed therein, including the limitations as to the time and place ,hen and ,here it may stay
suspended, there is no similar injunction in regard to the imposition of martial la,. %n other ,ords, the
grant of the po,er to declare martial la, in the /8ecutive portion of the Constitution is not countered,
unlike in the case of *a#eas corpus, by a prohibition in the Bill of !ights, the sanctuary of individual
liberties.
%nvoking +ansang, petitioners argue that if an order of suspension of the Privilege ,hich involves less
repression of constitutional processes than martial la, is revie,able by the courts, ,ith more reason
should the imposition of martial la,, ,hose effect upon the constitutional rights and processes is
more pervasive, be subject to a judicial test of constitutionality. 6ie,ing it from the angle of individual
rights, the argument sounds plausible, but ,hen it is considered that the framers of the Bill of !ights
never bothered to put the same or any similar breaks to the imposition of martial la, as that ,hich
they placed in regard to suspension, it can be readily seen that because of the gravity of the crisis
predicating the e8treme remedy of martial la,, the constitution itself makes the invocation of
individual rights subordinate to the national interest involved in the defense of the state against the
internal aggression that confronts it. 1rom this consideration, it follo,s that ,hatever standard of
constitutionality ,as established by the Court in +ansang relative to -uspension is not necessarily the
measure of the po,ers the Court can e8ercise over the /8ecutive$s proclamation of martial la,. Ehat
the Constitution purposely and ,ith good reason differentiates, the Court may not e#uate.
At any rate, Ee do not believe this is the proper occasion for the Court to alter or modify ,hat Ee
said in +ansang. All that Ee say here is that +ansang does not reach the martial la, po,ers of the
/8ecutive, if only because that case involved e8clusively the #uestion of legality of the detention,
during the -uspension, of some individuals, the petitioners therein, ,hereas here Ee are dealing ,ith
the deprivation of liberty of petitioners as a direct conse#uence of martial la,, and in effect the real
#uestion before =s no, is the legality of the martial la, regime itself, ,hich, as already
demonstrated, occupies a different level in the constitutional order of /8ecutive po,er, specially ,hen
considered from the point of vie, of the Bill of !ights.
But even if Ee must refer to the considerations of the Court in formulating +ansang, Ee cannot
disregard the impact of contemporary constitutional developments related thereto. he Convention of
&('& had barely started its relevant deliberations ,hen +ansang ,as decided. %t is to be assumed
that the delegates ,ere ,ell informed about its import. %ndeed, they must have focused their attention
thereto ,hen martial la, ,as proclaimed in -eptember of &('*, if only because some of the
delegates ,ere apprehended and detained and had forth,ith filed the petitions no, pending before
=s. he delegates kne, or ought to have kno,n that under the e8isting Constitution, the Bill of !ights
made no mention of the possible imposition of martial la, in the section prohibiting the suspension of
the privilege of the ,rit of *a#eas corpus. %nstead of seeing to it that in the charter they ,ere drafting
the prohibition as to *a#eas corpus should be e8tended to the declaration of martial la,, in order to
make the contingency thereof as difficult as in the case of the former, they evidently found more
reason to concur in the construction pursued by President Marcos of the prerogatives ,hich the
Constitution empo,ers him to utili"e during a rebellion or invasion. Accordingly, to erase further
doubts on the matter, the Convention enacted the transitory provision earlier referred to making the
Proclamation, among others, part of the la, of the land, ,hich provision, Ee deem, at this point, not
as a fiat placing the Proclamation definitely beyond the pale of unconstitutionality, but as a
contemporary authoritative construction of the current charter by the body precisely called to e8amine
it carefully and determine its defects that should be corrected, to the end that the rights of the people
may be best safeguarded. 6erily, such construction is entitled to due respect from =s, particularly
because it has been in effect, if not directly, approved by the people, not only in the referendum of
.anuary &9C&B, &('A assailed by petitioners but in the other one held by secret ballot on .uly *'C*),
&('A under the supervision of the Commission on /lections. And in the light of such construction, 0ur
considered vie, is that +ansang is not controlling on the issues regarding martial la, involved in
these cases.
Perhaps, it may not be amiss to add here that although the records of the Constitutional Convention
of &(AJ do not reveal the actual reasons for the rejection of the amendment proposed by Delegate
6icente .. 1rancisco to include in the Bill of !ights provision regarding *a#eas corpus the reference
made to imminent danger of invasion, insurrection or rebellion in the enumeration of the po,ers of the
/8ecutive relative to the same subject, it is #uite possible that in the mind of the convention it ,as not
absolutely necessary to suspend the Privilege ,hen the danger is only imminent unless the element
of public safety involved already re#uires the imposition of martial la,. !elatedly, Delegate Araneta
,ho as earlier mentioned, proposed to subject the suspension of the Privilege to legislative or judicial
concurrence or revie,, and ,ho appeared to be the most bothered, among the delegates, about the
e8ertion of e8ecutive po,er during the emergencies contemplated, never said a ,ord against the
manner in ,hich the /8ecutive ,as being granted the authority to impose martial la,, much less
proposed any restriction upon it the ,ay he did ,ith the suspension of the Privilege. his goes to
sho, that the feeling in the assembly ,as to regard martial la, differently from the suspension and to
recogni"e that its imposition should not be tramelled nor shackled by any provision of the Bill of
!ights.
K ' K
here are insurmountable pragmatic obstacles to the theory of justiciability sustained by petitioners. .
he most important of this is that there is no kno,n or recogni"ed procedure ,hich can be adopted in
the proposed in#uiry into the factual bases of the /8ecutive$s proclamation to insure that the degree
of judicious and fair hearing and determination of facts might be appro8imated. Admittedly, the
ordinary rules of pleading, practice and evidence are out of the #uestion. he relevant elemental facts
are scattered throughout the length and breath of the country, and there is no conceivable judicial
camera that can catch the ,hole picture ,ith ade#uate fidelity to the truth. Perhaps judicial notice can
help, but the elements of public safety are not properly susceptible of judicial notice ,hen it comes to
covert subversive activities. he problems of demonstration are manifold, and ,hen it is borne in
mind that, in the very nature of things and under universally accepted norms of state protection, there
is a ,all, impenetrable even to the judiciary, behind ,hich the state rightfully keeps a,ay from other
Departments matters affecting national security, one ,ill reali"e the futility of believing that the Court
can, assuming it ,ere, by some curious ,ay of reasoning, legally re#uired to do so, properly perform
its judicial attributes ,hen it comes to determining in the face of an apparently nation,ide rebellion,
,hether or not martial la, should be proclaimed by the /8ecutive, instead of resorting to the lesser
remedies of calling the armed forces or suspending the Privilege. Besides, for the Court to be able to
decide ,hether or not the action of the /8ecutive is arbitrary, it must, in justice to both parties, and to
him in particular, act in the light of the same evidence from ,hich he dre, his conclusion. >o, can
such evidence be all gathered and presented to the CourtI
-ome members of the Court are of the firm conviction that it is 0ur constitutional duty to indulge in
the suggested in#uiry, so Ee can be assured in 0ur o,n conscience, and for the protection of the
people, ,hether or not President Marcos has acted arbitrarily. But prescinding from the difficulties of
demonstration just discussed, from ,hat evidence is the Court going to dra, its o,n conclusions in
the cases at bar, ,hen Ee have not even been told ,hat evidence the President had before him,
e8cept those that may be inferred from the ,hereases of the Proclamation ,hich are disputed by
petitionersI 0n the other hand, ho, can Ee have all the evidence before =-, ,hen in the very nature
thereof Ee cannot have access to them, since they must be kept under the forbidding covers of
national security regulationsI /ven the standing ordinary rules of evidence provide in this respect
thus7 .
-/C. *&. Privile+e! co((unication. K
888 888 888
;e< A public officer cannot be e8amined during his term of office or after,ards, as to communications
made to him in official confidence, ,hen the court finds that the public interest ,ould suffer by the
disclosure. ;!ule &A9, !evised !ules of Court of the Philippines<.
he inevitable conclusion is that the Constitution must have intended that the decision of the
/8ecutive should be his alone.
%f Ee should hold that the matter before =s is justiciable, the practical result ,ould be that even if the
Court should no, decide in the style of +ansang that the President did not act arbitrarily in issuing the
Proclamation, Ee ,ould have to be ready to entertain future petitions, one after the other, filed by
,hosoever may be minded to allege, for his o,n purpose, that conditions have so improved as to
,arrant the lifting of martial la,. Accordingly, every no, and then the Court ,ould have to hear the
parties and evaluate their respective evidence. he 3overnment ,ould have to appear and prove all
over again the justifications for its action. he conse#uence ,ould be that instead of devoting his time
to the defense of the nation, the President ,ould be preparing himself for the court battle. %t is
ridiculous to think that the members of the Constitutional Convention had conceived placing such
difficulties in the ,ay of the /8ecutive ,hich make of his function of defending the state a continuous
running battle in t,o separate fronts, one ,ith the enemy another ,ith the courts. %t is suggested that
the Court can summarily dismiss any such future petitions in cavalier fashion by simply holding on to
the finding Ee ,ould make in these cases. But ne, allegations and arguments are bound to be
made, and it is definitely improper for =s to just summarily uphold the /8ecutive everytime a case
comes up.
Ehat is more absurd is that the -upreme Court is not the only court in ,hich a petition to lift may be
filed. %magine if petitions ,ere filed in t,o or three Courts of 1irst %nstance, ,hat ,ould happenI %n
this connection, Ee are in no position to enjoin the lo,er courts to entertain such petitions because
they may refer to the proposed lifting of martial la, only in the respective provinces ,here the courts
are, and Ee cannot hold, precisely because of 0ur o,n characteri"ation of the nature of the issue as
justiciable, or more simply that the Proclamation is subject to the revie, of factual bases by the court,
that any of said courts is ,ithout jurisdiction to entertain the petition. -tated other,ise, every court
,ould then be open to pass on the reasonability or arbitrariness of the President$s refusal or failure to
lift martial la,. Ee do not mean to insinuate that the lo,er court judges may not be prepared for the
purpose, but the spectacle alone of several of such petitions pending in various courts, ,ithout
visuali"ing anymore the potentiality of one judge or another upholding the proponent, is something
that ,ill not only foreseeably complicate our international relations but ,ill also detract from our image
as a people trained in the field of government. All of these considerations suggest again that it is best
that the .udiciary abstain from assuming a role not clearly indicated in the Constitution to pertain to it.
K C K
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he greatest fear entertained by those ,ho ,ould sustain the Court$s authority to revie, the action of
the President is that there might be occasions ,hen an /8ecutive drunk ,ith po,er might ,ithout
rhyme or reason impose martial la, upon the helpless people, using the very Constitution itself as his
,eapon of oppression to establish here a real dictatorship or totalitarian government. he vie, is that
it is only the -upreme Court that can prevent such a dismal eventuality by holding that it has the final
authority and inescapable duty to define the constitutional boundaries of the po,ers of the /8ecutive
and to determine in every case properly brought before it ,hether or not any such po,er has been
abused beyond the limits set do,n by the fundamental la,, and that unless Ee hold here that the
Court can determine the constitutional sufficiency of Proclamation &9)& in fact and in la,, the 1ilipino
people ,ould have no protection against such in abusive /8ecutive.
Ee here declare emphatically that such apprehension is definitely unfounded. Precisely, in this
decision, Ee are holding that the Court has the jurisdiction, the po,er and the authority to pass on
any challenge to an /8ecutive$s declaration of martial la, alleged in a proper case affecting private or
individual rights to be un,arranted by the Constitution. %n these cases, ho,ever, ,e do not see any
need for the interposition of our authority. %nstead ,hat appears clear to =s, in the light of the
considerations Ee have discuss above, and so Ee hold, is that the -olicitor 3eneral is eminently
correct in contending that in the circumstantial and constitutional milieu of the impugned
Proclamation, Ee should abstain from conducting the suggested in#uiry to determine their
constitutional sufficiency.
%n the ,ay Ee see the martial la, provision of the Constitution, only t,o hypotheses can be
considered relative to the Constitutional problem before =s. /ither the /8ecutive acts in conformity
,ith the provision or he does not. %n other ,ords, either he imposes martial la, because there is
actually a rebellion endangering the public safety or he does it for his o,n personal desire to grab
po,er, not,ithstanding the absence of the factual grounds re#uired by the fundamental la,. %n the
latter case, the Court ,ould have the constitutional po,er and duty to declare the proclamation
issued null and void. But to do this it does not have to conduct a judicial in#uiry by the reception of
evidence. %t should be guided solely by facts that are of judicial notice. hus, if the predicative recitals
of the proclamation are confirmed by facts of general public kno,ledge, obviously any further in#uiry
,ould be superfluous. 0n the other hand, in the contrary hypothesis, that is, it is publicly and
generally kno,n that there is no rebellion of the nature and e8tent contemplated in the Constitution,
no amount of evidence offered by the /8ecutive can judicially create such a rebellion. %ndeed, as
observed else,here in this opinion, a rebellion that does not come to the judicial notice of the Court
cannot ,arrant the imposition of martial la,, particularly in reference to one imposed over the ,hole
country. But once it is kno,n to the Court by judicial notice that there is a rebellion, it ,ould constitute
anundue interference ,ith the constitutional duties and prerogatives of the /8ecutive for the Court to
indulge in an in#uiry as to the constitutional sufficiency of his decision. Ehether or not public safety
re#uires the drastic action of imposing martial la, already involves the e8ercise of judgment, ,hich as
far as Ee can see is committed to the responsibility of the /8ecutive as the protector and defender of
the nation. 0ur considered vie, is that in such circumstances, the Constitution rather e8pects the
Court to defer to his decision. =nder this concept of the po,ers of the Court relative to the e8ercise
by the /8ecutive of his martial la, prerogatives, the Court does not relin#uish its authority as
guardian of the Constitution and the /8ecutive, guided solely by his o,n sense of responsibility under
his solemn oath 4to defend and preserve4 the Constitution, can proceed ,ith his task of saving the
integrity of the government and the nation, ,ithout any fear that the Court ,ould reverse his
judgment.
o be sure, it could have sufficed for =s to point out, in ans,er to the contention about possible
abuse, that it is a8iomatic in constitutional la, that the possibility that an official might abuse the
po,ers conferred upon him by la, or by the Charter does not mean that the po,er does not e8ist or
should not be granted. his Court affirmed this principle not only in "arcelon vs. "a-er, #uoted supra,
,hich ,as the precursor perhaps of the e8treme of judicial selfCrestraint or abstention in this
jurisdiction but even in 3n+ara vs. Electoral Co((ission, 2A Phil. &A(, reputedly the vanguard of
judicial activism in the Philippines, .ustice +aurel postulated reassuringly on this point in Angara thus7
4he possibility of abuse is not an argument against the concession of po,er as there is no po,er
that is not susceptible of abuse4 ;at p. &''<. And Ee could have complemented this ratiocination ,ith
the observation that it is most unlikely that the 1ilipino people ,ould be penali"ed by Divine
Providence ,ith the imposition upon them of an /8ecutive ,ith the frightening characteristics
ominously portrayed by those ,ho advocate that the Court, assuming its o,n immunity from being
abusive, arbitrary or improvident, should not recogni"e any constitutionally envisioned deference to
the other Departments of the 3overnment, particularly the /8ecutive.
Ee can feel, ho,ever, that the people need further reassurance. 0n this score, it is opportune to
recall that in 3velino vs. Cuenco, )A Phil. 2), in spite of the fact that in the !esolution of March J,
&(J(, this Court refused to intervene in the controversy bet,een the parties as to ,hether or not
there ,as a valid election of a ne, President of the -enate, upon the ground that the issue involved
,as purely political, in the subse#uent !esolution of March &J, &(J(, upon reali"ing that a critical
situation, detrimental to the national interest, subsisted as a conse#uence of its abstention, the Court
reversed itself and assumed the po,er to state categorically the correct solution to the conflict based
on its interpretation of the pertinent provisions of the Constitution.
Again, in .anuary, &(2*, in the space of several hours, AB9 appointments to different positions in the
government, including .ustices of the -upreme Court and of the Court of Appeals and judges of the
lo,er courts, fiscals, officers of the Army, directors of bureaus, 3overnor of the Central Bank, and
others ,ere sent by the President then to the Commission on Appointments on December *(, &(2&,
the day preceding his last halfCday in office, December A9, &(2&. =pon the said appointments being
impugned in the -upreme Court, the Court, aghast by the number of and the speed in the making of
said appointments, the fact that they ,ere made under circumstances that betrayed not only lack of
proper and deliberate consideration of the #ualifications of the appointees but also an evident intent
to deprive the succeeding President from filling the vacancies that had been left vacant even after the
results sho,ing the defeat of the incumbent President had already been publicly kno,n and
conceded, the departure from long established practices in their preparation as ,ell as the other
undesirable circumstances that surrounded the same, promptly struck them do,n as the product of
an improvident e8ercise of po,er, obno8ious to the precepts underlying the principled government
conceived in the Constitution.
15
he violation of the spirit and intent of the Constitution appeared
manifest to the Court on the basis of facts ,hich ,ere mainly if not all of judicial notice and, therefore,
needed no further demonstration in an in#uiry or investigation by the Court. =nder more or less a
similar setting of circumstances, ,hich occurred in the latter part of the term of the President ,hose
tenure e8pired on December A9, &(22, the -upreme court reiterated the above ruling in Guevarra vs.
Inocentes, &2 -C!A A'(.
hus everyone can see that ,hen situations arise ,hich on their faces and ,ithout the need of in#uiry
or investigation reveal an un#uestionable and palpable transgression of the Constitution, the
-upreme Court has never been ,ithout means to uphold the Constitution, the policy of judicial selfC
restraint implicit therein not,ithstanding. he precedents just related relate to peaceful controversies,
and, of course, the alleged violation of the Constitution by the /8ecutive in the e8ercise of a po,er
granted to him to meet the e8igencies of rebellion and the dangers to public safety it entails has to be
considered from a different perspective. /ven then, the -upreme Court ,ould not be po,erless to
act, =ntil all of its members are incarcerated or killed and there are not enough of them to constitute a
#uorum, the Court ,ould al,ays be there ready to strike do,n a proclamation of martial la, as
unconstitutional, ,henever from the facts manifest and generally kno,n to the people and to it, and
,ithout its having conducted any in#uiry by the reception of evidence, it should appear that the
declaration is made ,ithout any rational basis ,hatsoever and is predicated only on the distorted
motives of the /8ecutive. 1or as long, ho,ever, as the recitals or grounds given in a proclamation
accord substantially ,ith facts of judicial notice, either because they are of public kno,ledge or are by
their nature capable of un#uestionable demonstration, Ee have no reason to interfere ,ith the
discharge by the /8ecutive of a responsibility imposed upon him by the Constitution and in ,hich
there is no indication therein that the Court should share. But ,hen, as just stated, it is generally
kno,n or it is of public kno,ledge that there is no rebellion or, there being one, that it poses no
conceivable danger to the public safety, and, 3od forbid, martial la, is proclaimed, the Court, even
,ithout the need of any kind of judicial in#uiry into the facts alleged in the proclamation, ,ill certainly
act and declare the pretentious /8ecutive a constitutional outla,, ,ith the result that the regular
government established by the Constitution may continue in the hands of those ,ho are
constitutionally called upon to succeed him, unless he overcomes the legitimate government by force.
%n truth, such is the only ,ay the -upreme Court should act in discharging its duty to uphold the
Constitution by the use of the judicial po,er, if it is to give to the /8ecutive or the +egislature, as the
case may be, the due regard that the Constitution contemplates should be accorded to them in
consideration of their o,n functions hid responsibilities implicit in the principle of separation of po,ers
embodied therein.
%%
>/ C0?-%=%0? %- M/!/+@ %? A -A/ 01 A?A/->/-%A, -%?C/ A MA.0! -=!3/!@ %-
?//D/D 0 -A6/ >/ ?A%0?$- +%1/.
he foregoing discussion covers, as must have been noted, the resolution not only of the issue of
jurisdiction raised by the respondents but also of the corollary #uestion of the application of the
+ansang doctrine. ?ot only that, from ,hat has been said, it is obvious that since it is to the President
that the Constitution has committed the discretion to impose martial la,, it follo,s that he alone
should have the discretion and the prerogative to declare ,hen it should cease or be lifted. /8actly
the same considerations compelling the conclusion that the Court may not revie, the constitutional
sufficiency of his proclamation of martial la, make it ineludible to conclude that the people have also
left it to the /8ecutive to decide ,hen conditions ,ould permit the full restoration of the regular
constitutional processes. Eith characteristic perceptive insight, in his thesis to be cited infra, .ustice
3uillermo -. -antos of the Court of Appeals, discourses on this point as follo,s7
JJ. K*en 'artial >ule is Ter(inate! K
%n both /ngland and the =nited -tates martial rule terminates ipso facto upon the cessation of the public
emergency that called it forth. o this proposition there has been no dissent. Martial rule must cease
,hen the public safety no longer re#uire its further e8ercise.
JB. K*o Ter(inates 'artial >ule K
-ince the declaration of martial rule has been committed to the judgment of the President, it follo,s that
its termination is to be fi8ed by the same authority. ;Barcelon vs. Baker, &(9B, B Phil. )'.< Again, to this
vie, there cannot he any valid objection. %t ,ould seem only natural that since the President has been
e8pressly authori"ed to declare martial rule no other authority should he permitted to terminate it.4 ;Martial
+a,, ?ature, Principles and Administration by 3uillermo -. -antos, p. 'B.<
?eedless to say, it is our Constitution that controls in the cases at bar, not the American theory. %n
fact, ,hen President +aurel proclaimed martial la, during the -econd Eorld Ear, he e8pressly
provided, to avoid any doubt about the matter, thus7
). he proclamation of martial la, being an emergency measure demanded by imperative necessity, it
shall continue as long as the need for it e8ists and shall terminate upon proclamation of the President of
the !epublic of the Philippines.
%n the interest of truth and to set 0ur perspective aright it may not be said that under Proclamation
&9)& and the manner in ,hich it has been implemented, there has been a total suspension, much
less an abrogation, of the Constitution. /ven te8tually, the ensuing orders issued by the President
have left virtually unaltered the established constitutional order in all levels of government and society
e8cept those that have to be adjusted and subjected to potential changes demanded by the
necessities of the situation and the attainment of the objectives of the declaration. !epeatedly and
emphatically, the President has solemnly reassured the people that there is no military takeover and
that the declared principle in the Constitution that 4Civilian authority is at all times supreme over the
military4 ;-ection ), Article %%, &('A Charter< shall be rigorously observed. And earlier in this opinion,
Ee have already discussed ho, he restored the security of tenure of the members of the Court and
ho, the judicial po,er has been retained by the courts, e8cept in those cases involving matters
affecting national security and public order and safety ,hich the situation demands should be dealt
,ith by the e8ecutive arms of the government.
Ehen President +incoln proclaimed martial la, in Nentucky in &)2J, he did not completely overhaul
the e8isting machinery, he let it continue insofar as it did not obstruct the military operations and
related activities. >e ordered thus7
Ehereas many citi"ens of the -tate of Nentucky have joined the forces of the insurgents, and such
insurgents have, on several occasions. entered the said -tate of Nentucky in large force, and, not ,ithout
aid and comfort furnished by disaffected and disloyal citi"ens of the =nited -tates residing therein, have
not only disturbed the public peace, but have overborne the civil authorities and made flagrant civil ,ar,
destroying property and life in various parts of the -tate7 And ,hereas it has been made kno,n to the
President of the =nited -tates by the officers commanding the national armies, that combinations have
been formed in the said -tate of Nentucky ,ith a purpose of inciting rebel forces to rene, the said
operations of civil ,ar ,ithin the said -tate, and thereby to embarrass the =nited -tates armies no,
operating in the said -tate of 6irginia and 3eorgia, and even to endanger their safety7 ... $he martial la,
herein proclaimed, and the things in that respect herein ordered, ,ill not be deemed or taken to interfere
,ith the holding of la,ful elections, or ,ith the proceedings of the constitutional legislature of Nentucky, or
,ith the administration of justice in the courts of la, e8isting therein bet,een citi"ens of the =nited -tates
in suits or proceedings ,hich do not affect the military operations or the constituted authorities of the
government of the =nited -tates. ;Martial +a,, ?ature, Principles and Administration by 3uillermo -.
-antos, pp. ('C().<.
%ncidentally, there is here a clear repudiation of the open court theory, and ,hat is more, even the
holding of regular elections and legislative sessions ,ere not suppressed. &2 Accordingly, the
undeniable fact that the Philippine Congress ,as in session, albeit about to adjourn, ,hen martial la,
,as declared on -eptember *&, &('* is not necessarily an argument against the e8ercise by the
President of the po,er to make such a declaration.
President +aurel$s o,n declaration of martial la, during the .apanese occupation did not involve a
total blackout of constitutional government. %t reads in its pertinent portions thus7
888 888 888
J. All e8isting la,s shall continue in force and effect until amended or repealed by the President, and all
the e8isting civil agencies of an e8ecutive character shall continue e8ercising their po,ers and performing
their functions and duties, unless they are inconsistent ,ith the terms of this Proclamation or incompatible
,ith the e8peditious and effective enforcement of martial la, herein declared.
B. %t shall be the duty of the Military 3overnors to suppress treason, sedition, disorder and violence: and
to cause to be punished all disturbances of public peace and all offenders against the criminal la,s: and
also to protect persons in their legitimate rights. o this end and until other,ise decreed, the e8isting
courts of justice shall assume jurisdiction and try offenders ,ithout unnecessary delay and in a summary
manner, in accordance ,ith such procedural rules as may be prescribed by the Minister of .ustice. he
decisions of courts of justice of the different categories in criminal cases ,ithin their original jurisdiction
shall be final and unappealable7 Provi!e!, *o)ever, hat no sentence of death shall be carried into effect
,ithout the approval of the President.
2. he e8isting courts of justice shall continue to be invested ,ith, and shall e8ercise, the same
jurisdiction in civil actions and special proceedings as are no, provided in e8isting la,s, unless other,ise
directed by the President of the !epublic of the Philippines.
Proclamation &9)& is in no sense any more constitutionally offensive. %n fact, in ordering detention of
persons, the Proclamation pointedly limits arrests and detention only to those 4presently detained, as
,ell as all others ,ho may hereafter be similarly detained for the crimes of insurrection or rebellion,
and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident
thereto, or in connection there,ith, for crimes against national security and the la, of nations, crimes
against public order, crimes involving usurpation of authority, rank, title and improper use of names,
uniforms and insignia, crimes committed by public officers, and for such other crimes as ,ill be
enumerated in orders that % shall subse#uently promulgate, as ,ell as crimes as a conse#uence of
any violation of any decree, order or regulation promulgated by me personally or promulgated upon
my direction.4 %ndeed, even in the affected areas, the Constitution has not been really suspended
much less discarded. As contemplated in the fundamental la, itself, it is merely in a state of
anaesthesia, to the end that the much needed major surgery to save the nation$s life may be
successfully undertaken.
K %%% K
>/ %MP0-%%0? 01 MA!%A+ +AE A=0MA%CA++@ CA!!%/- E%> % >/ -=-P/?-%0?
01 >/ P!%6%+/3/ 01 >/ E!% 01 >AB/A- C0!P=- %? A?@ /6/?, >/ P!/-%D/?%A+
0!D/! 01 A!!/- A?D D//?%0? CA??0 B/ A--A%+/D A- D/P!%6A%0? 01 +%B/!@
E%>0= D=/ P!0C/--.
he ne8t issue to consider is that ,hich refers to the arrest and continued detention and other
restraints of the liberties of petitioner, and their main contention in this respect is that the proclamation
of martial la, does not carry ,ith it the suspension of the privilege of the ,rit of *a#eas corpus, hence
petitioners are entitled to immediate release from their constraints.
Ee do not believe such contention needs e8tended e8position or elaboration in order to be overruled.
he primary and fundamental purpose of martial la, is to maintain order and to insure the success of
the battle against the enemy by the most e8peditions and efficient means ,ithout loss of time and
,ith the minimum of effort. his is selfCevident. he arrest and detention of those contributing to the
disorder and especially of those helping or other,ise giving aid and comfort to the enemy are
indispensable, if martial la, is to mean anything at all. his is but logical. o fight the enemy, to
maintain order amidst riotous chaos and military operations, and to see to it that the ordinary
constitutional processes for the prosecution of la,Cbreakers are three functions that cannot humanly
be undertaken at the same time by the same authorities ,ith any fair hope of success in any of them.
o #uote from Malcolm and +aurel, 4Martial la, and the privilege of that ,rit ;of *a#eas corpus are
,holly incompatible ,ith each other.4 ;Malcolm and +aurel, Philippine Constitutional +a,, p. *&9<. %t
simply is not too much for the state to e8pect the people to tolerate or suffer inconveniences and
deprivations in the national interest, principally the security and integrity of the country.
Mere suspension of the Privilege may be ordered, as discussed earlier, ,hen the situation has not
reached very critical proportions imperilling the very e8istence of the nation, as long as public safety
demands it. %t is, therefore, absurd to contend, that ,hen martial la,, ,hich is precisely the ultimate
remedy against the gravest emergencies of internal or e8ternal aggression, is proclaimed, there is no
suspension of the Privilege unless this is separately and distinctly ordered. Considering that both
po,ers spring from the same basic causes, it stands to reason that the graver sanction includes the
lesser. %t is claimed that President +aurel treated the t,o matters separately in his afore#uoted
proclamation. Ee do not believe that the precedent cited controls. %t only proves that to avoid any
doubt, ,hat President +aurel did may be adopted. here can be no denying the point that ,ithout
suspension of the Privilege, martial la, ,ould certainly be ineffective. -ince martial la, involves the
totality of government authority, it may be assumed that by ordering the arrest and detention of
petitioners and the other persons mentioned in the Proclamation, until ordered released by him, the
President has by the tenor of such order virtually suspended the Privilege. !elatedly, as pointed out
by the -olicitor 3eneral no less than petitioner Diokno himself postulated in a lecture at the =.P. +a,
Center that7
here are only, as far as % kno,, t,o instances ,here persons may be detained ,ithout ,arrant but ,ith
due process. he first is in cases of martial la, or ,hen the ,rit of *a#eas corpus is suspended. %n those
cases, it is not that their detention is legal, it is that ,e cannot in#uire into the legality of their detention.
Because martial la, means actually the suspension of la, and the substitution of the ,ill of our
Congress. he second instance is that ,hich is provided for in !ule &&A, section 2 of the !ules of Court
and -ection A' of the !evised Charter of the City of Manila. /ssentially it consists of cases ,here the
crime is committed right in the presence of the person Eho is making the arrest or detention. ;rial
Problems in City M Municipal Courts, &('9, p. *2', =. P. +a, center .udicial Conference -eries.< .
%n his ,ell documented and very carefully prepared and comprehensive thesis on Martial +a,,
?ature, Principles and Administration, published by Central +a,book Publishing Co., %nc, in &('*,
.ustice 3uillermo -. -antos of the Court of Appeals and formerly of the .udge Advocate 3eneral$s
-ervice, Armed 1orces of the Philippines, makes these pointed observations7
Ehether the e8istence of martial la, and the suspension of the privilege of the ,rit of *a#eas corpus $are
one and the same thing$, or $the former includes the latter and much more,$ had been the subject of $an
angry ,ar of pamphlets bet,een Professors Parsons and Parker of the >arvard +a, -chool at the
outbreak of the Civil Ear.$ ;1airman, p. JA: Eiener p. (.< %t has also been a difficult #uestion to decide in
some jurisdictions ,hether the suspension of the privilege of the ,rit amounted to a declaration of martial
la,. ;Einthrop, pp. )*9 M )*), citing /8 parte 1ield, ( Am. +.!. B9': Bouvier$s +a, Dictionary, Ard 1rancis
!a,is /d., &(&J, p. *&9B, citing & >alleck %nt. +a, BJ(.
%n the face of the constitutional provisions ;Art. &&&, -ec. &, Clause ;&J< and fn (, supra.< in our
jurisdiction, there seems to be no room for doubt that the t,o are different. Ehile the grounds for the
suspension of the privilege of the ,rit and the proclamation of martial la, are the same, there can be no
#uestion that suspension of the ,rit means ,hat it says, that during the suspension of the privilege, the
,rit, if issued, ,ill be to no avail: but martial la, has more than just this effect. he only #uestion ,hich
apparently remains to be determined here, is, ,hether the declaration of martial la, ipso facto carries
,ith it the suspension of the privilege of the ,rit, or ,hether a declaration of martial la, must necessarily
include a declaration suspending the privilege of the ,rit in order to consider the same inoperative. But it
appears that the former is the better vie,, ;Malcolm and +aurel, Philippine Constitutional +a,, p. A&9<
although in the =nited -tates it has been held that #ualified martial rule may e8ist ,here the ,rit has, in
legal contemplation, not been suspended, ;1airman, p. JJ< and that the status of martial la, does not of
itself suspend the ,rit. ;Military +a, GDomestic DisturbancesH, Basic 1ield Manual, Ear Department, G=-H
fn &( M &B, p. &' G&(JBH.< ;-ee pp. J&CJ*.<
0f course, Ee are not bound by the rule in other jurisdictions.
1ormer Dean 6icente 3. -inco of the College of +a, of the =niversity of the Philippines, of ,hich he
became later on President, a noted authority on constitutional la, from ,hom many of us have
learned the subject, like,ise sustains the vie, that the proclamation of martial la, automatically
suspends the privilege of the ,rit of *a#eas corpus. ;6. -inco, Phil. Political +a,, p. *B(, &&th /d.,
&(2*<
?o,, as to the constitutional propriety of detaining persons on suspicion of conspiracy ,ith the enemy
,ithout the need of the regular judicial process, Ee have also the authoritative support of no less
than ,hat a distinguished member of this Court, considered as one of the best informed in American
constitutional la,, Mr. .ustice /nri#ue 1ernando, and the principal counsel of petitioners, former
-enator aLada, himself an authority, on the subject, had to say on the point in their joint authorship,
used as te8tbook in many la, schools, entitled Constitution of the Philippines, to ,it7
0nce martial la, has been declared, arrest may be necessary not so much for punishment but by ,ay of
precaution to stop disorder. As long as such arrests are made in good faith and in the honest belief they
are needed to maintain order, the President, as CommanderCinCChief, cannot thereafter, ,hen he is out of
office, be subjected to an action on the ground that he had no reasonable ground for his belief. K*en it
co(es to a !ecision # t*e *ea! o, a state upon a (atter involvin+ its li,e, t*e or!inar ri+*ts o,
in!ivi!uals (ust iel! to )*at *e !ee(s t*e necessities o, t*e (o(ent. Pu#lic !an+er )arrants t*e
su#stitution o, e6ecutive ,or 5u!icial process. ;/mphasis supplied.< ;Constitution of the Philippines by
aLada M 1ernando, 6ol. *, pp. B*ACB*B.<
he authority cited by .ustice 1ernando and -enator aLada says7
he plaintiff$s position, stated in a fe, ,ords, is that the action of the governor, sanctioned to the e8tent
that it ,as by the decision of the supreme court, ,as the action of the state and therefore ,ithin the &Jth
Amendment: but that, if that action ,as unconstitutional, the governor got no protection from personal
liability for his unconstitutional interference ,ith the plaintiff$s rights. %t is admitted, as it must be. that the
governor$s declaration that a state of insurrection e8isted is conclusive of that fact. %t seems to be
admitted also that the arrest alone ,ould riot necessarily have given a right to bring this suit. 0ut*er v.
"or!en, ' >o,. &, JB, J2, &* +. ed. B)&, 299, 29&. But it is said that a detention for so many days, alleged
to be ,ithout probable cause, at a time ,hen the courts ,ere open, ,ithout an attempt to bring the
plaintiff before them, makes a case on ,hich he has a right to have a jury pass.
Ee shall not consider all of the #uestions that the facts suggest, but shall confine ourselves to stating
,hat ,e regard as a sufficient ans,er to the complaint, ,ithout implying that there are not others e#ually
good. 0f course, the plaintiff$s position is that he has been deprived of his liberty ,ithout due process of
la,. But it is familiar that ,hat is due process of la, depends on circumstances. %t varies ,ith the subjectC
matter and the necessities of the situation. hus, summary proceedings suffice for ta8es, and e8ecutive
decisions for e8clusion from the county. Den e8 dem. 'urra v. Co#o-en 0an! O I(prov. Co. &) >o,.
*'*, &B +. ed. A'*: Enite! States v. Ju To, &() =.-. *BA, *2A, J( +. ed. &9CJ9, &9JJ, *B -up. Ct. !ep.
2JJ. Ehat, then, are the circumstances of this caseI By agreement the record of the proceedings upon
*a#eas corpus ,as made part of the complaint, but that did not make the averments of the petition for the
,rit averments of the complaint. he facts that ,e are to assume are that a state of insurrection e8isted
and that the governor, ,ithout sufficient reason but in good faith, in the course of putting the insurrection
do,n, held the plaintiff until he thought that he safely could release him.
%t ,ould seem to be admitted by the plaintiff that he ,as president of the Eestern 1ederation of Miners,
and that, ,hoever ,as to blame, trouble ,as apprehended ,ith the members of that organi"ation. Ee
mention these facts not as material, but simply to put in more definite form the nature of the occasion on
,hich the governor felt called upon to act. %n such a situation ,e must assume that he had a right, under
the state Constitution and la,s, to call out troops, as ,as held by the supreme court of the state. he
Constitution is supplemented by an act providing that $,hen an invasion of or insurrection in the state is
made or threatened, the governor shall order the national guard to repel or suppress the same.$ +a,s of
&)(', chap. 2A, art. ', M *, p. *9J. hat means that he shall make the ordinary use of the soldiers to that
end: that he may kill persons ,ho resist, and, of course, that he may use the milder measure of sei"ing
the bodies of those ,hom he considers to stand in the ,ay of restoring peace. -uch arrests are not
necessarily for punishment, but are by ,ay of precaution, to prevent the e8ercise of hostile po,er. -o
long as such arrests are made in good faith and in the honest belief that they are needed in order to head
the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of
office, on the ground that he had not reasonable ground for his belief. %f ,e suppose a governor ,ith a
very long term of office, it may be that a case could be imagined in ,hich the length of the imprisonment
,ould raise a different #uestion. But there is nothing in the duration of the plaintiff$s detention or in the
allegations of the complaint that ,ould ,arrant -ubmitting the judgment of the governor to revision by a %t
is not alleged that his judgment ,as not honest, if that be material, or that the plaintiff ,as detained after
fears of the insurrection ,ere at an end.
?o doubt there are cases ,here the e8pert on the spot may he called upon to justify his conduct later in
court, not,ithstanding the fact that he had sole command at the time and acted to the best of his
kno,ledge. hat is the position of the captain of a ship. But, even in that case, great ,eight is given to his
determination, and the matter is to be judged on the facts as they appeared then, and not merely in the
light of the event. 0a)rence v. 'inturn, &' >o,. &99, &&9, &B +. ed. B), 2*: he -tar of >ope, ( Eall. *9A,
&( +. ed. 2A): he 3ermanic ;0ceanic -team ?av. Co. v. Aitken< &(2 =.-. B)(, B(J, B(B, J( +. ed. 2&9,
2&A, *B -up. Ct. !ep. A&'. Ehen it comes to a decision by the head of the state upon a matter involving
its life, the ordinary rights of individuals must yield to ,hat he deems the necessities of the moment.
Public danger ,arrants the substitution of e8ecutive process for judicial process. -ee Geel v. San!ers,
(( =.-. JJ&, JJ2, *B +. ed. A*', A*). ;Moyer vs. Peabody, *&* =.-. J&2, J&'.<
!elatedly, in the decision of the -upreme Court of Colorado dealing ,ith the same detention of
Charles >. 'oer by order of the state governor, it ,as held7
By the reply it is alleged that, not,ithstanding the proclamation and determination of the 3overnor that a
state of insurrection e8isted in the county of -an Miguel, that as a matter of fact these conditions did not
e8ist at the time of such proclamation or the arrest of the petitioner, or at any other time. By - B, art. J, of
our Constitution, the governor is the commander in chief of the military forces of the state, e8cept ,hen
they are called into actual service of the =nited -tates: and he is thereby empo,ered to call out the militia
to suppress insurrection. %t must therefore become his duty to determine as a fact ,hen conditions e8ist in
a given locality ,hich demand that, in the discharge of his duties as chief e8ecutive of the state, he shall
employ the militia to suppress. T*is #ein+ true, t*e recitals in t*e procla(ation to t*e e,,ect t*at a state o,
insurrection e6iste! in t*e countr o, San 'i+uel cannot #e controverte!. 0ther,ise, the legality of the
orders of the e8ecutive ,ould not depend upon his judgment, but the judgment of another coordinate
branch of the state government ............
............................
............................
.... I,, t*en, t*e (ilitar (a resort to t*e e6tre(e o, ta-in+ *u(an li,e in or!er to suppress insurrection it
is i(possi#le to i(a+ine upon )*at *pot*esis it can #e success,ull clai(e! t*at t*e (il!er (eans o,
seizin+ t*e person o, t*ose participatin+ in t*e insurrection or ai!in+ an! a#ettin+ it (a not #e resorte!
to. he po,er and authority of the militia in such circumstances are not unlike that of the police of a city,
or the sheriff of a county, aided by his deputies or posse comitatus in suppressing a riot. Certainl suc*
o,,icials )oul! #e 5usti,ie! in arrestin+ t*e rioters an! placin+ t*e( in 5ail )it*out )arrant, an! !etainin+
t*e t*ere until t*e riot )as suppresse!. >allett .., in !e Application of -herman Parker ;no opinion for
publication<. I,, as conten!e! # counsel ,or petitioner, t*e (ilitar, as soon as t*e rioter or insurrectionist
is arreste!, (ust turn *i( over to t*e civil aut*orities o, t*e countr, t*e arrest (i+*t, an! in (an
instances )oul!, a(ount to a (ere ,arce. >e could be released on bail, and left free to again join the
rioters or engage in aiding and abetting their action, and, if again arrested, the same process ,ould have
to be repeated, and thus the action of the military ,ould be rendered a nullity. Again, if it be conceded
that, on the arrest of a rioter by the military, he must at once be turned over to the custody of the civil
officers of the county, then the military, in sei"ing armed insurrectionists and depriving them of their arms,
,ould be re#uired to forth,ith return them to the hands of those ,ho ,ere employing them in acts of
violence: or be subject to an action of replevin for their recovery ,hereby immediate possession of such
arms ,ould be obtained be the rioters, ,ho ,ould thus again be e#uipped to continue their la,less
conduct. To !en t*e ri+*t o, t*e (ilitia to t*ose )*o( t*e arrest )*ile en+a+e! in suppressin+ acts o,
violence an! until or!er is restore! )oul! lea! to t*e (ost a#sur! results. he arrest and detention of an
insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit such
acts, violates none of his constitutional rights. >e is not tried by any military court, or denied the right of
trial by jury: neither is he punished for violation of the la,, nor held ,ithout due process of la,. >is arrest
an! !etention is suc* circu(stances (erel to prevent *i( ,ro( ta-in+ part or ai!in+ in a continuation o,
t*e con!itions )*ic* t*e +overnor, in t*e !isc*ar+e o, *is o,,icial !uties an! in t*e e6ercise o, aut*orit
con,erre! # la), is en!eavorin+ to suppress. Ehen this end is reached, he could no longer be restrained
of his liberty by the military, but must be, just as respondents have indicated in their return to the ,rit,
turned over to the usual civil authorities of the county, to be dealt ,ith in the ordinary course of justice,
and tried for stich offenses against the la, as he may have committed. %t is true that petitioner is not held
by virtue of any ,arrant, but if his arrest and detention are authori"ed by la, he cannot complain because
those steps have not been taken ,hich are ordinarily re#uired before a citi"en can be arrested and
detained.
..........................
.... T*e sa(e po)er )*ic* !eter(ines t*e e6istence o, an insurrection (ust also !eci!e )*en t*e
insurrection *as #een suppresse!. ;/mphasis supplied.< ;!e Moyer, AB Colo, &B(, )B Pac. &(9 G&(9JH.<
%t is evident, therefore, that regardless of ,hether or not the privilege of the ,rit of *a#eas corpus is
e8pressly suspended during martial la,, arrest, detention and other restraints of liberty of individuals
may not be assailed as violative of the due process clause. he Presidential orders to such effect
constitute substantive and procedural due process at the same time and may therefore be invoked as
valid defenses against any remedy or prayer for release. 3iven the validity of the declaration of
martial la,, the sole tests of legality of constraints other,ise fro,ned upon in normal times by the
fundamental la, are substantial relevance and reasonableness. %n the very nature of things, and
absent any obvious sho,ing of palpable bad faith, the /8ecutive should enjoy respectful deference in
the determination of his grounds. As a rule, the Courts are not supposed to make any in#uiry into the
matter.
Ee accordingly hold that, as ,ell demonstrated by the -olicitor 3eneral, a proclamation of martial la,
automatically results in the suspension of the privilege of the ,rit of *a#eas corpus and, therefore, the
arrest, detention and restraints upon petitioners are authori"ed by the Constitution. %n any event, the
Presidential order of arrest and detention constitute due process and is, therefore, a valid defense to
any allegation of illegality of the constraints upon petitioners. Ee further hold that the duration of such
constraints may be coCe8tensive ,ith martial la, unless other,ise ordered by the /8ecutive.
%6
TCE EFFECT OF TCE 3PP>O@30 3N. >3TIFIC3TION
OF TCE NEK CONSTITETION ON TCE INST3NT
PETITIONS
All that remains no, for resolution is the #uestion of ,hat effect did the approval and ratification of the
?e, Constitution have upon the instant petitionsI
Ehen petitioners came to this Court in -eptember and 0ctober &('* to impugn the legality of their
arrest and detention by virtue of Proclamation &9)& and 3eneral 0rder ?o. *, their common
fundamental theory ,as that said proclamation and order ,ere violative of the Constitution of the
Philippines of &(AB, not only because, according to them, there ,as no justification for its placing the
country under martial la, but also because, even assuming its propriety, there ,as allegedly no legal
basis for the apprehension and detention of petitioners ,ithout any ,arrant of arrest and ,ithout even
any charges being filed against them. hus, in his return of the ,rit of *a#eas corpus issued by the
Court, as ,ell as in his oral argument at the hearings, the -olicitor 3eneral limited himself to barely
invoking the provision of the said Constitution empo,ering the President to proclaim martial la,, even
as he denied the allegation that there ,as no factual basis therefor, and simply contended that the
arrest and detention of petitioners ,ere made pursuant to orders validly issued under the po,ers of
the President flo,ing from the proclamation. .
K A K
As already noted, ho,ever, even before these cases could be submitted for decision, on ?ovember
A9, &('*, the Constitutional Convention of &('& approved a draft constitution designed to supersede
the Constitution of &(AB and on .anuary &', &('A, thru Proclamation &&9*, the President declared
that draft constitution to have been ratified by the people in the referendum of .anuary &9C&B, &('A,
and, as also stated earlier, said proclamation became the subject of t,o series of cases in this Court
,hich ultimately ended ,ith the decision of March A&, &('A adjudging that 4there is no further judicial
obstacle to the ?e, Constitution being considered in force and effect.4 And among the salient and
pertinent provisions of the ?e, Constitution or the Constitution of &('A, as the ne, charter may
distinctively be referred to, is that of -ection A ;*< of Article D6%% te8tually reproduced earlier above.
%n vie, of the comprehensive or allCinclusive tenor of the constitutional injunction contained in said
provision, referring as it does to 4all proclamations, orders, decrees, instructions, and acts
promulgated issued, or done by the incumbent President4, there can be no doubt that Proclamation
&9)& and 3eneral 0rder *, herein assailed by petitioners, are among those enjoined to he 4part of the
la, of the land.4 he #uestion that arises then is, did their having been made part of the la, of the
land by no less than an e8press mandate of the fundamental la, preclude further controversy as to
their validity and efficacyI
%n pondering over this #uestion, it is important to bear in mind the circumstances that attended the
framing and final approval of the draft constitution by the Convention. As already noted, t,o
actuations of the President of indubitable transcendental import overtook the deliberations of the
constituent assembly, namely, the issuance by him of Proclamation &9)& placing the Philippines
under martial la, and his e8ercise, under said proclamation, of nonCe8ecutive po,ers, inclusive of
general legislative authority. As to be e8pected in a country, like the Philippines, long accustomed to
strict constitutionalism, and the superiority of civilian authority over, the military, soon enough, these
t,o actuations spa,ned constitutional controversies of serious dimensions, so much so that several
cases involving them, including the instant ones, are no, pending in the -upreme Court. -urely, the
members of the Convention ,ere ,ell a,are of these developments. %n other ,ords, the delegates in
convention assembled ,ere living ,itnesses of the manner in ,hich, for the first time in our
constitutional history, the martial la, clause of the charter ,as being actually implemented, and they
kne, the grave constitutional issues such implementation had provoked.
%ndeed, no constituent assembly Could have been better circumstanced to formulate the fundamental
la, of the land. he Convention had a full and firstChand vie, of the controversial operation of the
most important part of the charter it ,as called to improve upon K its martial la, clause. 6erily, no
other aspect of the constitution could have commanded more the most serious attention of the
delegates. hey kne, or ought to have kno,n that the placing of the country or any part thereof
under martial la, could possibly affect the continued operation therein of the constitution or at least,
the enforceability of particular provisions thereof. herefore, if the Convention felt that ,hat ,as being
done by the President as ,itnessed by them ,as not ,ithin the contemplation of the e8isting
fundamental la, or that it ,as inconsistent ,ith the underlying principles of democracy and
constitutionalism to ,hich the nation has been irrevocably committed since its birth and ,hich ,ere to
remain as the foundations of the ne, charter, the delegates ,ould have considered it to be their
bounden duty to our people and to the future generations of 1ilipinos, to manifest their conviction by
providing appropriate safeguards against any repetition thereof in the constitution they ,ere drafting.
And so, ,hen it is considered that as finally approved, the ?e, Constitution reproduces in e8actly the
same terms or verbatim the martial la, clause of the &(AB charter, the ineludible conclusion is that
our ne, constitutional fathers did not see anything repugnant to the concepts of the old constitution in
,hat the President has done or ,as doing. As Ee see it, this attitude of the Convention constitutes
an authoritative contemporary construction of the provision in controversy, and considering that the
President$s manner of implementing martial la, has been sanctioned by the people not only in the
referendum of .anuary &9C&B, &('A but also in that of .uly *'C*), &('A, reliance on such attitude in
determining the meaning and intent of said provision cannot be out of place.
%n the light of these considerations, Ee do not see in the transitory provision under discussion any
idea of ratification or validation of something void or unauthori"ed. !ather, ,hat Ee perceive in it are
revelations of ,hat lay in the core of the martial la, clause of the &(AB Constitution as it ,as
conceived and formulated by its ,ise and farsighted framers. %t ,ould be unreasonable, illogical and
un,orthy of the &('& delegates to impute to them an intent to merely ratify, confirm or validate the
President$s acts, on the assumption that they ,ere originally unauthori"ed by the charter, for that
,ould imply that they ,ere concerned only about straightening out the present situation, ,hen it is
just as important to insure that future acts of the President are not tainted ,ith illegality. Ee cannot
entertain any thought that the delegates ,ere not sufficiently apprised on the implications of their
acts. %ndeed, the ?e, Constitution has not imparted e6 propio vi+ore any element of validity to the
acts in #uestion, it has only e8pressed in black and ,hite ,hat the 0ld Constitution did not deem
necessary to lay do,n ,ith precision in respect to them. 6ie,ed this ,ay, ,hat the transitory
provision under discussion means is that both the acts of the President before as ,ell as those after
ratification of the ?e, Constitution are valid K not validated K and, as just stated, ,hat reinforces
this construction and places the said acts beyond possible attacks for unconstitutionality are the
results of the t,o referendums of .anuary and .uly, &('A.
Eithal, having absolute faith in the high sense of duty and the patriotic courage of the members of the
Convention, Ee also reject the suggestion that they ,ere in any ,ay impeded, under the
circumstances then obtaining, from freely e8pressing themselves. Ee cannot for a moment entertain
the thought that any other 1ilipino can ever have less courage and love of country and concern for the
future of our people than the members of this Court ,ho are presently called upon to make
momentous decisions affecting no less than the legality and legitimacy of the very 3overnment
admittedly in effective control of the ,hole territory of the nation, regardless of possible personal
conse#uences to themselves.
he fact of the matter is that Proclamation &9)& did not make mention of the Convention at all. 0n the
contrary, judicial notice may be taken of the increased funds appropriated by the President so as to
enable it to proceed ,ith its deliberations, unbothered by any apprehension regarding the inade#uacy
of the funds ,hich the Congress had appropriated for it, and ,hich ,ere then fast d,indling, ,ithout
any certainty of further congressional appropriations. %ndeed, ,hen Delegate Nala, of the 1irst
District of !i"al proposed in a formal resolution that the sessions be suspended until after the lifting of
martial la,, the assembly voted over,helmingly to turn do,n the proposal. here is no evidence at all
that any form of undue pressure ,as brought to bear upon the delegates in any respect related to
their constituent functions. %t has not been sho,n that the arrest and detention of a number of
delegates, some of ,hom are petitioners herein, ,as in any ,ay connected ,ith or caused by their
actuations related to their constituent functions. Ehat 3eneral 0rder ?o. * asserts is that the
President ordered the 4-ecretary of ?ational Defense to forth,ith arrest or cause the arrest and take
into custody the individuals named in the attached list ;among them, the said delegates< and to hold
them until other,ise so ordered by me or my duly designated representative4 for their 4being active
participants or for having given aid and comfort in the conspiracy to sei"e political and state po,er in
the country and to take over the 3overnment by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against 0ur people and our legitimate 3overnment and in order to prevent
national interest, and to hold said individuals until other,ise so ordered by me or by my duly
designated representative.4 /ven then, said delegates ,ere allo,ed to cast their votes in the
assembly ,hen the final draft ,as submitted for approval of the members of the Convention. hus, it
can be safely asserted that the freedom of the Convention to act and to perform ,hatever ,as
incumbent upon it as a constituent body suffered no substantial diminution or constraint on account of
the proclamation of martial la,.
o reiterate then, -ection A ;*<, Article D6%% of the ?e, Constitution enjoins that 4all proclamations,
orders, decrees, instructions and acts promulgated, issued or done by the incumbent President shall
be part of the la, of the land and shall remain valid, legal, binding and effective even after the lifting
of martial la, or the ratification of this Constitution, unless modified, revoked, or superseded by
subse#uent proclamations, orders, decrees, instructions or other acts of the incumbent President, or
unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly.4 ?otably, the
provision does not only make all such proclamations, orders, decrees, etc. 4part of the la, of the
land4, in ,hich case, it ,ould have been perhaps possible to argue, that they had just been accorded
the status of legislative enactments, ordinarily subject to possible attack on constitutional grounds.
he provision actually goes further. %t e8pressly ordains that the proclamations, orders, etc. referred
to should 4remain valid, legal, binding, and effective4 ... until revoked, modified, repealed or
superseded in the manners therein stipulated. Ehat is more, the provision refers to and contemplates
not only proclamations, orders, decrees, instructions and acts of e8ecutive character, but even those
essentially legislative, as may be gathered from the nature of the proclamations, decrees, orders, etc.
already e8isting at the time of the approval of the draft constitution and of the acceptance thereof by
the people. Accordingly, and because there is no doubt that Proclamation &9)& and 3eneral 0rder
?o. *, herein challenged, are among the proclamations and orders contemplated in said provision,
the Court has no alternative but to hold, as it hereby holds, in consonance ,ith the authoritative
construction by the Constitutional Convention of the fundamental la, of the land, that Proclamation
&9)& of President Marcos placing the Philippines under martial la, as ,ell as 3eneral 0rder ?o. *,
pursuant to ,hich petitioners are either in custody or restrained of their freedoms 4until other,ise so
ordered by ;the President< or ;his< duly designated representative4 are valid, legal, binding and
effective, and conse#uently, the continued detention of petitioner A#uino as ,ell as the constraints on
the freedoms of the other petitioners resulting from the conditions under ,hich they ,ere released
from custody are legal and constitutional. Ee feel Ee are confirmed in this conclusion by the results
of the referendum of .uly *'C*), &('A in ,hich &),9B*,9&2 voter gave their affirmative approval to the
follo,ing #uestion7
Martial la,I
Ee hasten to add to avoid misunderstanding or confusion of concepts, that it is not because of the
fiat or force of the ?e, Constitution itself that the transitory provision is being relied upon for the
purposes of the instant petitions. At this point, and ,ithout prejudice to looking into the matter insofar
as other issues and other cases affecting martial la, and the orders issued under it are concerned, all
that Ee say is that the said provision constitutes an authoritative contemporary construction of the
martial la, clause of the Constitution giving light regarding the emergency po,ers that the /8ecutive
may e8ercise after its proclamation.
K B K
But petitioner Diokno
17
,ould dilute the force of this conclusion by trying to find fault ,ith the
dispositive portion of the decision of this Court in the !atification Cases. >e contends that actually,
si8 justices rendered opinions e8pressly holding that the ?e, Constitution has not been validly ratified
in accordance ,ith Article D6 of the &(AB Constitution and that the said dispositive portion 4is not
consistent ,ith their findings, ,hich ,ere also the findings of the majority of the Court.4 0ther,ise
stated, the position of petitioner Diokno is that the decision in the !atification Cases has no binding
legal force as regards the #uestion of ,hether or not the ?e, Constitution is indeed in force and
effect. his is practically an attempt to make the Court resolve the same points ,hich counsels for the
petitioners in the !atification Cases submitted to the Court on the last day for the finality of the
decision therein, but ,ithout asking for either the reconsideration or modification thereof, because
they merely ,anted to record for posterity their o,n construction of the judgment of the Court.
18

Eithout in any ,ay attempting to reopen the issues already resolved by the Court in that decision, but
for the sake of erasing any doubt as to the true import of 0ur judgment therein, and in order that
those ,ho ,ould peruse the same may not be led astray by counsel$s misconstruction thereof, the
,riter feels it is here opportune to say a fe, ,ords relative to petitioner$s observations, considering
specially that 0ur discussion above is predicated on the premise that the ?e, Constitution is in full
force and effect.
o start ,ith, it is evident that the phrase in #uestion saying that 4there is no further judicial obstacle
to the ?e, Constitution being considered in force and effect4 ,as in actual fact approved specifically
by the members of the Court as the juridical result of their variant separate opinions. %n fact, even
those ,ho dissented, e8cept .ustice 5aldivar, accepted by their silence the accuracy of said
conclusion.
19
>ad any of the other justices, particularly, Chief .ustice Makalintal and .ustice Castro
felt that their joint opinion did not justify such a judgment, they ,ould have certainly objected to its
tenor, as .ustice 5aldivar did. ;-ee footnote &&<. -urely, it is not for anyone to say no, that the Court
misstated its judgment.
%n the particular case of Counsels aLada and Arroyo, ,hile it is true that on the last day for the
finality of that decision, they filed a 4Constancia4, separately from the Manifestation to the same effect
of the other counsel, discussing e8tensively the alleged inconsistency bet,een the collective result of
the opinions of the majority of the Court and the dispositive portion of the judgment, like the other
counsel, ho,ever, they did not make any prayer for relief, stating that their only purpose is 4to save
our people from being misled and confused, in order to place things in their proper perspective, and in
order to keep faith ,ith the &(AB Constitution. ... so that ,hen history passes judgment upon the real
,orth and meaning of the historic !esolution of this >onorable Court promulgated on March A&,
&('A, it may have all the facts before it,4 for ,hich reason, the majority of the Court, over the dissent
of .ustices 5aldivar, Antonio, /sguerra and the ,riter, did not consider it necessary to act, believing it
,as not e8actly the occasion to disabuse the minds of counsels about the juridical integrity of the
Court$s actuation embodied in the resolution. %n a sense, therefore, said counsels should be deemed
to be in estoppel to raise the same points no, as arguments for any affirmative relief, something
,hich they did not ask for ,hen it ,as more appropriate to do so.
%n the second place, laying aside the division of vie,s among the members of the Court on the
#uestion of ,hether or not there has been compliance ,ith the provisions of Article D6 of the &(AB
Constitution, the vital and decisive fact is that the majority of the Court held that the #uestion of
,hether or not the ?e, Constitution is already in force and effect is a political #uestion and the Court
must perforce defer to the judgment of the political departments of the government or of the people in
that respect. %n is true some of the .ustices could not find sufficient basis for determining ,hether or
not the people have accepted the ?e, Constitution, but, on that point, four .ustices, .ustices
Makasiar, Antonio, /sguerra and the ,riter, did vote categorically in the affirmative, ,hile t,o
.ustices, then Chief .ustice Concepcion and .ustice 5aldivar, voted in the negative. And in the joint
opinion of no, Chief .ustice Makalintal and .ustice Castro, it is crystal clear that the reference therein
to their inability to accurately appraise the people$s verdict ,as merely casual, the thrust of their
position being that ,hat is decisive is the President$s o,n attitude regarding the situation, that is,
,hether he ,ould take the report of the Natipunan ng mga Barangay to the effect that the people
have approved and ratified the ?e, Constitution as definitive and final or he ,ould prefer to submit
the ne, charter to the same kind of election ,hich used to be held for the ratification of constitutional
amendments, his decision either ,ay not being subject to judicial in#uiry. -tated differently, our
distinguished colleagues ,ere of the vie, that ,hether or not the ?e, Constitution may be held to
have been duly ratified pursuant to Article D6 of the &(AB Constitution and even their o,n negative
conclusion in such respect, have no bearing on the issue of the enforceability of the ?e, Constitution
on the basis of its having been accepted by the people, and that although they ,ere not possessed of
sufficient kno,ledge to determine this particular fact, the President$s o,n finding thereon is
conclusive upon the Court, since, according to them such a decision is political and outside the pale
of judicial revie,. o #uote their o,n ,ords7
>o,ever, a finding that the ratification of the draft Constitution by the Citi"ens Assemblies, as certified by
the President in Proclamation ?o. &&9*, ,as not in accordance ,ith the constitutional and statutory
procedure laid do,n for the purpose does not #uite resolve the #uestions raised in these cases. -uch a
finding, in our opinion, is on a matter ,hich is essentially justiciable, that is, ,ithin the po,er of this Court
to in#uire into. %t imports nothing more than a simple reading and application of the pertinent provisions of
the &(AB Constitution, of the /lection Code and of other related la,s and official acts. ?o #uestion of
,isdom or of policy is involved. But from this finding it does not necessarily follo, that this Court may
justifiably declare that the Constitution has not become effective, and for that reason give due course to
these petition or grant the ,rits herein prayed for. he effectivity of the Constitution in the final analysis, is
the basic and ultimate #uestion ,hich considerations other than the competence of this Court, are
relevant and unavoidable.
888 888 888
ratification as ,ell as the establishment of the government thereunder formed part of a revolution, albeit
peaceful, then the issue of ,hether or not that Constitution has become effective and, as a necessary
corollary ,hether or not the government legitimately functions under it instead of under the &(AB
Constitution, is political and therefore nonCjudicial in nature. =nder such a postulate ,hat the people did in
the Citi"ens Assemblies should be taken as an e8ercise of the ultimate sovereign po,ers. %f they had
risen up in arms and by force deposed the then e8isting government and set up a ne, government in its
place, there could not be the least doubt that their act ,ould be political and not subject to judicial revie,
but only to the judgment of the same body politic act, in the conte8t just set forth, is based on realities. %f a
ne, government gains authority and dominance through force, it can be effectively challenged only by a
stronger force: no .udicial revie, is concerned, if no force had been resorted to and the people. in
defiance of the e8isting Constitution but peacefully because of the absence of any appreciable opposition,
ordained a ne, Constitution and succeeded in having the government operate under it. Against such a
reality there can be no ade#uate judicial relief: and so courts forbear to take cogni"ance of the #uestion
but leave it to be decided through political means.
888 888 888
But then the President, pursuant to such recommendation. did proclaim that the Constitution had been
ratified and had come into effect. he more relevant consideration, therefore, as far as ,e can see,
should be as to ,hat the President had in mind in convening the Citi"ens Assemblies, submitting the
Constitution to them and proclaiming that the favorable e8pression of their vie,s ,as an act of ratification.
%n this respect subjective factors, ,hich defy judicial analysis and adjudication, are necessarily involved.
%n positing the problem ,ithin an identifiable frame of reference ,e find no need to consider ,hether or
not the regime established by President Marcos since he declared martial la, and under ,hich the ne,
Constitution ,as submitted to the Citi"ens Assemblies ,as a revolutionary one. he pivotal #uestion is
rather ,hether or not the effectivity of the said Constitution by virtue of Presidential Proclamation ?o.
&&9*, upon the recommendation of the Natipunan ng mga Barangay, ,as intended to be definite and
irrevocable, regardless of nonCcompliance ,ith the pertinent constitutional and statutory provisions
prescribing the procedure for ratification. Ee must confess that after considering all the available
evidence and all the relevant circumstances ,e have found no reasonably reliable ans,er to the
#uestion.
888 888 888
President. Ee have earlier made reference to subjective factors on ,hich this Court, to our mind, is in no
position to pass judgment. Among them is the President$s o,n assessment of the ,ill of the people as
e8pressed through the Citi"ens Assemblies and of the importance of the &('A Constitution to the
successful implementation of the social and economic reforms he has started or envisioned. %f he should
decide that there is no turning back, that ,hat the people recommended through the Citi"ens Assemblies,
as they ,ere reported to him, demanded that the action he took pursuant thereto be final and irrevocable,
then judicial revie, is out of the #uestion.
%n articulating our vie, that the procedure of ratification that ,as follo,ed ,as not in accordance ,ith the
&(AB Constitution and related statutes, ,e have discharged our s,orn duty as ,e conceive it to be. he
President should no, perhaps decide, if he has not already decided, ,hether adherence to such
procedure is ,eighty enough a consideration, if only to dispel any cloud of doubt that may no, and in the
future shroud the nation$s Charter.
%n the deliberation of this Court one of the issues formulated for resolution is ,hether or not the ne,
Constitution, since its submission to the Citi"ens Assemblies, has found acceptance among the people,
such issue being related to the political #uestion theory propounded by the respondents. Ee have not
tarried on the point at all since ,e find no reliable basis on ,hich to form a judgment. =nder a regime of
martial la,, ,ith the free e8pression of opinions through the usual media vehicles restricted, ,e have no
means of kno,n, to the point of judicial certainty, ,hether the people have accepted the Constitution. %n
any event, ,e do not find the issue decisive insofar as our vote in these cases is concerned. o interpret
the Constitution K that is judicial. hat Constitution should be deemed in effect because of popular
ac#uiescence K that is political, and therefore beyond the domain of judicial revie,. ;.A6/++A?A CvsC
>/ /D/C=%6/ -/C!/A!@ K B9 -C!A &2&C&2*: &2J: &22C&2': &'9C&'&<
40

%t only remains for the ,riter to reiterate here a fe, considerations already touched in the separate
opinions in the !atification Cases ,hich in his considered vie, may ,ell be taken into account by
those ,ho ,ould read again the judgment of the Court therein.
K & K
>aving come to the conclusion that the #uestion of ,hether or not the ?e, Constitution is legally in
force and effect is political and outside the domain of judicial revie,, it ,as not strange that the Court
should simply rule that there should be no further judicial obstacle to the enforcement of the charter,
should that be, as it appeared to be, the intent of those actually in authority in the government. %t is
implicit in the political #uestion doctrine that the Court$s opinion as to the correctness of the legal
postures involved is of no moment, for the simple reason that the remedy against any error therein
lies either ,ith the sovereign people at the polls or ,ith the Political department concerned in the
discharge of its o,n responsibility under the fundamental la, of the land, and not ,ith the Court.
/ven if it ,ere other,ise desirable, if only for the benefit of those interested in the settlement of the
specific legal problem posed, any categorical ruling thereon ,ould transcend the bounds of judicial
propriety. 1or the Court to hold it is ,ithout po,er to decide and in the same breath to actually decide
is an intolerable incongruity, hence any pronouncement or holding made under the circumstances
could have no more force than an obiter !ictu(, no matter ho, rich in erudition and precedential
support. Conse#uently, to say that the ?e, Constitution may be considered by those in authority to
be in force and effect because such is the mandate e8pressed by the people in the form announced
by the President$s but a proper manner of e8pressing the Court$s abstention from ,resting the po,er
to decide from those in ,hom such prerogative is constitutionally lodged. his is neither to dodge a
constitutional duty nor to refrain from getting involved in a controversy of transcendental implications
K it is plain adherence to a principle considered paramount in republican democracies ,herein the
political #uestion doctrine is deeply imbedded as an ine8tricable part of the rule of la,. %t is an
unpardonable misconception of the doctrine for anyone to believe that for the -upreme Court to bo,
to the perceptible or audible voice of the sovereign people in appropriate instances is in any sense a
departure from or a disregard of la, as applied to political situations, for the very rule that enjoins
judicial interference in political #uestions is no less a legal principle than any other that can be
conceived, %ndeed, just as, in la,, judicial decision rendered ,ithin ambit of the courts$ authority
deserve the respect of the people, by the same token, the people$s verdict on ,hat inherently is theirs
to decide must be accorded due deference by the judiciary. 0ther,ise, judges ,ould be more
po,erful than the people by ,hom they have been given no more prerogative than to act solely ,ithin
the boundaries of the judicial sphere. Eithal, a court may err in finding that a given situation calls for
its abstention, in the same ,ay it may commit mistakes of judgment about any order matter it
decides, still its decision, conceding its honesty, cannot be faulted as an assault on the rule of la,.
hus, in a broad sense, it may be said that it is a necessary corollary of the truth that the
administration of justice in courts presided be human beings cannot perfect that even the honest
mistake of a judge is la,.
he ,riter further submits that, as pointed out in his separate opinion in the !atification Cases, those
,ho vehemently insist that the referendum of .anuary &9C&B, &('A ,as not the kind of election
contemplated in Article D6 of the &(AB Constitution seem to overlook that the said provision refers
only to the mode of ratifying amendments thereto and makes no mention at all a ne, constitution
designed to supersede it is to be submitted for approval by the people. %ndeed, the ,riter ,ould
readily agree, as ,as already made clear in the aforementioned opinion, that if ,hat ,ere submitted
to the people in the .anuary, &('A referendum had been merely an amendment or a bundle of
amendments to the &(AB Constitution, the results thereof could not constitute a valid ratification
thereof. But since it ,as a ,hole integral charter that the Citi"ens$ Assemblies had before them in that
referendum, it is evident that the ratification clause invoked cannot be controlling.
hat a ne, constitution is not contemplated is indicated in the te8t of the provision it itself. %t says7
4-uch amendments shall be valid as part of this Constitution ,hen approved by a majority of the
votes cast ....4 >o, can it be ever conceived that the &('A Constitution ,hich is an entire charter in
itself, differing substantially in its entirely and radically in most of its provisions, from the &(AB
Constitution be part of the latterI %n other ,ords, the mode ratification prescribed in Article D6 is only
for amendments that can be made part of the ,hole constitution, obviously not to an entire charter
precisely purported to supersede it.
And it is but logical that a constitution cannot and should not attempt to bind future generations as to
ho, they ,ould do a,ay ,ith it in favor of one suitable to their more recent needs and aspirations. %t
is true that in Tolentino vs. Co(elec, J& -C!A '9*, this Court, thru the ,riter, held that7
%n our discussion of the issue of jurisdiction, Ee have already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to -ection & of Article D6 of the Constitution,
already #uoted earlier in this opinion. Ee 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 e8isting Constitution.
?o,, Ee hold that even as to its latter task of proposing amendments to the Constitution, it is subject to
the provisions of -ection & of Article D6. his must be so, because it is plain to =s that the framers of the
Constitution took care that the process of amending the same should not be undertaken ,ith the same
ease and facility in changing an ordinary legislation. Constitution making is the most valued po,er,
second to none, of the people in a constitutional democracy such as the one our founding fathers have
chosen for this nation, and ,hich ,e 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 ,ithin the country and those subject to its sovereignty, every degree of care is taken in preparing
and drafting it. A constitution ,orthy of the people for ,hich it is intended must not be prepared in haste
,ithout ade#uate deliberation and study. %t is obvious that correspondingly, any amendment of the
Constitution itself, and perforce must be conceived and prepared ,ith as much care and deliberation.
1rom the very nature of things, the drafters of an original constitution, as already observed earlier,
operate ,ithout any limitations, restraints or inhibitions save those that they may impose upon
themselves. his is not necessarily true of subse#uent conventions called to amend the original
constitution. 3enerally, the framers of the latter see to it that their handi,ork is not lightly treated and as
easily mutilated or changed, not only for reasons purely personal but more importantly, because ,ritten
constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, so
long as they can be adopted to the needs and e8igencies of the people, hence, they must he insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies. hus,
as a rule, the original constitutions carry ,ith them limitations and conditions, more or less stringent,
made so by the people themselves, in regard to the process of their amendment. And ,hen such
limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of
any subse#uent convention to claim that they may ignore and disregard such conditions because they are
as po,erful and omnipotent as their original counterparts. ;At page '*JC'*2<.
But this passage should not be understood, as it ,as not meant to be understood, to refer to the
people$s inalienable right to cast aside the ,hole constitution itself ,hen they find it to be in their best
interests to do so. %t ,as so indicated already in the resolution denying the motion for reconsideration7
his is not to say that the people may not, in the e8ercise of their inherent revolutionary po,ers, amend
the Constitution or promulgate an entirely ne, one other,ise, but as long as any amendment is
,hich is not in conformity ,ith the letter, spirit and intent of the provision of the Charter for effecting
amendments cannot receive the sanction of this Court. ;!esolution of Motion for reconsideration,
olentino vs. Comelec 3.!. ?o. +CAJ&B9, 1ebruary J, &('&<.
1or it is rather absurd to think that in approving a ne, fundamental la, ,ith ,hich they ,ould replace
the e8isting one, they have to adhere to the mandates of the latter, under pain of getting stuck ,ith it,
should they fall. 0ne can easily visuali"e ho, the evil forces ,hich dominated the electoral process
during the old society ,ould have gone into play in order to stifle the urge for change, had the mode
of ratification in the manner of past plebiscites been the one observed in the submission of the ?e,
Constitution. o reiterate ,hat the ,riter said in the !atification Cases7
Consider that in the present case ,hat is involved is not just an amendment of a particular provision of an
e8isting Constitution: here, it is, as % have discussed earlier above, an entirely ne, Constitution that is
being proposed. his important circumstance makes a great deal of difference.
?o less than counsel olentino for herein respondents Puyat and !oy, ,ho ,as himself the petitioner in
the case % have just referred to is, no, inviting 0ur attention to the e8act language of Article D6 and
suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern
the ratification of a ne, Constitution. %t is particularly stressed that the Article specifically refers to nothing
else but 4amendments to this Constitution4 ,hich if ratified 4shall be valid as part of this Constitution.4
%ndeed, ho, can a ,hole ne, Constitution be by any manner of reasoning an amendment to any other
constitution and ho, can it, if ratified, form part of such other constitutionI ...
ne, constitution is being adopted implies a general intent to put aside the ,hole of the old one, and ,hat
,ould be really incongruous is the idea that in such an eventuality, the ne, Constitution ,ould subject its
going into effect any provision of the constitution it is to supersede, to use the language precisely of
-ection 2, Article D6%%, the effectivity clause, of the ?e, Constitution. My understanding is that generally,
constitutions are selfCborn, they very rarely, if at all, come into being, by virtue of any provision of another
constitution. his must be the reason ,hy every constitution has its o,n effectivity clause, so that if, the
Constitutional Convention had only anticipated the idea of the referendum and provided for such a
method to be used in the ratification of the ?e, Constitution, % ,ould have had serious doubts as to
,hether Article D6 could have had priority of application. ;.avellana CvsC he /8ecutive -ecretaryCB9
-C!A &('C&()<.
-ince in the ,ithdra,al motion of petitioner Diokno, the ,hole trust of his posture relative to the
alleged nonCenforceability of the Constitution of &('A revolves around supposed nonCcompliance in
its ratification, ,ith Article D6 of the &(AB Charter, and inasmuch as it is evident that the letter and
intent of that invoked provision do not ,arrant, as has just been e8plained, the application thereof to
the ?e, Constitution, for the simple reason that the same is not in fact and in la, as ,ell as in form
and in intent a mere amendment to the 0ld Constitution, but an integrally ne, charter ,hich cannot
conceivably be made just a part thereof, one cannot but vie, said motion to ,ithdra, as having been
designed for no other purpose than to serve as a vehicle for the ventilation of petitioner$s political
rather than legal outlook ,hich deserves scant consideration in the determination of the merits of the
cases at bar.
%n any event, that a constitution need not be ratified in the manner prescribed by its predecessor and
that the possible invalidity of the mode of its ratification does not affect its enforceability, as long as
the fact of its approval by the people or their ac#uiescence thereto is reasonably sho,n, is amply
demonstrated in the scholarly dissertation made by our learned colleague, Mr. .ustice 1eli8 6.
Makasiar, in his separate opinion in the !atification Cases, ,hich carried the concurrence of .ustices
Antonio, /sguerra and the ,riter. And that ,hat took place in the Philippines in .anuary, &('A is not
an unprecedented practice peculiar to our country, is like,ise plainly sho,n therein, since it appears
that no less than the Constitution of the =nited -tates of America, the nation ,hose close adherence
to constitutionalism petitioners ,ould ,ant the 1ilipinos to emulate, ,as also ratified in a ,ay not in
conformity ,ith the Articles of Confederation and Perpetual =nion, the Constitution ,hich it replaced,
and the reason for it ,as only because those in authority felt that it ,as impossible to secure
ratification, if the amendment clause of the Articles ,ere to be observed, and so they resorted to
e8traCconstitutional means to accomplish their purpose of having a ne, constitution. 1ollo,ing is the
pertinent portion of Mr. .ustice Makasiar$s illuminating dis#uisition based on actual historical facts
rather than on theoretical and philosophical hypotheses on ,hich petitioners ,ould seem to rely7
he classic e8ample of an illegal submission that did not impair the validity of the ratification or adoption
of a ne, Constitution is the case of the 1ederal Constitution of the =nited -tates. %t should be recalled
that the thirteen ;&A< original states of the American =nion K ,hich succeeded in liberating themselves
from /ngland after the revolution ,hich began on April &(, &''B ,ith the skirmish at +e8ington,
Massachusetts and ended ,ith the surrender of 3eneral Corn,allis at @orkto,n, 6irginia, on 0ctober
&(,&')& ;/ncyclopedia Brit., 6ol. &, &(AA /d., p. ''2< K adopted their Articles of Confederation and
Perpetual =nion, that ,as ,ritten from &''2 to &''' and ratified on March &, &')& ;/ncyclopedia Brit.,
6ol. &&, &(22 /d., p. B*B<. About si8 years thereafter, the Congress of the Confederation passed a
resolution on 1ebruary *&, &')' calling for a 1ederal Constitutional Convention 4,or t*e sole an! e6press
purpose o, revisain+ t*e articles o, con,e!eration ....$ ;Appendi8 &, he 1ederalist, Modern +ibrary ed., p.
B'', emphasis supplied<.
he Convention convened at Philadelphia on May &J, &')'. Article D%%% of the Articles of Confederation
and Perpetual =nion stated specifically7
he articles of this confederation shall be inviolably observed by every state, and the
union shall be perpetual: nor s*all an alteration at an ti(e *erea,ter #e (a!e in an o,
t*e(9 unless suc* alteration #e a+ree! to in a con+ress o, t*e unite! states, an! #e
a,ter)ar!s con,ir(e! # t*e le+islatures o, ever state. ;-ee the 1ederalist, Appendi8 &&,
Modern +ibrary /d., &(A', p. B)J: emphasis supplied<.
But the foregoing re#uirements prescribed by the Articles of Confederation and Perpetual =nion for the
alteration and for the ratification of the 1ederal Constitution as drafted by the Philadelphia Convention
,ere not follo,ed. 1earful that the said 1ederal Constitution ,ould not be ratified by the state legislatures
as prescribed, the Philadelphia Convention adopted a resolution re#uesting the Congress of the
Confederation to pass a resolution providing that the 1ederal Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine ;(< states, not necessarily in all thirteen ;&A<
states, the said Constitution shall take effect.
%t ,ould have a counsel of perfection to consign the ne, Constitution to the tender mercies of the
legislatures of each and all of the &A states. /8perience clearly indicated that ratification ,ould have had
the same chance as the scriptural camel passing thru the eye of a needle. It )as t*ere,ore !eter(ine! to
reco((en! to Con+ress t*at t*e ne) Constitution #e su#(itte! to conventions in t*e several states
speciall electe! to pass an! )*en it s*oul! #e rati,ie! # nine o, t*e t*irteen states ....$ ;he 1ederalist,
Modern +ibrary /d., &(A', %ntroduction by /d,ard /arle Mead, pp. viiiCi8 emphasis supplied<.
he Convention, anticipating that the influence of many state politicians ,ould be Anti
federalist, provided for ratification of the Constitution by popularly elected conventions in
each state. -uspecting that !hode %sland, at least, ,ould prove recalcitrant, it declared
that the Constitution ,ould go into effect as soon as nine states ratified. he convention
method had the further advantage that judges, ministers, and others ineligible to state
legislatures could be elected to a convention. he nineCstate provision ,as, of course,
mildly revolutionary. But the Congress of the Confederation, still sitting in ?e, @ork to
carry on federal government until relieved, formally submitted the ne, constitution to the
states and politely faded out before the first presidential inauguration.$ ;he 08ford
>istory of the Am. People by -amuel /liot Morison, &(2B ed., p. A&*<.
states on May *(, &'(9 ;&* C. .. p. 2'( footnote, &2 C...-. *' K by the state conventions and not by all
thirteen ;&A< state legislatures as re#uired by Article D%%% of the Articles of Confederation and Perpetual
=nion afore#uoted K and in spite of the fact that the 1ederal Constitution as originally adopted suffers
from t)o #asic in,ir(ities, na(el t*e a#sence o, a #ill o, ri+*ts an! o, a provision a,,ir(in+ t*e po)er o,
5u!icial revie).
he liberties of the American people ,ere guaranteed by the subse#uent amendments to the 1ederal
Constitution. he doctrine of judicial revie, has become part of American constitutional la, only by virtue
of a judicial pronouncement by Chief .ustice Marshall in the case of 'ar#ur vs. 'a!ison ;&)9A, & Branch
&A'<.
%n the &(J2 case of K*eeler vs. "oar! o, Trustees ;A' -/ *nd A**, A*2C AA9<, ,hich enunciated the
submission or ratification by the people, but on t*e ,act o, ,iat or approval or a!option or ac;uiescence #
t*e people, )*ic* ,act o, rati,ication or a!option or ac;uiescence is all t*at is essential, the Court cited
precisely the case of the irregular revision and ratification by state conventions of the 1ederal
Constitution, thus7
?o case identical in its facts ,ith the case no, under consideration has been called to
our attention, and ,e have found none, Ee think that the principle ,hich ,e apply in the
instant case ,as very clearly applied in the creation of the constitution of the =nited
-tates. he convention created by a resolution of Congress had authority to do one thing,
and one only, to ,it, amend the articles of confederation. his they did not do, but
submitted to the sovereign po,er, the people, a ne, constitution. %n this manner ,as the
constitution of the =nited -tates submitted to the people and it became operative as the
organic la, of this nation ,hen it had been properly adopted by the people.
Pomeroy$s Constitutional +a,, p. BB, discussing the convention that formulated the
constitution of the =nited -tates, has this to say 4he convention proceeded to do, and
did accomplish, ,hat they ,ere not authori"ed to do by a resolution of Congress that
called them together. hat resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and after,ards ratified by
all the state legislatures, in the manner pointed out by the e8isting organic la,. But the
convention soon became convinced that any amendments ,ere po,erless to effect a
cure: that the disease ,as too deeply seated to be reached by such tentative means.
hey sa, the system they ,ere called to improve must be totally abandoned, and that
the national idea must be reCestablished at the center of their political society. %t ,as
objected by some members, that they had no po,er, no authority, to construct a ne,
government. hey had no authority, if their decisions ,ere to he final: and no authority
,hatever, under the articles of confederation, to adopt the course they did. But they kne,
that their labors ,ere only to be suggestions: and that they as ,ell as any private
individuals, and any private individuals as ,ell as they, had a right to propose a plan of
government to the people for their adoption. hey ,ere, in fact, a mere assemblage of
private citi"ens, and their ,ork had no more binding sanction, than a constitution drafted
by Mr. >amilton in his office, ,ould have had. he people, by their e8pressed ,ill,
transformed this suggestion, this proposal, into an organic la,, and the people might
have done the same ,ith a constitution submitted to them by a single citi"en.
888 888 888
... K*en t*e people a!opt a co(pletel revise! constitution, t*e ,ra(in+ or su#(ission o, t*e instru(ent
is not )*at +ives its #in!in+ ,orce an! e,,ect. T*e ,iat o, t*e people, an! onl t*e ,iat o, t*e people, can
#reat*e li,e into a Constitution.
soverei+n. T*is )oul! #e an aut*orize! e6ercise o, soverei+n po)er # t*e court. ;%n -tate v. -,ift 2( %nd.
B9B, B&(, the %ndiana -upreme Court said7 $he people of a -tate may form an original constitution, or
abrogate an old one and form a ne, one, at and time, ,ithout and political restriction e8cept the
constitution of the =nited -tates: .... ;A' -/ A*'CA*), A*(, emphasis supplied.<
%n the &(9A case of Keston vs. >an, the court held7
%t remains to be said that if ,e felt at liberty to pass upon this #uestion, and ,ere
compeller to hold that the act of 1ebruary *A, &))', is unconstitutional and void, it ,ould
not, in our opinion, by any means follo, that the amendment is not a part of our state
Constitution. %n the recent case of Talor vs. Co((on)ealt* ;6a.< JJ -./. 'BJ, t*e
Supre(e Court o, @ir+inia *ol! t*at t*eir state Constitution o, $%F2, *avin+ #een
ac-no)le!+e! an! accepte! # t*e o,,icers a!(inisterin+ t*e state +overn(ent, an! #
t*e people, an! #ein+ in ,orce )it*out t opposition (ust #e re+ar!e! as an e6istin+
Constitution, irrespective o, t*e ;uestion as to )*et*er or not t*e convention )*ic*
pro(ul+ate! it *a! aut*orit so to !o )it*out su#(ittin+ it to a vote o, t*e people. %n
"rittle v. People, * ?eb. &(), is a similar holding as to certain provisions of the ?ebraska
Constitution of &))2, ,hich ,ere added by the +egislature at the re#uirement of
Congress, though never submitted to the people for their approval. ;(' ?E AJ(CAB9:
emphasis supplied<.
Against the decision in the Eheeler case, supra., confirming the validity of the ratification and adoption of
the American Constitution, in spite of the fact that such ratification ,as a clear violation of the prescription
on alteration and ratification of the Articles of Confederation and Perpetual =nion, petitioners in 3. !. ?o.
+CA2&2B dismissed this most significant historical fact by calling the 1ederal Constitution of the =nited
-tates as a revolutionary one, invoking the opinion e8pressed in 6ol. &2, Corpus .uris -ecundum, p. *',
that it ,as a revolutionary constitution because it did not obey the re#uirement that the Articles of
Confederation and Perpetual =nion can be amended only ,ith the consent of all thirteen ;&A< state
legislatures. his opinion does not cite any decided case, but merely refers to the footnotes on the brief
historical account of the =nited -tates Constitution on p. 2'( of 6ol. &*, C.-. Petitioners, on p. &) of their
main ?otes, refer =- to pp. *'9CA&2 of the O6,or! Cistor o, t*e 3(erican People, &(2B /d. by -amuel
/liot Morison, ,ho discusses the Articles of Confederation and Perpetual =nion in Chapter D6%%%
captioned $!evolutionary Constitution Making, &''B &')&$ ;pp. *'9C*)&<. %n Chapter DD on $he Creative
Period in Politics, &')BC&')),$ Professor Morison delineates the genersis of the 1ederal Constitution, but
does not refer to it even implicitly as a revolutionary constitution ;pp. *('CA&2<. >o,ever, the 1ederal
Constitution may be considered revolutionary from the vie,point of Mc%ver if the term revolution is
understood in $its E%D/! sense to embrace decisive changes in the character of government, even
though they do not involve the violent overthro, of an established order, ...$ ;!.M. Mac%ver, he Eeb of
3overnment, &(2B ed., p. *9A<.
%t is rather ridiculous to refer to the American Constitution as a revolutionary constitution, he Artycles of
Confederation and Perpetual =nion that ,as in force from .uly &*, &''2 to &')), forged as it ,as during
the ,ar of independence ,as revolutionary constitution of the thirteen ;&A< states. %n the e8isting 1ederal
Constitution of the =nited -tates ,hich ,as adopted seven ;'< or nine ;(< years after the thirteen ;&A<
states ,on their independence and long after popular support for the government of the Confederation
had stabili"ed ,as not a product of a revolution. he 1ederal Constitution ,as a $creation of the brain and
purpose of man$ in an era of peace. %t can only be considered revolutionary in the sense that it is a radical
departure from its predecessor, the Articles of Confederation and Perpetual =nion.
successor to the Articles of Confederation and Perpetual =nion. he fallacy of the statement is so obvious
that no further refutation is needed. ;8F SC>3 2F%42$8< .
Moreover, ,hether a proposal submitted to the people is just an amendment to an e8isting
constitution ,ithin the contemplation of its amendment clause or is a ne, charter not comprehended
by its language may not be determined solely by the simple processes of analysis of and comparison
bet,een the contents of one and the other. 6ery much depends on ,hat the constituent assembly,
reflecting its understanding of the desire of the people it represents, actually intends its handi,ork to
be, as such intent may be deduced from the face of the document itself. 1or the truth is that ,hatever
changes in form and in substance a constitution may undergo, as long as the same political, social
and economic ideologies as before continue to be the motivation behind such changes, the result can
never be, in a strict sense, a ne, constitution at all. %ndeed, in such circumstance, any alteration or
modification of any provision of a constitution, no matter ho, e8tensive, can al,ays he traced as
founded on its o,n bedrock, thereby proving identity. %t is therefore the e8pressed desire of the
makers of the charter that is decisive. And that is ,hy the ?e, Constitution has its o,n effectivity
clause ,hich makes no reference ho,soever to Article D6 of the past charter.
41

?o,, ho, the founding fathers of America must have regarded the difference bet,een a
constitutional amendment, on the one hand, and a ne, constitution, on the other, ,hen they found
the Articles of Confederation and Perpetual =nion no longer ade#uate for the full development of their
nation, as can be deduced from the historical account above, is at least one case in point K they
e8ercised their right to ratify their ne, fundamental la, in the most feasible manner, ,ithout regard to
any constitutional constraints. And yet, it is the constitution that is reputed to have stood all tests and
,as, in fact, the model of many national constitutions, including our o,n of &(AB, if it cannot be
accurately regarded also as the model of the present one.
Eith the foregoing considerations in mind, it can be readily seen ho, pointless it is to contend, as
petitioner Diokno does in his motion to ,ithdra,, that ,hat he deems as the failure of the .anuary,
&('A referendum to conform ,ith the re#uirements of Article D6 of the &(AB Constitution detracts
from the enforceability of the ?e, Constitution, in the light of the President$s assertion contained in
Proclamation &&9* that it has been approved and ratified by the people, coupled ,ith his evident firm
and irreversible resolution to consider it to have been, indeed, duly ratified, and in the face of the
indisputable fact that the ,hole government effectively in control of the entire Philippine territory has
been operating under it ,ithout any visible resistance on the part of any significant sector of the
populace. o allude to the filing of the petitions in the Plebiscite and the !atification Cases and the
occasional appearances in some public places of some underground propaganda ,hich, any,ay, has
not cut any perceptible impression any,here, as indicative or evidence of opposition by the people to
the ?e, Constitution ,ould be, to use a commonplace but apt e8pression, to mistake the trees for the
forest.
%t is thus abundantly clear that the passionate and tenacious raciocination in petitioner Diokno$s
,ithdra,al motion tending to assail the cogency of our opinions and their consistency ,ith the
judgment in the !atification Cases, to the e8tent of using terms that could signify doubt in the good
faith and intellectual integrity of some members of the Court and of trying to embarrass the Court
itself before the bar of history, does not in fact have any plausible basis ,hatsoever.
C O N C 0 E S I O N
he instant cases are uni#ue. o 0ur kno,ledge never before has any national tribunal of the highest
authority been called upon to pass on the validity of a martial la, order of the /8ecutive issued in the
face of actual or imminent danger of a rebellion K threatening the very e8istence of the nation. he
petitions herein treat of no more than the deprivation of liberty of the petitioners, but in reality ,hat is
involved here is the legitimacy of the government itself. ?o -upreme Court of any other country in the
,orld, Ee reiterate, has ever been confronted ,ith such a transcendental issue.
his is, therefore, a decision that affects not the petitioners alone, but the ,hole country and all our
people. 1or this reason, Ee have endeavored to the best of our ability to look at all the issues from
every conceivable point of vie,. Ee have gone over all the jurisprudence cited by the parties, the
,ritings of learned and kno,ledgeable authorities they have #uoted and ,hatever Ee could avail of
by 0urselves. Ee trust Ee have not misunderstood any of the contentions of the parties and their
able and learned counsels and that Ee have not overlooked any authority relevant to them. And Ee
must say Ee perceive no cause to do,ngrade their love of and loyalty to our common motherland
even if differences there are bet,een our convictions as to ho, to earlier attain the national destiny.
%ndeed, Ee have not considered as really persuasive any insinuations of motivations born of political
partisanship and personal ambitions.
Ee do not mean to belittle or depreciate foreign jurisprudence, but Ee have deliberately refrained
from relying on alien opinions, judicial or other,ise, in order to stress that the 1ilipinos can solve their
o,n problems ,ith their o,n resources intellectual or other,ise. Any,ay, Ee doubt if there is enough
relevant parallelism bet,een occurrences in other countries passed upon by the courts ,ith ,hat is
happening here today.
Principally, by this decision, Ee hold that the po,er to proclaim martial la, is lodged by the
Constitution e8clusively in the /8ecutive, but the grant of judicial po,er to the -upreme Court also by
the Constitution is plenary and total and, therefore, ,hen it is a matter of judicial notice, because it is
commonly kno,n by the general public or is capable of un#uestionable demonstration, that any
particular declaration of martial la, is devoid of any of the constitutionally re#uired bases, the Court
has the full authority and it ,ould not hesitate to strike do,n any such improvident proclamation and
to adjudge that the legitimate government continue ,ithout the offending /8ecutive, ,ho shall be
replaced in accordance ,ith the rules of succession provided in the e8isting Constitution and la,s. %n
the cases at bar, ho,ever, the Court, ,ith the abstention of only one member ,ho has preferred not
to emit any opinion on the issue at this time, holds that the President had good and sufficient grounds
in issuing Proclamation &9)&, ,hether the same is e8amined in the light of its o,n recitals, as some
.ustices advocate, or of facts of judicial notice together ,ith those undisputed in the record, in the
manner the rest of =s have actually tested it. Ee further hold that in restraining the liberties of
petitioners, the President has not overstepped the boundaries fi8ed by the Constitution.
1or doctrinal purposes, it is best to add to all the foregoing that a judicial challenge against the
imposition of martial la, by the /8ecutive in the midst of the actualities of a real assault against the
territorial integrity and life of the nation, inevitably calls for the reconciliation, ,hich Ee feel Ee have
been able to effectuate here, of t,o e8tremes in the allocation of po,ers under the Constitution K the
resort by the /8ecutive to the ultimate ,eapon ,ith ,hich the fundamental la, allo,s him to defend
the state against factual invasion or rebellion threatening the public safety, on the one hand, and the
assertion by the -upreme Court of the irreducible plenitude of its judicial authority, on the other. ?o
other conflict of prerogatives of such total dimensions can conceivably arise from the operation of any
other t,o parts of the charter. his decision then could ,ell be sui +eneris, hence, ,hatever has been
said here ,ould not necessarily govern #uestions related to adverse claims of authority related to the
lo,er levels of the hierarchy of po,ers in the Constitution.
Ee humbly submit this decision to the judgment of all our people, to history and to the generations of
1ilipinos still unborn, confident that it carries all that Ee kno, and all that Ee are. As Ee do this, Ee
are fully a,are that in this critical stage of our life as a nation, our overriding need is unity. %t is 0ur
fervent hope that by this decision, Ee have duly performed 0ur constitutionally assigned part in the
great effort to reduce if not to eliminate the remaining fundamental causes of internecine strife.
May Divine Providence continue to al,ays keep the Philippines in the right paths of democracy,
freedom and justice for allW
J E . G ' E N T
E>/!/10!/, the petitions in all the aboveCentitled cases are dismissed. ?o costs.
3 . . E N . E '
he follo,ing are my reasons for voting in favor of granting the motion to ,ithdra,7
%t is elementary that the remedy of *a#eas corpus e8ists only against involuntary confinement. he
moment, therefore, that after initially #uestioning the legality of his detention, the petitioner seeks
,ithdra,al of his petition at any stage of the case before judgment, his detention becomes in la,
automatically, by his o,n act, voluntary or ,ith his e8press consent, hence, the reason for further
in#uiry into the circumstances thereof ceases completely, and the court$s duty to proceed further and
render judgment comes to an end. By allo,ing the ,ithdra,al, no interest of justice ,ould be
prejudiced, no juridical harm needing redress could be caused to anyone. Accordingly, the petitioner$s
motive for his ,ithdra,al, ,hether e8pressed or unarticulated, are absolutely immaterial, albeit, in the
case at bar, petitioner himself suggests that, ,hile acceding to his re#uest, the members of the Court
may e8press their vie,s thereon. ;-urC!ejoinder dated May *&, &('J, p. A<.
%n the mind of the ,riter, the grounds alleged by petitioner Diokno and his counsel have an apparent
tendency to offend the dignity of the Court and to undermine the respect and faith of the people in its
capacity to administer justice. Ehat is ,orse, they may be false and baseless, as they are emotional
and personal. =nless properly e8plained, they give the impression that movant is impeaching the
integrity and good faith of some members of the Court. %n the premises, said petitioner and counsel
could be re#uired to sho, cause ,hy they should not be held in contempt of the Court, but there
being no formal charge to such effect in the instant proceedings, and in order not to confuse the
discussion and resolution of the transcendental issues herein, it is preferable, and the Court has
opted, to take up the matter of the possible responsibility for contempt separately, either motu propio
or upon the initiative of ,hoever may allege to be aggrieved thereby. 1or the present, it has to be
stated, ho,ever, that under no circumstances may any party or counsel vent his personal feelings
and emotions in any pleading or paper Bled ,ith the Court, particularly ,hile his case is pending
therein. Personalities that are directed to,ards the occupants of the judicial office naturally mar the
legal issues before them, correspondingly making more difficult their proper and impartial resolution.
/ven if the judges concerned are actually, as they are supposed to be, unmoved by them, still there
can be no assurance that the litigants and the public in general ,ill be convinced of their absolute
impartiality in their subse#uent actuations, and to that e8tent, the interests of justice are bound to
suffer. %t is but in keeping ,ith the highest traditions of the judiciary that such improprieties are not
allo,ed to pass unnoticed and are dealt ,ith by the court either (oto propio or upon corresponding
complaint, ,hether in an independent proceeding or as an incident ,ithin the pending case. ?o court
,orthy of its position should tolerate them.
But assaults upon the dignity and integrity of the court, are one thing, and the issues of the case at
hand are another. !egardless of ,hat the judge thinks is the belief of those concerned about the
motivations of the court$s subse#uent resolution of the issues, unless he inhibits himself from further
acting in the case, circumstances permitting, it is his inescapable duty to render judgment, taking
care, of course, that he remains, in fact, objective and impartial. %t is, therefore, of no moment, for the
purposes of disposing of petitioner Diokno$s motion to ,ithdra,, ,hether or not the charges leveled
by him and his counsel against the Court or any of its members are founded or unfounded and
,hether or not the same constitute actionable misconduct on their part, as participants in the case
before =s andFor as members of the Bar and officers of the Court. Any possible action for such
probable misconduct has no bearing on the #uestion of ,hether or not, observing the usual rules and
practices, the Court should dismiss his main petition, the alleged illegality of his detention having
been duly cured by his voluntary submission thereto.
All these is not to say that % have not given thought to the imperative necessity of resolving the issues
of public interest raised in petitioner Diokno$s petition. % can also see that it is important to the
3overnment that he does not escape the legal effects of the decision in these cases. But if these are
the main reasons for denying his motion to ,ithdra,, % believe that the 3overnment$s apprehensions
are rather unfounded. Ehile % ,ould not say that by his ,ithdra,al, petitioner impliedly admits the
correctness of the stand of the 3overnment, ,hat ,ith the avalanche of protests against alleged
injustice and supposed legal errors running through his pleadings, % am of the considered vie, that in
la,, he cannot correctly pretend that the rulings of the Court in the other cases herein in respect to
the issues therein that are common ,ith those of his petition are not binding on him at least by
precedential force. And inasmuch as in the cases not ,ithdra,n, all the issues of public interest
raised in his case ,ill have to be resolved, % do not see any purpose in insisting that he should remain
a petitioner ,hen he refuses, as a matter of conscience, to a,ait the unfavorable verdict he foresees
in his o,n case, ,hich he himself anticipates ,ill not set him free any,ay. 0f course, he protests that
nothing he can say can convince the Court, and, on the other hand, perhaps, the most technically
accurate and palpably just decision the court may fashion ,ill not convince him, but it has to be a
strange court that ,ill yield to a litigant$s point of vie, just because he sincerely feels he is right,
,hereas it is not unusual for a litigant to pretend not to see the correctness and justice of the court$s
judgment unfavorable to his interests.

ANTONIO, J.:
hese applications for ,rits of *a#eas corpus present for revie, Proclamation ?o. &9)& of the
President of the Philippines, placing the country under martial la, on -eptember *&, &('*, and the
legality of the arrest and detention of prisoners under the aforesaid proclamation. he issues posed
have confronted every democratic government in every clime and in every age. hey have al,ays
recurred in times of crisis ,hen the nation$s safety and continued e8istence are in peril. %nvolved is
the problem of harmoni"ing t,o basic interests that lie at the foundation of every democratic
constitutional system. he first is contained in !osseau$s formulation, $the people$s first intention is
that the -tate shall not perish,4 in other ,ords, the right of the -tate to its e8istence. he second are
the civil liberties guaranteed by the Constitution, ,hich 4imply the e8istence of an organi"ed system
maintaining public order ,ithout ,hich liberty itself ,ould be lost in the e8cesses of unrestrained
abuses. ...4 ;Co8 vs. ?e, >ampshire, A&* =.-. B2( G&(J9H<.
he petitions for *a#eas corpus initially raise the legality of the arrest and detention of petitioners. As
the respondents, ho,ever, plead, in defense, the declaration of martial la, and the conse#uent
suspension of the privilege of *a#eas corpus, the validity of Proclamation ?o. &9)& is the ultimate
constitutional issue.
>earings ,ere held on -eptember *2 and *( and 0ctober 2, &('*.
1

Mean,hile, some of the petitioners ,ere allo,ed to ,ithdra, their petitions.
4
Most of the petitioners
,ere subse#uently released from custody under certain conditions and some of them insist that their
cases have not become moot as their freedom of movement is restricted.
3
As of this date, only
petitioner Benigno A#uino, .r. ;+CABBJ2< remains in military custody.
0n August &&, &('A, petitioner Benigno A#uino, .r. ,as charged before the military commission ,ith
the crimes of subversion under the AntiC-ubversion Act ;!epublic Act ?o. &'99<, murder and illegal
possession of firearms. 0n August *A, &('A, he filed an action for certiorari and prohibition ;+CABBJ2<
,ith this Court, assailing the validity of his trial before the military commission, because the creation
of military tribunals for the trial of offenses committed by civilians is unconstitutional in the absence of
a state of ,ar or status of belligerency: being martial la, measures, they have ceased ,ith the
cessation of the emergency: and he could not e8pect a fair trial because the President of the
Philippines had prejudged his case. hat action is pending consideration and decision.
0n December *), &('A, petitioner Diokno moved to ,ithdra, his petition ;+CABBA(<, claiming that
there ,as delay in the disposition of his case, and that as a conse#uence of the decision of this Court
in Javellana v. E6ecutive Secretar ;+A2&J*, March A&, &('A< and of the action of the members of
this Court in taking an oath to support the ?e, Constitution, he has reason to believe that he cannot
4reasonably e8pect to get justice in this case.4 !espondents oppose this motion on the ground that
public interest or #uestions of public importance are involved and the reasons given are factually
untrue and contemptuous. 0n -eptember &&, &('J, petitioner Diokno ,as released from military
custody. %n vie, of his release, it ,as the consensus of the majority of the Court to consider his case
as moot. Ee shall no, proceed to discuss the issues posed by the remaining cases.
&. %s the determination by the President of the Philippines of the necessity for the e8ercise of his
po,er to declare martial la, political, hence, final and conclusive upon the courts, or is it justiciable
and, therefore, his determination is subject to revie, by the courtsI
*. Assuming +ansang to be applicable, can it be said that the President acted arbitrarily in issuing
Proclamation ?o. &9)&I
A. Assuming that the issues are justiciable, can the -upreme Court upon the facts of record and those
judicially kno,n to %t no, declare that the necessity for martial la, has already ceasedI
J. =nder a regime of martial la,, can the Court in#uire into the legal justification for the arrest and
detention as ,ell as the other constraints upon the individual liberties of the petitionersI %n the
affirmative, does %t have any ade#uate legal basis to declare that their detention is no longer
authori"ed by the Constitution.
%
CONSTITETION INTEN.E. ST>ONG EIECETI@E
he right of a government to maintain its e8istence is the most pervasive aspect of sovereignty. o
protect the nation$s continued e8istence, from e8ternal as ,ell as internal threats, the government 4is
invested ,ith all those inherent and implied po,ers ,hich, at the time of adopting the Constitution,
,ere generally considered to belong to every government as such, and as being essential to the
e8ercise of its functions4 ;Mr. .ustice Bradley, concurring in +egal ender Cases G=-H &* Eall. JB',
BBJ, BB2, *9 +. ed. *)', A&J, A&B<. o attain this end, nearly all other considerations are to be
subordinated. he constitutional po,er to act upon this basic principle has been recogni"ed by all
courts in every nation at different periods and diverse circumstances.
hese po,ers ,hich are to be e8ercised for the nation$s protection and security have been lodged by
the Constitution under Article 6%%, -ection &9 ;*< thereof, on the President of the Philippines, ,ho is
clothed ,ith e8clusive authority to determine the occasion on ,hich the po,ers shall be called forth.
he constitutional provision e8pressly vesting in the President the po,er to place 4the Philippines or
any part thereof under martial la, in case of invasion, insurrection or rebellion or imminent danger
thereof ,hen the public safety re#uires it,4
5
is taken bodily from the .ones +a, ,ith the difference that
the President of the =nited -tates had the po,er to modify or vacate the action taken by the
3overnorC3eneral.
5
Although the Civil 3overnor, under -ection B of the Philippine Bill of &(9*, could,
,ith the approval of the Philippine Commission, suspend the privilege of the ,rit of *a#eas corpus no
po,er to proclaim martial la, ,as specifically granted. his po,er is not mentioned in the 1ederal
Constitution of the =nited -tates. %t simply designates the President as commanderCinCchief7
he President shall be CommanderCinCChief of the Army and ?avy of the =nited -tates and of the militia
of the several states ,hen called into actual service of the =nited -tates ...
:

%ts absence in the 1ederal Constitution not,ithstanding, President Abraham +incoln during the Civil
Ear placed some parts of the country under martial la,. >e predicated the e8ercise of this po,er on
his authority as CommanderCinCChief of the Armed 1orces and on the ground of e8treme necessity for
the preservation of the =nion. Ehen not e8pressly provided in the Constitution, its justification,
therefore, ,ould be necessity. hus some authoritative ,riters vie, it as 4not a part of the
Constitution but is rather a po,er to preserve the Constitution ,hen constitutional methods prove
inade#uate to that end. %t is the la, of necessity.4
7
-ince the meaning of the term 4martial la,4 is
obscure, as is the po,er e8ercisable by the Chief /8ecutive under martial la,, resort must be had to
precedents. hus the po,ers of the Chief /8ecutive under the CommanderCinCChief clause of the
1ederal Constitution have been dra,n not only from general and specific provisions of the
Constitution but from historical precedents of Presidential action in times of crises. +incoln invoked his
authority under the CommanderCinCChief clause of the 1ederal Constitution for the series of
e8traordinary measures ,hich he took during the Civil Ear, such as the calling of volunteers for
military service, the augmentation of the Army and ?avy, the payment of X* million from the un
appropriated funds in the reasury to persons unauthori"ed to receive it, the closing of the Post 0ffice
to 4treasonable correspondence,4 the blockade of -outhern ports, the suspension of the ,rit of
*a#eas corpus, the arrests and detentions of persons 4,ho ,ere represented to him as being
engaged in or contemplating 4treasonable practices4 K all this for the most part ,as done ,ithout the
least statutory authori"ation from Congress. he actions of +incoln 4assert for the President,4
aspects of a ,ar emergency.4
8
he creation of public offices is conferred by the 1ederal Constitution
to Congress. During Eorld Ear &, ho,ever, President Eilson, on the basis of his po,er under the
4CommanderCinCChief4 clause of the 1ederal Constitution, created 4public offices,4 ,hich ,ere copied
in lavish scale by President !oosevelt in Eorld Ear %%. 4he principal canons of constitutional
interpretation are in ,artime set aside,4 according to Cor,in, 4so far as concerns both the scope of
national po,er and the capacity of the President to gather unto himself all the constitutionally
available po,ers in order the more effectively to focus them upon the task of the hour.4
9
he
presidential po,er, 4building on accumulated precedents has taken on at times, under the stimulation
of emergency conditions,4 according to t,o eminent commentators, the 4dimensions of e8ecutive
prerogative as described by .ohn +ocke, of a po,er to ,it, to fill needed gaps in the la,, or even to
supersede it so far as may be re#uisite to reali"e the fundamental la, of nature and government,
namely, that as much as may be all the members of society are to be preserved.4
10

here is no #uestion that the framers of the &(AB Constitution ,ere a,are of these precedents and of
the scope of the po,er that had been e8ercised by the Presidents of the =nited -tates in times of
grave crisis. he framers of the Constitution 4,ere not only idealists but also practicalCminded men.4
4Ehile they abjured ,ars of aggression they ,ell kne, that for the country to survive provisions for its
defense had to be made.4 && .
%%
TEITE300Y .E'ONST>3"0E CONSTITETION30
CO''IT'ENT OF ISSEE TO TCE P>ESI.ENT
%nstead of making the President of the Philippines simply the commanderCinCchief of all the armed
forces, ,ith authority ,henever it becomes necessary to call out such armed forces to prevent or
suppress la,less violence, invasion, insurrection, or rebellion, the framers of the &(AB Constitution
e8pressly conferred upon him the e8clusive po,er and authority to suspend the privileges of the ,rit
of *a#eas corpus or place the Philippines, or any part thereof, under martial la,.
thereof, ,hen the public safety re#uires it, he may suspend the privileges of the ,rit of *a#eas corpus or
4

he condition ,hich ,ould ,arrant the e8ercise of the po,er ,as not confined to actual invasion,
insurrection or rebellion, but also to i((inent !an+er t*ereo,, ,hen the public safety re#uires it. %t is
evident, therefore, that ,hile American Presidents derived these e8traordinary po,ers by implication
from the -tate$s right to selfCpreservation, the President of the Philippines ,as e8pressly granted by
the Constitution ,ith all the po,ers necessary to protect the nation in times of grave peril.
he safety and ,ellCbeing of the nation re#uired that the President should not be hampered by lack of
authority but ,as to be a 4strong e8ecutive ,ho could maintain the unity of the nation ,ith sufficient
po,ers and prerogatives to save the country during great crises and dangers.4
13

As Delegate .ose P. +aurel comprehensively e8plained7
... A strong e8ecutive he is intended to be, because a strong e8ecutive ,e shall need, especially in the
early years of our independent, or semiCindependent e8istence. A ,eak e8ecutive is synonymous ,ith a
,eak government. >e shall not be a $monarch$ or a dictator in time of profound and 0ctavian peace, #ut
*e virtuall so #eco(es in an e6traor!inar e(er+enc: and ,hatever may be his position, he bul,arks
normally, the fortifications of a strong constitutional government, but abnormally, in e8treme cases, he is
suddenly ushered is as a Minerva, fullCgro,n and in full panoply of ,ar, to occup t*e vanta+e +roun! as
t*e rea! protector an! !e,en!er o, t*e li,e an! *onor o, *is nation. ;/mphasis -upplied.<
15

he concentration of an amplitude of po,er in the hands of the CommanderCinCChief of the Armed
1orces of the Philippines, ,ho is at the same time the elected civilian Chief of -tate, is predicated
upon the fact that it is he ,ho must initially shoulder the burden and deal ,ith the emergency. By the
nature of his position he possesses and ,ields the e8traordinary po,ers of selfCpreservation of the
democratic, constitutional state. %n times of crisis there is indeed unification of responsibility and
centrali"ation of authority in the Chief /8ecutive. 4he concentration of governmental po,er in a
democracy faced by an emergency,4 ,rote !ossiter, 4is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of po,ers. ... %n normal times the separation of po,ers
forms a distinct obstruction to arbitrary governmental action. By this same token in abnormal times it
may form an insurmountable barrier to decisive emergency action in behalf of the -tate and its
independent e8istence. here are moments in the life of any government ,hen all the po,ers must
,ork together in unanimity of purpose and action, even if this means the temporary union of
e8ecutive, legislative and judicial po,ers in the hands of one man. he more complete the separation
of po,ers in a constitutional system, the more difficult and yet the more necessary ,ill be their fusion
in time of crisis.4 ;!ossiter, Constitutional Dictatorship, *))C*)(.<
%t ,as intended, ho,ever, that the e8ercise of these e8traordinary po,ers is for the preservation of
the -tate, its democratic institutions, and the permanent freedom of its citi"ens.
%%%
>ESPONSI"I0ITY I'P0IES ">O3.
3ETCO>ITY 3N. .ISC>ETION
he conditions of ,ar, of insurrection or rebellion, or of any other national emergency are as varied as
the means re#uired for meeting them and it is, therefore, ,ithin the contemplation of the Constitution
that t he Chief /8ecutive, to preserve the safety of the nation on those times of national peril, should
have the broadest authority compatible ,ith the emergency in selecting the means and adopting the
measures ,hich in his honest judgment are necessary for the preservation of the nation$s safety.
4he circumstances that endanger the safety of nations are infinite,4 ,rote Ale8ander >amilton, 4and
for this reason no constitutional shackles can ,isely be imposed on the po,er to ,hich the care of it
is committed ... his is one of those truths ,hich to a correct and unprejudiced mind carries its o,n
evidence along ,ith it, and may be obscured, but cannot be made plainer by argument or
reasoning ... he means ought to be in proportion to the end: the persons from ,hose agency the
attainment of any end is e8pected ought to possess the means byH ,hich it is to be attained.4
15
Mr.
Madison e8pressed the same idea in the follo,ing terms7 4%t is vain to impose constitutional barriers to
the impulse of selfCpreservation. %t is ,orse than in vain, because it plants in the Constitution itself
necessary usurpations of po,er.4
1:

4=n#uestionably,4 ,rote Chief .ustice Tane in 0ut*er v. "or!en ;' >o,. JJ, G&)J(&, &* +.ed. 299<,
4a -tate may use its military po,er to put do,n an armed insurrection, too strong to be controlled by
the civil authority. he po,er is essential to the e8istence of every government, essential to the
preservation of order and free institutions, and is as necessary to the -tates of this =nion as to any
other government. he -tate itself must determine ,hat degree of force the crisis demands. And if
the 3overnment of !hode %sland deemed the armed opposition so formidable, and so ramified
throughout the -tate, as to re#uire the use of its military force and the declaration of martial la,, ,e
see no ground upon ,hich this Court can #uestion its authority.4
%n the Pri"e cases ;&' +. ed. J'2, G&)2AH<, the Court ascribed to the President of the =nited -tates, by
virtue of his po,ers as Chief /8ecutive and as CommanderCinCChief, the po,er ,hich in 0ut*er v.
"or!en is attributed to the government as a ,hole, to treat of insurrection as a state of ,ar, and the
scene of the insurrection as a seat or theater of ,ar. As .ustice 3rier in the Pri"e cases significantly
stated7 4Ehether the President in fulfilling his duties as CommanderCinCChief, in suppressing an
insurrection, has met ,ith such hostile resistance, and a civil )ar o, suc* alar(in+ proportions as )ill
co(pel *i( to accor! to t*e( t*e c*aracter o, #elli+erents, is a ;uestion to #e !eci!e! # *i(, an!
t*is court (ust #e +overne! # t*e !ecisions an! acts o, t*e Political .epart(ent of the government
to ,hich this po,er ,as entrusted. $>e must determine ,hat degree of force the crisis demands.
;/mphasis supplied.<
%n Cira#aas*i v. Enite! States, ,here the Court upheld the curfe, regulations affecting persons of
.apanese ancestry as valid military measures to prevent espionage and sabotage, there ,as again
reCaffirmance of the vie, that the Constitution has granted to the President and to Congress in the
e8ercise of the ,ar po,ers a 4,ide scope for the e8ercise of judgment and discretion in determining
the nature and e8tent of the threatened danger and in the selection of the means for resisting it.4
-ince the Constitution commits to the /8ecutive and to Congress the e8ercise of the ,ar po,er in all
the vicissitudes and conditions of ,arfare, it has necessarily given them ,ide scope for the e8ercise
of judgment and discretion in determining the nature and e8tent of the threatened injury or danger
and in the selection of the means for resisting it. /8 parte Puirin, supra ;A&' =- *), *(, ante, &*, &A,
2A - Ct *<: Pri"e Cases, supra ;* Black G=-H 2'9, &' + ed J''<: Martin v. Mott, &* Eheat. G=-H &(,
*(, 2 + ed BA', BJ9<. Ehere, as they did here, the conditions call for the e8ercise of judgment and
discretion and for the choice of means by those branches of the 3overnment on ,hich the
Constitution has place the responsibility of ,arCmaking, it is not for any court to sit in revie, of the
,isdom of their action or substitute its judgment for theirs.
he actions taken must be appraised in the light of the conditions ,ith ,hich the President and Congress
,ere confronted in the early months of &(J*, many of ,hich, since disclosed, ,ere then peculiarly ,ithin
the kno,ledge of the military authorities.
17

he measures to be taken in carrying on ,ar and to suppress insurrection,4 according to .ustice -,ayne,
in Ste)art v. Ga*n,
18
4are not defined. he decision of all #uestions rests ,holly in the discretion of those
to ,hom the substantial po,ers involved are confided by the Constitution. %n the latter case, the po,er is
not limited to victories in the field and the dispersion of the insurgent forces. %t carries ,ith it inherently the
po,er to guard against the immediate rene,al of the conflict, and to remedy the evils ,hich have arisen
from its rise and progress.
he thrust of those authorities is that the President as commanderCinCchief and chief e8ecutive on
,hom is committed the responsibility is empo,ered, indeed obliged, to preserve the state against
domestic violence and alien attack. %n the discharge of that duty, he necessarily is accorded a very
broad authority and discretion in ascertaining the nature and e8tent of the danger that confronts the
nation and in selecting the means or measures necessary for the preservation of the safety of the
!epublic.
he terms 4insurrection4 and 4rebellion4 are in a large measure incapable of precise or e8act legal
definitions and are more or less elastic in their meanings. As to ,hen an act or instance of revolting
against civil or political authority may be classified as an 4insurrection4 or as a 4rebellion4 is a #uestion
better addressed to the President, ,ho under the Constitution is the authority vested ,ith the po,er
of ascertaining the e8istence of such e8igencies and charged ,ith the responsibility of suppressing
them. o suppress such danger to the state, he is necessarily vested ,ith a broad authority and
discretion, to be e8ercised under the e8igencies of each particular occasion as the same may present
itself to his judgment and determination. >is actions in the face of such emergency must be vie,ed in
the conte8t of the situation as it then confronted him. %t is not for any court to sit in revie, of the
,isdom of his action as commanderCinCchief or to substitute its judgment for his.
%6
NEE. FO> EN?EESTIONING 3.CE>ENCE
TO PO0ITIC30 .ECISION
%t is, ho,ever, insisted that even ,ith the broad discretion granted to the President by the Constitution
in ascertaining ,hether or not conditions e8ist for the declaration of martial la,, his findings in support
of such declaration should nevertheless be subject to judicial revie,.
%t is important to bear in mind that Ee are here dealing ,ith a plenary and e8clusive po,er conferred
upon the Chief /8ecutive by the Constitution. he po,er itself is to be e8ercised upon sudden
emergencies, and under circumstances ,hich may be vital to the e8istence of the government. A
prompt and unhesitating obedience to orders issued in connection there,ith is indispensable as every
delay and obstacle to its immediate implementation may jeopardi"e the public interests.
By reason of his uni#ue position as Chief /8ecutive and as CommanderCinCChief of the Armed 1orces
of the Philippines, it is he, more than any other high official of the government, ,ho has the authority
and the means of obtaining through the various facilities in the civil and military agencies of the
government under his command, information promptly and effectively, from every #uarter and corner
of the state about the actual peace and order condition of the country. %n connection ,ith his duty and
responsibility, he is necessarily accorded the ,ise and objective counsel of trained and e8perienced
specialists on the subject. /ven if the Court could obtain all available information, it ,ould lack the
facility of determining ,hether or not the insurrection or rebellion or the imminence thereof poses a
danger to the public safety. ?or could the courts recreate a complete picture of the emergency in the
face of ,hich the President acted, in order to ade#uately judge his military action. Absent any
judicially discoverable and manageable standards for resolving judicially those #uestions, such a task
for a court to undertake may ,ellCnigh be impossible. 0n the other hand, the President, ,ho is
responsible for the peace and security of the nation, is necessarily compelled by the Constitution to
make those determinations and decisions. he matter is committed to him for determination by
criteria of political and military e8pediency. here e8ists, therefore, no standard ascertainable by
settled judicial e8perience by reference to ,hich his decision can be revie,ed by the courts.
19
%ndeed,
those are military decisions and in their very nature, 4military decisions are not susceptible of
intelligent and judicial appraisal. hey do not pretend to rest on evidence, but are made on
information that often ,ould not be admissible and on assumptions that could not be proved.
%nformation in support of an order could not be disclosed to courts ,ithout danger that it ,ould reach
the enemy. ?either can courts act on communications made in confidence. >ence, courts can never
have any real alternative to accepting the mere declaration of the authority that issued the order that it
,as reasonably necessary from a military vie,point.4
40
>e is necessarily constituted the judge of the
e8istence of the e8igency in the first instance and is bound to act according to his belief of the facts.
Both reason and authority, therefore, dictate that the determination of the necessity for the e8ercise of
the po,er to declare martial la, is ,ithin the e8clusive domain of the President and his determination
is final and conclusive upon the courts and upon all persons. ;cf. 1airman, Martial !ule and the
-uppression of %nsurrection, p. ''& .<
41
his construction necessarily results from the nature of the
po,er itself, and from the manifest object contemplated by the Constitution.
;a< "arcelon v. "a-er.
he e8isting doctrine at the time of the framing and adoption of the &(AB Constitution ,as that of
"arcelon v. "a-er ;B Phil. )'<. It enunciate! t*e principle t*at )*en t*e Governor4General )it* t*e
approval o, t*e P*ilippine Co((ission, un!er Section 8 o, t*e 3ct o, Con+ress o, Jul $, $%F2,
!eclares t*at a state o, re#ellion, insurrection or invasion e6ists, an! # reason t*ereo, t*e pu#lic
sa,et re;uires t*e suspension o, t*e Privile+es o, *a#eas corpus, t*is !eclaration is *el! conclusive
upon t*e 5u!icial !epart(ent o, t*e +overn(ent. And ,hen the Chief /8ecutive has decided that
conditions e8ist justifying the suspension of the privilege of the ,rit of *a#eas corpus, courts )ill
presu(e t*at suc* con!itions continue to e6ist until t*e sa(e aut*orit *as !eci!e! t*at suc*
con!itions no lon+er e6ist. hese doctrines are rooted on pragmatic considerations and sound
reasons of public policy. he 4doctrine that ,henever the Constitution or a statute gives a
discretionary po,er to any person, such person is to be considered the sole and e8clusive judge of
the e8istence of those facts4 has been recogni"ed by all courts and 4has never been disputed by any
respectable authority.4 "arcelon v. "a-er, supra.< he political department, according to Chief .ustice
aney in 'artin v. 'ott ;&* Eheat *(CA&<, is the sole judge of the e8istence of ,ar or insurrection,
and ,hen it declares either of these emergencies to e8ist, its action is not subject to revie, or liable
to be controlled by the judicial department of the -tate. ;Citing Fran-lin v. State "oar! o, E6a(iners,
*A Cal. &'*, &').<
T*e !an+er, an! !i,,iculties )*ic* )oul! +ro) out o, t*e a!option o, a contrar rule are clearl an!
a#l pointe! out in t*e "arcelon case, thus7
then ever o,,icer ,hose duty it is to maintain order and protect the lives and property of the people (a
re,use to act, an! appl to t*e 5u!icial !epart(ent o, t*e Govern(ent ,or anot*er investi+ation and
district or province notifies the 3overnorC3eneral by tele+rap* o, t*is lan!in+ o, troops and that the people
of the district are in collusion ,ith such invasion. 'i+*t not t*e Governor4General and the Commission
accept t*is tele+ra( as su,,icient and proof of the facts communicated an! at once ta-e steps, even to the
e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to them to be necessary
to repel such invasionI %t seems that all men interested in the maintenance and stability of the
3overnment ,ould ans,er this #uestion in the affirmative.
no invasion actually e8ists: (a t*e 5u!icial o, t*e Govern(ent call t*e o, o,,icers actuall en+a+e! in t*e
,iel! #e,ore it an! a)a ,ro( t*eir posts o, !ut ,or t*e purpose o, e6plainin+ an! ,urnis*in+ proo, to it
concerning the e8istence or none8istence of the facts proclaimed to e8ist by the legislative and e8ecutive
branches of the -tateI %f so, then the courts may effectually tie the hands of the e8ecutive, ,hose special
duty it is to enforce the la,s and maintain order, until the invaders have actually accomplished their
purpose. he interpretation contended for here by the applicants, so pregnant ,ith detrimental results,
could not have been intended by the Congress of the =nited -tates ,hen it enacted the la,.
%t is the duty of the legislative branch of the 3overnment to make stich la,s and regulations as ,ill
%t is the duty of the 3overnorC3eneral to take stich steps as he deems ,ise and necessary for the
enforcement of la,s under the conditions mentioned necessarily tends to jeopardi"e public interest and
the safety of the ,hole people. I, t*e 5u!icial !epart(ent o, t*e Govern(ent, or an o,,icer in t*e
Govern(ent, *as a ri+*t to contest t*e or!ers o, t*e Presi!ent or o, t*e Governor4General un!er t*e
con!itions a#ove suppose!, #e,ore co(plin+ )it* suc* or!ers, t*en t*e *an! o, t*e Presi!ent or t*e
Governor4General (a #e tie! until t*e ver o#5ect o, t*e re#els or insurrectos or inva!ers *as #een
acco(plis*e!. But it is urged that the President, or the 3overnorC3eneral ,ith the approval of the
application for the ,rit of that the levislative and e8ecutive branches of the 3overnment might reach a
,rong conclusion from their investigations of the actual conditions, or might, through a desire to oppress
and harass the people, declare that a state of rebellion, insurrection, or invasion e8isted and that public
safety re#uired the suspension of the privilege of the ,rit of *a#eas corpus ,hen actually and in fact no
such conditions did e8ist. Ee can not assume that the legislative and e8ecutive branches ,ill act or take
any action based upon such motives.
Moreover, it cannot be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
the e8ecutive branch of the 3overnment to constantly inform the legislative ranch of the 3overnment of
3overnment, through 4%ts numerous branches of the civil and military, ramifies everyCportion of the
general conditions be any more sure of ascertaining the true conditions through out the Archipelago or in
any particular district, than the other branches of the 3overnmentI Ee think not. ;B Phil., pp. (AC(2.<
;b< T*e Constitution!al Convention o, $%7J.
his ,as the state of Philippine jurisprudence on the matter, ,hen the Constitutional Convention met
on .uly *9, &(AJ. %t must be recalled that, under the Philippine Bill of &(9*, the suspension of the
privilege of the ,rit of *a#eas corpus by the 3overnorC3eneral ,as subject to the approval of the
Philippine ;-ection B, Act of Congress of .uly &, &(9*<, ,hile, under -ection *& of the .ones +a, of
&(&2, the suspension of the of privilege of the ,rit of *a#eas corpus as ,ell as the proclamation of
martial la, by the 3overnorC3eneral could be modified or vacated by the President of the =nited
-tate. Ehen the first Draft ,as -ubmitted conferring the po,er to suspend the privilege of the ,rit of
*a#eas corpus e8clusively upon the President, Delegate Araneta proposed an amendment to the
effect that the ?ational Assembly should be the organ empo,ered to suspend the privileges of the
*a#eas corpus and, ,hen not session, the same may be done by the President ,ith the consent of
the majority of the -upreme Court. =nder the provisions of the Draft, Delegate Araneta argued, 4the
Chief /8ecutive ,ould be the only authority to determine the e8istence of the reasons for the
suspension of the ,rit of *a#eas corpus: and, according to Philippine jurisprudence, the -upreme
Court ,ould refuse to revie, the findings of the /8ecutive on the matter. Conse#uently, he added,
arrests ,ould be effected by military men ,ho ,ere generally arbitrary. hey ,ould be arresting
persons connected ,ith the rebellion, insurrection, invasion: some of them might also be arresting
other person ,ithout any cause ,hatsoever. he result ,ould be that many persons might find
themselves detained ,hen in fact they had no connection ,hatsoever ,ith the disturbances.4
44

?ot,ithstanding the brilliant arguments of Delegate Araneta, the Convention voted do,n the
amendment. /vident ,as the clear intent of the framers of the Charter of vesting on the President the
e8clusive po,er of suspending the privilege of the ,rit of *a#eas corpus and the conclusive po,er to
determine ,hether the e8igency has arisen re#uiring the suspension. here ,as no opposition in the
Convention to the grant on the President of the e8clusive po,er to place the Philippines or any part
thereof under martial la,.
!eali"ing the fragmentation of the Philippines into thousands of islands and of the ,ar clouds that
,ere then hovering over, /urope and Asia, the aforesaid framers of the Charter opted for a strong
e8ecutive.
he provision of -ection &9, Paragraph *, of Article 6%% of the &(AB Constitution ,as, therefore,
adopted in the light of the Court$s interpretation in "arcelon v. "a-er.
;c< 'ontene+ro v. CastaAe!a.
0n August A9, &(B*, or &' years after the ratification of the &(AB Constitution, this Court in
'ontene+ro v. CastaAe!a ;(& Phil. ))*. ))'<, construing the po,er of the President of the Philippines
under Article 6%%, -ection &9, Paragraph *, of the Constitution, reCaffirmed the doctrine in "arcelon v.
"a-er, thus7 4Ee agree ,ith the -olicitor 3eneral that in the light of the vie, of the limited -tates
-upreme Court through Marshall, aney and -tory #uoted ,ith approval in "arcelon v. "a-er ;B Phil.
)', ((C&99<, the authority to decide ,hether the e8igency has arisen re#uiring suspension belongs to
the President and D*is !ecision is ,inal an! conclusiveD upon the courts and upon all other persons.4
0n Montenegro$s contention that there is no state of invasion, insurrection, rebellion or imminent
danger thereof, as the 4intermittent sorties and lightning attacks by organi"ed bands in different
places are occasional, locali"ed and transitory,4 this Court e8plained that to the unpracticed eye the
repeated encounters bet,een dissident elements and military troops may seem sporadic, isolated, or
casual. But the officers charged ,ith the ?ation$s security, analy"ed the e8tent and pattern of such
violent clashes and arrived at the conclusion that they are ,arp and ,oof of a general scheme to
overthro, this government 4vi et ar(is, by force of arms.4 his Court then reiterated one of the
reasons ,hy the finding of the Chief /8ecutive that there is 4actual danger of rebellion4 ,as accorded
conclusiveness, thus7 4%ndeed, as .ustice .ohnson said in that decision, ,hereas the /8ecutive
branch of the 3overnment is enabled thru its civil and military branches to obtain information about
peace and order from every #uarter and corner of the nation, the judicial department, ,ith its very
limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the
Archipelago.4 ;'ontene+ro v. CastaAe!a an! "alao, (& Phil., ))*, ))2C))'.<
%t is true that the -upreme Court of the Enite! States in Sterlin+ v. Constantin,
43
asserted its authority
to revie, the action taken by the -tate 3overnor of e8as under his proclamation of martial la,.
>o,ever, the Court chose not to overturn the principle e8pressed in 'oer v. Pea#o! that the
#uestion of necessit is 4one strictly reserved for e8ecutive discretion.4 %t held that, ,hile the
declaration of is conclusive, the measures employed are revie,able7
%t does not follo, from the fact that the e8ecutive has this range of discretion, deemed to be a necessary
incident of his po,er to suppress disorder that every sort of action the 3overnor may take, no matter ho,
unjustified by the e8igency or subversive or private right and the jurisdiction of the courts, other,ise
available, is conclusively supported by mere e8ecutive fiat. he contrary is ,ellCestablished Ehat are the
limits of military discretion, and ,hether or not they have been overstepped in a particular case are
judicial #uestions. ...
his ruling in -terling should be vie,ed ,ithin the conte8t of its factual environment. At issue ,as the
validity of the attempt of the 3overnor to enforce by e8ecutive or military order the restriction on the
production of oil ,ells ,hich the District .udge had restrained pending proper judicial in#uiry. he
-tate 3overnor predicated his po,er under martial la,, although it ,as conceded that 4at no time has
there been any actual uprising in the territory: at no time has any military force been e8erted to put
riots and mobs do,n.4 he Court disapproved the order of the 3overnor as it had no relation to the
suppression of disorder but on the contrary it undermined the restraining order of the District .udge.
he Court declared that the 3overnor could not by pass the processes of constitutional government
by simply declaring martial la, ,hen no #ona ,i!e emergency e8isted. Ehile this case sho,s that the
judiciary can interfere ,hen no circu(stances e8isted ,hich could reasonably be interpreted as
constituting an emergency, it did not necessarily resolve the #uestion ,hether the Court could
interfere in the face of an actual e(er+enc.
;d< 0ansan+ v. Garcia.
0ur attention, is ho,ever, invited to 0ansan+ v. Garcia ;3.!. ?o. +CAA(2J etc., December &&, &('&,
J* -C!A JJ)< ,here this Court declared, in connection ,ith the suspension of the of the ,rit of
*a#eas corpus by the President of the Philippines on August *&, &('&, that it has the authority to
in#uire into the e8istence of the factual basis of the proclamation in order to determine the
constitutional sufficiency thereof. But this assertion of authority is #ualified by the Court$s une#uivocal
statement that 4the function of the Court is merely to check K not to supplant K the /8ecutive, or to
ascertain (erel )*et*er *e *as +one #eon! t*e constitutional li(its of his jurisdiction, not to
e6ercise t*e po)er veste! in *i( or to determine the ,isdom of his act.4 And that judicial in#uiry into
the basis of the #uestioned than to satisfy the Court to not the President$s decision is correct and that
public safety ,as endangered by the rebellion and justified the suspension of the ,rit, but that in
suspending the ,rit, the President did not act ar#itraril.4
%n the ascertainment of the factual basis of the suspension, ho,ever, the Court had to rely implicitly
on the findings of the Chief /8ecutive. %t did not conduct any independent factual in#uiry for, as this
Court e8plained in Barcelon and Montenegro, 4... ,hereas the /8ecutive branch of the 3overnment is
enabled thru its civil and military branches to obtain information about peace and order from every
#uarter and corner of the nation, the judicial department, ,ith its very limited machinery cannot be in
a better position to ascertain or evaluate the conditions prevailing in the Archipelago.4 %ndeed, such
reliance on the /8ecutive$s findings ,ould be the more compelling ,hen the danger posed to the
public safety is one arising from Communist rebellion and subversion.
Ee can take judicial notice of the fact that the Communists have refined their techni#ues of
revolution, but the ultimate object is the same K 4to undermine through civil disturbances and political
crises the ,ill of the ruling class to govern, and, at a critical point, to take over -tate po,er through
,ellCplanned and ably directed insurrection.4
45
%nstead of insurrection, there ,as to be the protracted
,ar. he plan ,as to retreat and attack only at an opportune time. 4he major objective is the
annihilation of the enemy$s fighting strength and in the holding or taking of cities and places. he
holding or taking of cities and places is the result of the annihilation of the enemy$s fighting strength.4
45
he 6ietnam Ear contributed its o,n brand of terrorism conceived by >o Chi Minh and 6o ?guyen
3iap K the silent and simple assassination of village officials for the destruction of the government$s
administrative net,ork. Modern rebellion no, is a ,ar of sabotage and harassment, of an aggression
more often concealed than open of guerrillas striking at night, of assassins and terrorists, and of
professional revolutionaries resorting to all sorts of stratagems, crafts, methods and subterfuge, to
undermine and subvert the security of the -tate to facilitate its violent overthro,.
4:

%n the ultimate analysis, even assuming that the matter is justiciable ,ill Ee apply the standards set in
0ansan+, by ascertaining ,hether or not the President acted arbitrarily in issuing Proclamation ?o.
&9)&, the result ,ould be the same.
1or the e8istence of an actual rebellion and insurrection in this country by a si"able group of men ,ho
have publicly risen in arms to overthro, the government ,as confirmed by this Court in +ansang.
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila
from the late t,enties to the early thirties, then aimed principally at incitement to sedition or rebellion, as
the immediate objective. =pon the establishment of the Common,ealth of the Philippines, the movement
seemed to have ,aned notably: but, the outbreak of Eorld Ear %% in the Pacific and the miseries, the
devastation and havoc and the proliferation of unlicensed firearms concomitant ,ith the military
occupation of the Philippines and its subse#uent liberation, brought about, in the late forties, a resurgence
of the Communist threat, ,ith such vigor as to be able to organi"e and operate in Central +u"on an army
K called >=NBA+A>AP, during the occupation, and renamed >ukbong Mapagpalaya ng Bayan ;>MB<
after liberation K ,hich clashed several times ,ith the armed forces of the !epublic. his prompted then
President Puirino to issue Proclamation ?o. *&9, dated 0ctober **, &(B9, suspending the privilege of the
,rit of habeas, validity of ,hich ,as upheld in 'ontene+ro v. CastaAe!a. Days before the promulgation of
said Proclamation, or on 0ctober &), &(B9, members of the Communist Politburo in the Philippines ,ere
apprehended in Manila. -ubse#uently accused and convicted of the crime of rebellion, they served their
respective sentences.
approved, upon the ground stated in the very preamble of said statute K that
... the Communist Party of the Philippines, although purportedly a political party, is in fact
an organi"ed conspiracy to overthro, the 3overnment of the !epublic of the Philippines,
not only by force and violence but also by deceit, subversion and other illegal means, for
the purpose of establishing in the Philippines a totalitarian regime subject to alien
domination and control:
... the continued e8istence and activities of the Communist Party of the Philippines
constitutes a clear, present and +rave danger to the security of the Philippines: and
... in the face of the organi"ed, systematic and persistent subversion, national in scope
but international in direction, posed by the Communist Party of the Philippines and its
activities, there is urgent need for legislation to cope ,ith this continuing menace to the
freedom and security of the country ....
Committee of -even K copy of ,hich !eport ,as filed in these by the petitioners herein K
he years follo,ing &(2A sa, the successive emergence in the country of several mass
organi"ations, notably the +apiang Manggaga,a ;no, the -ocialist Party of the
Philippines< among the ,orkers: the Malayang -amahan ng Mga Magsasaka ;MA-ANA<,
among the pasantry: the Nabataang Makabayan ;NM< among the youthFstudents: and the
Movement for the Advancement of ?ationalism ;MA?< among the
intellectualsFprofessionals. he PNP has e8erted allCout effort to infiltrate, influence and
utili"e these organi"ations in promoting its radical brand of nationalism.
Democratic !evolution$ states, inter alia=
T*e Co((unist Part o, t*e P*ilippines is !eter(ine! to i(ple(ent its +eneral pro+ra(e for a people$s
independent, democratic, united, just and prosperous.....
888 888 888
he central task of any revolutionary movement is to sei"e political po,er. he Co((unist Part o, t*e
P*ilippines assu(es t*is tas- at a time that both the international and national situations are favorable to
taking the road of revolution.
conducted raids, resorted to kidnapping and taken part in other violent incidents numbering over *A9 in
or to the Maoist faction, believe that force and violence are indipensable to the attainment of their main
and ultimate objective, and act in accordance ,ith such belief, although they may disagree on the means
to be used at a given time and in a particular place: and ;b< there is a ?e, Peoples Army, other, of
course, than the armed forces of the !epublic and antagonistic thereto. -uch ?e, People$s Army is per
se proof of the e8istence of a rebellion, especially considering that its establishment ,as announce!
pu#licl by the reorgani"ed CPP. -uch announcement is in the nature of a public challenge to the duly
constituted authorities and may be likened to a declaration of ,ar, sufficient to establish a ,ar status or a
condition of belligerency, even before the actual commencement of hostilities.
Ke entertain, t*ere,ore, no !ou#ts a#out t*e e6istence o, a siza#le +roup o, (en )*o *ave pu#licl risen
in ar(s to overt*ro) t*e +overn(ent an! *ave t*us #een an! still are en+a+e! in re#ellion a+ainst t*e
Govern(ent o, t*e P*ilippines.
666 666 666
he records before =s sho, that, on or before August *&, &('&, the /8ecutive had information and
reports K subse#uently confirmed, in many respects by the abovementioned !eport of the -enate AdC
>oc Committee of -even K to the effect that the Communist Party of the Philippines does not merely
adhere to +enin$s idea of a s,ift armed uprising: that it has, also, adopted >o Chi Minh$s terrorist tactics
and resorted to the assassination of uncooperative local officials: ...
Petitioner similarly fail to take into account that K as per said information and reports K the reorgani"ed
Communist Party of the Philippines has, moreover, adopted Mao$s concept of protracted people$s ,ar,
aimed at the paraly"ation of the ,ill to resist of the government, of the political, economic and intellectual
leadership, and of the people themselves: that conformably to such concept, the Party has placed special
emphasis upon a most e8tensive and intensive program of subversion by the establishment of front
organi"ations in urban centers, the organi"ation or armed city partisans and, the infiltration in student
groups, labor unions, and farmer and professional groups: that the CPP managed to infiltrate or establish
and control nine ;(< major labor organi"ations: that it has e8ploited the youth movement and succeeded in
making Communist fronts of eleven ;&&< major student or youth organi"ations: that there are, accordingly,
about thirty ;A9< mass organi"ations actively advancing the CPP interest, ...: that in &('9, the Party had
recorded t,o hundred fiftyCeight ;*B)< major demonstrations, of ,hich about thirtyCthree ;AA< ended in
violence, resulting in fifteen ;&B< killed and over five hundred ;B99< injured: that most of these actions
,ere organi"ed, coordinated or led by the aforementioned front organi"ations: that the violent
demonstrations ,ere generally instigated by a small, but ,ellCtrained group of armed agitators: that the
number of demonstrations heretofore staged in &('& has already e8ceeded those of &('9: and that
t,entyCfour ;*J< of these demonstrations ,ere violent, and resulted in the death of fifteen ;&B< persons
and the injury to many more.
-ubse#uent events K as reported K have also proven that petitioners$ counsel have underestimated the
t*reat to pu#lic sa,et posed by the ?e, People$s Army. %ndeed, it appears that, since 3u+ust 2$, $%7$, it
t,o ;*< killed and three ;A< ,ounded on the side of the 3overnment, one ;&< B-D= killed and three ;A<
?PA casualties: that in an encounter at Botolan, 5ambales, one ;&< NM-DN leader, an unidentified
dissident, and Commander Panchito, leader of the dissident group ,ere killed: that on August *2, &('&,
there ,as an encounter in the barrio of -an Pedro, %riga City Camarines -ur, bet,een PC and the ?PA,
in ,hich a PC and t,o ;*< NM members ,ere killed: that the current disturbances in Cotabato and the
+anao provinces have been rendered more comple8 by the involvement of the CPPF?PA, for, in midC
&('&, a NM group, headed by .ovencio /sparago"a, contacted the >igaonan tribes, in their settlement in
Magsaysay, Misamis 0riental, and offered them books, pamphlets and brochures of Mao se ung, as
,ell as conducted teachCins in the reservation: that /sparago"a ,as reportedly killed on -eptember **,
&('&, in an operation of the PC in said reservation: and that there are no, t,o ;*< ?PA cadres in
Mindanao.
%t is true that the suspension of the privilege of the ,rit ,as lifted on .anuary ', &('*, but it can not be
denied that soon thereafter, la,lessness and terrorism had reached such a point that the nation ,as
already drifting to,ards anarchy. 0n -eptember *&, &('*, ,hen the President of the Philippines,
pursuant to Article 6%%, section &9, paragraph * of the &(AB Constitution, placed the Philippines under
martial la,, the nation ,as in the throes of a crisis. he authority of the constitutional government ,as
resisted openly by a coalition of forces, of large numbers of persons ,ho ,ere engaged in an armed
conflict for its violent overthro,.
47
he movement ,ith the active material and foreign political and
economic interests ,as engaged in an open attempt to establish by violence and force a separate
and independent political state.
1orceful military action, matched ,ith attractive benevolence and a socioCeconomic program, has
indeed broken the back of the rebellion in some areas. here are to be sure significant gains in the
economy, the unprecedented increase in e8ports, the billionCdollar international reserve, the ne, high
in revenue collections and other notable infrastructures of development and progress. %ndeed there is
a in the people$s sense of values, in their attitudes and motivations. But Ee personally take notice of
the fact that even as of this late date, there is still a continuing rebellion that poses a danger to the
public safety. Communist insurgency and subversion, once it takes root in any nation, is a hardy
plant. A party ,hose strength is in selected, dedicated, indoctrinated and rigidly disciplined members,
,hich may even no, be secreted in strategic posts in industry, schools, churches and in government,
can not easily be eradicated.
48

he ?PA ;?e, People$s Army< is pursuing a policy of strategic retreat but tactical offensive. %t
continues to conduct its activities through si8 !egional 0perational Commands ;!0Cs< covering
?orthern, Central, and -outhern +u"on, Eestern and /astern 6isayas, and Mindanao. Combat
operations ,ere conducted against the Communist insurgents by the armed forces of the government
in Cagayan, %fugao, Nalinga, Apayao, Camarines -ur, and -orsogon. -ubversive activities continue
unabated in urban areas. +ast .anuary, &('J, the Maoist group kno,n as the Moro ?ational
+iberation 1ront ;M?+1< attacked and overran the military detachment at Bilaan -ulu, and the to,n of
Parang. he to,n of .olo ,as attacked by a rebel force of B99 men last 1ebruary 2, ('J, and to cover
their retreat ra"ed t,oCthirds of the to,n. 0nly this August, there ,as fighting bet,een government
troops and muslim rebels armed ,ith modern and sophisticated ,eapons of ,ar in some parts of
Cotabato and in the outskirts of the major southern port city of Davao. %t ,ould be an incredible
naivete to conclude in the face of such a reality, that the peril to public safety had already abated.
?or is the fact that the courts are open proof that there is no ground for martial rule or its continuance.
he 4open court4 theory has been derived from the dictum in /8 Parte Milligan ;' Eall. &*' G&)22H,
viz.7 4Martial rule cannot arise from a threatened invasion: the necessity must be actual and present:
the invasion real such as effectually closes the courts and deposes the civil administration.4 his has
been dismissed as unrealistic by authoritative ,riters on the subject as it does not present an
accurate definition of the allo,able limits of the of the President of the =nited -tates. As a matter of
fact, the limiting force of the 'illi+an case ,as materially modified a generation later in another
decision of the Court in of the 1ederal -upreme Court in 'oer v. Pea#o! ;*&* =.-. ') G&(9(H<.
-peaking for the Court in 'oer v. Pea#o!, .ustice >olmes brushed aside as i((aterial the fact,
,hich the majority opinion in the 'illi+an case thought absolutely crucial K viz.7 martial rule can
never e8ist ,here the Courts are open and in the proper and unobstructed e8ercise of their
jurisdiction. he opinion a!(itte! t*at t*e Courts )ere open but held 4that the governor$s declaration
that a state of insurrection e8isted is conclusive of that fact.4 Although %t found that the 43overnor,
,ithout sufficient reason, but in +oo! ,ait*, in the course of putting the insurrection do,n, held the
plaintiff until he thought that he could safely release him,4 the Court held that plaintiff Moyer had no
cause of action. -tating that the 3overnor ,as empo,ered by employ the ?ational 3uard to suppress
insurrection, the Court further declared that 4he may kill persons ,ho resist, and of course he may
use the milder measure of sei"ing the bodies of those ,hom he considers to stand in the ,ay of
restoring peace. -uch arrests are not necessarily for punishment, #ut are # )a o, precaution, to
prevent t*e e6ercise o, *ostile po)er.4 -o long as such arrests are made in good faith and in the
honest belief that they are needed in order to head insurrection off, the 3overnor is the ,inal 5u!+e
and cannot #e su#5ecte! to an action a,ter *e is out o, o,,ice on t*e +roun! t*at *e *a! no reasona#le
+roun! ,or *is #elie, ... Ehen it comes to a decision by the head of state upon a matter involving its
life, t*e or!inar ri+*ts o, t*e in!ivi!uals (ust iel! to )*at *e !ee(s t*e necessities o, t*e (o(ent.
Public danger ,arrants the substitution of e8ecutive process for judicial process.4
4%t is simply not true,4 ,rote Clinton !ossiter in &(B9,
49
4that (artial la) cannot arise ,ro( a
t*reatene! invasion or t*at (artial la) can never e6ist )*ere t*e Courts are open. hese statements
!o not present an accurate definition of the allo,able limits of the martial po,ers of President and
Congress in the face of alien threats or internal !isor!er. ?or ,as Davis$ dictum on the specific
po,ers of Congress in this matter any more accurate. And, ho,ever elo#uent and #uotable his ,ords
on the untouchability of the Constitution in times of actual crisis, t*e !o not no), an! !i! not t*en,
e8press the realities of American Constitutional +a,.4
%n any event, this 4open court4 theory does not apply to the Philippine situation. Both the &(AB and the
&('A Constitutions e8pressly authori"e the declaration of martial la,, even ,here the danger to the
public safety arises merely from the imminence of an invasion or rebellion. he fact that the civil
courts are open can not be controlling, since they might be open and undisturbed in their functions
and yet ,holly incompetent to avert the threatened danger and to punish those involved in the
invasion or rebellion ,ith certainty and promptitude. Certainly such a theory ,hen applied to the
situation modern ,ar and of the present day Communist insurgency and subversion ,ould prove to
be unrealistic.
30

?or may it be argued that the employment of government resources for the building of a ?e, -ociety
is inconsistent ,ith the efforts of suppressing the rebellion and creating a legitimate public order.
4/veryone recogni"ed the legal basis for the martial necessity,4 ,rote President Marcos, 4this ,as the
simplest theory of all. ?ational decline and demorali"ation, social and economic deterioration,
anarchy and rebellion ,ere not just statistical reports: they ,ere documented in the mind and body
and ordinary e8perience of every 1ilipino. But, as a study of revolutions and ideologies proves,
(artial rule coul! not in the long run, secure the Philippine !epublic unless t*e social ini;uities an!
ol! *a#its )*ic* precipitate! t*e (ilitar necessit )ere sta(pe! out. >ence, the -eptember *&
Movement for martial rule to be of any lasting benefit to the people and the nation, to justify the
national discipline, should incorporate a movement for great, perhaps even drastic, reforms in all
spheres of national life. -ave the !epublic, yes, but to keep it safe, ,e have to start remaking the
society.4
31
%ndeed, the creation of a ?e, -ociety ,as a realistic response to the compelling need or a
revolutionary change.
1or centuries, most of our people ,ere imprisoned in a socioCcultural system that placed them in
perpetual dependence. 4%t made of the many mere pa,ns in the game of partisanCpo,er polities,
legitimi"ed $he,s of ,ood and dra,ers of ,ater$ for the landed elite, grist for the diploma mills and an
alienated mass sporadically erupting in violent resentment over immemorial ,rongs. !ural
back,ardness ,as built into the very social order ,herein our masses could not move for,ard or
even desire to get moving.4
34
he old political frame,ork, transplanted from the Eest had proven
indeed to be inade#uate. he aspirations of our people for social justice had remained unfulfilled. he
electoral process ,as no model of democracy in action. o a society that has been torn up by
decades of bitter political strife and social anarchy, the problem ,as the rescue of the larger social
order from factional interests. %mplicit then ,as the task of creating a legitimate public order, the
creation of political institutions capable of giving substance to public interests. his implied the
building of coherent institutions, an effective bureaucracy and all administration capable of enlisting
the enthusiasm, support and loyalty of the people. /vidently, the po,er to suppress or insurrections is
riot 4limited to victories in the field and the dispersion of the insurgent. %t carries ,ith it inherently the
po,er to guard against the immediate rene,al of the conflict and to remedy the evils4
33
,hich
spa,ned and gave rise to the e8igency.
Ee find confirmation of this contemporaneous construction of presidential po,ers in the ne,
Constitution. %t must be noted that ,hile Art, %D, -ec. &* of the ne, Constitution embodies the
commanderCinCchief clause of the &(AB Constitution ;Art. 6%%, -ee. &9G*H<, it e8pressly declares in Art.
D6%%, -ec. AG*H that the proclamations, orders and decrees, instructions and acts issued or done by
the incumbent President, are 4part of the la, of the land4 and are to 4remain valid, legal, binding, and
effective4 until 4modified revoked, or superseded by subse#uent proclamations, orders, decrees,
instruction, or other acts of the incumbent President, or unless e8pressly repealed by the regular
?ational Assembly.4 =ndoubtedly, the proviso refers to the present martial la, regime and the
measures taken under it by the President. %t must be recalled that the prudent e8ercise by the
President of the po,ers under martial la, not only stemmed the tide of violence and subversion but
also buttressed the people$s faith in public authority. %t is in recognition of the objective merit of the
measures taken under martial la, that the Constitution affirms their validity.
his is evident from the deliberations of the &22CMan -pecial Committee of the Constitutional
Convention, formed to finally draft the Constitution, at its meeting on 0ctober *J, &('*, on the
provisions of -ection J of the draft, no, -ection &* of Article %D of the ?e, Constitution, ,hich are
#uoted hereunder, to ,it7
,hich ,e are not ready to accept, and President Marcos, a,are as he is, that the 1ilipino people ,ill not
back of the rebel elements but to form a ?e, -ociety, to create a ne, atmosphere ,hich ,ill not be a
provoked the President in declaring martial la, may not be #uantified. %n fact, it is completely different
from a case of invasion ,here the threat to national security comes from the outside. he martial la,
declared by the President ,as occasioned by the acts of rebellion, subversion, la,lessness and chaos
that are ,idespread in the country. heir origin, therefore, is internal. here ,as no threat from ,ithout,
but only from ,ithin. But these acts of la,lessness, rebellion, and subversion are mere manifestations of
more serious upheavals that beset the deepest core of our social order. %f ,e shall limit and constrict
martial la, to its traditional concept, in the sense that the military ,ill be merely called upon to discharge
civilian functions in areas ,here the civil functionaries are not in a position to perform their normal duties
or, better still, to #uell la,lessness and restore peace and order, then martial la, ,ould be a mere
temporary palliative and ,e shall be helpless if bound by the old ma8im that martial la, is the public la,
of military necessity, that necessity calls it forth, that necessity justifies its e8istence, and necessity
measures the e8tent and degrees to ,hich it may be employed. My point here, @our >onor, is that
beyond martial necessity lies the graver problem of solving the maladies ,hich, in the first place, brought
about the conditions ,hich precipitated the e8ercise of his martial authority, ,ill be limited to merely taking
a military measures to #uell the rebellion and eliminating la,lessness in the country and leave him ,ith no
means or authority to effect the needed social and economic reforms to create an enduring condition of
peace and order, then ,e shall have failed in providing in this Constitution the basic philosophy of martial
la, ,hich, % am sure, ,e are embodying in it for the great purpose of preserving the -tate. % say that the
preservation of the -tate is not limited merely to eliminating the threats that immediately confront it. More
than that, the treasure to preserve the -tate must go deeper into the root cause$s of the social disorder
that endanger the general safety.
D/+/3A/ D/ 3=5MA? ;A.<7 % need not add more, Mr. Chairman, to the very convincing, remarks of
only good friend and colleague, Delegate 0rti". And % take it, Mr. Chairman, that is also the position of this
Committee.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @es, also of this committee.
,ould oblige.
,hich authori"es such proclamation, is set aside or that at least same provisions of the constitution are
suspendedI
D/+/3A/ D/ 3=5MA? ;A.<7 he Constitution is not set aside, but the operation of some of its
provisions must, of necessity, be restricted. %f not suspended, because their continuance is inconsistent
Constitution provides martial la, as its ,eapon for survival, and ,hen the occasion arises, ,hen such is
at stake, prudence re#uires that certain individual rights must have to be scarified temporarily. 1or indeed,
detained by the military authorities , % cannot avail of the normal judicial processes to obtain my liberty and
guaranty cannot definitely be bad unless the -tate is in a position to assert and enforce its authority.
statutes, regulating as they do, various and numerous norms of conduct of both the private and the public
D/+/3A/ D/ 3=5MA? ;A.<7 Certainly, and that is the position of this Committee, As martial la,
/8ecutive must not be hamstrung or limited to his traditional po,ers as Chief /8ecutive. Ehen martial la,
is declared, the declaration gives rise to the birth of po,ers, not strictly e8ecutive in character, but
may be safe.
has nothing to do ,ith invasion, insurrection, rebellion or imminent danger thereof. My point, @our >onor,
is that this measure basically has nothing to do ,ith the restoration of peace and order or the #uelling of
rebellion or insurrection. >o, could ,e validly say that the President$s assumption of such po,ers is
justified by the proclamation of martial la,I
D/+/3A/ D/ 3=5MA? ;A.<7 As % have repeatedly stated. @our >onor, ,e have no, to abandon the
traditional concept of martial la, as it is understood in some foreign te8tbooks. Ee have to at martial la,
not as an immutable principle. !ather, ,e must vie, it in the light of our contemporary e8perience and not
in isolation thereof. he #uelling of rebellion or la,lessness or, in other ,ords, the restoration of peace
and order may admittedly be said to be the immediate objective of martial la,, but that is to beg the
#uestion. 1or ho, could there really be an enduring peace and order if the very causes ,hich spa,ned
the conditions ,hich necessitated the e8ercise of martial po,ers are not remediedI @ou cite as all
e8ample the decree on land reform. @our >onor ,ill have to admit that one of the major causes of social
unrest among the peasantry in our society is the deplorable treatment society has given to our peasants.
As early as the &(A9$s, the peasants have been agitating for agrarian reforms to the e8tent that during the
time of President Puirino they almost succeeded in overthro,ing the government by force. Eere ,e to
adopt the traditional concept of martial la,, ,e ,ould be confined to merely putting do,n one peasant
uprising after another, leaving unsolved the maladies that in the main brought forth those uprisings. %f ,e
are really to establish an enduring condition of peace and order and assure through the ages the stability
of our Constitution and the !epublic, % say that martial la,, being the ultimate ,eapon of survival provided
for in the Constitution, must penetrate deeper and seek to alleviate and cure the ills and the seething
furies deep in the bo,els of the social structure. %n a very real sense, therefore, there is a profound
relationship bet,een the e8ercise by the martial la, administrator of legislative and judicial po,ers and
the ultimate analysis, the only kno,n limitation to martial la, po,ers is the convenience of the martial la,
administrator and the judgment and verdict of the and, of course, the verdict of history itself.
D/+/3A/ +/6%-/ ;0.<7 @our >onor, just for purposes of discussion, may % kno, from you ,hether
has been an occasion in this country ,here any past President had made use of his martial la, po,erI
that ,e are of the impression that since its incorporation into the &(AB Constitution, the, martial la,
provision has never been availed of by any President @our >onor, that during the .apanese occupation,
President +aurel had occasion to declare martial la,, and % recall that ,hen President +aurel declared
martial la,, he also assumed legislative and judicial po,ers. Ee must, of course, reali"e that during the
time of President +aurel the threats to national security ,hich precipitated the declaration came from the
outside. he threats, therefore ,ere not internal in origin and character as those ,hich prompted
President Marcos to issue his historic proclamation. %f, in case K as ,hat happened during the time of
President +aurel K the declaration of martial la, necessitated the e8ercise of legislative po,ers by the
martial la, administrator, % say that greater necessity calls forth the e8ercise of that po,er ,hen the
threats to national security are posed not by invaders but by the rebellious and seditious elements, both of
the left and right, from ,ithin. % say that because every rebellion ,hether in this country or in other foreign
countries, is usually the product of social unrest and dissatisfaction ,ith the established order. !ebellions
or the acts of rebellion are usually preceded by long suffering of those ,ho ultimately choose to rise in
arms against the government. A rebellion is not born overnight. %t is the result of an accumulation of social
sufferings on the part of the rebels until they can no longer stand those sufferings to the point that, like a
volcano, it must sooner erupt. %n this conte8t, the stamping out of rebellion must not be the main and only
objective of martial la,. he Martial la, administrator should, nay, must, take steps to remedy the crises
that lie behind the rebellious movement, even if in the process, he should e8ercise legislative and judicial
po,ers. 1or ,hat benefit ,ould it be after having put do,n a rebellion through the e8ercise of martial
po,er if another rebellion is again in the offing because the root causes ,hich propelled the movement
are ever presentI 0ne might succeed in capturing the rebel leaders and their follo,ers, imprison them for
life or, better still, kill them in the field, but someday ne, leaders ,ill pick up the torch and the tattered
banners and lead another movement. 3reat causes of every human undertaking do not usually die ,ith
the men behind those causes. =nless the root causes are themselves eliminated, there ,ill be a
resurgence of another rebellion and, logically, the endless and vicious e8ercise of martial la, authority.
his reminds me of the ,ise ,ords of an old man in our to,n7 hat if you are going to clear your field of
,eeds and grasses, you should not merely cut them, but dig them out.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eith the indulgence of the 3entlemen from +a =nion, the Chair
Although there are authorities to the contrary, it is generally held that, in construing constitutional
provisions ,hich are ambiguous or of doubtful meaning, the courts may consider the debates in the
constitutional convention as thro,ing light on the intent of the framers of the Constitution.
35
%t is true
that the intent of the convention is not controlling by itself, but as its proceeding ,as preliminary to the
adoption by the people of the Constitution the understanding of the convention as to ,hat ,as meant
by the terms of the constitutional provision ,hich ,as the subject of the deliberation, goes a long ,ay
to,ard e8plaining the understanding of the people ,hen they ratified it.
35
More than this, the people
reali"ed that these provisions of the ne, Constitution ,ere discussed in the light of the tremendous
forces of change at ,ork in the nation, since the advent of martial la,. /vident in the humblest
villages to the bustling metropolises at the time ,ere the infrastructures and institutional changes
made by the government in a bold e8periment to create a just and compassionate society. %t ,as ,ith
an a,areness of all of these revolutionary changes, and the confidence of the people in the
determination and capability of the ne, dispensation to carry out its historic project of eliminating the
traditional sources of unrest in the Philippines, that they over,helmingly approved the ne,
Constitution.
6
PO0ITIC30 ?EESTION
Ee have adverted to the fact that our jurisprudence attest abundantly to the e8istence of a continuing
Communist rebellion and subversion, and on this point then can hardly be any dispute. he narro,
#uestion, therefore, presented for resolution is ,hether the determination by the President of the
Philippines of the necessity for the e8ercise of his constitutional po,er to declare martial la, is
subject to revie,. %n resolving the #uestion, Ee reCaffirm the vie, that the determination of the for the
e8ercise of the po,er to declare martial la, is ,ithin the e8clusive domain of the President, and his
determination is final and conclusive upon the courts and upon all persons. his conclusion
necessarily results from the fact that the very nature of the e8ecutive decision is political, not judicial.
he decision as to ,hether or not there is necessit ,or t*e e6ercise o, t*e po)er is )*oll con,i!e!
# our to t*e C*ie, E6ecutive. 1or such decision, he is directly responsible to the people for ,hose
,elfare he is obliged to act. %n vie, of the of the responsibility reposed upon him, it is essential that
he be accorded freedom of action demanded by the e8igency. he po,er is to be e8ercised upon
sudden emergencies and under circumstances vital to the e8istence of the -tate. he issue is
committed to him for determination by criteria of political and military e8pediency. %t is not pretended
to rest on evidence but on information ,hich may not be acceptable in court. here are therefore, no
standards ascertainable by settled judicial e8perience or process by reference to ,hich his decision
can be judicially revie,ed. %n other ,ords, his decision is of a kind for ,hich the judicial has neither
the aptitude, facilities nor responsibility to undertake. Ee are un,illing to give our assent to
e8pressions of opinion ,hich, although not intended, tends to cripple the constitutional po,ers of the
government in dealing promptly and effectively ,ith the danger to the public safety posed by the
rebellion and Communist subversion.
Moreover, the Court is ,ithout po,er to shape measures for dealing ,ith the problems of society,
much less ,ith the suppression of rebellion or Communist subversion. he nature of judicial po,er is
largely negative, and it is essential that the opportunity of the Chief /8ecutive for ,ellCdirected
positive action in dealing ,ith the problem be preserved, if the 3overnment is to serve the best
interests of the people. 1inally, as a conse#uence of the general referendum of .uly *'C*), &('A,
,here &),9B*,9&2 citi"ens voted over,helmingly for the continuance of President Marcos in office
beyond &('A to enable him to finish the reforms he had instituted under martial la,, the #uestion of
the legality of the proclamation of martial la,, and its continuance, had undoubtedly been removed
from judicial intervention.
Ee conclude that the proclamation of martial la, by the President of the Philippines on -eptember
*&, &('* and its continuance until the present are valid as they are in accordance ,ith the
Constitution.
6%
COE>T P>EC0E.E. F>O' IN?EI>ING INTO 0EG30ITY
OF 3>>EST 3N. .ETENTION OF PETITIONE>S
>aving concluded that the Proclamation of Martial +a, on -eptember *&, &('* by the President of
the Philippines and its continuance are valid and constitutional, the arrest and detention of petitioners,
pursuant to 3eneral 0rder ?o. * dated -eptember **, &('* of the President, as amended by 3eneral
0rder ?o. *CA, dated -eptember *2, &('*, may not no, be assailed as unconstitutional and arbitrary.
3eneral 0rder ?o. * directed the -ecretary of ?ational Defense to arrest 4individuals named in the
attached list, for being active participants in the conspiracy to sei"e political and state po,er in the
country and to take over the government by force ... in order to prevent them from further committing
acts that are inimical or injurious to our people, the government and our national interest4 and 4to hold
said individuals until other,ise ordered released by the President or his duly authori"ed
representative.4 %t is not disputed that petitioners are all included in the list attached to 3eneral 0rder
?o. *.
%t should be important to note that as a conse#uence of the proclamation of martial la,, the privilege
of the ,rit of *a#eas corpus has been impliedly suspended. Authoritative ,riters on the subject vie,
the suspension of the ,rit of *a#eas corpus as an incident, but an important incident of a declaration
of martial la,.
he suspension of the ,rit of *a#eas corpus is not, in itself, a declaration of martial la,: it is simply an
incident, though a very important incident, to such a declaration. But practically, in /ngland and the
=nited -tates, the essence of martial la, is the suspension of the privilege of the ,rit of *a#eas corpus,
and a declaration of martial la, ,ould be utterly useless unless accompanied by the suspension of the
privilege of such ,rit. >ence, in the =nited -tates the t,o, martial la, and the suspension of the ,rit is
regarded as one and the same thing. +uther v. Borden, ' >o,. &: Martin v. Mott, &* Eheat. &(: -tory,
Com. on the Constitution, see. &AJ*: .ohnson v. Duncan, A Martin, ?.-. BA9. ;&* +. ed. B)*C)A<.
/vidently, according to .udge -malley, there could not be any privilege of the ,rit of *a#eas corpus
under martial la, ;%n re 1ield, ( 1ed. Cas. & G&)2*H<. he evident purpose of the suspension of the
,rit is to enable the e8ecutive, as a precautionary measure, to detain ,ithout interference persons
suspected of harboring designs harmful to public safety ;E6 Parte Bi((er(an, A* 1ed. *nd. JJ*,
JJ2<. %n any event, the Proclamation of Martial +a,, in effect, suspended the privilege of the ,rit ,ith
respect to those detained for the crimes of insurrection or rebellion, etc., thus7
be similarly detained for the cri(es o, insurrection or re#ellion, and all other crimes and offenses
crimes against national security and the la, of the nations, crimes against public order, crimes involving
ot*er)ise or!ere! release! # (e or # ( !ul !esi+nate! representative. ;/mphasis supplied<.
3eneral 0rder ?o. * ,as issued to implement the aforecited provisions of the Proclamation of Martial
+a,.
By the suspension of the privilege of the ,rit of *a#eas corpus, the judiciary is precluded from
interfering ,ith the orders of the /8ecutive by in#uiring into the legality of the detention of persons
involved in the rebellion.
he arrest and detention of persons reasonably believed to be engaged in, or connected ,ith, the
insurgency is predicated upon the principle that in time of public disorder it is the right and duty of all
citi"ens especially the officer entrusted ,ith the enforcement of the la, to employ such force as may
be necessary to preserve the peace and restrain those ,ho may be committing felonies.
/ncroachments upon personal liberty, as ,ell as upon private property on those occasions, are
justified by the necessity of preserving order and the greater interests of the political community. he
Chief /8ecutive, upon ,hom is reposed the duty to preserve the nation in those times of national
peril, has correspondingly the right to e8ercise broad authority and discretion compatible ,ith the
emergency in selecting the means and adopting the measures ,hich, in his honest judgment, are
necessary for the preservation of the nation$s safety. %n case of rebellion or insurrection, the Chief
/8ecutive may 4use the milder measure of sei"ing the bodies of those ,hom he considers to stand in
the ,ay of restoring peace. -uch arrests are not necessarily for punishment but are by ,ay of
precaution, to prevent the e8ercise of hostile po,er.4 ;'oer v. Pea#o!, *&* =. -. '), )JC)B G&(9(H
BA +. ed. J&&.<
he justification for the preventive detention of individuals is that in a crisis such as invasion or
domestic insurrection 4the danger to the security of the nation and its institutions is so great that the
government must take measures that temporarily deprive citi"ens of certain rights in order to ensure
the survival of the political structure that protects those and other rights during ordinary times.4
;.evelop(ents National Securit, 6ol. )B, >arvard +a, !evie,, March &('*, ?o. B, p. &*)2<.
3:

%n 'oer v. Pea#o!, supra, the -upreme Court of the =nited -tates upheld the detention of a labor
leader ,hose mere presence in the area of a violent labor dispute ,as deemed likely to incite further
disturbances. 4-o long as such arrests are made in good faith,4 said the erudite .ustice >olmes, 4and
in the honest belief that they are made in order to head the insurrection off, the governor is the final
judge and can not be subjected to an action after he is out of office, on the ground that he had no
During Eorld Ear %%, persons of .apanese ancestry ,ere evacuated from their homes in the Eest
Coast and interned in the interior until the loyalty of each individual could be established. %n
Gore(atsu v. Enite! States ;A*A, =.-. *&J G*JJH<, the -upreme Court of the =nited -tates upheld the
e8clusion of these persons on the ground that among them a substantial number ,ere likely to be
disloyal and that, therefore, the presence of the entire group created the risk of sabotage and
espionage. Although the Court avoided constitutionality of the detention that follo,ed the evacuation,
its separation of the issue of e8clusion from that detention ,as artificial, since the separate orders
part of a single overCall policy. he reasoning behind its of persons of .apanese ancestry ,ould seem
to apply ,ith e#ual force to the detention despite the greater restrictions oil movement that the latter
entailed. %n the Middle /ast, military authorities of %srael have detained suspected Arab terrorists
,ithout trial ;Dersho,it", Terroris( an! Preventive .etention= T*e Case o, Israel, B9 Commentaries,
Dec. &('9 at ')<.
Among the most effective countermeasures adopted by the governments in -outheast Asia to
prevent the gro,th of Communist po,er has been the arrest and detention ,ithout trial of key united
front leaders of suitable times.
37

he preventive detention of persons reasonably believed to be involved in the Communist rebellion
and subversion has long been recogni"ed by all democratic governments as a necessary emergency
measure for restoring order. 4Because of the difficulty in piercing the secrecy of tightly knit subversive
organi"ations in order to determine ,hich individuals are responsible for the violence, governments
have occasionally responded to emergencies marked by the threat or reality of sabotage or terrorism
by detaining persons on the ground that they are dangerous and ,ill probably engage in such
actions.4
38
%n the case at bar, petitioner A#uino ;+CABBJ2< has already been charged ,ith the violation of the
AntiC-ubversion Act ;+CA'A2J< and therefore his detention is reasonably related to the dueling of the
rebellion. =pon the other hand, the other petitioners have been released but their movements are
subject to certain restrictions. he restrictions on the freedom of movement of these petitioners, as a
condition for their release, are, ho,ever, re#uired by considerations of national security.
39
%n the
absence of ,ar or rebellion, the right to travel ,ithin the Philippines may be considered
constitutionally protected. But even under such circumstances that freedom is not absolute. Areas
ravaged by floods, fire and pestilence can be #uarantined, as unlimited travel to those areas may
directly and materially interfere ,ith the safety and ,elfare of the inhabitants of the area affected.
During a rebellion or insurrection the authority of the commander to issue and enforce police
regulations in the area of the rebellion or insurrection is ,ell recogni"ed. -uch regulations may
involve the limitation of the right of assembly, the right to keep arms, and restrictions on freedom of
movement of civilians.
50
=ndoubtedly, measures conceived in good faith, in the face of the
emergency and directly related to the #uelling of the disorder fall ,ithin the discretion of the President
in the e8ercise of his authority to suppress the rebellion and restore public order.
Ee find no basis, therefore, for concluding that petitioner A#uino$s continued detention and the
restrictions imposed on the movements of the other petitioners ,ho ,ere released, are arbitrary.
CONC0ESION
Ee reali"e the transcendental importance of these cases. Beyond the #uestion of deprivation of
liberty of petitioners is the necessity of laying at rest any doubt on the validity of the institutional
changes made to bring the country out of an era of rebellion, near political anarchy and economic
stagnation and to establish the foundation of a truly democratic government and a just and
compassionate society. %ndeed, as a respected delegate of t,o Constitutional Conventions observed7
4he introduction of martial la, has been a necessary recourse to restore order and steer the country
safely through a severe economic and social crisis.4
51
he e8ercise of these e8traordinary po,ers not
only to restore civil order thru military force but also to effect urgently needed reforms in order to root
out the causes of the rebellion and Communist subversion may indeed be an e8periment in the
government. But it ,as necessary if the national democratic institution ,as to survive in competition
,ith the more revolutionary types of government. 4?ational democratic constitutionalism, ancient
though its origin may be,4 observed Dr. C.1. -trong,
54
4is still in an e8perimental stage and if it is to
survive in competition ,ith more revolutionary types of government, ,e must be prepared to adapt to
everCchanging conditions of modern e8istence. he basic purpose of a political institution is, after all,
the same ,herever it appears7 to secure social peace and progress, safeguard individual rights, and
promote national ,ellCbeing.4
hese adaptations and innovations ,ere resorted to in order to reali"e the social values that
constitute the professed goals of the democratic polity. %t ,as an attempt to make the political
institution serve as an effective instrument of economic and social development. he need of the
times ,as for a more effective mode of decisionCmaking and policyCformulation to enable the nation to
keep pace ,ith the revolutionary changes that ,ere ine8orably reshaping Philippine -ociety. A
government, observed the then Delegate Manuel !o8as, a Member of the -ubCCommittee of -even
of the -ponsorship Committee of the &(AJ Constitutional Convention, 4is a practical science, not a
theory, and a government can be successful only if in its structure due consideration is given to the
habits, the customs, the character and, as McNinley said to the idiosyncracies of the people.4
53

E>/!/10!/, Ee hereby conclude that ;a< the proclamation of martial la, ;Proclamation ?o. &9)&<
on -eptember *&, &('* by the President of the Philippines and its continuance, are valid as they
have been done in accordance ,ith the Constitution, and ;b< as a conse#uence of the suspension of
the privilege of the ,rit of *a#eas corpus upon the proclamation of martial la,, the Court is therefore
from in#uiring into the legality of the arrest and detention of these petitioners or on the restrictions
imposed upon their movements after their release military custody.
Accordingly, Ee vote to dismiss all the petitions.
'a-asiar, Fernan!ez an! 3;uino, JJ., concur.

ESG"ERRA, J.:
A. P!/+%M%?A!@ -A/M/?
0n -eptember *&, &('*, the President issued Proclamation ?o. &9)& placing the ,hole Philippines,
under martial la,. his proclamation ,as publicly announced by the President over the and radio on
the evening of -eptember *&, &('*. he grounds for the proclamation are recited in detail in its
preamble, specifically mentioning various acts of insurrection and rebellion already perpetrated and
about to be committed against the 3overnment by the la,lesselements of the country in order to gain
political control of the state. After laying do,n the basis for the establishment of martial la,, the
President ordered7
?0E, >/!/10!/, %, 1/!D%?A?D /. MA!C0-, President of the Philippines. by virtue of the po,ers
%ssued shortly after the proclamation ,as 3eneral 0rder ?o. *, follo,ed by ?o. *CA, dated -eptember
*2, &('*, to ,hich ,as attached a list of the names of various persons ,ho had taken part in the
various acts of insurrection, rebellion and subversion mentioned in the proclamation, and given aid
and comfort in the conspiracy to sei"e political and state po,er in the country and take over the
government by force. hey ,ere ordered to be apprehended immediately and taken into custody by
the -ecretary of ?ational Defense ,ho ,as to act as representative of the President in carrying out
martial la,.
he petitioners herein ,ere on -eptember ** and *A, &('*, arrested and taken into military custody
by the -ecretary of ?ational Defense pursuant to 3eneral 0rder ?o. *CA of the President for being
included in said list as having participated, directly or indirectly, or given aid and comfort to those
engaged in the conspiracy and plot to sei"e political and state po,er and to take over the
3overnment by force. hey ask this Court to set them at liberty, claiming that their arrest and
detention is illegal and unconstitutional since the proclamation of martial la, is arbitrary and ,ithout
basis and the alleged ground therefor do not e8ist and the courts are open and normally functioning.
1or the respondents the -olicitor 3eneral in his ans,er maintains that Proclamation ?o. &9)& is
Constitutional and valid, having been issued in accordance ,ith the Constitution: that the orders and
decrees issued thereunder are valid: that the arrest and detention of petitioners pursuant thereto is
like,ise valid, legal and constitutional, and that this Court should refrain from issuing the desired ,rits
as these cases involve a political #uestion.
After joinder of issues, these cases ,ere heard on -eptember *2 and *(, &('*, and on 0ctober 2,
&('*, follo,ed by the filing of Memoranda and ?otes on the arguments of both parties.
After submission of these cases for decision, petitioner !amon E. Diokno filed a motion to be allo,ed
to ,ithdra, his petition. o the motion is attached a hand,ritten letter of said petitioner to his counsel
stating the reasons ,hy he ,ished to ,ithdra, his petition. he principal reasons advanced by him
for his action are his doubts and misgivings on ,hether he can still obtain justice from this Court as at
present constituted since three of the .ustices among the four ,ho held in the ratification cases that
there ,as no valid ratification of the ?e, Constitution signed on ?ovember A9, &('* and proclaimed
ratified by the President on .anuary &', &('A ;the then Chief .ustice having retired<, had taken an
oath to support and defend the said constitution: that in filing his petition he e8pected it to be decided
be the -upreme Court under the &(AB constitution, and that ,ith the oath taking of the three
remaining members, he can no longer e8pect to obtain justice.
After the motion to ,ithdra, had been deliberated upon by the Court, seven justices voted to grant
and five voted to deny the motion. here being no majority to grant the motion, it ,as denied. hose
,ho voted to deny the motion are of the vie, that it is not simply a matter of right to ,ithdra,
because of the great public interest involved in his case ,hich should be decided for the peace and
tran#uility of the nation, and because of the contemptuous statement of petitioner Diokno that this
Court is no longer capable of administering justice to him. his #uestion should no longer stand on
the ,ay to the disposition of these cases on the merits.
B. >/ %--=/-.
Prescinding from the #uestion of jurisdiction ,hich the -olicitor 3eneral raised by reason of the
President$s 3eneral 0rder ?o. A, dated -eptember **, &('*, as amended by 3eneral 0rder ?o. ACA,
dated -eptember *J, &('*, ,hich allo,ed the judicial courts to regularly function but inhibited them
from taking cogni"ance of cases involving the validity, legality or constitutionality of the Martial +a,
Proclamation, or any decree, order or acts issued, promulgated or performed by the President or his
duly authori"ed representative pursuant thereto, from ,hich position he relented and he has,
accordingly, refrained from pressing that issue upon the Court, the main issues for resolution are the
validity of Proclamation ?o. &9)& declaring and establishing martial la, and ,hether this Court can
in#uire into to veracity and sufficiency of the facts constituting the grounds for its issuance.
% maintain that Proclamation ?o. &9)& is constitutional, valid and binding: that the veracity or
sufficiency of its factual bases cannot be in#uired into by the Courts and that the #uestion presented
by the petitions is political in nature and not justiciable.
Proclamation ?o. &9)& ,as issued by the President pursuant to Article 6%%, -ection &9, paragraph *,
of the Constitution of &(AB, ,hich reads as follo,s7
he President shall be commanderCinCchief of all armed forces of the Philippines and, ,hether it becomes
necessary, he may call violence, invasion, insurrection, or rebellion. %n case of invasion, insurrection, or
rebellion, or imminent danger thereof, ,hen the public safety re#uires it, he may suspend the privilege of
the ,rit of *a#eas corpus, or place the Philippines or any part thereof under martial la,.
his provision may, for present purposes, be called the CommanderCinCChief clause.
he above provision has no counterpart in the Constitution of the =nited -tates or in that of any state
thereof e8cept that of Alaska to a limited e8tent. o comprehend the scope and e8tent of the
President$s po,er to declare martial la,, let us trace the background and origin of this provision.
o suppress the great rebellion in the =nited -tates, kno,n as the Civil Ear ,hich ,as aimed to
,reck the 1ederal union, President +incoln e8ercised po,ers not granted to him by the Constitution of
the =nited -tates but pertaining to the congress. >e had suspended the privilege of the ,rit of
*a#eas corpus: proclaimed martial la, in certain areas and Military Commissions ,ere organi"ed
,here it ,as deemed necessary to do so in order to subdue the rebels or prevent their sympathi"ers
from promoting the rebellion. +incoln justified his acts by saying7
% did understand ... that my oath to preserve the Constitution to the best of my ability imposed upon me
the duty of preserving, by every indispensable means that government K that nation K of ,hich that
constitution ,as the organic la,. Eas it possible to lose the nation and yet preserve the ConstitutionI By
general la,, life and limb must be protected, yet often a limb must be amputated to save a life: but a life is
never ,isely given to save a limb. % felt that measures, other,ise unconstitutional, might become la,ful by
becoming indispensable to the preservation of the Constitution through the preservation of the nation.
!ight or ,rong, % assumed this ground, and no, avo, it ... ;* ?icholay and >ay, Abraham +incoln
Complete Eorks, B9) ;&(9*<<.
-ydney 3. 1isher in his ,ork entitled 4-uspension of Ca#eas corpus During the Ear of the
!ebellion,4 A Pol. -cience Puarterly, e8pressed the same idea ,hen he said7
... /very man thinks he has a right to live and every government thinks it has a right to live. /very man
,hen driven to the ,all by a murderous assailant ,ill override all la,s to protect himself, and this is called
the great right of selfCdefense. -o every government, ,hen driven to the ,all by a rebellion, ,ill trample
do,n a constitution before it ,ill allo, itself to be destroyed. his may not be constitutional la,, but it is
fact. ;Pp. JBJ, J)JCJ)B<
But the difficulty occasioned by the absence of a constitutional po,er to suspend the privilege of the
,rit of *a#eas corpus and to proclaim martial la,, ,hich greatly hamstrung +incoln in coping
effectively ,ith the civil la,, ,as obviated ,hen our o,n Constitution e8pressly provided for the grant
of that presidential po,er ;Art. 6%%, -ection &9, par. *<. =nlike the legislative po,er under the Bill of
!ights of our Constitution ;Article %%%, -ection &, paragraph &J, &(AB Constitution<, the President can
suspend the privilege of the ,rit of *a#eas corpus and impose martial la, in cases of imminent
danger of invasion, insurrection or rebellion ,hen the public safety re#uires it. he Congress could
not have been granted the po,er to suspend in case of imminent danger as it is not by the nature of
its office in a position to determine promptly the e8istence of such situation. %t can only see or ,itness
the actual occurrence thereof and ,hen they happen, Congress is also empo,ered to suspend tile
privilege of the ,rit of *a#eas corpus as an e8ercise of legislative po,er ,hen the President falls to
act: but under no circumstances can it declare martial la, as this po,er is e8clusively lodged in the
President as CommanderCinCChief.
Ehen the Philippine Constitution of &(AB ,as ,ritten, the framers decided to adopt the provisions of
-ection A, paragraph ', of the .ones +a,, ,hich became Article &&&, -ection &, paragraph &J, of the
&(AB Constitution, and those of -ection *& of the .ones +a, ,hich became Article 6%%, -ection &9,
paragraph *, of the same. he .ones +a, provisions read as follo,s7
-ection A, paragraph ' of the .ones +a, provided7
suspended by the President, or by the 3overnorC3eneral, ,herever during such period the necessity for
And -ection *& of the same la, in part provided that7
... ;><e ;referring to the 3overnorC3eneral< may, in case of rebellion or invasion, or imminent danger
thereof, ,hen the public safety re#uires it, suspend the privilege of the ,rit of *a#eas corpus, or place the
%slands, or any part thereof, under martial la,7 Provi!e! hat ,henever the 3overnorC3eneral shall
e8ercise this authority, he shall at once notify the President of the =nited -tates thereof, together ,ith the
attending facts and circumstances, and the President shall have po,er to modify or vacate the action of
the 3overnorC3eneral.
Before the .ones +a,, the Philippine Bill of &(9* provided as follo,s7
;-ection *, par. '<.
he Philippine Bill of &(9* had no provision pertaining to the declaration of martial la,.
he adoption of the .ones +a, provisions ,as prompted by the prevailing sentiment among the
delegates to the &(AJC&(AB Constitutional Convention to establish a strong e8ecutive, as sho,n by its
proceedings reported by t,o of its prominent delegates ;+aurel and Aruego< ,ho recounted in their
published ,orks ho, the delegates blocked the move to subject the po,er to suspend the privilege of
the ,rit of *a#eas corpus, in case of invasion, insurrections or rebellion, to the approval of the
?ational Assembly, but did nothing to block, and allo,ed, the grant of the po,er, including that to
declare martial la,, to the President as CommanderCinCChief of the Armed 1orces. Ehat is evident
from this incident is that ,hen it comes to the suspension of the privilege of the ,rit of *a#eas corpus
and establishment of martial la, in case of the occurrence or imminent danger of the contingencies
mentioned therein, and the public safety re#uires it, the clear intent ,as to e8clusively vest in the
President that po,er, ,hereas Congress can only suspend under the Bill of !ights provision ,hen
there is actual occurrence of these events for reasons already adverted to above. And ,hen martial
la, is proclaimed, the suspension of the privilege of *a#eas corpus necessarily follo,s for. the
greater po,er includes the less. ?obody ,ill ever doubt that there are greater restrictions to individual
liberty and freedom under martial la, than under suspension of the privilege of the ,rit of *a#eas
corpus. %n the former he can even close the courts if necessary and establish in their place military
commissions. %n the latter, the action proceeds from the premise that the courts are open but cannot
grant the ,rit.
Ehen the Constitution of &(AB ,as being framed, the prevailing jurisprudence on the matter ,as that
laid do,n in "arcelon vs. "a-er, B Phil. )'. -eptember A9, &(9B. %n that case the #uestion presented
and decided is identical to ,hat is raised by the petitioners here. his ;&(9B< Court ruled that the
judiciary may not in#uire into the facts and circumstance upon ,hich the then 3overnor 3eneral
suspended the privilege of the ,rit under -ection B of the Philippine Bill of &(9*, ,hich granted him
the same po,er no, vested in the President, and that the findings of the 3overnor 3eneral ,ere
4final and conclusive4 upon the courts. A,are of this rule, the framers of the &(AB Constitution
granted to the President the po,ers no, found in Article 6%%, -ection &9, paragraph *, of the &(AB
Constitution.
0n 0ctober **, &(B9, Proclamation ?o. *&9 suspending the privilege of the ,rit of *a#eas corpus
,as issued by the late President Puirino. Assailed before this Court in 'ontene+ro vs. CastaAe!a
and Balao (& Phil. ))*, as unconstitutional and unfounded, this Court said7
thru Marshall, aney and -tory #uoted ,ith approval in "arcelon vs. "a-er ;B Phil. )', pp. () and &99<
the aut*orit to !eci!e )*et*er t*e e6i+enc *as arisen re;uirin+ suspension #elon+s to t*e Presi!ent
an! D*is !ecision is ,inal an! conclusiveD upon t*e courts an! upon all ot*er persons.
But in 0ansan+ vs. Garcia, +CAA(2J, decided December &&, &('&, J* -C!A, JJ), this Court asserted
the po,er to in#uire into the constitutional sufficiency of the factual bases supporting the President$s
action in suspending the privilege of the ,rit of *a#eas corpus under Proclamation ?o. ))(, dated
August *&, &('&. %n departing from the rule established in the Baker and CastaLeda cases, this Court
said7
he ,eight of "arcelon v. "a-er, as a precedent, is diluted by t,o ;*< factors, namely7 ;a< it relied heavily
upon 'artin v. 'ott involving the =.-. President$s po,er to call out t*e (ilitia, ,hich he being the
commanderCinCchief of all the armed forces may be e8ercised to suppress or prevent any la,less
violence, even ,ithout invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of the ,rit of *a#eas corpus, jeopardi"ing as the
latter does individual liberty: and ;b< the privilege had been suspended by the American 3overnorC
3eneral, ,hose act, as representative of the -overeign, affecting the freedom of its subjects, can hardly
be e#uated ,ith that of the President of the Philippines dealing ,ith the freedom of the 1ilipino people, in
)*o( soverei+nt resi!es, an! ,ro( )*o( all +overn(ent aut*orit e(anates. he pertinent ruling in the
Montenegro case ,as based mainly upon the Barcelon case, and, hence, cannot have more ,eight than
the same ...
% maintain that ,e should return to the rule in the Baker and CastaLeda cases and jettison the
+ansang doctrine ,hich denies the grant of full, plenary and unrestricted po,er to the President to
suspend the privilege of the ,rit of *a#eas corpus and declare martial la,. his denial of unrestricted
po,er is not in keeping ,ith the intent and purpose behind the constitutional provision involved.
he Act of Congress of &'(B involved in Martin M Mott ;&* Eheat &( ;&)*'<< ,hich is the main prop
of the Baker case, held inapplicable in +ansang cage, provided7
judge necessary to repel such invasion ...
he distinction made by this Court bet,een the po,er of the President to call out the militia and his
po,er to suspend the privilege of the ,rit of *a#eas corpus and declare martial la, does not ,arrant
a different treatment. he important and decisive point to consider is that both po,ers are e8pressly
conferred upon the President by the same -ection, e8ercisable only upon the e8istence of certain
facts and situations. =nder the &(AB Constitution ;Article 6%%, -ection &9, paragraph *,< both po,ers
are embraced in the President$s po,er as CommanderCinCChief of the Armed 1orces.
he Baker decision should not have been emasculated by comparing the position then of the
3overnor 3eneral 4as the representative of the -overeign4 in relation to the 1ilipinos ,ho ,ere its
4subjects4. =nder prevailing conditions and democratic principles, there ,ould be greater justification
for relying on the judgment of the President of the Philippines ,ho is the chosen representative of the
1ilipino people and hence more authoritative in speaking for the nation than on that of an American
3overnor 3eneral then ,ho personified the burden of an imposed sovereignty upon us. And as the
/8ecutive of this 3overnment ,ho is charged ,ith the responsibility of e8ecuting the la,s, he is as
much a guardian of the rights and liberties of the people as any court of justice. o judicially undercut
the force and efficacy of the Baker and Montenegro doctrine is to ride rough shod over the intent of
the framers of the &(AB Constitution. Parenthetically it may be stated that the CommanderCinCChief
clause ,as retained in the &('A Constitution.
Although the +ansang case tried to cushion the blo, administered to the constitutional provision
involved by adopting the test of reasonableness4 in the e8ercise of the President$s po,er, ,ithout
meaning to substitute its judgment for that of the President, yet the effect of the ruling is so far
reaching that it may lead to a serious confrontation bet,een the Courts and the President. he po,er
to in#uire into the constitutional sufficiency of the factual bases of the *a#eas corpus proclamation
;grounds for the issuance of ,hich are the same as those for martial la,< presupposes the po,er to
kno, ,hat are the facts to be tested by the constitutional provision. his is the essence of an in#uiry:
the determination of the constitutional sufficiency of those facts simply follo,s. -uppose this Court
says they are not sufficient to justify martial la, and the President says they are because the
evidence on ,hich he acted sho,s the e8istence of invasion, insurrection or rebellion, or the
imminent danger thereof, ,hat ,ill happenI he outcome is too unpleasant to contemplate. +et us
not try to repeat in our country ,hat transpired bet,een President +incoln and Chief .ustice aney
,hen the latter issued a ,rit of *a#eas corpus to set free one held by the military and President
+incoln practically said7 aney has issued his ,rit. +et him enforce it4. /8 parte Merryman, &' 1ed.
Cas. &JJ ;?o. (J)'< ;C.C.D. Md. &)2&<.
President +incoln, in the face of the grave danger then to the nation, simply ignored it and nothing
could be done about it.
he test of reasonableness, or absence of arbitrariness in the e8ercise of the presidential po,er, is all
a play of ,ords. he determination of the reasonableness of the act of the President calls for a
consideration of the availability and choice of less drastic alternatives for the President to take, and
,hen that is done the Court ,ill in effect be substituting its judgment for that of the President. %f the
Court ,ere to limit its po,ers to ascertaining ,hether there is evidence to support the e8ercise of the
President$s po,er, ,ithout determining ,hether or not such evidence is true, ,e ,ould have the
curious spectacle of this Court having no choice but to give its imprimatur to the validity of the
presidential proclamation, as it did in the +ansang case ,here it merely accepted the reports of the
military on the facts relied upon by the President in issuing Proclamation ?o. ))(, ,ithout judicially
determining ,hether or not the contents of those reports ,ere true, %n so doing, this Court simply
displayed the miserable limits of its competence for having no means for checking ,hether or not
those facts are true. %t ,ould have been more in keeping ,ith the dignity, prestige and proper role of
this Court to simply read and consider the bases for the suspension as stated in the various
4,hereases4 of the Proclamation, and then determine ,hether they are in conformity ,ith the
constitution. his to me is the e8tent of its po,er. o transcend it is to usurp or interfere ,ith the
e8ercise of a presidential prerogative.
his Court should not spurn the reminder that it is not the source of the panacea for all ills affecting
the body politic ;6era vs. Avelino, '', Phil. &(*<. Ehen a particular cure can come only from the
political department, it should refrain from injecting itself into the clash of political forces contending
for the settlement of a public #uestion. he determination of ,hen and ho, a constitutionally granted
presidential po,er should be e8ercised calls for the strict observance of the timeChonored principle of
the separation of po,ers and respect for a coCe#ual, coordinate and independent branch of the
3overnment. his is the basic foundation of the rule governing the handling of a political #uestion that
is beyond judicial competence ;Alejandrino vs. Pue"on, J2 Phil. AB: Cabili vs. 1rancisco, 3. !. ?o. +C
J2A), May ), &(B&: Baker vs. Carr, A29 =.-. p. &)2: )* -. Ct. !ep. 2(: ' +. /d. *nd, 22A<. %t is high
time to ree8amine and repudiate the +ansang doctrine and give the President the sole authority to
decide ,hen and ho, to e8ercise his o,n constitutional po,ers. A return to the sanity and ,isdom of
the Baker and Montenegro doctrine and a reali"ation that judicial po,er is un,elcome ,hen a
#uestion presents attributes that render it incapable of judicial determination, because the po,er to
decide it devolves on another entity, is urgently needed. %t is ,orth,hile recalling ,hat this Court in its
sobriety and ,isdom, unperturbed by the formidable turmoils, the fierce passions and emotions and
the stresses of our times, said in the Baker case7 ;he term 43overnor 3eneral4 should read
4President4<.
0,ing to conditions at times, a state of insurrection, rebellion or invasion may arise suddenly and may
district or province notifies the 3overnorC3eneral by telegraph of this landing of troops and that the people
of the district are in collusion ,ith such invasion. Might not the 3overnorC3eneral and the Commission
accept this telegram as sufficient evidence and proof of the facts communicated and at once take steps,
even to the e8tent of suspending the privilege of the ,rit of *a#eas corpus, as might appear to them to be
necessary to repel such invasionI %t seem that all men interested in the maintenance and stability of the
3overnment ,ould ans,er this #uestion in the affirmative ....
assists in restoring order and in repelling the invasion, applies for the ,rit of *a#eas corpus alleging that
furnishing proof to it concerning the e8istence or none8istence of the facts proclaimed to e8ist by the
the la,.
safety of the ,hole people. %f the judicial department of the 3overnment, or any officer in the 3overnment,
has a right to contest the orders of the President or of the 3overnorC3eneral under the conditions above
supposed, before complying ,ith such orders, then the hands of the President or the 3overnorC3eneral
may be tied until the very object of the rebels or insurrectos or invaders has been accomplished. But it is
urged that the President, or the 3overnorC3eneral ,ith the approval of the Philippine Commission, might
be mistaken as to the actual conditions: that the legislative department K the Philippine Commission K
might, by resolution, declare after investigation, that a state of rebellion, insurrection, or invasion e8ists,
and that the public safety re#uires the suspension of the privilege of the ,rit of *a#eas corpus, ,hen, as a
matter of fact, no such conditions actually e8isted: that the President, or 3overnorC3eneral acting upon
the authority of the Philippine Commission, might by proclamation suspend the privilege of the ,rit of
*a#eas corpus ,ithout there actually e8isting the conditions mentioned in the act of Congress. %n other
,ords, the applicants allege in their argument in support of their application for the ,rit of *a#eas corpus
that the legislative and e8ecutive branches of the 3overnment might reach a ,rong conclusion from their
investigations of the actual conditions, or might, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion e8isted and that public safety re#uired the
suspension of the privilege of the ,rit of *a#eas corpus ,hen actually and in fact no such conditions did
e8ist. Ee can not assume that the legislative and e8ecutive branches ,ill act or take any action based
upon such motives.
Moreover, it can not be assumed that the legislative and e8ecutive branches of the 3overnment, ,ith all
any particular district, than the other branches of the 3overnmentI Ee think not.
C. >/ C0?C+=-%0?
he resolution of the #uestion of validity of Proclamation ?o. &9)& and all acts done under it, by
delving into the sufficiency of the grounds on ,hich the declaration of martial la, is premised,
involves a political #uestion. Ehether or not there is constitutional basis for the President$s action is
for him to decide alone. % take it for a fact that he is not an irresponsible man and ,ill act reasonably
and ,isely, and not arbitrarily. ?o President in his right mind ,ill proclaim martial la, ,ithout any
basis at all but merely to fight the hobgoblins and monsters of his o,n imagination. %n the e8ercise of
that po,er this Court should not interfere or take part in any manner, shape or form, as it did in the
+ansang case. Ehen this Court re#uired the Army officers, ,ho furnished the President ,ith the facts
on ,hich he acted, to present proofs to establish the basis of the *a#eas corpus suspension, this
Court practically superimposed itself on the e8ecutive by in#uiring into the e8istence of the facts to
support his action. his is indeed unfortunate. o in#uire is to kno, the facts as basis of action. o
in#uire is to decide, and to decide includes the po,er to topple do,n or destroy ,hat has been done
or erected. his is the ultimate effect of the +ansang doctrine. .
Ehen the security and e8istence of the state is jeopardi"ed by sophisticated clandestine and
overseas means of destruction and subversion: ,hen open avo,als of attempts to dismember the
Philippines are politically and financially encouraged and supported by foreign po,ers: ,hen the
advocates of a sinister political and social ideology are openly storming even the bastions of military
po,er and strength ,ith the use of smuggled arms furnished by those ,ho ,ish this nation ill, let us
leave to the /8ecutive the unhampered determination of the occasion for the e8ercise of his po,er,
as ,ell as the choice of the ,eapons for safeguarding the nation. his Court should not, by a process
of subtle reasoning and rhetorical display of legal erudition stand on the ,ay to effective action by
virtually crippling him. %nstead, it should be a rock of refuge and strength for those ,ho are called
upon to do battle against the forces of devastating iconoclasm and ruthless vandalism that ruled our
streets, our public s#uares and our schools before the establishment of martial la,. %nstead of
imposing cramping restrictions on the e8ecutive and thereby giving the enemy aid and comfort, this
Court should allo, the political department a full and ,ide latitude of action.
%t follo,s that all orders, decrees or acts of the President under the Martial +a, Proclamation,
including those of the respondent -ecretary of ?ational Defense as his authori"ed representative, are
valid and binding. he people have ratified those acts by the adoption and ratification of the ?e,
Constitution as proclaimed by the President on .anuary &', &('A, and by the !eferendum held on
.uly *'C*),&('A. 1or us to declare them valid in our decision no, has become merely an antiCclima8
after ,e have decided in the .avellana case that the people have ratified and accepted the ?e,
Constitution and there remains no more judicial obstacle to its enforcement.
Conse#uently, the arrest and detention of the petitioners, including their further detention after the
ratification and acceptance of the ?e, Constitution, and even up to the present, are valid and
constitutional. he duration of their detention, especially as regards petitioner .ose E. Diokno, is a
matter addressed to the sound discretion of the President. As to petitioner Benigno -. A#uino, .r., his
detention is no longer open to #uestion as formal, charges of subversion, murder and illegal
possession of firearms have been filed against him ,ith the proper Military Commission.
D. >/ .=D3M/?
By this separate opinion % might incur the displeasure of my senior brethren ,ho conceived and
labored in bringing forth the +ansang decision ,hich % am openly advocating to be discarded because
this Court practically interfered ,ith the e8ercise of a purely e8ecutive po,er under the guise of
in#uiring into the constitutional sufficiency of the factual bases of the *a#eas corpus proclamation. By
re#uiring the representatives of the President to present evidence to sho, the reasonable e8ercise of
his po,er, % repeat that this Court trenched upon a constitutionally granted po,er of the President. %n
e8pressing my honest thoughts on a matter that % believe is of supreme importance to the safety and
security of the nation, % did so unmindful of the possible condemnation of my colleagues and fearless
of the judgment of history.
10! A++ >/ 10!/30%?3, % vote to dismiss all petitions.

FERNANDE1, J.:
%
P>O0OGEE
% have decided to ,rite this -eparate 0pinion even before the main opinion has been ,ritten, for no
other cases in the history of the !epublic have assumed such transcendental importance as the
cases ,hich directly arose out of the proclamation of martial la, on -eptember *&, &('*. ?o other
cases presented before this Court have aroused such ,idespread attention, speculation, controversy,
and concern. And in the language of one of the petitioners, 4the decision in these case;s<, ,hatever it
may be, ,ill be cited in history books many, many years from no,. And it ,ill be #uoted ,herever
lovers of freedom ask the #uestion K Ehat did the Court do in that difficult hourI
0ur decision in the various petitions no, before this ribunal like 0ur decision in the !atification
Cases ;+CA2&J*, .avellana vs. he /8ecutive -ecretary, et al. +CA2&2B, !o8as, et al., vs. Melchor,
etc. et al.,: +CA2*A*, Monteclaro, et al., vs. he /8ecutive -ecretary, et al., and +CA2*)A, Dilag, et al.,
vs. he >onorable /8ecutive -ecretary, et al.<, must uphold the validity of constitutionalism in our
country and our steadfast adherence to the !ule of +a,. he decision should set the pattern and the
thrust or 0ur continuous effort to locate that elusive boundary bet,een individual liberty and public
order. %t should reconcile the claims to individual or civil rights ,ith the e#ually and, at times, even
more compelling needs of community e8istence in a spirit of Constitutionalism and adherence to the
!ule of +a,.
hrough our ?e, Constitution, the Delegates to the Constitutional Convention and the voters in the
ratification referendum alike have given our government a fresh mandate and ne, guidelines in the
charting of a truly independent e8istence and the emergence of a dynamic and progressive order. %t is
no, the task of this Court to concreti"e and make clearly visible the connecting links bet,een the
&(AB Constitution and the &('A Constitution, and to consider the constitutionality of the martial la,
proclamation ;?o. &9)&< no, being vehemently challenged in these cases K its constitutionality as
initially proclaimed under the old Constitution, and the constitutionality of its continuation ,hich no,
falls under the present Charter.
%t is also the function of this ribunal to help give flesh and substance to our people$s aspirations for
secure and selfCsufficient if not abundant e8istence even as justice, peace, liberty, and e#uality are
guaranteed and assured. %t must strike the correct balance, given specific times and circumstances,
bet,een the demands of public or social order and e#ually insistent claims of individual liberty.
he issues raised regarding the force and effectivity of the &('A Constitution have been thoroughly
discussed in other cases. hey should no, be a settled matter but have been raised ane,. hese
,ere discuss at length in the earlier stages of the instant petitions. he mass of pleadings and lengthy
oral arguments d,elt not only on the validity of Proclamation ?o. &9)& and the legality of the arrest
and detention of the petitioners but also on the effectivity of the ne, Constitution and other related
matters as right to counsel, jurisdiction of military tribunals, applications for amnesty, visits of
relatives, conditions inside the detention camp, right to ,ithdra, the petition, and the like. Ehile it is
necessary to sift the basic issues from all secondary and incidental matters, ,e must also touch on
important related issues. %t is imperative to declare ,hat the Constitution commands is the la, on
these issues.
T*e avera+e citizen, as a rule, is not ver intereste! in t*e !etaile! intricacies surroun!in+ t*e
resolution o, constitutional ;uestions. Ce usuall *as stron+ vie)s on t*e ,inal outco(e o,
constitutional liti+ation #ut rarel #ot*ers to in;uire into t*e la#rint*ian ,acets o, t*e case or t*e
!etaile! reasonin+ )*ic* usuall supports t*e !ispositive portion.
It is not so )it* re+ar! to t*ese *a#eas corpus cases. T*e e6plosive potentialities o, Our rulin+ are
-no)n to ever#o!. T*e countr a)aits Our !ecision )it* -een e6pectations. T*e +roun!s
supportin+ t*e !ecision are a (atter o, pu#lic concern. T*e i(plication o, t*ese cases *ave #een
speculate! upon, alt*ou+* so(eti(es )it* li(ite! co(pre*ension an! noticea#le lac- o, ,airness,
even in ,orei+n countries.
It, t*ere,ore, #e*ooves t*e (e(#ers o, t*is Tri#unal to ren!er t*eir opinions as (uc* as possi#le, in
ter(s an! in a presentation t*at can #e un!erstoo! # t*e people.
%n J.'. Tuason an! Co. Inc. vs. 0an! Tenure 3!(inistration, ;A& -C!A J&A, J*A< this ribunal stated
that 4as the Constitution is not primarily a la,yer$s document, it being essential for the rule of la, to
obtain that it should ever be present in the people$s consciousness, its language as much as possible
should be understood in the sense they have in common use.4
In t*is case, Ke s*oul! +o one step ,urt*er. Ke s*oul! not li(it Ourselves to loo-in+ at t*e )or!s o,
t*e Constitution as or!inar an! si(ple lan+ua+e #ut Our reasonin+ in t*e !ecision itsel, s*oul! #e
,ran- an! e6plicit. Our tas- is not a (ere (atter o, constitutional construction an! interpretation.
T*rou+* its !ecision, t*is Court s*oul! also spea- !irectl to t*e avera+e la(an, to t*e co((on
people.
%%
TCE '3>TI30 03K P>OC03'3TION
0n -eptember *A, &('* the President announced that, on -eptember *&, &('* or t,o days earlier,
he had, pursuant to Proclamation ?o. &9)&, declared a state of martial la, in the Philippines. he
President cited and detailed many acts of insurrection and rebellion against the government of the
!epublic of the Philippines committed by la,less elements and various front organi"ations in order to
sei"e political and state po,er. Proclamation ?o. &9)& concludes K
po,ers vested upon me by Article 6%%, -ection &9, paragraph ;*< of the Constitution, do hereby place
the entire Philippines as defined in Article &, -ection & of the Constitution under martial la, and, in my
capacity as their commanderCinCchief, do hereby command the armed forces of the Philippines, to
maintain la, and order throughout the Philippines, prevent or suppress all forms of la,less violence
as ,ell as any act of insurrection or rebellion and to enforce obedience to all the la,s and decrees,
orders and regulations promulgated by me personally or upon my direction.
%n addition, % do hereby order that all persons presently detained, as ,ell as all others ,ho may
hereafter be similarly detained for the crimes committed in furtherance or on the occasion thereof, or
incident thereto, or in connection there,ith, for crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of names, uniforms, and insignia, crimes
committed by public officer, and for such other crimes as ,ill be enumerated in 0rders that % shall
subse#uently promulgate, as ,ell as crimes as a conse#uence of any violation of any decree, order
or regulation promulgated by me personally or promulgated upon my direction shall be kept under
detention until other,ise ordered released by me or by my duly designated representative.
888 888 888
%%%
3>>EST OF TCE PETITIONE>S
=nder a state of martial la,, petitioners or the persons in ,hose behalf petitions for ,rits of *a#eas
corpus have been filed ,ere on various dates arrested and detained. he orders of arrest ,ere
premised on 3eneral 0rder ?o. * of the President dated -eptember **, &('*
1
,hich ,as amended
by 3eneral 0rder ?o. *CA, on -eptember *2, &('*. 3eneral 0rder ?o. *CA reads7
CommanderCinCChief of all the Armed 1orces of the Philippines, % hereby order you as -ecretary of
?ational Defense to forth,ith arrest or cause the arrest and take into your custody the individuals named
in the attached lists for being participants or for having given aid and comfort in the conspiracy to sei"e
political and state po,er in the country and to take over the government by force, the e8tent of ,hich has
no, assumed the proportion of an actual ,ar against our people and our legitimate government and in
order to prevent them from further committing acts that are inimical or injurious to our people, the
government and our national interest, and to hold said individuals until other,ise so ordered by me or by
my duly designated representative.
+ike,ise, % do hereby order you to arrest or cause the arrest and take into custody and to hold them until
other,ise ordered released by me or by my duly designated representative7
&. -uch persons as may have committed crimes and offenses in furtherance or on the occasion of or
incident to or in connection ,ith the crimes of insurrection or rebellion as defined in Articles &AJ to &A) of
the !evised Penal Code, and other crimes against public order as defined in Articles &J2, &J', &J), &J(,
&B&, &BA, &BJ, &BB, and &B2 of the same Code:
*. -uch persons ,ho may have committed crimes against national security and the la,s of the nation, as
enumerated and defined in itle % of the !evie, Penal Code:
888 888 888
Arrests and detentions under a martial la, proclamation are not necessarily limited to those ,ho have
actually committed crimes and offenses. More specifically, those arrested and taken into custody
under 3eneral 0rder ?o. *CA fall under three general groups7
&. hose ,ho appear to have actually committed crimes and offenses and ,ho should be charged and
punished for such crimes and offenses pursuant to our penal la,s:
*. hose ,ho have been arrested not to make them account for crimes and offenses but to prevent them
from committing acts inimical or injurious to the objectives of a martial la, proclamation: and
A. hose ,ho appear to have actually committed crimes and offenses but ,hose prosecution and
punishment is deferred because the preventive nature of their detention is, for the moment, more
important than their punishment for violating the la,s of the land.
Criminal charges have been filed against petitioner Benigno -. A#uino, .r., and he, therefore, may fall
under 3roup ?o. & and the 4preventive4 aspect of 3roup ?o. A. %t is true that he #uestions the validity
of the charges, raises as an issue the deprivation of fundamental rights of an accused, and
challenges the jurisdiction of a military commission to try him. >o,ever, determination of these
#uestions is properly for another proceeding and another decision. 1or purposes of these *a#eas
corpus petitions, he and many others similarly situated may fall under 3roups & and A.
Petitioner .ose E. Diokno can fall under 3roup ?o. * and 3roup ?o. A, as far as the record indicates.
hus, there may be persons arrested pursuant to 3eneral 0rder ?o. * ,ho may fall under the second
group but against ,hom charges could be filed as under the third group. hey have not been charged
for reasons obviously related to national security. he administration may have determined that, in
the light of the martial la, situation, it is neither ,ise nor e8pedient to file such charges no,.
he constitutionality of the arrest of those arrested under 3roup ?o. & cannot be #uestioned. hey
have committed a crime and therefore can be ordered arrested and detained.
he constitutionality of the arrest of those arrested under 3roups ?os. * and A, under martial la,
finds support in the book of .ustice 1ernando and -enator aLada: the pertinent part of said book
reads as follo,s7
Once (artial la) *as #een !eclare!, arrest (a #e necessar not so (uc* ,or punis*(ent #ut #
)a o, precaution to stop !isor!er. As long as such arrest are made in good faith and in the honest
belief they are needed to maintain order, the President. as CommanderCinCChief, cannot thereafter,
after he is out of office, be subjected to an action on the ground that he had no reasonable ground for
his belief. Ehen it comes to a decision by the head of the -tate upon a matter involving its life, the
ordinary rights of individual, must yield to ,hat he deems the necessities of the moment. Public
danger ,arrants the substitution of e8ecutive process. his is admitted ,ith regard to killing men in
the actual clash of arms and the same is true of temporary detention to prevent apprehended harm.
3ood faith and honest belief in the necessity of the detention to maintain order thus furnishes a good
defense to any claim for liability. ;aLada and 1ernando, Constitution o, t*e P*ilippines, 6ol. %%, pp.
&9&AC&9&J, &(BA ed.<
%6
TCE PETITIONS FO> K>ITS OF C3"E3S CO>PES
;a< T*e Groun!s T*ere,or=
Petitions for ,rits of *a#eas corpus ,ere accordingly filed in this Court by or in behalf of the arrested
and detained individuals. he petitions contain substantially similar grounds and prayers.
1or instance, in 3.!. ?o. +CABBA(, Carmen %. Diokno pressed for the urgent and immediate release of
-enator .ose E. Diokno from the custody of either the respondents, their agents, instruments,
au8iliaries or servants. %t is alleged that the respondents unla,fully or illegally and ,ithout any valid
authority ,hatsoever, in violation of the petitioner$s rights as a citi"en of the !epublic, sei"ed his
person from his residence and moved him to a place of confinement and detention. he petition also
alleges that no charges have been filed against .ose E. Diokno for committing or having committed
insurrection or rebellion or subversion and that the memorandum directing his arrest is neither an
order of arrest nor a ,arrant of arrest.
he petition in 3.!. ?o. +CABBJ2 alleges that petitioners Benigno -. A#uino, .r., !amon 6. Mitra, .r.,
1rancisco -. !odrigo, and ?apoleon !ama have been illegally detained and unla,fully deprived of
their personal liberty beyond the period authori"ed by la, ,ithout any formal complaint for any
specific offense having been instituted against them before our courts of la, and ,ithout any judicial
,rit or order having been issued authori"ing their confinement. %t is alleged that the petitioners have
not committed any crime nor violated any la,, rule or regulation ,hether individually or in
collaboration ,ith other person or persons for ,hich they may be detained and deprived of their
personal liberty ,ithout any formal charge or judicial ,arrant.
A common allegation in the various petitions challenges the validity of Presidential Proclamation ?o.
&9)&. %t is asserted that Proclamation ?o. &9)& declaring martial la, is illegal and unconstitutional
and, therefore, null and void because the conditions under ,hich martial la, may be declared by the
President do not e8ist. he petition in 3.!. ?o. +CABBJ2 states that assuming ar+u(enti +ratis that
the conditions for the valid e8ercise of the e8traordinary po,er to declare martial la, e8ist,
Proclamation ?o. &9)& and Presidential Decrees and 0rders issued pursuant thereto are
unconstitutional and illegal in e8tent and scope because they deprive the -upreme Court of its
constitutional po,er and authority to determine the constitutionality, legality and validity of the
decrees, orders, rules and regulations issued pursuant to the proclamation. %t is alleged that the
proclamation is unconstitutional and illegal because it divests and ousts the civil courts throughout the
Philippines of the jurisdiction to decide and punish certain offenses under the e8isting la,s of the
land. he petition emphasi"es that civil courts continue to remain open and have in fact never ceased
to function. he petition challenges the validity of Proclamation ?o. &9)& because it grants to the
President po,ers ,hich are other,ise vested by the Constitution in other departments of the
3overnment.
Corollary to the above allegations in 3.!. ?o. +CABBJ2 is the allegation of petitioners 6eronica +.
@uyitung and an Chin >ian in 3.!. ?o. +CABBB2 that assuming ,ithout admitting the validity of
Proclamation ?o. &9)&, the issuance of such a proclamation is not a valid justification to arrest any
person ,himsically or arbitrarily or ,ithout the necessary basis or foundation inherent in the proper
arrest or detention.
he petition in 3.!. ?o. ABBJ' alleges that petitioner /. 6oltaire 3arcia %% has not committed the
crimes of insurrection, rebellion or subversion nor any crime similar thereto nor any crime at all. %t
states that his continued illegal detention prevents him from performing his function as member of the
Constitutional Convention and, therefore, deprives his district of representation ,hich is obviously
against public policy and public interest. he petition asks the -upreme Court to take judicial notice of
the fact that there ,as no invasion, insurrection, or rebellion or imminent danger thereof before andFor
after the date of Proclamation ?o. &9)& that may re#uire for the public safety the placing of any part
of the country under martial la,. !eiterating the allegations in the other petitions, it outlines ho,,
throughout the length and breadth of the country especially in the 3reater Manila area, all e8ecutive
offices are functioning in complete normalcy: ho, all courts from the lo,est municipal courts to the
-upreme Court are in full operation: ho, the different legislative bodies from barrio councils up to
Congress are like,ise functioning smoothly according to la,.
Petitioner /rnesto !ondon in 3.!. ?o. +CABB'A alleges that pursuant to Proclamation ?o. &9)& the
President issued 3eneral 0rder ?o. A ,hich creates military tribunals to take jurisdiction over certain
acts and crimes to the e8clusion of civil courts. he petition alleges that the creation of such military
tribunals and the vesting thereof ,ith judicial functions are null and void because civil courts are open
and functioning. %t #uestions the intent to try the petitioner before the military tribunals for any crime
,hich the respondents may impute to him. he petitioner alleges that he has not engaged in any of
the criminal activities defined in Proclamation ?o. &9)&, that, at best, he is only a critic of the policies
of the 3overnment and, at ,orst, a civilian citi"en amenable to the processes of civilian la,, if at all
he has committed any offense.
;b< Present Status o, Petitioners=
As things no, stand, the different petitioners may be divided into four ;J< groups7
&. -ome petitioners like 6eronica +. @uyitung, an Chin >ian, Bren 3uiao, >ernando .. Abaya,
/rnesto 3ranada, +uis Beltran, !uben Cusipag and Eillie Baun have already been released from
custody of the respondents and are no longer under detention. hese petitioners earlier filed motions
to ,ithdra, their cases and the Court readily approved the ,ithdra,al of the petitions.
*. -ome petitioners like .oa#uin 6. !oces, eodoro M. +ocsin, -r., !olando 1adul !osalind 3alang,
3o /ng 3uan, Ma8imo 6. -oliven, !enato Constantino, +uis !. Mauricio, .uan +. Mercado, !oberto
0rdoLe" and Manuel Almario have like,ise been released from respondents$ custody and are also
no longer detained. >o,ever, after an initial period of silence follo,ing their release, the petitioners
have manifested that they have long been conditionally released subject to various conditions and
continuing restrictions thus implying they e8pect a decision on their petitions. Petitioner 1rancisco -.
!odrigo has also filed a manifestation stating that ,hile he ,as released from detention at 1ort
Bonifacio, Pue"on City on December B, &('*, his release ,as conditional and subject to certain
restrictions. >is manifestation ,as filed for the purpose of sho,ing that insofar as he is concerned,
his petition for *a#eas corpus is not moot and academic. Petitioner 1rancisco -. !odrigo is, therefore,
asking this Court to render a decision on his petition for a ,rit of *a#eas corpus.
A. 0n the other hand, petitioner .ose E. Diokno ,as under detention until very recently. 1or reasons
,hich ,ill be discussed later, he has, ho,ever, asked for and insisted upon the ,ithdra,al of his
petition in spite of the fact that he is under detention. Before this opinion could be promulgated,
ho,ever, he has been ordered released by the President on the occasion of his /8cellency$s
birthday, -eptember &&, &('J, together ,ith some other detainees under martial la,.
J. Petitioner Benigno -. A#uino, .r., is still under detention. Charges have been filed before a military
commission for various crimes and offenses but the petitioner challenger: the jurisdiction of military
courts. >e has not filed any motion to ,ithdra, his petition. Based on his pleadings and his challenge
to the jurisdiction of military tribunals, the petitioner states that it is incumbent upon this Court to rule
upon the merits of the petition. >e ,ants information filed before civilian courts and invokes
constitutional rights to free him from military detention. Petitioner Benigno -. A#uino, .r., is insistent
that this Court render a decision on his petition for a ,rit of *a#eas corpus.
6
3NSKE> OF >ESPON.ENTS=
TCE ISSEES
he ans,er of the respondents states that on -eptember *&, &('*, the President of the Philippines,
in the e8ercise of po,ers vested in him by Article 6%%, -ection &9, paragraph * of the Constitution,
issued Proclamation ?o. &9)& placing the entire Philippines under martial la,. All the acts #uestioned
by the petitioners are justified by orders and instructions of the President issued pursuant to the
proclamation of martial la,. he mail #uestion that confronts the ribunal is, therefore, the validity of
Proclamation ?o. &9)&. %f it is tainted ,ith unconstitutionality, then all the acts taken pursuant to the
proclamation are void. %t ,ill then follo, that the arrest and detentions of the petitioners are void.
0n the other hand, if the proclamation of martial la, is sustained, ,e still have to determine its scope
and effects. Ee must ans,er these #uestions7 May ,e in#uire into the validity of its continuationI %s a
suspension of the privilege of the ,rit of *a#eas corpus automatically included in a proclamation of
martial la,I
0ther #uestions also arise ,hich, ho,ever, need be decided by =s only in a general manner in the
present cases. May the CommanderCinCChief issue orders ,ith the force and effect of legislationI
May such legislation cover subjects ,hich are not directly related to the con#uest of the particular
crisisI %n other ,ords, does the proclamation of martial la, give the President authority to pass
legislation not directly related to invasion, insurrection, rebellion, or imminent danger thereof.I %f
civilian courts are open and functioning, may the President issue decrees and orders ,hich transfer
some of their jurisdiction to military tribunalsI
%ncidental issues have also been raised in the light of the main issue of martial la,. 0ne is no longer
before this Court but may be mentioned in passing. he &('A Constitution increased the composition
of the Court from eleven ;&&< to fifteen ;&B<. At a time ,hen there ,ere only nine ;(< members carried
over from the old Court, may these nine members the Acting Chief .ustice and eight members K
validly hear a constitutional issueI %s there a #uorum under Article D, section * ;*< ,hich reads7
;*< All cases involving the constitutionality of a treaty, e8ecutive agreement, or la, shall be heard and
decided by the -upreme Court en #anc and no treaty, e8ecutive agreement, or la, may be declared
unconstitutional ,ithout the concurrence of at least ten Members. All other cases ,hich under its rules are
re#uired to be heard en #anc, shall be decided ,ith the concurrence of at least eight Members.
Ee no, have a Chief .ustice and eleven members so the problem of a #uorum is solved.
Another incidental issue is the po,er of this Court to in#uire into the conditions of detention of
petitioners. And still another issue is ,hether one of the petitioners may, at a time ,hen a decision is
ready to be promulgated, ,ithdra, his petition and avoid a decision on the issues he has raised.
6%
ON PETITIONE> .IOGNODS 'OTION
TO KITC.>3K
he first issue to resolve is an incidental but important one. %t is also the most recent.
;a< 3r+u(ents Pro an! Con=
%n a Motion to Eithdra, dated December *(, &('A, petitioner .ose E. Diokno asked leave of court to
,ithdra, the petition for *a#eas corpus filed in his behalf. >e asked for the ,ithdra,al of the main
petition and other pleadings filed in the case. he reason given for the ,ithdra,al ,as 41irst, though %
am convinced beyond any nagging doubt that ,e are on the side of right and reason, la, and justice,
% am e#ually convinced that ,e cannot reasonably e8pect either right or reason, la, or justice to
prevail in my case ... ;and< -econd, in vie, of the ne, oath that its members have taken, the present
-upreme Court is a ne, Court functioning under a ne, Constitution, different from the Court under
,hich % applied for my release. % ,as ,illing to be judged by the old Court under the old Constitution
but not by the ne, Court under the ne, Constitution because as Albert Camus$ judge penitent said in
the novel $he 1all$7 $he ,ho clings to a la, does not fear the judgment that puts him in his place
,ithin an order he believes in. But the keenest of human torments is to be judged ,ithout la,.4
0n being re#uired to comment on the petitioner$s motion to ,ithdra,, the -olicitor 3eneral stated that
the petitioner > should not be allo,ed to remove his case from this Court. hree reasons ,ere given7
;a< that the charge is unfair to the -upreme Court and its members: ;b< that it is untrue and ;c< that in
the main, it is contemptuous. he -olicitor 3eneral disputed, as unfair, the charge that justice cannot
be e8pected from the -upreme Court. >e pointed out that the -upreme Court did not inject itself into
the controversy but it ,as the petitioner ,ho invoked the Court$s jurisdiction not only in this case but
the plebiscite cases as ,ell. he -olicitor 3eneral noted that the scorn ,ith ,hich the Court is treated
in the motion to ,ithdra, stands in sharp contrast ,ith the praise lavished on it ,hen petitioners
began these proceedings.
%t may be noted that the -upreme Court ,as then characteri"ed as having the greatest credibility
among the three branches of government. %t ,as described as a dispenser of justice and as the last
citadel of their liberties.
%n his Memorandum, petitioner manifested and stressed the importance of a decision K 4the decision
in this case, )*atever it (a #e, ,ill be cited in history books many years from no,. And it ,ill be
#uoted ,herever lovers of freedom ask the #uestion ... Ehat did the Court do in that difficult hourI4
he petitioner further stated in the Memorandum that 4the duty of this Court is a,esome indeed. %ts
responsibility to 0ur people and to history is heavier and more enormous than ,ords and phrases
can possibly describe.4
%n contrast to this insistence on a decision, a portion of the motion to ,ithdra, cited by the
respondents may be repeated7
G%Ht seems to me that our people have the right to e8pect members of the highest court of the land to
display a conscience more sensitive, a sense of mental honesty more consistent than those generally
displayed in the market place. And it has pained me to note that, in s,earing to support the ne,
$Constitution$, the five members of the Court ,ho had held that it had not been validly ratified, have not
fulfilled our e8pectations. % do not blame them % do not kno, ,hat % ,ould have done in their place. But, as
the same time, % cannot continue to entrust my case to them: and % have become thoroughly convinced
that our #uest for justice in my case is futile. ;p. 2<.
%ssue ,as also taken by the respondent ,ith the petitioner$s charge that despite the finding of a
majority that the ne, Constitution had not been validly ratified, the Court nonetheless dismissed the
petitions seeking to stop the enforcement of the Constitution. he allegation that the justices of this
Court took an oath to support the Constitution because they had been allo,ed to continue in office
,as challenged as false by the respondents.
he third ground for the respondents$ opposition to the motion to ,ithdra, is the allegedly
contemptuous nature of the motion. he Comment states that attacks on the Court are most serious:
none of those made in the past has put the court$s integrity and capacity for justice in serious
#uestion as much as the petitioner$s motion to ,ithdra,. According to the -olicitor 3eneral, the
charge in the case at bar goes to the very foundation of our system of justice and the respect that is
due to, it, that it is subversive of public confidence in the impartiality and independence of courts and
tends to embarrass the administration of justice. he -olicitor 3eneral manifested that 4,e cannot
shape the ,orld of the -upreme Court as ,e ,ant to see it and, later seeing the ,orld of reality, lash
at the -upreme Court for betraying our illusions.4
%n succeeding pleadings, petitioner Diokno pressed his motion to ,ithdra, ,ith even greater vigor.
Counsel for petitioner stated that the soCcalled charge K 4unfair to the Court and its members, untrue,
and contemptuous4 K ,as never made at all and that the -olicitor 3eneral ,as putting up a
stra,man and proceeding to demolish it.
%n a fortyCsi8 ;J2< page !eply, he pointed out that the factual bases for deciding to ,ithdra, the case
have not been specifically denied, as indeed they are undeniable. %t should be noted, ho,ever, that
the cited factual bases go into the very merits of the petition for the ,rit of *a#eas corpus7
;&< 0n the #uestion of the validity of ratification, si8 ;2< members of the Court held that the proposed
Constitution ,as not validly ratified.
;*< 0n the #uestion of ac#uiescence by the 1ilipino people, only a minority of four ;J< justices held there
,as ac#uiescence, t,o ;*< holding that there ,as no ac#uiescence, and four ;J< holding they had no
means of kno,ing to the point of judicial certainty, ,hether the people have accepted the Constitution.
;A< he Court did not rule that the 4ne, Constitution4 ,as in effect.
;J< he ratification cases ,ere nevertheless dismissed.
he petitioner added 4undeniable facts47
;&< he petition for *a#eas corpus ,as filed -eptember *A, &('* ,hile the ratification cases ,ere riled
.anuary *9 and *A, &('A.
;*< 1rom the filing of the petition to the date Petitioner Diokno asked his counsel to ,ithdra, the case,
J29 days had elapsed.
;A< 0n the date the reply ,as filed, BA& days had elapsed ,ithout charges being filed or trial and
conviction for any offense being held.
;J< All the members of the old Court, ,ho had taken an oath to 4preserve and defend4 the &(AB
Constitution, took an oath on 0ctober *(, &('A to defend the 4ne, Constitution4.
%n disputing the -olicitor 3eneral$s charge that the -upreme Court is treated ,ith scorn in the Motion
to Eithdra,, the petitioner stated that the tone of the motion may be one of dismay or frustration but
certainly not of scorn. he petitioner called the charge gratuitous and totally bare of foundation.
he petitioner also pointed out that there could be no contempt of court in the motion to ,ithdra,
because the factual bases of his letter are indisputable and the motion comes under the protection of
the constitutional right to a fair hearing. >e invoked his right to free e8pression as a litigant and
stressed that a citi"en of the !epublic may e8press himself thoughtfully, sincerely and reputably
,ithout fear of reprisal. he petitioner also pointed out that both principle and precedent justify grant
of the motion to ,ithdra,.
;b< ' ori+inal stan!= 'otion s*oul! #e !enie!=
>easons=
' present stan!7 %n vie, of the release of Diokno before this opinion could be promulgated, % no,
vote to grant his motion to ,ithdra, his petition the same having become moot and academic.
But, % ,ould like to discuss the merits of the motion if only to establish guidelines for similar cases that
may arise in the future.
As a general rule, the right of the plaintiff to dismiss his action ,ith the consent of the Court is
universally recogni"ed. %f the plaintiff believes that the action he has commenced in order to enforce a
right or to rectify a ,rong is no longer necessary or he later discovers that the right no longer e8ists,
he should be allo,ed to ,ithdra, his case. %f in the course of litigation, he finds out that the course of
the action shall be different from that he had intended, the general rule is that he should be permitted
to ,ithdra, the same, subject to the approval of the Court.
he plaintiff should not be re#uired to continue the action ,hen it is not to his advantage to do so.
+itigation should be discouraged and not encouraged. Courts should not allo, parties to litigate ,hen
they no longer desire to litigate.
%t should be noted, ho,ever, that the !ules of Court do not allo, automatic approval of the plaintiff$s
motion to dismiss after service of the ans,er or of a motion for summary judgment. =nder !ule &', >>
once the issues are joined, an action can be dismissed upon the plaintiffs instance only upon order of
the Court and upon such terms and conditions as the Court deems proper.
he re#uirement in the !ules that dismissal is discretionary upon the Court is not ,ithout significance.
%n fact, the petitioner does not deny the authority of the Court to reject his motion as long as there are
reasons for such rejection. >e is simply arguing that there is no valid reason to deny the motion thus
implying that a denial ,ould, in effect, be an abuse in the e8ercise of a discretionary po,er.
%n the Court$s deliberations, the vie, ,as advanced that petitioner$s motion for ,ithdra,al made his
confinement voluntary. % disagreed, for said motion, in the light of the other pleadings and memoranda
submitted by him, can still be considered as a protest against his confinement. %n other ,ords,
petitioner has not made any statement upon ,hich ,e can base a conclusion that he is agreeing
voluntarily to his continued confinement and thereby making his case moot and academic.
% submit there can be no debate over the principle that the right to ,ithdra, a petition at this stage is
not an absolute right. Ehat faces this Court is not its po,er to grant or deny the motion but ,hether
there are sound reasons ,hy the motion to ,ithdra, should be denied. %f there are no sound reasons,
the motion should be granted.
According to the petitioner, there are only t,o instances ,hen a Court may validly deny such a
,ithdra,al K
;&< Ehen the ,ithdra,al ,ould irreparably injure other parties to the case such as, for e8ample, in
class suits, in probate proceeding or in ordinary civil actions ,hen the adverse party has pleaded a
counterclaim that cannot be decided ,ithout first deciding the main case: and
;*< Ehen the ,ithdra,al ,ould irreparably injure the public interest by depriving the Court of the
opportunity to prevent or to correct a serious violation of the Constitution or of the la,s.
% am not prepared to accept the proposition or to render an abstract opinion that there are indeed only
t,o such e8ceptions. he infinite number of factual situations that can come before this Court could
conceivably add one or t,o or even more e8ceptions. %t ,ould be imprudent or precipitate to make
such a categorical assertion. Ehere it not for the release of Diokno, % ,ould have on my firm belief
that the importance of this case and the issues raised by the petitioner call for denial of the motion to
,ithdra,. he points ably raised by -olicitor 3eneral /stelito P. Mendo"a and Assistant -olicitor
3eneral 6icente 6. Mendo"a, ,ho have sho,n remarkably splendid performance in shouldering
almost entirely the government$s defense against some of the country$s most distinguished la,yers,
notably former -enator +oren"o M. aLada and a battery of other la,yers ,hose names are a
veritable list of 4Eho is Eho4 in the legal profession, can be condensed into only one argument K the
petitioners have brought before this Court a case of such transcendental importance that it becomes
a duty to our legal institutions, to our people, and to posterity to decide it. Ee must not leave the
resolution of such grave issues to a future day.
1urthermore, among the present *a#eas corpus cases no, before this Court, the best forum for 0ur
decision ,ould have been the Diokno case for, before his release, he ,as the only petitioner ,ho ,as
actually detained but ,ithout charges, ,hile there are already charges filed against A#uino, and ,ith
respect to the others ,hose cases are still pending before =s, they are only under detention ,ithin
the 3reater Manila area or are under community arrest.
he petitioner seeks to distinguish his case from Griven-o vs. >e+ister o, .ee!s, '( Phil. J2&. %n that
case, this Court ruled K
According to !ule B*, section J, of the !ules of Court, it is discretionary upon this Court to grant a
,ithdra,al of appeal after the briefs have been presented. At the time the motion for ,ithdra,al ,as filed
in this case, not only had the briefs been presented, but the case had already been voted and the majority
decision ,as being prepared. he motion for ,ithdra,al stated no reason ,hatsoever, and the -olicitor
3eneral ,as agreeable to it. Ehile the motion ,as pending in this Court, came the ne, circular of the
Department of .ustice, instructing all register of deeds to accept for registration all transfers of residential
lots to aliens. he herein respondentCappellee ,as naturally one of the registers of deeds to obey the ne,
circular, as against his o,n stand in this case ,hich had been maintained by the trial court and firmly
defended in this Court by the -olicitor 3eneral. %f ,e grant the ,ithdra,al, the result ,ould be that
petitionerCappellant Ale8ander A. Nrivenko ,ins his case, not by a decision of this Court, but by the
decision or circular of the Department of .ustice, issued ,hile this case ,as pending before this Court.
Ehether or not this is the reason ,hy appellant seeks the ,ithdra,al of his appeal ,hy the -olicitor
3eneral readily agrees to that ,ithdra,al, is no, immaterial. Ehat is material and indeed very important,
is ,hether or not ,e should allo, interference ,ith the regular and complete e8ercise by this Court of its
constitutional functions, and ,hether or not after having held long deliberations and after having reached
a clear and positive conviction as to ,hat the constitutional mandate is, ,e may still allo, our conviction
to be silenced, and the constitutional mandate to be ignored or misconceived, ,ith all the harmful
conse#uences that might be brought upon the national patrimony. 1or it is but natural that the ne,
circular be taken full advantage of by many, ,ith the circumstance that perhaps the constitutional
#uestion may never come up again before this court, because both vendors and the vendees ,ill have no
interest but to uphold the validity of their transactions, and very unlikely ,ill the register of deeds venture
to disobey the orders of their superior. hus the possibility for this court to voice its conviction in a future
case may be remote, ,ith the result that our indifference of today might signify a permanent offense to the
Constitution. ;pp. J22CJ2'<
here are indeed certain differences bet,een the facts of the Griven-o case and the facts of the
current petitions. %f the factual situations ,ere completely similar, former -enator +oren"o M. aLada
,ould have been the last person to insist on the Diokno motion for ,ithdra,al. >e ,as the -olicitor
3eneral in &(J'. >e is completely familiar ,ith the ramifications of the Griven-o case.
% cannot, ho,ever, agree ,ith counsel aLada that the deviations from the Griven-o facts call for a
different ruling in the instant petitions. he -upreme Court has grappled at length and in depth ,ith
the validity of the proclamation of martial la,. %t has closely e8amined the resultant curtailments of me
liberties as the right to a ,rit of *a#eas corpus or to freedom of e8pression. Ehen it is on the verge of
issuing a decision, it is suddenly asked to drop the case and the issues raised simply because the
petitioner is no longer interested in the decision. o my mind, a granting of the motion ,ould be
recreancy and unfaithfulness to the Courts s,orn duties and obligations.
As in the Griven-o case, the reasons for the ,ithdra,al are no longer significant. %t is the nonC
silencing of this Court on issues of utmost public importance ,hich really matters. %t is true that
petitioner Diokno is alone in seeking ,ithdra,al at this stage of the case. he fact that a decision
could possibly still be rendered on remaining cases is, ho,ever, no justification to grant the motion.
he issue is ,hether one or t,o or all of the petitioners may ask for a ,ithdra,al of his or their
petitions and hope to bring about a nonCdecision on the issues because of the rendering moot and
academic of the case. My ans,er is categorically in the negative. %n fact, even it the case is mooted
at this stage by the release of the petitioners, % ,ould still vote for a decision on the #uestions raised.
T*is (a #e a si(ple (otion ,or )it*!ra)al. Yet, I see no !i,,erence in t*e nee! to ans)er vital
;uestions t*at *ave #een presente!. T*e pu#lic interest t*at is a,,ecte! is e;uall pressin+ an!
serious i, t*e petitions are co(pare! to instances in t*e past )*en t*e Court insiste! on ren!erin+ a
!ecision. In ,act, t*ere is an even stron+er nee! to interpret t*e (eanin+ o, t*e constitutional
provision in spite o, ur+in+s t*at it s*oul! re,rain ,ro( !oin+ so.
As early as &(A', this Court, speaking through .ustice +aurel in People o, t*e P*ilippine Islan!s v.
@era ;2B Phil, B2, (J< emphatically stated that ,hen the country a,aits a decision on an important
constitutional #uestion, a rela8ation of general rules is called for. A decision must issue.
... All a,ait the decision of this Court on the constitutional #uestion. Considering, therefore, the
importance ,hich the instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that the constitutionality of Act ?o. J**& be no, resolved. ... %n Yu Con+ En+ vs.
Trini!a!, supra, an analogous situation confronted us. Ee said7 4%nasmuch as the property and personal
rights of nearly t,elve thousand merchants are affected by these proceedings and inasmuch as Act ?o.
*('* is a ne, la, not yet interpreted by the courts, in the interest of the public ,elfare and for the
advancement of public policy, ,e have determined to overrule the defense of ,ant of jurisdiction in order
that ,e may decide the main issue. Ee have here an e8traordinary situation ,hich calls for a rela8ation of
the general rule.4 0ur ruling on this point ,as sustained by the -upreme Court of the =nited -tates. A
more binding authority in support of the vie, ,e have taken can not be found.
%n the case of 3velino vs. Cuenco ;(A Phil. &'<, the -upreme Court had very sound reasons to
resolve on March J, &(J( not to decide ,hether or not -enator Cuenco had validly been elected
-enate President. he Court ruled that the subject matter of the ;uo )arranto proceeding to declare
the petitioner the rightful President of the Philippine -enate and to oust the respondent ,as not a
matter for the -upreme Court in vie, of the separation of po,ers doctrine, the political nature of the
controversy, and the constitutional grant to the -enate of the po,er to elect its o,n President. he
po,er to elect its President should not be interfered ,ith nor taken over by the judiciary.
0n March &J, &(J( or only ten ;&9< days later, the Court, by a majority of seven, decided to resolve
the #uestions presented to it. he Court could very ,ell have insisted on its earlier stand that it should
render no decision. /lection of the -enate President ,as still a matter ,hich only the -enate should
decide. And yet, in the light of subse#uent events ,hich justified its intervention, partly for the reasons
stated in the March J, &(J( resolution of the Court, and partly because of the grounds stated in the
various individual opinions, the Court ,as constrained to declare positively that there ,as a #uorum
in the session ,here Cuenco ,as elected Acting -enate President. he Court decided to reverse a
categorical position taken only ten ;&9< days earlier. %t is clear from the circumstances of the case that
the Court ,as impelled by strong policy considerations to make a definite pronouncement in the case
in order to conform to substantial justice and comply ,ith the re#uirements of public interest. As
pointed out by .ustice Perfecto in his concurring opinion, 4his case raises vital constitutional
#uestions ,hich no one can settle or decide if this Court should refuse to decide them.4
%n Gonzales vs. Co((ission on Elections, ;*' -C!A )BA<, the ,ords of .ustice +aurel ,ere recalled
in order to overcome objections to an e8tended decision on a case ,hich had become moot and
academic.
%n the course of the deliberations, a serious procedural objection ,as raised by five members of the Court
;Chief .ustice Concepcion and .ustices !eyes, Makalintal, eehankee and Barredo.< %t is their vie, that
respondent Commission on /lections not being sought to be restrained from performing any specific act,
this suit cannot be characteri"ed as other than a mere re#uest for an advisory opinion. -uch a vie,, from
the remedial la, standpoint, has much to recommend it. ?onetheless, a majority ,ould affirm the original
stand that under the circumstances, it could still rightfully be treated as a petition for prohibition.
he language of .ustice +aurel fits the case7 $All a,ait the decision of this Court on the constitutional
#uestion. Considering, therefore, the importance ,hich the instant mm has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that GitsH constitutionality ... be no, resolved.$
;2B Phil. B2, (J ;&(A'< C,. Yu Con+ En+ v. Trini!a!, J' Phil. A)B ;&(*2<, *'& =- B99: '9 +a, ed., &9B(<.
%t may like,ise be added that the e8ceptional character of the situation that confronts us, the paramount
public interest, and the undeniable necessity for a ruling, the national elections being barely si8 months
a,ay, reinforce our stand.
%t ,ould appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to
prevent the enforcement of an alleged unconstitutional statute. Ee are left ,ith no choice then: ,e must
act on the matter.
%n .e la Ca(ara v. Ena+e ;J& -C!A &<, this Court ,as similarly impelled to make a decision because
of strong policy considerations. A petition to reduce the P&,&(B,*99.99 bail imposed by the trial court
had become moot and academic. he petitioner had escaped from the provincial jail. he Court could
no longer grant any relief. %t, ho,ever, decided the case 4to set forth ane, the controlling and
authoritative doctrines that should be observed in fi8ing the amount of the bail sought in order that full
respect be accorded to such a constitutional right.4 ;at page J<. /ducation, especially of trial judges,
,as the reason for ans,ering the issues s#uarely.
% ,ould like to reiterate, ho,ever, that in vie, of the fact that petitioner Diokno has been released on
the occasion of President Marcos$ birthday ;-eptember &&<, % no, vote to grant the Diokno motion to
,ithdra, his petition for a ,rit of *a#eas corpus, the same having become moot and academic.
6%%
COE>TS .ETY TO .ECI.E 300
I'PO>T3NT ISSEES H ON TCE PETITIONS
OF TCE PETITIONE>S
But as already stated under the topic %6 ;b< 4Present -tatus of the Petitioners4, many of them, notably
A#uino and !odrigo, still insist on a decision. his ,e must no, do, for the resolution of the
controversy in favor of the petitioners or for the respondents is not the compelling consideration. Ehat
is important and essential is that the Court declare in a manner that cannot be misunderstood ,hat
the Constitution commands and ,hat the Constitution re#uires.
%t is true that the Court should not formulate a rule of constitutional la, broader than is re#uired by the
precise facts to ,hich it is applied. %t is true that a decision on a #uestion of a constitutional nature
should only be as broad and detailed as is necessary to decide it.
here are, therefore, those ,ho ,ould limit a decision solely on the ransitory Provisions of the &('A
Constitution. he e8ercise of martial la, po,ers under Article 6%%, -ection &9, paragraph * of the
former Constitution or Article 6%%, -ection &* of the &('A Constitution have been subjected to
intensive, searching, and ,ellCpublished challenges.
1
%f Ee decide the case solely on the transitory
provision, uncertainty and confusion about martial la, ,ould remain. he provisions on martial la,
,ould still be une8plained and unresolved by this Court. %t is easy to see the patent undesirability of
such a situation.
%n these petitions, our people a,ait the decision of this Court on the constitutional #uestion.
Considering, therefore, the importance ,hich the instant petitions have assumed, Ee must set forth
the controlling and authoritative doctrines.
6%%
TCE TC>EE P>INCIP30 ISSEES
he -olicitor 3eneral stated the respondents$ position as a narro, one K ,hether the arrest and
detention of the petitioners ,ere legal.
%t is true that *a#eas corpus is intended for cases of illegal confinement or detention by ,hich a
person is deprived of his liberty ;-ection &, !ule &9*, !ules of Court<. %ts essential object is to in#uire
into all manner of involuntary restraint and to relieve a person therefrom, if such restraint is illegal
;6illavicencio vs. +ukban, A( Phil. ''): Culauag vs. Director of Prisons, &' -C!A J*(<. Ehile the
issue may be presented in seemingly narro, terms, its scope and implications are not that simple.
he respondents argue that this Court is precluded by the Constitution from in#uiring into the legality
of the detentions. hey argue that such an in#uiry is possible only ,here the privilege of the ,rit of
*a#eas corpus is available and inasmuch as the privilege of the ,rit has been suspended by the
President upon the proclamation of martial la,, it follo,s that Ee should inhibit 0urselves from
asking for the reasons ,hy the petitioners ,ere arrested and detained. %t is argued that the
Constitution has vested the determination of the necessity for and legality of detentions under martial
la, e8clusively in the Presidency K a coCe#ual department of government.
he principal issues, therefore, revolve around first, the validity of Proclamation ?o. &9)&. -econd,
assuming its original validity, may Ee in#uire into the validity of its continuationI And third, has the
privilege of the ,rit of *a#eas corpus also been suspended upon the proclamation of martial la,I he
e8tent of 0ur in#uiry into the legality of the detentions and their effects is dependent on the ans,ers
to the foregoing issues.
%D
P>OC03'3TION NO. $F&$9 3 .E@I3TION
F>O' TCE T>3.ITION30 CONCEPT OF
'3>TI30 03K9 3>GE'ENTS ON ITS
@30I.ITY
%n Proclamation ?o. &9)&, date -eptember *&, &('*, President 1erdinand /. Marcos placed the
entire Philippines as defined in Article &, -ection & of the Constitution under martial la, by virtue of
the po,er vested in the President of the !epublic of the Philippines by Article 6%%, -ection &9, par. ;*<
of the Constitution ,hich reads K
he President shall be the commanderCinCchief of all armed forces of the Philippines and, ,henever it
becomes necessary, be may call out such armed forces to prevent or suppress la,less violence,
invasion, insurrection, or rebellion. %n case of invasion, insurrection, rebellion or imminent danger thereof,
,hen the public safety re#uires it, he may suspend the privileges of the ,rit of *a#eas corpus, or place
the Philippines or any part thereof under martial la,.
;a< K*at is (artial la)2
As the -olicitor 3eneral pointed out ,hen asked to submit definitions of martial la,, there are as
many definitions as there are court rulings and ,riters on the subject. he response of the petitioners
gives the same impression.
As good !e,initions as any that may have been (a!e in t*e past are the follo,ing7
3enerally speaking, martial la, or, more properly, martial rule, is the temporary government and control
by military force and authority of territory in ,hich, by reason of the e8istence of ,ar or public commotion,
the civil government is inade#uate to the preservation of order and the enforcement of la,. %n strictness it
is not la, at all, but rather a cessation of all municipal la,, as an incident of the jus belli and because of
paramount necessity, and depends, for its e8istence, operation and e8tent, on the imminence of public
peril and the obligation to provide for the general safety. %t is essentially a la, or rule of force, a purely
military measure, and in the final analysis is merely the ,ill of the officer commanding the military forces.
As the offCspring of necessity, it transcends and displaces the ordinary la,s of the land, and it applies
alike to military and nonCmilitary persons, and is e8ercisable alike over friends and enemies, citi"ens and
aliens. ;C...-., 6ol. (A, pp. &&BC&&2, citing cases<.
Martial la, is the e8ercise of the po,er ,hich resides in the e8ecutive branch of the government to
preserve order and insure the public safety in times of emergency ,hen other branches of the
government are unable to function, or their functioning ,ould itself threaten the public safety4. ;+uther vs.
Borden, ' >os. ;=-< &, JB, &* + ed B)&, 299<. 4%t is a la, of necessity to be prescribed and administered
by the e8ecutive po,er. %ts object, the preservation of the public safety and good order, defines its scope,
,hich ,ill vary ,ith the circumstances and necessities of the case. he e8ercise of the po,er may not
e8tend beyond ,hat is re#uired by the e8igency ,hich calls it forth.4 ;Mitchell vs. >armony, &A >o, ;=-<
&&B, &AA, &J + ed 'B, )A: =nited -tates vs. !ussell, &A Eall. ;=-< 2*A, 2*), *9 + ed J'J, J'B: !aymond
vs. homas, (& =- '&*, '&2, *A + ed JAJ, JAB: -terling vs. Constantin, &(9.< ;Concurring opinion,
Duncan vs. Nahanamoku A*' =.-. AAJ, AAB, (9 + ed '92 ;&(JBC&(J2<<.
%t has been held, therefore, that martial la, is a 4la, of actual military necessity in actual presence of ,ar,
and is administered by the general of the army, ,hose ,ill it is, subject to slight limitations.4 ;Constantino
vs. -mith, D.C. e8t, B' 1. *d *A(<. =nder this same ruling, martial la, is strictly no la, at all. %t is a
cessation of all municipal la,.
%n another decision, it has been held that K
All respectable ,riters and publicists agree in the definition of martial la, K that it is neither more nor less
than the ,ill of the general ,ho commands the army. %t overrides and suppresses all e8isting la,s, civil
officers and civil authorities, by the arbitrary e8ercise of militar po,er and every citi"en or subject, in other
,ords, the entire population of the country, ,ithin the confines of its po,er, is subjected to the mere ,ill or
caprice of the commander. >e holds the lives, liberty and property of all in the palm of his hands. Martial
la, is regulated by no kno,n or established system or code of la,s, as it is over and above all of them.
he commander is the legislator, judge and e8ecutioner. ;%n re7 /gan ) 1ed. Cas. p. A2'<.
0ther definitions may be cited7
Martial la, ... is not statutory in character and al,ays arises out of strict military necessity. %ts
proclamation or establishment is not e8pressly authori"ed any of the provisions of the Constitution: it
comes into being only in the territory of an enemy or in a part of the territory of the =nited -tates in time of
,ar or in time of peace in ,hich the proper civil authority is, for some controlling reason, unable to
e8ercise its proper function. ;Charles Earren, 4-pies, and the Po,er of Congress to -ubject Certain
Classes of Civilian to rial by Military ribunal4, he American +a, !evie, +%%% ;MarchCApril, &(&(<, *9&C
*(*<.
he term martial la, refers to the e8ceptional measures adopted ,hether by the military or the civil
authorities, in times of ,ar of domestic disturbance, for the preservation of order and the maintenance of
the public authority. o the operation of martial la, all the inhabitants of the country or of the disturbed
district, aliens as ,ell as citi"ens, are subject. ;Moore, %nt. +a, Digest %%, &)2. As to the subjection of
aliens to Martial +a,, -ee Moore, %%, &(2<.
and its civil authorities, state or federal as the case may be, have been rendered inoperative or po,erless
by the insurrectionary or invading forces. %t is part of our domestic or municipal la,. ;Arnold 1., 4he
!ationale of Martial +a,4, &B ABA. BB&<.
A Philippine author has tried to reconcile the many definitions.
Ehatever the previous obscurity ,hich has enveloped martial la, in both the British /mpire and the
=nited -tates, it is settled today that martial la, is ;&< the e8ercise of military jurisdiction: ;*< by the
military over the civilian population: ;A< in a domestic territory: ;J< on occasion of serious public
emergencies such as insurrection, rebellion, invasion or imminent danger thereof: ;B< according to an
un,ritten la,: and ;2< as necessity re#uires. ;-antos, Martial +a,, p. )&<.
he e8isting definitions are all based on the traditional concepts. hey ,ere made at a time ,hen
invasions ,ere preceded by J)Chour ultimatums follo,ed by a formal declaration of ,ar, and ,hen
insurrections and rebellions involved frontal clashes bet,een opposing and ,ellCdefined forces. %f one
group ,as overcome by the other, the losers ,ould surrender their s,ords and guns. he ,inners, in
turn, might magnanimously offer to return the s,ords and allo, the losers to retain their sidearms,
rifles, and horses for home use. %n short, there ,ere clear and sporting rules of the game ,hich ,ere
generally follo,s.
;b< 'o!ern 'artial 0a).
Martial la, pursuant to Proclamation ?o. &9)&, ho,ever, does not completely follo, the traditional
forms and features ,hich martial la, has assumed in the past. %t is modern in concept, in the light of
relevant ne, conditions, particularly present day rapid means of transportation, sophisticated means
of communications, unconventional ,eaponry, and such advanced concepts as subversion, fifth
columns, the un,itting use of innocent persons, and the ,eapons of ideological ,arfare.
he contingencies ,hich re#uire a state of martial la, are timeChonored. hey are invasion,
insurrection and rebellion. 0ur Constitution also allo,s a proclamation of martial la, in the face of
imminent danger from any of these three contingencies. he Constitution vests the po,er to declare
martial la, in the President under the &(AB Constitution or the Prime Minister under the &('A
Constitution. As to the form, e8tent, and appearance of martial la,, the Constitution and our
jurisprudence are silent.
Martial la, pursuant to Proclamation ?o. &9)& has, ho,ever, deviated from the traditional picture of
rigid military rule superCimposed as a result of actual and total or near total breakdo,n of government.
Martial la, ,as proclaimed before the normal administration of la, and order could break do,n.
Courts of justice ,ere still open and have remained open throughout the state of martial la,. he
nation,ide anarchy, overthro, of government, and convulsive disorders ,hich classical authors
mention as essential factors for the proclamation and continuation of martial la, ,ere not present.
More important, martial la, under Proclamation ?o. &9)& has not resulted in the rule of the military.
he ,ill of the generals ,ho command the armed forces has definitely not replaced the la,s of the
land. %t has not superseded civilian authority. %nstead of the rule by military officials, ,e have the rule
of the highest civilian and elective official of the land, assisted by civilian heads of e8ecutive
departments, civilian elective local officials and other civilian officials. Martial la, under Proclamation
?o. &9)& has made e8tensive use of military forces, not to take over Civilian authority but to insure
that civilian authority is effective throughout the country. his Court can very ,ell note that it has
summoned and continues to summon military officers to come before it, sometimes personally and at
other times through counsel. hese military commanders have been re#uired to justify their acts
according to our Constitution and the la,s of the land. hese military officers are a,are that it is not
their ,ill much less their caprice but the sovereign ,ill of the people under a rule of la,, ,hich
governs under martial la, pursuant to Proclamation ?o. &9)&.
It is t*is para!o6ical nature o, (artial la) in t*e P*ilippines t*at lea!s to t*e various ;uestions raise!
in t*e instant petitions. It is also t*is apparentl variant ,or( an! its occasionall !iver+ent scope an!
e,,ects )*ic* re;uire t*is Court to e6plain 5ust )*at t*e (artial la) provision o, t*e Constitution
(eans.
Ee must, perforce, e8amine the arguments of the parties on this matter.
;c< >espon!entsD 3r+u(ents
he respondents contend that ,hen martial la, ,as proclaimed on -eptember *&, &('*, the rebellion
and armed action undertaken by the la,less elements of the communist and other armed
aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and force had
assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines. his declaration is found in the last 4,hereas4 of Proclamation ?o. &9)&. he follo,ing
assertions of the factual situation on -eptember *&, &('* are also found in Proclamation ?o. &9)&.
&. here is a group of la,less elements ,ho are moved by a common or similar ideological
conviction, design, strategy, and goal. heir prime purpose is to stage, undertake, and ,age an
armed insurrection and rebellion against the government of the !epublic of the Philippines in order to
forcibly sei"e political and state po,er in this country. hey have in fact actually staged, undertaken,
and ,aged this insurrection and rebellion. hey ,ant to overthro, the duly constituted government
and supplant our e8isting political, social, economic, and legal order ,ith an entirely ne, one. his
ne, form of government, its system of la,s, its conception of 3od and religion, its notion of individual
rights and family relations, and its political, social, economic, legal and moral precepts are based on
the Mar8ist, +eninist, Maoist teachings and beliefs.
*. hese la,less elements have entered into a conspiracy and have joined and banded their
resources and forces. hey use seemingly innocent and harmless although actually destructive front
organi"ation. hese organi"ations have been infiltrated or deliberately formed by them through
sustained and careful recruitment among the peasantry, laborers, professionals, intellectuals,
students, and mass media personnel. heir membership has been strengthened and broadened.
heir control and influence has spread over almost every segment and level of our society throughout
the land.
A. he foregoing group of la,less elements enjoy the active, moral, and material support of a foreign
po,er. %n the months of May, .une and .uly, &('*, they brought into the country at Digoyo Point,
Palanan, %sabela and other points along the Pacific coast of +u"on, substantial #uantities of ,ar
materials consisting of around A,B99 MC&J rifles, several do"ens of J9 mm rocket launchers, large
#uantities of )9 mm rockets and ammunitions and other combat paraphernalia.
J. he la,less elements have an overCall revolutionary plan. hey have distributed their regional
program of action for &('* to their various field commanders and party ,orkers. he implementation
of the program of action from the intensification of recruitment to the assassination of high
government officials and the establishment of a provisional revolutionary government in various to,ns
and cities has actually commenced. 6arious incidents of bombings, strikes, robberies, sabotage, and
demonstrations are actually in implementation of the program of action. +i#uidation missions aimed at
ranking government officials ,ere about to be implemented by the fielding of soCcalled -parro, =nits.
B. here is an e#ually serious disorder in Mindanao and -ulu resulting in actual ,ar among
Christians, Muslims, %lagas, Barracudas, the Mindanao %ndependence Movement and government
troops. 6iolent disorder in Mindanao and -ulu resulted in over A,999 casualties and more than
B99,999 injured, displaced and homeless persons. he economy of Mindanao and -ulu is paraly"ed.
2. here is throughout the land a state of anarchy, la,less chaos, disorder, turmoil and destruction of
a magnitude e#uivalent to an actual ,ar bet,een government forces on the one hand and the ?e,
People$s Army and the satellite organi"ations on the other.
'. he -upreme Court in the &('& *a#eas corpus cases has found that in truth and in fact there
e8ists an actual insurrection and rebellion in the country. Portions of the -upreme Court decision are
cited. %t ,as concluded by the -upreme Court that the unla,ful activities of the aforesaid elements
pose a clear, present, and grave danger to public safety and the security of the nation is also cited.
;d< PetitionersD 3r+u(ents=
0n the other hand, the petitioners state that in the Philippines 4there has been no disruption at all: all
government offices ,ere performing their usual functions: all courts ,ere open and in the
unobstructed e8ercise of their jurisdiction at the time martial la, ,as declared.4 he petitioners state
that ,e have no Civil Ear in the Philippines and that no province, no city, no to,n throughout the
Philippines has seceded from the !epublic. hey state that there is no status of belligerency. here is
no armed struggle carried on bet,een t,o political bodies, each of ,hich e8ercises de facto
sovereignty over persons ,ithin a determinate territory, and commands an army ,hich is prepared to
observe the ordinary la,s of ,ar.
0n rebellion, the petitioners point out that the rebels have not established an organi"ed civil
government nor occupied a substantial portion of the national territory and, in fact, are described as
mere 4la,less elements.4
he petitioners state that 4the thrust of martial la, cases is this K that for the re#uirement of public
safety to be satisfied, civil authority must have either fallen a,ay or proved inade#uate for the
emergency, the courts are actually closed, and it is impossible to administer criminal justice according
to la,, and that ,here rebellion really e8ists, there is a necessity to furnish a substitute for the civil
authority, thus overthro,n, and as no po,er is left but the military, it is allo,ed to govern until the
la,s can have their free course. 1or martial rule can never e8ist ,here the courts are open and in the
unobstructed e8ercise of their jurisdiction.4 he petitioners cite Arnold, in his article, 4he !ationale of
Martial +a,4 ;&B ABA. BB&<.
and its civil authorities ... >A6/ B//? !/?D/!/D %?0P/!A%6/ 0! P0E/!+/-- by the
insurrectionary or invading forces.
After citing the foregoing, petitioners asked this Court to take judicial notice of the follo,ing7
&. Congress ,as in session and ,as in the unobstructed e8ercise of its functions ,hen martial ,as
proclaimed:
*. he -upreme Court, the Court of Appeals, the Courts of 1irst %nstance in the 3reater Manila Area
K ,here petitioners had been arrested K indeed, even the municipal and city courts ,ere, at the
time martial la, ,as publicly announced, open and are still open and functioning throughout the
length and breadth of the land: no proof has been sho,n that any court has been rendered 4unable to
administer justice,4 due to the activities of the rebels. %ronically, it is 3eneral 0rder ?o. A, as amended
by, 3eneral 0rder ?o. ACA, issued pursuant to Proclamation ?o. &9)&, that seeks to render them
po,erless, in many cases, to administer justice, according to the Constitution and the la,s of the
land:
A. he Constitutional Convention the soCcalled 4fourth branch4 K had been holding its sessions ,hen
martial la, ,as proclaimed. Despite martial la,, or probably because of it, it decided to ,ork ,ith
greater efficiency, it has just finished its ,ork. A 4plebiscite4 under martial la, is being called on
.anuary &B, &('A, so the people can 4ratify4 the proposed Constitution:
J. %n the 3reater Manila Area, contrary to the speech of -eptember *A, &('*, no university, college,
or school ,as closed due to the activities of the rebels:
B. All instruments of mass communications ,ere in operation up to -eptember **, &('*. he ne8t
day, free speech and free press K the very heart of free in#uiry and the search for truth K became
nothing but empty memories. 0nly the 4safe ne,spapers and radioCtv stations4 ,ere allo,ed to open.
Political dissent ,as suppressed:
2. All agencies and instrumentalities of government, national as ,ell as local, ,ere functioning ,hen
martial la, ,as proclaimed. By 3eneral 0rder ?o. A, they ,ere ordered 4to continue to function under
their present officers and employees and in accordance ,ith e8isting la,s ...4
he petitioners state ,hy Proclamation ?o. &9)& is unconstitutional7
hese indisputable facts ,hich re#uire no introduction of proof because they all fall ,ithin the scope
of judicial notice, under !ule &*( of the !ules of Court K sho, that at the time martial la, ,as
declared there ,as absolutely no justification for it, in fact and in la,. >ence, Proclamation ?o. &9)&
is unconstitutional and void, because7
&. %t is predicated on the e8istence of 4the magnitude of an actual ,ar4 or an 4actual status of ,ar4
that does not e8ist:
*. %t is allegedly based on the 4status of belligerency4 ,hich no -tate in the ,orld, not even the
Philippines, has e8tended to the rebels or the la,less elements described in the Proclamation:
A. Although there may be rebellion in some remote places, as in %sabela, there is no justification for
the declaration of martial la, throughout the Philippines, since
a< no large scale, nation,ide rebellion or insurrection e8ists in the Philippines:
b< public safety does not re#uire it, inasmuch as no department of government, no government
agency or instrumentality, and even more important, no civil court of appellate or original jurisdiction
,as, at the time martial la, ,as proclaimed, unable to open or function, or has been, at any time
since the incumbent President came into po,er 4rendered po,erless or inoperative4 due to the
activities of the rebels or the la,less elements described in the Proclamation:
c< he President himself declared that the armed forces can handle the situation ,ithout 4utili"ing the
e8traordinary po,ers of the President4 ;.anuary &, &('*<, that long before martial la, ,as
proclaimed, the 3overnment had the said rebellion4 and the 4rebels and their supporters4 under
control, as the Army kne, the stepCbyCstep plot of the Communists and had an hourCbyChour
monitoring of the movements of the subversive leaders.
d< he problem in the 3reater Manila Area K ,here petitioners ,ere sei"ed and arrested K ,as, at
the time martial la, ,as proclaimed, plain la,lessness and criminality.
As the President described the situation in his speech of -eptember *A, &('*7
+a,lessness and criminality like kidnapping, smuggling, e8tortion, blackmail, gunCrunning, hoarding
and manipulation of prices, corruption in government, ta8 evasion perpetrated by syndicated
criminals, have increasingly escalated ...
he petitioners pointed out that neither any of these or a combination of all, constitute either the
occasion or the justification for the imposition of martial rule. 0ther,ise, since these crimes have
al,ays been ,ith us for many years, ,e ,ould never see the end of martial la, in this country.
%t is argued that since Proclamation ?o. &9)& is unconstitutional and void, the 3eneral 0rders, issued
in pursuance thereto and by ,ay of its implementation, must inevitably suffer from the same
congenital infirmity.
;e< 3ut*orities cite! # t*e Parties H
Petitioners and respondents alike premise their arguments on the martial la, provision of the
Constitution. Both cite decisions of foreign courts and treatises of foreign ,riters e8pounding on
martial la,. And yet, completely divergent opinions on the meaning of the provision is the result.
Martial la, is based on a la, of necessity and is utili"ed as a measure of governmental selfCdefense.
%t is, therefore, an inherent po,er. %t needs no constitutional or statutory grant before it may be
,ielded. As the petitioners state ;Addendum, pages )9C)&<, it is a recogni"ed institution in the
constitutional systems of both /ngland and America, not,ithstanding lack of e8press provisions on
martial la, in ,ritten constitutions.
Ee accept judicial decisions of these countries as highly persuasive, if not as precedents. he
absence of e8press recognition in the constitutions or statute of these countries helps e8plain ,hy
there is disagreement on a precise definition. More important, it e8plains ,hy the necessity, scope,
and e8tent of martial la, proclamations have to be determined by the regular courts and ,hy the
decisions are, themselves, conflicting. he Constitutions and statutes are silent or different from each
other. he Courts have been forced to go to the common la, and to general principles of
Constitutional +a, to look for bases of po,er and to resolve problems arising out of states of martial
la,. he various authorities cited by both petitioners and respondents in their pleadings and oral
arguments undoubtedly have valuable ,orth and applicability. hey are very helpful in resolving the
momentous issues raised by the petitions. he fact remains, ho,ever, that they deal ,ith an e8ercise
of po,er ,hich is undefined. 1or the =nited -tates -upreme Court, the po,er is not specifically
prescribed in the federal Constitution. his has led foreign courts to naturally and logically look for the
confining limits and restrictions of ambiguous, cryptic, and perple8ing boundaries. -ince the po,er is
not defined, the natural tendency is not to describe it but to look for its limits. AngloCAmerican
authorities may assist but should not control because, here, the limits are present and determined by
no less than the fundamental la,.
%n the Philippines, there is an ubi#uitous and mandatory guide. he Constitution speaks in clear and
positive terms. 3iven certain conditions, the Philippines or any part thereof may be placed under
martial la,. o resolve the instant petitions, it is necessary to find out ,hat the Constitution
commands and ,hat the e8press ,ords of its positive provision mean. %t is the Constitution that
should speak on the circumstances and #ualifications of the initiation and use of an a,esome
emergency po,er.
;b< 'ore ar+u(ents o, t*e >espon!ents7
According to the respondents, the Constitution plainly provides that the circumstances ,hen martial
la, may be declared, its scope and its effects are beyond judicial e8amination. he respondents
contend that this Court lacks jurisdiction to take cogni"ance of the instant petitions for *a#eas corpus.
he -olicitor 3eneral has consistently pleaded throughout these proceedings that the #uestions
involved are political and nonCjusticiable. >e states that the President, s,orn to defend the
Constitution and the !epublic, proclaimed martial la, pursuant to authority e8pressly conferred by the
Constitution. %t is argued that his decision is beyond controversion because the Constitution has
made it so and that only history and the 1ilipino people may pass judgment on ,hether the President
has correctly acted in a time of supreme crisis.
;a< 'ore ar+u(ents o, t*e petitioners=
Petitioners, on the other hand, contend that this ribunal is the ultimate interpreter of the Constitution.
As such, it has the po,er and duty to declare Proclamation ?o. &9)& unconstitutional and void
because the President has e8ceeded his po,ers. %t is argued that ,here basic individual rights are
involved, judicial in#uiry is not precluded. 0n the argument that martial la, is te8tually and e8clusively
committed to the President, the petitioners ans,er that under the same Constitution, the President
may not disable the Courts and oust them, particularly the -upreme Court, of their jurisdiction to hear
cases assigned to them by the Constitution and the la,s. Petitioners stress that the Court should act
no, or the time ,ill come ,hen it can no longer act, ho,ever, much it may ,ish to, for it shall have
completely lost then the moral force and authority it still possesses and the valid claim it may still
have of being independent, fearless, and just.
D
PO0ITIC30 ?EESTIONS 3N. COE>TS
JE>IS.ICTION O@E> TCE'
he respondents$ assertion that the #uestions raised in these petitions are political and nonCjusticiable
raises a point ,hich is easily misunderstood.
Ehat is a political #uestionI
%n 'a#ana+ vs. 0opez ;') Phil. &, J<, this Court recogni"ed the problems in trying to make a
definition7
%t is a doctrine too ,ell established to need citation of authorities, that political #uestions are not ,ithin the
province of the judiciary, e8cept to the e8tent that po,er to deal ,ith such #uestions has been conferred
upon the courts by e8press constitutional or statutory provision. ;&2 C...-., JA&<. his doctrine is
predicated on the principle of the separation of po,ers, a principle also too ,ell kno,n to re#uire
elucidation or citation of authorities. he difficulty lies in determining ,hat matters tall ,ithin the meaning
of political #uestion. he term is not susceptible of e8act definition, and precedents and authorities are not
al,ays in full harmony as to the scope of the restrictions, on this ground, on the courts to meddle ,ith the
actions of the political departments of the government.
% think it is time for this Court to distinguish bet,een jurisdiction over a case and jurisdiction over the
issue raised in that case. %t is erroneous to state that ,hen a petition raises an issue ,hich is political
in nature, this Court is ,ithout jurisdiction over the case. It *as 5uris!iction.
he -upreme Court has jurisdiction to receive the petition and to find out ,hether the issues are
indeed political or not. A finding of political #uestion is the province of the Court in all cases. A mere
allegation of political #uestion does not automatically divest the Court of its jurisdiction. he Court
may, therefore, re#uire the parties to the case to prove or refute the e8istence of a political #uestion.
he Court has jurisdiction to receive the pleadings, to listen to the arguments and to make up its
mind.
0nce the Court, ho,ever, finds that the issue is political in nature, it should rule that it has no
jurisdiction to decide the issue one ,ay or another. %t still renders a decision. %t must still state that,
according to the Constitution, this matter is not for the judiciary but for the political departments to
decide. his is the task Ee must perform in these petitions. Ehen ,e decide ,hether or not the
issues are political in nature, Ee e8ercise jurisdiction. %f Ee find a political #uestion, Ee still have
jurisdiction over the case but not over the specific issue.
A lot of emotionalism is directed against the Court ,hen it rules that a #uestion is political. %t is alleged
that the Court has surrendered its po,ers. he political #uestion, it is said, 4applies to all those
#uestions of ,hich the Court, at a given time, ,ill be of the opinion that it is impolitic or ine8pedient to
take jurisdiction. -ometimes this idea of ine8pediency ,ill result from the fear of the vastness of the
conse#uences that a decision on the merits might entail. -ometimes, it ,ill result from the feeling that
the Court is incompetent to deal ,ith the type of #uestion involved. -ometimes, it ,ill be induced by
the feeling that the matter is too high for the Courts4 ;1inkelstein, 4.udicial -elf +imitation4, A) >arvard
+a, !evie, A*), AJJ< he political #uestion doctrine is, therefore, described as a doctrine of judicial
opportunism. +ike Pontius Pilate, the Court is accused of tossing the hot issue for others to
determine. %t is charged ,ith ,ashing its hands off a difficult or e8plosive situation. A political
#uestion, it is alleged, is nothing more than any #uestion ,hich the Court does not ,ant to decide. %t
is understandable ,hy courts should have a seemingly natural or spontaneous tendency to reject a
political #uestion argument. he charge that the Court is abdicating a function or running a,ay from
responsibility can strike to the very marro, of any judge$s feelings.
% do not share these misgivings. % positively reject them as ,rong impressions. his Court is
discharging a constitutional duty ,hen it determines that an issue is a political #uestion. Because of
its implications, ho,ever, this is a fact ,hich the Court must also e8plain in the simplest terms
possible.
he Constitution defines and limits the po,ers entrusted by the sovereign people to their government.
1irst, it declares the boundaries ,here the po,ers of government cannot go further because
individual rights ,ould be impaired. -econd, it divides the po,ers given to the entire government
among the various departments and constitutional bodies. %ts provisions are, therefore, both a grant
and a limitation of po,er.
%n other ,ords, the Constitution may be likened to a map. his map sho,s ho, the po,ers of
sovereignty have been distributed among the departments of government. %t sho,s ,here there is a
sharing of po,ers or ,here checks and balances may be found. %t also sho,s ,here there is a
dividing line bet,een government po,er and individual liberty. %n plainer language, the constitutional
map, like any other map, carries different boundaries. he boundaries are the delimitation$s of po,er.
he function of the Court is to fi8 those boundaries ,henever encroachments are alleged. %n doing
so, the Court interprets the constitutional map. %t declares that this po,er is e8ecutive, that po,er is
legislative, and that other po,er is judicial. %t may sometimes state that a certain po,er, like
impeachment, is judicial in nature. ?onetheless, the constitutional map has included impeachment
,ithin the boundaries of legislative functions. he Court has to declare that the judicial po,er of
impeachment is e8clusively for the legislature to e8ercise.
his task of allocating constitutional boundaries, % must repeat, is given to this Court. %t cannot be
divested of this jurisdiction. %t cannot yield this po,er.
>o,ever, ,hen the Court finds that a certain po,er is given by the Constitution to a coCe#ual
department, it must defer to the decision of that department even if it appears to be seemingly
judicial. %t should declare that the Constitution has vested this determination in the e8ecutive or the
legislature. he Court must, therefore, state that it cannot go any further. he sovereign people
through the Constitution have dra,n a boundary ,hich this Court has ascertained and ,hich it must
respect. Ehen the Court finds a political #uestion, it is not, therefore, shirking or avoiding a duty. %t is,
in fact, complying ,ith its duty. Much as it ,ants to go into the issues and decide the #uestions, it has
to decline. he Constitution has given the po,er of determination to another department. As
interpreter of the Constitution, the Court has to lead in respecting its boundaries.
%f ,e e8amine this Court$s definition of a political #uestion in TaAa!a vs. Cuenco ;3.!. ?o. +C&9B*9,
1ebruary *), &(B'<, Ee find that it conforms to the foregoing e8planation.
%n short, the term 4political #uestion4 connotes, in legal parlance, ,hat it means in ordinary parlance,
namely, a #uestion of policy. %n other ,ords, in the language of Corpus .uris -ecundum ;supra<, it refers
to 4those #uestions ,hich, un!er t*e Constitution, are to be !eci!e! # t*e people in their sovereign
capacity, or in regard to ,hich full discretionary authority has been delegated to the le+islature or
e6ecutive branch of the 3overnment.4 %t is concerned ,ith issues dependent upon the )is!o(, not
legality, of a particular measure. ;/mphasis supplied<
his is a determination of constitutional boundaries. he Court has found that the Constitution has
assigned a political #uestion to the people through a referendum or either one or both of the political
departments.
A more complete definition is found in "a-er vs. Carr ;A2( =.-. &)2, '+ /d. *d 22A, &(2*<, to ,it7
%t is apparent that several formulations ,hich vary slightly according to the settings in ,hich the #uestions
arise may describe a political #uestion, ,hich identifies it as essentially a function of the separation of
po,ers. Prominent on the surface of any case held to involve a political #uestion is found a te8tually
demonstrable constitutional commitment of the issue to a coordinate political department: or a lack of
judicially discoverable and manageable standards for resolving it: or the impossibility of deciding ,ithout
an initial policy determination of a kind clearly for nonCjudicial discretion: or the impossibility of a court$s
undertaking independent resolution ,ithout e8pressing lack of the respect due coordinate branches of
government or an unusual need for un#uestioning adherence to a political decision already made: or the
#uestion.
Again, the Court makes a determination that the Constitution has vested the making of a final
decision in a body other than the Court.
D%
P>OC03'3TION NO. $F&$ IS @30I. H
IT IS PO0ITIC30 IN N3TE>E 3N. TCE>EFO>E
NOT JESTICI3"0E
>o, does the Court determine ,hether a martial la, proclamation is a political #uestion or notI he
respondents argue that only the President is authori"ed to determine ,hen martial la, may be
proclaimed. he petitioners insist that this Court may e8amine and nullify the Presidential
determination as beyond his constitutional po,ers.
>as the Constitution vested the po,er e8clusively in the PresidentI Are the petitioners correct or is it
the claim of respondents ,hich is validI
he rule in constitutional construction is to give effect to the intent of the authors. he authors are,
first, the framers ,ho ,ere ordered by the sovereign people to represent them in the specific
assignment of drafting the fundamental la, and second, the people, themselves, ,ho by their
ratification confirm ,hat their delegates have ,rought and manifested as e8pressions of the
sovereign ,ill.
>o,, then, do ,e ascertain the intent of the authors on the grant of martial la, po,ersI
A search for intent must necessarily start ,ithin the four corners of the document itself.
... he #uestion is one then of constitutional construction. %t is ,ell to recall fundamentals. he primary
task is one of ascertaining and thereafter assuring the reali"ation of the purpose of the framers and of the
people in the adoption of the Constitution.
Ee look to the language of the document itself in our search for its meaning. Ee do not of course stop
there, but that is ,here ,e begin. ... ;ua"on M Co. vs. +and enure Administration, A& -C!A J&A, J**<
he Constitution is sufficiently e8plicit in locating the po,er to proclaim martial la,. %t is similarly
e8plicit in specifying the occasions for its e8ercise. 4%n case of invasion, insurrection, or rebellion, or
imminent danger thereof, ,hen the public safety re#uires it, he ;the President as CommanderCinC
Chief of all armed forces of the Philippines< may suspend the privileges of the ,rit of *a#eas corpus
or place the Philippines or any part thereof under martial la,.4
his provision on martial la, is found in Article 6%% of the &(AB Constitution. his Article refers to the
Presidency. -ection &9, ,here the provision appears as the second paragraph, is e8clusively devoted
to po,ers conferred by the Constitution on the President. his is in sharp contrast to the Constitution
of the =nited -tates ,here the suspension of the privilege of the ,rit of *a#eas corpus appears, not
as a grant of po,er under Article %% on the /8ecutive nor in the first ten amendments constituting their
Bill of !ights, but in Article % on the +egislature. %t is given not as a grant of po,er but as a limitation
on the po,ers of the 1ederal Congress.
%t is significant that, as regards the suspension of the privilege of the ,rit of *a#eas corpus, the
Philippine Constitution treats it both as a grant of po,er in the article on the Presidency and as a
limitation to government action in the article on the Bill of !ights. 0n the other hand, there is no dual
treatment of martial la,. here is only a grant of po,er in Article 6%% to meet certain grave dangers to
the !epublic. ?o,here in the Constitution is it treated in terms of limitation.
%n J. '. Tuazon O Co., Inc. vs. 0an! Tenure 3!(inistration, A& -C!A p. J&A,J*A, this Court ruled7
!eference to the historical basis of this provision as reflected in the proceedings of the Constitutional
Convention, t,o of the e8trinsic aids to construction along ,ith contemporaneous understanding and the
consideration of the conse#uences that flo, from the interpretation under consideration, yields additional
light on the matter.
+et us, therefore, look at the history of the provision. %t is important to be guided by the authors of the
Constitution more than by citations from foreign court decisions and #uotations from constitutional la,
,riters ,hich petitioners and respondents can seem to unendingly cull to sustain their diametrically
opposed positions.
he Philippine Bill of &(9* has no provision on martial la,, although it provided7
-/C%0? B. ...
suspended by the President, or by the 3overnor, ,ith the approval of the Philippine Commission,
Both e8ecutive and legislative shared in deciding ,hen the privilege of the ,rit may be suspended.
he .ones +a, or Philippine Autonomy Act of &(&2 re#uired a similar sharing of po,er as the
Philippine Bill of &(9*. %nstead of approval of the Philippine Commission, ho,ever: it provided that the
President of the =nited -tates must be notified ,henever the privilege of the ,rit of *a#eas corpus
has been suspended or martial la, has been proclaimed.
-/C%0? *& ... >e shall be responsible for the faithful e8ecution of the la,s of the Philippine %slands and
of the =nited -tates operative ,ithin the Philippine %slands, and ,henever it becomes necessary he may
call upon commanders of the military and naval forces of the =nited -tates in the %slands, or summon the
posse co(itatus, or call out the Militia, or other locally created armed forces, to prevent or suppress
la,less violence, invasion, insurrection, or rebellion: and *e (a, in case o, re#ellion or in or invasion or
i((inent !an+er t*ereo,, )*en t*e pu#lic sa,et re;uires it, suspen! t*e privile+es o, t*e )rit o, *a#eas
corpus, or place t*e islan!s, or an part t*ereo,, un!er (artial la)9 Provi!e!, T*at )*enever t*e
Governor4General s*all e6ercise t*is aut*orit, *e s*all at once noti, t*e Presi!ent o, t*e Enite! States
t*ereo,, to+et*er ,ith the attending facts, and circumstances, the President shall have po,er to modify or
vacate the action of the 3overnorC3eneral. ;/mphasis supplied<
he treatment of both martial la, and *a#eas corpus as part of the limitations in the Bill of !ights and
as part of the grant of po,ers of the Chief /8ecutive started ,ith the .ones +a,. his organic act also
added 4imminent danger4 as a ground for suspension.
his ,as the status of our constitutional la, on *a#eas corpus and on martial la, ,hen the &(AB
Philippine Constitution ,as drafted. he most learned Philippine la,yers ,ere among the delegates
to the &(AJ Constitutional Convention. he delegates had before them the Philippine Bill of &(9*
re#uiring approval of the legislature before the Chief /8ecutive may e8ercise his po,er. hey had
before them the provision of the .ones +a, #ualifying the 3overnorC3eneral$s po,er ,ith supervision
and control by the President of the =nited -tates ,ho may modify or vacate the former$s action. hey
chose to vest the po,er e8clusively in the President of the Philippines. hey e8panded the ,ide
scope of his authority by including 4imminent danger4 as an occasion for its e8ercise, thus deliberately
adopting the .ones +a, provision minus the limitation. heir proposal on martial la, ,as
over,helmingly ratified by the people.
he choice ,as no perfunctory or casual one. %t ,as the product of thorough study and deliberation.
Ehile the debates in the &(AB Constitutional Convention centered on *a#eas corpus, they
necessarily apply to martial la, because the t,o are ine8tricably linked in one and the same
provision. he -olicitorC3eneral has summari"ed these deliberations on *a#eas corpus and martial
la,.
As a matter of fact, in the Constitutional Convention, Delegate Araneta proposed the follo,ing provisions7
%n case of rebellion, insurrection, or invasion, ,hen the public safety
re#uires it, the ?ational Assembly may suspend the privilege of the ,rit
of *a#eas corpus. %n case the ?ational Assembly is not in session the
President may suspend the privilege of the ,rit of *a#eas corpus ,ith the
consent of the majority of the -upreme Court, but this suspension of the
privilege of the ,rit of *a#eas corpus ,ill be revoked if the President
does not call a special session of the ?ational Assembly ,ithin fifteen
days from the decree suspending the ,rit of *a#eas corpus or if the
?ational Assembly fails to confirm the action of the President ,ithin A9
days. ;B .. +aurel, Proceedings of the Philippine Constitutional
Convention, *B(, ;-. +aurel ed. &(22<
%n support of his proposal, Araneta argued, first, that the po,er to suspend the privilege
of the ,rit of *a#eas corpus should be vested in the ?ational Assembly because that
po,er ,as 4essentially4 legislative. ;I!. *J(CB9< and second, that in case the ?ational
Assembly ,as not in session, thus making it necessary to vest the po,er in the
President, that the e8ercise of the po,er be subject to the concurrence of the -upreme
Court and even ,hen the Court has concurred in the decision of the President that the
suspension ,ould be effective only for a certain period unless the ?ational Assembly ,as
convened and its ratification ,as secured. ;I!., at *BB<
>e ,as interpellated by various delegates: Delegate Pere" and 3rageda, especially,
,ere concerned, lest the re#uirement of securing the concurrence of other branches of
government in the decision of the President deprives him of effective means of meeting
an emergency. ;I!., at *BBCB2<. he Committee on -ponsorship headed by Delegate
-otto opposed the amendment. Ehen finally put to vote, the amendment ,as rejected.
;I!., at *B(<.
here are a number of points ,e should note regarding the proposal. 1irst, the proposal
refers only to the suspension of the privilege of the ,rit of *a#eas corpus. %t did not
apparently contemplate the proclamation of martial la,. Secon!, the proposal ,ould vest
the po,er of suspension in the ?ational Assembly and in the President only ,hen the
?ational Assembly is not in session. T*ir!, e8ercise of the po,er by the President, is
subject to the concurrence of the -upreme Court and the confirmation of the ?ational
Assembly.
he Constitutional Convention must have been a,are of the e8perience of President
+incoln during the American Civil Ear. hey must have been a,are of the vie,s e8press
then that it ,as the legislature and not the President ,ho may suspend the privilege of
the ,rit of *a#eas corpus or proclaim martial la,. -urely, they ,ere cogni"ant of the vast
implications incident to a suspension of the privilege of the ,rit of *a#eas corpus and
more so to the proclamation of martial la,. his is reflected in the follo,ing records of the
proceedings7
During the debates on the first draft, Delegate 1rancisco proposed an amendment
inserting, as a fourth cause for the suspension of the ,rit of *a#eas corpus, imminent
danger of the three causes included herein. Ehen submitted to a vote for the first time,
the amendment ,as carried.
After his Motion for a reconsideration of the amendment ,as approved, Delegate 0rense
spoke against the amendment alleging that it ,ould be dangerous to make imminent
danger a ground for the suspension of the ,rit of *a#eas corpus. %n part, he said7
3entlemen, this phrase is too ambiguous, and in the hands of a President, ,ho believes
himself more or less a dictator, it is e8tremely dangerous: it ,ould be a s,ord ,ith ,hich
he ,ould behead us.
%n defense of the amendment, Delegate 1rancisco pointed out that it ,as intended to
make this part of the bill of rights conform to that part of the draft giving the President the
po,er to suspend the ,rit of *a#eas corpus also in the case of an imminent danger of
invasion or rebellion. Ehen asked by Delegate !afols if the phrase, imminent danger,
might not be struck out from the corresponding provision under the e8ecutive po,er
instead, Delegate 1rancisco ans,ered7
0utright, it is possible to eliminate the phrase, imminent danger thereof, in the page %
have mentioned. But % say, going to the essence and referring e8clusively to the
necessity of including the ,ords, of imminent danger or one or the other, % ,ish to say the
follo,ing7 that it should not be necessary that there e8ist a rebellion, insurrection, or
invasion in order that *a#eas corpus may be suspended. %t should be sufficient that there
e8ists not a danger but an imminent danger, and the ,ord, imminent should be
maintained. Ehen there e8ists an imminent danger, the -tate re#uires for its protection,
and for that of all the citi"ens the suspension of the *a#eas corpus.
Ehen put to a vote for the second time, the amendment ,as defeated ,ith '* votes
against and B2 votes in favor of the same. ;% Aruego$s 1raming of the Philippine
Constitution, &)9C&)&<
But the Convention voted for a strong e8ecutive, and ,rote Article 6%%, -ection &9 ;*< into the Constitution.
he conferment of the po,er in the President is clear and definite. hat the authority to suspend the
privilege of the ,rit of *a#eas corpus and to proclaim martial la, ,as, intended to be e8clusively vested in
the President, there can be no doubt. ;Memorandum for !espondents dated ?ovember &', &('*, pp. &&C
&J<
he only conclusion % can make after ascertaining the intent of the authors of the Constitution is that
the po,er to proclaim martial la, is e8clusively vested in the President. he proclamation and its
attendant circumstances therefore form a political #uestion.
=nless this Court decides that every act of the e8ecutive and of the legislature is justiciable there can
be no clearer e8ample of a political #uestion than Proclamation ?o. &9)&. %t is the e8ercise by the
highest elective official of the land of a supreme political duty e8clusively entrusted to him by the
Constitution. 0ur people have entrusted to the President through a specific provision of the
fundamental la, the a,esome responsibility to ,ield a po,erful ,eapon. he people have entrusted
to him the estimation that the perils are so ominous and threatening that this ultimate ,eapon of our
duly constituted government must be used.
he -upreme Court ,as not given the jurisdiction to share the determination of the occasions for its
e8ercise. %t is not given the authority by the Constitution to e8pand or limit the scope of its use
depending on the allegations of litigants. %t is not authori"ed by the Constitution to say that martial la,
may be proclaimed in %sabela and -ulu but not in 3reater Manila. Much less does it have the po,er
nor should it even e8ercise the po,er, assuming its e8istence, to nullify a proclamation of the
President on a matter e8clusively vested in him by the Constitution and on issues so politically and
emotionally charged. he Court$s function in such cases is to assume jurisdiction for the purpose of
finding out ,hether the issues constitute a political #uestion or not. %ts function is to determine
,hether or not a #uestion is indeed justiciable.
Petitioners ,ant this Court to e8amine the bases given by the President in issuing Proclamation ?o.
&9)&. hey ,ant the Court to find or to take judicial notice of the absence of an insurrection or
rebellion K of the absence of an imminent danger thereof. Petitioners ,ould have this Court dispute
and nullify the findings of facts of the President himself in a matter that is peculiarly e8ecutive in
nature.
Ehy should Ee honor the President$s findingsI
%n cases ,here the issues are indisputably judicial in nature, the findings of the President are still
given utmost respect and deference. %n the matter of the declaration of martial la,, a po,er that is
e8clusively vested in the President, may the Court differ ,ith the findingsI ?o, because as Ee have
already stated, t*e vali! reason ,or t*is e6clusive +rant o, po)er is t*at t*e Presi!ent possesses all
t*e ,acilities to +at*er t*e re;uire! !ata an! in,or(ation an! *as a #roa!er perspective to properl
evaluate t*e(, #etter t*an an ,acilit an! perspective t*at t*e Court can *ave.
3t )*at state in an insurrection or *o) serious an! (ani,est s*oul! su#versive activities #eco(e
#e,ore t*e Court !eci!es t*e particular point )*en (artial la) (a #e proclai(e!2 T*e petitioners,
relin+ on t*e classic sta+es o, +overn(ental overt*ro) as e6perience! # pre4Korl! Kar II
e6a(ples, )oul! )ait until all civil courts are close! an! t*e countr is in co(plete c*aos. Petitioners
!o not realize t*at lon+ #e,ore t*e courts are close!, t*e Presi!ent )oul! *ave #een -ille! or
capture! an! t*e ene( irrevoca#l entrenc*e! in po)er. T*e aut*ors o, t*e Constitution never
envisione! t*at t*e (artial la) po)er so care,ull an! !eli#eratel inclu!e! a(on+ t*e po)ers o, t*e
Presi!ent )oul! #e )it**el! until suc* ti(e as it (a not #e use! at all.
It is ( ,ir( vie), t*at t*e !ecision to proclai( (artial la) is an e6clusive ,unction o, t*e Presi!ent. I,
*e ,in!s t*at invasion, insurrection, or re#ellion or i((inent !an+er o, an o, t*e t*ree is present,
suc* ,in!in+ is conclusive on t*e Court. I, *e ,in!s t*at pu#lic sa,et re;uires t*e entire countr s*oul!
#e place! un!er (artial la), t*at ,in!in+ is conclusive on t*e Court. In t*e e6ercise o, suc* an
e(er+enc po)er inten!e! ,or t*e supre(e an! in*erent ri+*t o, sel,4!e,ense an! sel,4preservation,
t*e Constitution cannot #e rea! to (ean ot*er)ise.
%n 0ansan+ vs. Garcia ;J* -C!A JJ), J)9< this Court stated that 4in the e8ercise of such authority ;to
suspend the privilege of the ,rit of *a#eas corpus<, the function of the Court is merely to c*ec- K not
to supplant K the E6ecutive, or to ascertain (erel )*et*er *e *as +one beyond the constitutional
limits of his jurisdiction, not to e6ercise t*e po)er vested in him or to determine the ,isdom of his
act.4
% do not see ho,, both from the legal and practical points of vie,, the Court can check the President$s
decision to proclaim martial la,. he same may, perhaps, be done as regards a suspension of the
privilege of the ,rit of *a#eas corpus although % reserve a more definitive statement on that issue
,hen a case s#uarely in point on the matter is raised before =s. >o,ever, martial la, poses entirely
different problems. A proclamation of martial la, goes beyond the suspension of the privilege of the
,rit of *a#eas corpus, ,hose effects are largely remedied ,ith the release of detainees.
=pon proclaiming martial la,, the President did not limit himself to ordering the arrest and detention
of the participants and others having a hand in the conspiracy to sei"e political and state po,er.
=nder martial la,, the President ordered the takeover or control of communications media, public
utilities, and privately o,ned aircraft and ,ater craft. 1oreign travel ,as restricted. Curfe, ,as
imposed all over the country. A purge of undesirable government officials, through resignations or
summary investigations, ,as effected. he entire e8ecutive branch of government ,as reorgani"ed.
A cleanliness and beautification campaign, ,ith martial la, sanctions to enforce it, ,as ordered. his
,as only the beginning.
Conse#uences of Proclamation ?o. &9)& are many and farCreaching. hey permeate every aspect
and every activity in the life of the people. A court decision is not needed nor is it the proper place to
enumerate them. Most obvious, of course, are the President$s acts of legislation on the very broad
range of subjects that Congress used to cover. As early as ?ovember ), &('*, the petitioners
prepared a Memorandum stressing this point.
%t may be pointed out that since martial la, ,as declared, the President has been e8ercising legislative
po,er that is lodged by the Constitution in Congress. A good number of the decrees promulgated have no
direct relation to the #uelling of the disorders caused by the la,less elements. hey are aimed at building
a ?e, -ociety, but they cannot be justified as a valid e8ercise of martial rule. ;at page (J<
T*ese i(plications an! conse;uences o, (artial la) serve to #olster ( vie) t*at t*e Constitution
never inten!e! t*at t*is Court coul! e6a(ine an! !eclare invali! t*e Presi!entDs initial !eter(ination.
T*e Constitution !i! not inten! t*at t*e Court coul!, in t*e !etac*e! an! peace,ul a,ter(at* o,
success,ul (artial la), reac* #ac- an! invali!ate evert*in+ !one ,ro( t*e start. T*at )oul! result in
c*aos.
% am, of course, a,are of the C*icot Count .raina+e .istrict vs. "a6ter State "an- ;A9) =.-. A'&,
A'J< doctrine ,hich this Court adopted in 'unicipalit o, 'ala#an+ vs. Pan+an!apun "enito, et al.
;*' -C!A BAA, BJ9<7
he Courts belo, have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, ,as not a la,: that it ,as inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. ;?orton vs. -helby County, &&) =.-. J*B, JJ*:
Chicago, % M +. !y. Co. vs. >ackett, **) =.-. BB(, B22<. %t is #uite clear, ho,ever, that such broad
statements as to the effect of a determination of unconstitutionality must be taken ,ith #ualifications. he
actual e8istence of a statute, prior to such a determination, is an operative fact and may have
conse#uences ,hich cannot justly be ignored. he past cannot al,ays be erased by a ne, judicial
declaration. he effect of the subse#uent ruling as to invalidity may have to be considered in various
aspects ,ith respect to particular relations, individual and corporate, and particular conduct, private and
official. Puestions of rights claimed to have become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and
of its previous application, demand e8amination. hese #uestions are among the most difficult of those
,hich have engaged the attention of courts, state and federal, and it is manifest from numerous decisions
that an allCinclusive statement of a principle of absolute retroactive invalidity cannot be justified.
%t may be argued that the actual e8istence of Proclamation ?o. &9)& is an operative fact and that its
conse#uences should not be ignored.
he operative fact doctrine, ho,ever, has no application in this situation ,here, faced ,ith
insurrection and rebellion, the President proclaims martial la,. /ven assuming that every single
member of this Court doubts the President$s findings, Ee have to consider that the Constitution vests
the determination in him. he stakes involved are supreme and the determination must be made
immediately and decisively.
T*ere is t*e possi#ilit t*at t*e Presi!ent *as an e6a++erate! appreciation o, t*e !an+ers an! *as
over4acte! )it* t*e use o, t*e a)eso(e (easure o, (artial la). T*e ,act re(ains, *o)ever, t*at t*e
aut*ors o, t*e Constitution )ere a)are o, t*is possi#ilit an! still provi!e! t*at t*e po)er e6clusivel
#elon+s to *i(. It )oul! #e stretc*in+ t*e plain )or!s o, t*e Constitution i, )e )ei+* our personal
,in!in+s a+ainst t*e o,,icial ,in!in+s o, t*e Presi!ent. Ce possesses all t*e ,acilities to +at*er !ata an!
in,or(ation an! *as a (uc* #roa!er perspective to properl evaluate t*e(. Ce is per,or(in+ a
,unction )*ic* is, o, course, re;uire! # t*e Constitution to #e !isc*ar+e! # t*e Presi!ent.
3n! ,or us to venture into a 5u!icial in;uir on t*e ,actual #asis o, t*e constitutionalit o, t*e (artial
la) procla(ation )oul! #e to i+nore t*e )ell4esta#lis*e! principle o, presi!ential privile+e )*ic*
e6e(pts t*e Presi!ent ,ro( !ivul+in+ even to t*e *i+*est court o, t*e lan! ,acts )*ic* i, !ivul+e!
)oul! en!an+er national securit. As a matter of fact, in the latest case on this matter ,hich ,as that
filed against President !ichard M. ?i8on, although the -upreme Court of the =nited -tates ordered
the President to produce the tapes of his conversation ,ith some of his aides pursuant to a subpoena
for use in a criminal prosecution against one of his aides, because the claim that 4disclosures of
confidential conversation bet,een the President and his close advisors ... ,ould be inconsistent ,ith
the public interest ... cannot out,eigh ... the legitimate needs of the judicial process4 in a criminal
prosecution, the Court, ho,ever, made the statement from ,hich ,e can infer that if President ?i8on
had only claimed that the tapes contain 4military, diplomatic or sensitive national security secrets4, it
,ould have sustained the refusal of ?i8on to produce them.
... >o,ever, ,hen the privilege depends solely on the broad, undifferentiated claim of public interest in
the confidentiality of such conversations, a confrontation ,ith other values arises. 3#sent a clai( o, nee!
to protect (ilitar, !iplo(atic, or sensitive national securit secrets, )e ,in! it !i,,icult to accept t*e
ar+u(ent that even the very important interest in confidentiality of presidential communications is
significantly diminished by production of such material for in camera inspection ,ith all the protection that
a district court ,ill be obliged to provide.
%n this case the President challenges a subpoena served on him as a third party re#uiring the production
of materials for use in a criminal prosecution on the claim that he has a privilege against disclosure of
confidential communications. >e does not place his claim of privilege on the ground they are. military or
diplomatic secrets. As to these areas of Art. %% duties the courts have traditionally sho,n the utmost
deference to presidential responsibilities. %n C. O S. 3ir 0ines vs. Kater(an Stea(s*ip Corp., AAA =. -.
&9A,&&& ;&(J)<, dealing ,ith presidential authority involving foreign policy considerations, the Court said7
he President, both as CommanderCinCchief and as the ?ation$s organ for foreign affairs,
has available intelligence services ,hose reports are not and ought not to be published to
the ,orld. %t ,ould be intolerable that courts, ,ithout relevant information, should revie,
and perhaps nullify actions of the /8ecutive taken on information properly held secret. I!.
at &&&.
%n the Enite! States vs. >enol!s, AJB =. -. & ;&(B*<, dealing ,ith a claimant$s demand for evidence in a
damage case, against the 3overnment, the Court said7
%t may be possible to satisfy the court, from all the circumstances of the case, that there is
a reasonable danger that compulsion of the evidence ,ill e8pose military matters ,hich,
in the interest of national security, should not be divulged. Ehen this is the case, the
occasion for the privilege is appropriate, and the court should not jeopardi"e the security
,hich the privilege is meant to protect by insisting upon an e8amination of the evidence,
even by the judge alone, in chambers.
?o case of the Court, ho,ever, has e8tended this high degree of deference to a President$s generali"ed
interest in confidentiality. ?o,here in the Constitution, as ,e have noted earlier, is there any e8plicit
reference to a privilege of confidentiality, yet to the e8tent this interest relates to the effective discharge of
a President$s po,ers, it is constitutionally based.
;=nited -tates, Petitioner, vs. !ichard M. ?i8on, President of the united -tate et al.: !ichard M. ?i8on,
President of the =nited -tates, Petitioner, vs. =nited -tates: .uly *J, &('J: ?os. 'AC&'22 and 'AC&)AJ:
-upreme Court of the =nited -tates<
%t is for the above reasons that, as far as the proclamation is concerned, the Court should revert to the
rule in "arcelon vs. "a-er ;B Phil. )'< and 'ontene+ro vs. CastaAe!a ;(& Phil. ))2<. he only #uestions
,hich the judiciary should look into are ;&< Did the Constitution confer the authority to suspend the
privilege of the ,rit of *a#eas corpus and proclaim martial la, on the PresidentI and ;*< Did the
President declare that he is acting under such authority and in conformance ,ith itI he authority being
e8clusively vested in the President, his decision is final and conclusive upon the Court.
%nsofar as the President$s decision to proclaim martial la, is concerned, it is, therefore, my vie, that
under the Constitution, the -upreme Court has no authority to in#uire into the e8istence of a factual
basis for its proclamation. he constitutional sufficiency for the proclamation is properly for the
President alone to determine.
III
G>3NTING TC3T P>OC03'3TION NO. $F&$
IS NOT PO0ITIC30 "ET JESTICI3"0E,
IT IS STI00 @30I. "EC3ESE TCE P>ESI.ENT
C3S NOT 3CTE. 3>"IT>3>I0Y IN ISSEING IT
%t should be noted that Proclamation ?o. &9)& is not a mere conclusion that there is insurrection and
rebellion in the country. he President did not limit himself to a curt and laconic declaration that on
the basis of his findings, there is insurrection or a rebellion and that he has proclaimed martial la,. .
Proclamation ?o. &9)& specifies in t,entyCsi8 ;*2< printed pages the various findings ,hich led to its
promulgation. he conspiracy to overthro, the government, the rapidly e8panding ranks of the
conspirators, the raising of funds and materials under centrali"ed direction, the maintenance of a
rebel army the massive propaganda campaign, the acts of sabotage and armed insurrection or
rebellion, the previous decision of this Court, the la,lessness and disorder in the country, the violent
demonstrations led by Communist fronts, the armed clashes bet,een rebels and government troops,
the active moral and material support of a foreign po,er, the importation of firearms and ,ar material
by rebels, the presence of a ,ellCscheduled program of revolutionary action, the organi"ation of
li#uidation s#uads, the serious disorder in Mindanao and -ulu, the activities of the Mindanao
%ndependence Movement, the thousands killed and hundreds of thousands of injured or displaced
persons, the inade#uacy of simply calling out the aimed forces or suspending the privilege of the ,rit
of *a#eas corpus, the alarmingly rapid escalation of rebel or subversive activities, and other evidence
of insurrection or rebellion are specified in detailed manner.
he findings of the President are given in a positive, detailed, and categorical form. As a matter of
fact, subse#uent events, related to the Court in a series of classified briefings made to it by the Army
the last one being on August &B, &('J, confirm the overCall validity of the President$s basis. here is
constitutional sufficiency for his conclusion that martial la, be proclaimed. Proclamation ?o. &9)&
does not, therefore, suffer any constitutional infirmity of arbitrariness, granting that this test can be
applied to it.
%t appears proper, at this point, to elucidate further on the test of arbitrariness.
he Court$s decision in 0ansan+ vs. Garcia ;J* -C!A JJ)< has been interpreted and, to my mind,
misunderstood by many people to mean that the Court had completely reversed "arcelon vs. "a-er
and 'ontene+ro vs. CastaAe!a. here are, of course, certain statements in the decision that give rise
to this conclusion. 1or instance, the Court stated that the ,eight of "arcelon vs. "a-er, as precedent,
is diluted by t,o factors, namely, ;a< it relied heavily upon 'artin vs. 'ott ;2 +. ed. BA'< involving the
=.-. President$s po,er to call out the militia and ;b< the fact that suspension of the privilege of the ,rit
of *a#eas corpus ,as by the American 3overnorC3eneral, the representative of the foreign
sovereign. he Court stated that in the "arcelon case it ,ent into the #uestion K Did the 3overnorC
3eneral act in conformance ,ith the authority vested in him by the Congress of the =nited -tatesI %n
other ,ords, the Court stated that it made an actual determination ,hether or not the Chief /8ecutive
had acted in accordance ,ith la,. he Court also added that in the Montenegro case, it considered
the #uestion ,hether or not there really ,as a rebellion. he Court revie,ed American jurisprudence
on suspension of the privilege. %t stated that the tenor of the opinions, considered as a ,hole, strongly
suggests the Court$s conviction that the conditions essential for the validity of proclamations or orders
,ere in fact present. %t stated that ,henever the American courts took the opposite vie, it had a
backdrop permeated or characteri"ed by the belief that said conditions ,ere absent.
%n truth, ho,ever, the decision in 0ansan+ vs. Garcia does not state that the Court may conduct a full
e8amination into the facts ,hich led the President to issue the proclamation. he Court$s decision
categorically asserts that the e8amination of presidential acts by the Court is limited to arbitrariness.
he Court accepted the vie, K
... that judicial in#uiry into the basis of the #uestioned proclamation can go no further than to satisfy the
Court not that tile President$s decision is correct and that public safety ,as endangered by the rebellion
and justified the suspension of the ,rit, but that in suspending the ,rit, the President did not act arbitrarily.
he Court adopted, as the test of validity, the doctrine in Ne##ia vs. Ne) Yor-, *(& =. -. B9* K
... %f the la,s passed are seen to have a reasonable relation to a proper legislative purpose, and are
neither arbitrary nor discriminatory, the re#uirements of due process are satisfied, and judicial
determination to that effect renders a court ,unctus o,icio ... Eith the ,isdom of the policy adopted, ,ith
the ade#uacy or practicality of the la, enacted to for,ard it, the courts are both incompetent and
unauthori"ed to deal ....
1or purposes of comparison and emphasis, the Court, in 0ansan+ vs. Garcia, ,ent into the judicial
authority to revie, decisions of administrative bodies or agencies. %t stated that the revie,ing court
determines only ,hether there is some evidentiary basis for the contested administrative findings and
does not undertake #uantitative e8amination of supporting evidence. herefore, the Court stated that
it interferes ,ith an administrative finding only if there is no evidence ,hatsoever in support thereof
and said finding is actually arbitrary, capricious, and obviously unauthori"ed. he Court ruled that this
approach of deferring to the findings of administrative bodies cannot even be applied in its aforesaid
form to test the validity of an act of Congress or of the /8ecutive. he presumption of validity is of a
much higher category. he Court emphasi"ed that the coCe#uality of coordinate branches of the
government under our constitutional system demands that the test of validity of acts of Congress and
of those of the /8ecutive should be fundamentally the same. And this test is not correctness but
arbitrariness.
%t follo,s, therefore, that even if % ,ere to subscribe to the vie, that 0ansan+ vs. Garcia should not be
categorically reversed as erroneous doctrine, my decision ,ould be the same. /ven under 0ansan+
vs. Garcia, martial la, is valid.
here is nothing arbitrary in the decision to promulgate Proclamation ?o. &9)&. %t is not
unconstitutional.
D%%%
TCE CONTINE3TION :3N. E@ENTE30 0IFTING<
OF TCE ST3TE OF '3>TI30
03K IS 3 PO0ITIC30 ?EESTION
he continuation of the state of martial la, and the resulting continued restrictions on individual
liberties are, of course, serious aspects of the main issue ,ith ,hich this Court is concerned.
%n fact, this is the more difficult #uestion K he President having acted upon an initial and positive
finding that martial la, is necessary, may the Court in#uire into the bases for its duration or the need
for its continued impositionI
o,ards the end of this separate opinion, % ans,er the arguments of the petitioners #uestioning the
effectivity and legality of the ne, Constitution. %t is my un#ualified vie,, as e8plained later, that this
Court in the !atification Cases declared the ne, Constitution to be legally in force and effect.
% have to mention this vie,, at this juncture, because martial la, ,as proclaimed under the old
Constitution. >o,ever, its continuation and eventual lifting are no, governed by the ne, Constitution.
he e8ercise of martial la, po,er may be likened to the jurisdiction of a court. A court may have
jurisdiction under an old la, but the jurisdiction may be removed or modified by a ne, statute. %n
other ,ords, is the continuing state of martial la, valid under the ne, ConstitutionI %s it also a
political #uestion under the present CharterI
Article %D of the ne, Constitution on the Prime Minister and the Cabinet provides7
-/C. &*. he Prime Minister shall be commanderCinCchief of all armed forces of the Philippines and,
corpus, or place the Philippines or any part thereof under martial la,.
%t should be noted that the above provision is a verbatim reiteration of Article 6%%, -ection &9,
Paragraph ;*< of the old Constitution.
Ehat ,as the intent of the framers in adopting verbatim the provision found in the old ConstitutionI
At this point, modesty and prudence should inhibit me from advancing my o,n vie,s as the only member
of this ribunal ,ho ,as a delegate to the &('& Constitutional Convention. %n @era vs. 3velino ;'' Phil.
&(*<, this Court stated K 4he theory has been proposed K modesty aside K that the dissenting
members of this Court ,ho ,ere delegates to the Constitutional Convention and ,ere 4coCauthors of the
Constitution4 4are in a better position to interpret4 that same Constitution in this particular litigation.
here is no doubt that their properly recorded utterances during the debates and proceedings of the
Convention deserve ,eight, like those of any other delegate therein. ?ote, ho,ever, that the proceedings
of the Convention 4are less conclusive of the proper construction of the instrument than are legislative
proceedings of the proper construction of a statute: since in the latter case it is the intent of the legislature
,e seek, ,hile in the former ,e are endeavoring to arrive at the intent of the people through the
discussions and deliberations of their representatives.4 ;Eilloughby on the Constitution, 6ol. %, pp. BJ, BB.<
heir ,ritings ;of the delegates< commenting or e8plaining that instrument, published shortly thereafter,
may, like those of >amilton, Madison and .ay in he 1ederalist K here in the Philippines, the book of
Delegate Aruego, supra, and of others K have persuasive force. ;0p. cit., p. BB.<
But their personal opinion on the matter at issue e8pressed during our deliberations stand on a different
footing7 %f based on a 4fact4 kno,n to them, but not duly established or judicially cogni"able, it is
immaterial, and their brethren are not e8pected to take their ,ord for it, to the prejudice of the party
adversely affected, ,ho had no chance of rebuttal. %f on a matter of legal hermeneutics, their conclusions
may not, simply on account of membership in the Convention, be a shade better, in the eyes of the la,.
here is the ,ord 4deference4 to be sure. But deference is a compliment spontaneously to be paid K
never a tribute to be demanded.
And if ,e should ;,ithout intending any desparagement< compare the Constitution$s enactment to a
drama on the stage or in actual life, ,e ,ould reali"e that the intelligent spectators or readers often kno,
as much, if not more, about the real meaning, effects or tendencies of the event, or incidents thereof, as
some of the actors themselves, ,ho sometimes become so absorbed in fulfilling their emotional roles that
the fail to ,atch the other scenes or to meditate on the larger aspects of the ,hole performance, or ,hat
is ,orse, become so infatuated ,ith their lines as to construe the entire story according to their prejudices
or frustrations. Perspective and disinterestedness help certainly a lot in e8amining actions and
occurrences. 4Come to think of it, under the theory thus proposed, Marshall and >olmes ;names
venerated by those ,ho have devoted a si"eable portion of their professional lives to analy"ing or solving
constitutional problems and developments< ,ere not so authoritative after all in e8pounding the =nited
-tates Constitution K because they ,ere not members of the 1ederal Convention that framed itW ;pp.
*&BC*&2<4
% ,ish to follo, the e8ample, ho,ever, of my distinguished colleague, 'r. Justice Cali6to O. Bal!ivar
in P*ilippine Constitution 3ssociation vs. 'at*a ;&) -C!A A99< ,here, ,ith characteristic humility,
he stated in a concurring opinion K
My opinion in this regard is based upon a personal kno,ledge of ho, the constitutional proviso, Article 6%,
-ection &J of the Constitution, ,hich is no, in #uestion, became a part of our present Constitution. %t ,as
the -econd ?ational Assembly ,hich amended our original Constitution. % ,as a humble Member of the
-econd ?ational Assembly, representing the province of Anti#ue.
888 888 888
% still have vivid recollections of the important points brought up during the deliberations in caucus over
proposed amendments and of the agreements arrived at. % remember too the influences that ,orked, and
the pressures that ,ere brought to bear upon the Assemblymen, in the efforts to bring about agreements
on very controversial matters and thus secure the insertion of the desired amendments to the
Constitution. he discussions on the proposed amendments affecting the legislative branch of the
government ,ere specially of interest to us then because ,e ,ere in some ,ay personally affected, as
most of us ,ere interested in running for reCelection.
%t is not my purpose here to impose on anyone my recollections of matters that ,ere brought up during
our caucuses then, but % only ,ish to emphasi"e the fact that my concurring opinion in the decision of the
case no, before =s has for its basis my honest and best recollections of ,hat had transpired or ,hat had
been e8pressed, during the caucuses held by the Members of the -econd ?ational Assembly in the
deliberations ,hich later brought about the &(J9 amendments.
888 888 888
% have endeavored to make a discourse of facts as % kno, them, because % sincerely believe that the
interpretation, embodied in the opinion penned by my esteemed colleague, Mr. .ustice ..B.+. !eyes, of
the pertinent provision of Article 6%, -ection &J of our Constitution is in consonance ,ith the facts and
circumstances as % remember them, and as % kno, them. As % have stated at the early part of this
concurring opinion, it is not my purpose to impose on anyone my recollection of ,hat transpired, or of
,hat had been discussed about, or of ,hat had been agreed upon, by the Members of the -econd
?ational Assembly during the deliberations ,hich brought about the &(J9 amendments to our
Constitution. My perception and my memory are as frail as those of any other human being, and % may
have incurred myself in error. %t just happened that the facts and the circumstances that % have herein
narrated, as % remember them, have engendered in my mind an opinion, nay a conviction, ,hich dovetails
,ith the opinion of my illustrious colleague that has penned the opinion for the majority of the Court in this
case. ;at pp. A&2, A&' and A*'CA*)<
.ustice 5aldivar$s recollections on the intent of the -econd ?ational Assembly meeting as a
constituent body in &(J9 are most helpful. here are no e8isting records of the deliberations on the
Article 6%, -ection &J amendment to the &(AB Constitution. he amendment discussions and debates
,hich took place during legislative caucuses are unrecorded and this Court has .ustice 5aldivar to
thank for his recollections.
%t is in this spirit that % venture my o,n recollections. % am also fairly certain that ,hen the proceedings
of the &('& Constitutional Convention are published, my observations ,ill be sustained. Ehen the
last Constitutional Convention approved the ?e, Constitution on ?ovember *(, &('*, the delegates
,ere a,are of preCconvention proposals to subject the e8ercise of the po,er by the /8ecutive to
judicial in#uiry. -tudies on the ,isdom of having a joint e8ercise of the po,er by the /8ecutive and
the +egislature ,ere before the delegates. ;=P +a, Center Constitution !evision Project, &('9, pp.
&9JC&9)< here ,ere ever constitutional la, scholars ,ho #uestioned the po,er altogether and
,anted it removed. hey claimed that ,hether or not martial la, is in the Constitution, it ,ill be
declared ,hen absolutely necessary and therefore, anticipating its use through a constitutional
provision serves no useful purpose.
he delegates ,ere fully a,are of the 3overnment stand on the *a#eas corpus and martial la,
provision. he 0ansan+ vs. Garcia decision ,as fairly recent. he po,ers of the Chief /8ecutive ,ere
e8tensively debated. he delegation kne, that in the 0ansan+ vs. Garcia, proceedings, the -olicitor
3eneral had consistently and forcefully argued that "arcelon vs. "a-er and 'ontene+ro vs.
CastaAe!a ,ere correct interpretations of the President$s po,er to suspend the privilege of the ,rit of
*a#eas corpus or place the Philippines or any part thereof under martial la,.
More significant is the fact that ,hen the ne, Constitution ,as finali"ed and the draft corrected and
approved prior to submission to the people, ,e ,ere already under a state of martial la,. he
petitioners had been arrested and various petitions filed. %n fact, petitioner /. 6oltaire 3arcia %%
included in his petition the argument that his detention pursuant to Proclamation ?o. &9)& deprived
his constituency of their representation in the Constitutional Convention. he delegates ,ere a,are
that Proclamation ?o. &9)& ,as challenged before this Court and that the -olicitor 3enerals ans,er
to all the petitions ,as invariably the doctrine of political #uestion.
%f it ,as the intent of the Constitutional Convention to subject the Prime Minister$s e8ercise of the
po,er to judicial in#uiry andFor control, the provision on martial la, ,ould have been accordingly
amended. %n fact, during the deliberations of the Committees on Civil and Political !ights and
/8ecutive Po,er, there ,ere proposals that the po,er to proclaim martial la, be subjected to control,
confirmation, or reversal by Congress or the -upreme Court, but the Convention did not accept any of
these proposals and decided to simply reiterate the earlier provision.
%t ,ould be enlightening for us to peruse the pertinent portions of the proceedings of the Committee
on Civil and Political !ights and /8ecutive Po,er, and % #uote7
&('& C0?-%=%0?A+ C0?6/?%0?
Manila
C0MM%//- 0? C%6%+ A?D P0+%%CA+ !%3>-
A?D /D/C=%6/ P0E/!
M%?=/- 01 >/ M//%?3
;.oint Public >earing<
E/D?/-DA@, -/P/MB/! ), &('&
-ession >all, Manila >otel
C0MM%// 0? C%6%+ A?D P0+%%CA+ !%3>-
P>ESENT
C*air(an @ice C*air(an7
'e(#ers=
&. Delegate Abad (. Delegate Pepito
*. Delegate Badelles &9. Delegate !eyes C.
A. Delegate 3arcia +. P. &&. Delegate -antillan
J. Delegate 3unigundo &*. Delegate -evilia
B. Delegate 3u"man 6. &A. Delegate -umulong
2. Delegate +aggui &J. Delegate 6eloso %.
'. Delegate Mendiola &B. Delegate 5afra
). Delegate 0pinion

CO''ITTEE FN EIECETI@E POKE>
P>ESENT
Delegate /spina Delegdate /8mundo
'e(#ers=
&. Delegate Corpus A. Delegate -antillan
*. Delegate 3arcia +. M. J. Delegate 5afra
Non4'e(#ers=
&. Delegate Ben"on B. Delegate Mastura
*. Delegate Calderon C. 2. Delegate !osales
A. Delegate Cali,ara '. Delegate @ancha
J. Delegate Castillo

Guest=
.ustice /nri#ue 1ernando
0P/?%?3 01 >/ M//%?3
&. At (7B9 a.m. Chairman 6ictor De la -erna called the meeting to order.
*. =pon certification of the -ecretary, the, Chair announced the e8istence of a ;uoru(.
A. he Chair then announced that the Committee has furnished the body resolutions regarding the
suspension of the privilege of the of *a#eas corpus. he Chair mentioned si8 !esolutions ?umbered &'2,
*29, BA&, &J&B, *A( and *A(J.
J. he Chair further said that the resolutions can be grouped into three schools of thought K the first,
refers to the absolute prohibition against suspension of the privilege of the ,rit of *a#eas corpus by any
authority in any and all events: the second supports the theory that it may be suspended by the President
,ith the concurrence of Congress or the -upreme Court: and the third, refers to the removal of the po,er
to suspend from the President and transfer the same to the -upreme Court.
B. he Chair then introduced to the members the guest speaker, .ustice /nri#ue 1ernando of the
-upreme Court of the Philippines. >e e8pressed fe, ,ords of ,elcome to the .ustice in behalf of the t,o
Committees conducting the public hearing.
2. .ustice 1ernando started his remarks by clarifying that he ,ould only ans,er #uestions that ,ill not
conflict ,ith his role as .ustice of the -upreme Court, since there ,as a pending case before the said
Court ,here the Po,er of the President to suspend the ,rit of *a#eas corpus is placed at issue. >e said
that he considered the privilege of the ,rit of *a#eas corpus as the most important human right. >e is of
the vie, that it might be preferrable if the Bill of !ights make it clear and e8plicit that at no time and under
no circumstances should the privilege of the ,rit be suspended. >e clarified that even if this po,er to
suspend the privilege of the ,rit ,ere removed from the President, he still has enough po,ers to prevent
rebellion, sedition, insurrection or imminent danger thereof because of his po,er to call the armed forces
in case the need for it arises.
'. he Chair asked the first #uestion to .ustice 1ernando. Because the .ustice send that it ,as not
necessary to grant the President the po,er to suspend the ,rit since Congress can al,ays pass a la,
that ,ould lengthen the period of detention of prisoners, the Chair asked if it ,ould not be very
cumbersome for Congress to enact such a la, in times of national emergency.
). .ustice 1ernando, in ans,er to the Chair$s #uery, said that Congress can pass a la, to that effect
,ithout a national emergency.
(. %n ans,er to #uestion propounded by Delegate Ceni"a, .ustice 1ernando said in &(B& in the
>ernande" case he e8pressed the opinion that even if the privilege of the ,rit ,ere suspended, the right
to bail could still be availed of. >e admitted, ho,ever, that up to no, there is no clearCcut ruling on the
matter. >e also said that the President, should not have the sole po,er to declare Martial +a,.
&9. Delegate Mendiola also asked .ustice 1ernando ,ho ,ould determine the circumstances that ,ould
,arrant the detention of prisoners for a longer period than ,hat is no, provided under the !evised Penal
Code. he .ustice ans,ered that if the prisoner is held for crimes against public order, then the ordinary
rules of criminal la, ,ill govern. he arresting authorities, in collaboration ,ith the 1iscal, ,ill determine
said circumstances.
&&. Delegate +aggui asked .ustice 1ernando ,hether he ,ould still deny the po,er to suspend the ,rit to
the President if the Convention ,rites into the Constitution safeguards against abuse of said po,er. he
.ustice said he ,ould still say that the po,er be denied the President because he considers the privilege
of the ,rit of *a#eas corpus as the most important human right.
&*. Delegate 3unigundo interpellated the .ustice and asked ,hether the latter ,ould favor preventive
detention of political prisoners or political offenders. he .ustice said ,e should follo, the Constitutional
Provisions regarding probable cause, and the rights of the accused should al,ays be respected.
&A. Delegate -antillan asked .ustice 1ernando ,hether he ,ould favor the proposal to delete the phrase
4imminent danger thereof4 and to limit the suspension of the ,rit from &9 to &B days unless Congress or
the -upreme Court ,ould e8tend the same. .ustice 1ernando said, since he ,as for the denial of the
po,er to suspend the ,rit, anything less than that ,ould not be in consonance ,ith his stand.
&J. Delegate 5afra asked .ustice 1ernando if it ,ould not be dangerous for a President to declare Martial
+a, because if he did, the military might take over the government and topple do,n the President and
even Congress, thereby establishing military dictatorship. .ustice 1ernando said that the danger e8ists.
&B. Delegate /8mundo interpellated .ustice 1ernando and asked the latter ,hat the President of the
Philippines should have done instead of suspending the privilege of the ,rit of *a#eas corpus,
considering the chaos and turmoil that prevailed prior to the suspension. he .ustice said that since it is
the duty of the President to faithfully e8ecute the la,s, he should and he could have called out the armed
forces to suppress insurrection, invasion, and rebellion.
&2. 0thers like Delegates Mastura, Adil, 3u"man, Pepito, 6eloso, Beng"on, +eviste ;0.<, and Ceni"a
interpellated .ustice 1ernando. he Chair then thanked the .ustice for his enlightening speech. >e
e8pressed the hope that at some future time the .ustice ,ould again favor the Committee ,ith his
appearance so that the members could propound more #uestions.
AD.0=!?M/? 01 M//%?3
&'. he meeting ,as adjourned at &* noon.
P!/PA!/D B@7
>0?0!AB+/ MACA!%0 CAM/++0
yped by 7 Cynthia B. Arra"ola
Proofread by 7 /. de 0campoF6. M. =mil
&('& C0?-%=%0?A+ C0?6/?%0?
M a n i l a
CO''ITTEES ON CI@I0 3N. PO0ITIC30 >IGCTS 3N.
EIECETI@E POKE>
M%?=/- 01 >/ .0%? M//%?3
?o. CCC
E/D?/-DA@, -/P/MB/! &B, &('&
CI@I0 3N. PO0ITIC30 >IGCTS
P>ESENT
'e(#ers=
&. Delegate Abalos /. (. Delgate 0pinion
*. Delegate Abad &9. Delegate Padua
A. Delegate, Aruego &&. Delegate Pepito
J. Delegate Calderon .. &*. Delegate !eyes C.
B. Delegate 3unigundo &A. Delegate -antos 0.
2. Delegate 3u"man &J. Delegate -iguion !eyna
'. Delegate +aggui &B. Delegate 5afra
). Delegate Mendiola

Non4'e(#ers=
&. Delegate Adil 2. Delegate 3arcia +.
*. Delegate A"cuLa '. Delegate Molina
A. Delegate Claver ). Delegate !ama.
J. Delegate De Pio (. Delegate -eares.
B. Delegate 3arcia /. &9. Delegate upa" D.
Guest=
-enator .ose E. Diokno
3"SENT
'e(#ers=
&. Delegate Aldeguer ). Delegate 3uiao
*. Delegate Badelles (. Delegate Mastura
A. Delegate Catubig &9. Delegate Purisima
J. Delegate Ceni"a &&. Delegate -antillan
B. Delegate De la Pa" &*. Delegate -evilia
2. Delegate 1algui &A. Delegate -umulong
'. Delegate 1ernande" &J. Delegate 6eloso %.

EIECETI@E POKE>
P>ESENT
C*air(an=
Delegate /spina
'e(#ers=
&. Delegate Alano &*. Delegate ?uguid
*. Delegate Astilla &A. Delegate 0lmedo
A. Delegate Barrera &J. Delegate Piit
J. Delegate Britanico &B. Delegate !amos
B. Delegate Cabal &2. Delegate -agadal
2. Delegate Corpus &'. Delegate -aguin
'. Delegate 1lores A. &). Delegate -ambola,an
). Delegate 3arcia +.M. &(. Delegate -anche"
(. Delegate 3on"ales *9. Delegate ocao
&9. Delegate .uaban *&. Delegate 6ele"
&&. Delegate Mutuc **. Delegate @Ligue"

3"SENT
@ice C*air(an=
Delegate /8mundo
'e(#ers=
&. Delegate Araneta -. ). Delegate ?epomuceno
*. Delegate Davide (. Delegate -antillan
A. Delegate Duavit &9. Delegate -errano
J. Delegate 3audiel &&. Delegate -inco
B. Delegate +i,ag &*. Delegate rillana
2. Delegate +una &A. Delegate @ap
'. Delegate Marino &J. Delegate 5osa
0P/?%?3 01 M//%?3
&. At (7A9 a.m., Chairman 6ictor De la -erna called the meeting to order and declared the e8istence of a
,orking #uorum.
*. Chairman 3erardo -. /spina stated that it ,as a joint hearing of the Committee on Civil and Political
!ights and the Committee on /8ecutive Po,ers.
A. he Chair confirmed the statement of Chairman /spina and further stated that it ,as the second joint
hearing of the t,o Committees, and introduced -enator .ose E. Diokno, guest speaker for the hearing.
J. -enator Diokno thanked the joint Body for giving him an opportunity to discuss ,ith them the po,er to
suspend the privilege of the ,rit of *a#eas corpus and the po,er to declare martial la,. o be able to
resolve the problem, he propounded the #uestions7 ;&< should the President have the po,er to suspend
the privilege of the ,rit of *a#eas corpus, ;*< assuming he ,as given the po,er, under ,hat
circumstances should he be allo,ed to e8ercise it, and ;A< ,hat safeguards should be placed upon the
e8ercise of that po,er. >e surmised that in his opinion, if the only legal basis for the grant of the po,er is
to bide time to be able to bring persons to court for it to decide on the matter, as such time is al,ays
available to the government, he sa, no reason in suspending the privilege of the ,rit of *a#eas corpus,
since the same objective can be attained by the imposition of martial la,, ,hich is not a graver step and
is not gravely abused in the practical point of vie, that no President ,ill declare martial la, unless he can
have the armed forces agree ,ith him that there is actual invasion, rebellion or insurrection. >e stated
that the present Constitution only allo,ed the suspension of the privilege in cases of e8treme emergency
affecting the very sovereignty of the -tate, ,hich in his belief, is only in cages of invasion, rebellion or
insurrection. >e did not agree that there should be a safeguard provided prior to the issuance of the
proclamation suspending the privilege of the ,rit, but rather after the ,rit has been suspended, by
re#uiring either the courts or Congress to pass upon the necessity of the suspension of the ,rit. >e
dissented ,ith the idea that ,here should be a definite time period for its validity, because it is difficult to
determine ,hat should be an ade#uate period, ho,ever, the -upreme court or Congress could al,ays be
re#uired to act ,ithin a definite period on the validity of the suspension ,hich he considered, already a
proper safeguard.
>e added further that the po,er to place any part of the national territory under martial la, should be,
limited to cases only of actual invasion, rebellion or insurrection. >o,ever, he strongly favored the
deletion of the provision 4on imminent danger4, ,hich he stressed, is an e8cuse for a dictatorial President
to declare martial la, on the that there is imminent danger ,hen there is none. here is a possibility, he
said, that the armed forces ,ill be broken up, in the sense that one group may favor the President and the
other may refuse to allo, themselves to be used ,hen there is actually no 4imminent danger4, so that
instead of their helping preserve peace and order, it ,ould provide an occasion for bringing about
revolutions.
B. he Chair asked the -enator if the President should declare martial la, ,here imminent danger
actually e8ists and the civil authorities are still functioning. >e further #ualified that is it not the of the
Constitution in the phrase 4martial la,4 that the civil authorities call upon the military authorities to help
them or is it a complete and arbitrary substitution of authority by the military.
B.& -enator Diokno replied that the President$s action in his personal opinion, is arbitrary
and illegal, but ,ho could stop him from doing that. /ven the -upreme Court is reluctant
to act because it has the army to reckon ,ith. >e construed that martial la, could be
legally e8ercised only in places ,here actual fighting e8ists and the civil authorities are no
longer e8ercising authority, in ,hich case the military can supplant the civil authorities.
>e added that it is also possible to declare a limited martial la, in certain areas ,here
the military may impose curfe, and temporary detention of persons charged of causing
and participating in chaotic situations.
2. Chairman /spina recogni"ed Delegate Britanico ,ho had the first option to interpellate the -enator.
2.& Delegate Britanico ,anted to kno, from the -enator ,hether, in his opinion, the
po,er to suspend the ,rit be altogether removed from the President, and that in the
event this po,er is retained, ho, should it be e8ercised by the PresidentI .
2.* -enator Diokno replied that if this po,er is retained it should he e8ercised by the
President alone but subject to revie, by either Congress or the Parliamentary Body that
may eventually be adopted.
2.A Delegate Britanico ,anted the vie, of the -enator if he ,as agreeable to have the
President share the po,er ,ith the 6ice President, -enate majority and minority floor
leaders, -enate President, .ustices of the -upreme Court, the Comelec Chairman and
other heads of the constitutional organi"ations K
2.J -enator Diokno replied that he is averse to sharing po,ers because it could not be
done e8pediently. he -enator reminded the group that as a general rule, the President
and the President of the -enate belong to the same party and even the justices of the
-upreme Court fall under the same situation, and it ,ould then still be the President ,ho
,ill decide.
'. he Chair called on Delegate 0lmedo on his reservation to ask the ne8t #uestion.
'.& Delegate 0lmedo ,anted to clarify if there is any technical distinction bet,een
suspension of the privilege of the ,rit of *a#eas corpus and the ,rit itself.
'.* -enator Diokno replied that the ,rit itself is the order of the court to the person having
custody of the subject to produce him in court, and that the subject has the privilege to
post bail pending the filing of the case against him, if he is to be heard for an offense. >e
cited the decision of the Confederate Authority ,hich says that the privilege of the ,rit
refers to criminal arrests in ,hich the persons arrested have the privilege to be released
on bail, ,hich is the privilege that is suspended.
'.A Delegate 0lmedo asked ,hether the -enator$s stand on the abolition of the po,er to
suspend the privilege of the ,rit or as an alternative, the suspension be e8ercised ,ith
the participation of other agencies, is because of the antiCadministration group clamoring
for its abolition from the constitutional provisionsI .
'.J -enator Diokno reiterated his statement that it is his personal belief that martial la, is
a better measure than the suspension of the privilege of the ,rit, ,hich the President
claims to have e8ercised to dismantle the communist apparatus in the country. Ehether
this is justified or not remains an issue. Assuming that the Communists are arrested no,,
ne, leaders ,ill come up and take over command, and these ne, ones are not yet
kno,n to the military authorities and so the same communistic situation continues to e8ist
and the cycle goes on unresolved.
'.B As a last #uestion, Delegate 0lmedo sought to be clarified on the alternative vie, of
the -enator that of retaining the po,er but its e8ercise be ,ith the concurrence of
Congress and the -upreme Court.
'.2 he -enator reiterated that he is for the abolition of the po,er, but if the
Constitutional Convention believes it necessary to retain it, then its e8ercise by the
e8ecutive must be subject to revie, and reversal, if need be, by Congress and the
-upreme Court. >e maintained that the e8ercise of the po,er to suspend the privilege of
the ,rit is determined by t,o factors7 ;&< legality and, ;*< ,isdom. he -upreme Court
shall determine the legality and Congress determines the ,isdom of the President$s
e8ercise of the po,er, and it is the Convention that can resolve this problem.
). Chairman /spina called on Delegate Barrera, ho,ever, re#uested the Members to limit their #uestions
to only t,o to allo, everybody the opportunity to #uestion the guest.
).& Delegate Barrera stated that the -enator is for the discarding of the constitutional
provision on the po,er to suspend the privilege of the ,rit of *a#eas corpus but is for the
right of an organ of government to declare martial la, but limited to an actual e8istence of
invasion, rebellion or insurrection, his ,as confirmed by the -enator. Delegate Barrera
in#uired ,hether the -enator agrees or not to the fact that in places ,here actual fighting
or actual invasion, rebellion or insurrection e8ists, declaration of martial la, is
unnecessary since the commanderCinCchief has the full responsibility of e8ercising every
step necessary to protect and preserve the ,elfare of the nation.
).* -enator Diokno replied that ,hile it is true that the po,er to take all the n steps to
preserve peace and order and protect the people, is inherent po,er of sovereignty, yet it
,ould certainly be safer to provide this po,er of formal declaration to prevent individual
arbitrary e8ercise of po,er by military commanders in the field. >e stressed the need for
a specific constitutional provision ,hich must be clearly stated and defined as to the
e8tent of the e8ercise of such po,ers.
(. Delegate Padua ;C.< disclosed that he is an author of a resolution removing po,ers of the President to
suspend the privilege of the ,rit of *a#eas corpus as ,ell as to declare martial la,, and his point of
concern lies in the subse#uent grant of emergency po,ers that are complimentary to e8ercise of martial
la, by the President no, given in the present Constitution. >e asked the -enator ,hether the criterion in
the e8ercise of martial la, to actual invasion only K that is, remove the terms 4rebellion and insurrection4
as part of the criteria, ,ould diminish the presidential po,er e8cesses and abuses. Delegate Padua cited
the vie, of .ustice 1ernando that people have the right to rebel, and this ,ould tend to justify e8clusion of
rebellion and insurrection as prere#uisites to impose martial la,.
(.& -enator Diokno opined that the complimentary emergency po,ers of the President
,as intended by the Constitution to allo, the President to legislate in the absence of
Congress but #ualified this statement by revealing that he has not made deeper studies
along this particular point. >e also stated that the state has to have po,er to protect itself
from any form of change other than through constitutional processes and this concept is
shared not only by democratic but by any form of government in e8istence. %n ans,er to
Delegate Padua, he suggested to define ,hat the ,ord rebellion in the provision mean,
and the term 4insurrection4 should be removed since insurrection is a small rebellion,
,hich does not merit declaration of martial la,. his provision could ,ell fit in the Bill of
!ights instead as 4the -tate or any portion thereof, may be placed under martial la, only
in case of actual invasion or rebellion, ,hen the public safety so re#uires.4 hen eliminate
the provision granting po,er to suspend the privilege of the ,rit of *a#eas corpus and
place the po,er to declare martial la, among the po,ers of the President in -ection &9,
Article 6%%, perhaps.
&9. Delegate Pat sought clarification as to the stand of the -enator on the President being already
CommanderC%nCChief of the Armed 1orces, and is then capable of #uelling rebellion, therefore the po,er
of martial la, need not be specified in the Constitution or that if it has to be, then it has to be in aid to
civilian authorities only. >e further sought the -enator$s opinion upon ,hom to lodge the po,er to
suspend the privilege of the ,rit of *a#eas corpus as ,ell as po,er to declare martial la,, since he is a
proponent of a form of government that ,ould have both a President as head of state and prime minister
as head of government.
&9.& he -enator clarified his statement to Delegate Barrera that to declare martial la, is
a recogni"ed po,er inherent to the sovereignty of the state and so, need not be
mentioned in the Constitution, a case in point is the =nited -tates Constitution. %n reply to
the second #uery, he stressed that, to him, there should not be such po,ers lodged on
anyone any,here. But if there has to be, the Prime Minister, since the President is
generally a ceremonial officer, and ,ould not be kept abreast officially on every
circumstance and happening of the day in the country.
&&. Delegate -iguion !eyna pointed out that from the discussions, it ,ould be safe to assume that the
only thing that matters to an e8ecutive ,hen he is allo,ed to suspend the privilege of the ,rit or not, in his
e#uivalent right to arrest and detain people beyond the statutory re#uirement. >e in#uired ,hether the
-enator entertains the same thinking that the provision has outlived its usefulness since this provision
,as established during the days ,hen third degree ,as accepted as a means of getting at the truth and
confessions from people. %n the absence of third degree methods, there is nothing to be gained in
detaining people unless by the psychological idea that a detainee ,ould soften to confession, ,hich is
unlikely.
&&.& he -enator e8plained that the objective of suspending the privilege of the ,rit is to
hold people incommunicado citing as an e8ample, the Philippines, if it is threatened by a
!ed Chinese invasion and the authorities suspected Mr. Chan, Mr. an, etc. to be spies,
then suspension of the privilege of the ,rit ,ould enable the government to take
immediate hold of Mr. Chan, Mr. an and company and keep them under detention
,ithout right to bail. his ,ould put them out of circulation and disable their operations.
he justifying reason therefore, lies in the need of the Armed 1orces for essential time to
devote on the fight against the invaders or rebels instead of consuming time to formulate
charges against these detainees and the filing of charges against these detainees can be
put aside until such time ,hen the invasion or rebellion is under control. %n short, it is to
enable the Armed 1orces to buy essential time. >e reiterated that po,er to suspend the
privilege of the ,rit of *a#eas corpus and po,er to declare martial la, are justified only
on actual invasion or rebellion, and he still maintained that the former case is
unnecessary.
&&.* Delegate -iguion !eyna further #ueried the -enator ho, the -tate can meet the
security problem in a case of imminent invasion and the po,er to suspend the privilege of
the ,rit is no longer provided for, taking as a case in point, the Philippine situation during
the period prior to the .apanese ,ar ,hen .apanese spies ,ere all over the country
preparing the grounds for its invasion in .apan. >o, can the President or the Prime
Minister meet the problem if he has no Po,er to suspend the privilege of the ,rit.
&&.A he -enator replied that in situations like this, the -enate should undertake
surveillance ,ork as is done in the =.-. he suspects are kept under surveillance and
,hen enough evidence is ac#uired the authorities spring the trap on them and bring them
to court or in case the suspect is found operating ,ithin an area ,here an actual fighting
is on, then the commander of the Armed 1orces in the area, by virtue of his inherent
military po,er to restrict movement of civilians in the area can apprehend and take them
to custody until the fight is over ,ithout the need for suspending the privilege of the ,rit. %t
is part of military po,er. >e suggested as an alternative that a degree of fle8ibility in the
manner of legislation can be resorted to. Citing as an e8ample the legislation on matters
of crimes against the security of the state, detention period prior to filing the case in court
can be enlarged. here are la,s at present failing under this category. Eire tapping is
unla,ful under normal conditions but it is allo,ed in cases involving security and
rebellion.
&*. %n the follo,Cup clarification by Chairman De la -erna, the attention of the -enator ,as directed back
to his former statement that pending the privilege of the ,rit only allo,s the government to hold the
detainee incommunicado but the detainee has other rights as the right to communicate ,ith relatives.
&*.& -enator Diokno agreed that the detainee is still entitled to other rights as the right to
be represented by counsel, but once detained, he is subject to restrictions and control by
the jailer.
&*.* Delegate De la -erna asked if there is a difference in the treatment of detainees
,hen the privilege of the ,rit is suspended and detainees arrested ,hen the privilege is
not suspended7 Ehether to hold a person incommunicado, a jailer is under instruction to
impose certain degree of restrictions to this person ,hich is not true ,ith the ordinary
prisoners.
&*.A -enator Diokno replied that there ,as really no distinction or difference ,ritten in the
la, but the jailer, in the e8ercise of his duty, has a certain degree of un,ritten po,er over
his detainees. he -enator ho,ever disclosed ,hat happened recently to people
detained ,hich he e8perienced as their counsel. he la,yers ,ere allo,ed to talk to the
detainees after a number of days had lapsed, and in fact after their statements ,ere
already taken, after the process of interrogations ,ere terminated. >e revealed that he
,as informed that the detainees ,ere never harmed nor subject to physical pressure but
the process of interrogation continued for hours and hours, and even at an unholy hour of
midnight they ,ere a,akened for further interrogation. Methods designed to inflict mental
and physical torture to tire out the detainees.
&A. he Chair recogni"ed Delegates Molina and Mendiola ,ho jointly engaged the -enator into a series
of interpellations regarding the -enator$s personal opinions and vie,s on the incumbent Presidential
e8ercise of his po,ers ;Proclamation ))( and ))(CA< suspending the privilege of the ,rit of *a#eas
corpus.
&J. Delegate Mutuc asked the -enator if there is no difference bet,een the "arcelon vs. t*e "a-er and
the 'ontene+ro vs. CastaAe!a cases.
&J.& he -enator replied that there ,as a difference and e8plained7 ;&< %n the former
case, the suspension of the privilege of the ,rit should not have been done but it ,as
done only upon joint hearing by the Philippine Commission and the 3overnor 3eneral to
grant action. Ehile in the latter case, the suspension ,as the e8clusive action of the
President of the Philippines. ;*< he situation in the former case ,ere such that at the
very beginning our courts ,ere manned by American .urists intended to be later on
manned by 1ilipino .urists. his being so, the courts found it hard to rule and make a
doctrine. -uch action could be interpreted as tantamount to allo,ing 1ilipino .urists to
overrule an American 3overnor 3eneral and by implication, overrule the President of the
=.-. since under the .ones +a,, the privilege of the ,rit can be suspended by the
President of the =.-. his can be held later on ;today< that the 1ilipino -upreme Court
could revie, the findings of the President of the =.-., ,hich is impossible under the
relation bet,een a colony and its coloni"er, and ;A< that the standard of morality and truth
,ere observed ,ith greater fidelity at that time than they are today.
&J.* Delegate Mutuc sought clarification in the event that the -upreme Court rules that
the antiCsubversion la, is not a Bill of Attainder the -enator begged off. >e stated that he
preferred not to discuss the details and merits of his position in this case, but strongly
urged the Convention to consider re,riting the provisions on the freedom of association.
&B. he Chair ,anted to kno, ,hether suspension of the ,rit and the right to bail is not suspended.
&B.& he -enator stated that in his opinion the right to bail prior to filing the case in court
is suspended. Ehen the case is filed in court, the custody of the person accused goes
from the e8ecutive to the judiciary. 0n a follo,Cup #uestion by the Chairman seeking
clarification for the distinction pointed out by the -enator that right to bail prior to filing the
case in court is suspended, the -enator e8plained that the provision of the privileged of
the ,rit consists of the right of a person to be released if the arrest is found illegal by
court, or the detention is arbitrary or in absence of a prima facie evidence against the
person, so if the privilege of the ,rit is suspended, it follo,s that all the other rights are
also suspended.
&B.* he Chair sought the vie, of the -enator on the opinion of both -ecretary Abad
-antos and -olicitor Antonio that during suspension of the privilege of the ,rit, an order
of ,arrant of arrest is necessary. -enator Diokno agreed ,ith this opinion. he Chair
pointed out that if, as the -enator said, the purpose of the privilege of the ,rit is to
#uestion the legality of arrest and detention, it could be so, even if there is a valid ,arrant
of arrest. his ,ould seem to point out that the issuance of the ,arrant of arrest is
unnecessary. he -enator replied, ?0, and pointed out that if no case can be produced
against a person detained, the arrest is unla,ful and the arresting officer is subject to
prosecution. he suspension of the privilege of the ,rit merely makes it impossible for the
courts to order the release of the detainee. he -enator agreed substantially ,ith the
observation of the Chair that this long legal process re#uired to be follo,ed defeats the
very purpose of the suspension of the privilege of the ,rit, and stated that this is the
reason the e8ecutive and the military authorities resort to illegal shortcuts in taking people
into custody. Many of the detainees today ,ere not issued legal ,arrants, but ,ere just
invited to the military head#uarters. Because of these observations cited, the -enator
urged the joint Body to revie, and re,rite the provisions on the issuance of ,arrants of
arrest.
&2. Delegate upa" ;D.< engaged the -enator in a series of clarificatory #uestions ,hich delved on points
already discussed by the -enator in previous interpellations by Delegates Mutuc, Barrera, !eyes, +aggui
and -iguion !eyna. he -enator ho,ever reiterated his statement that he is for the retention of the
e8ercise of martial la,, not that it is less harmful, but that it is less subject to abuse than the suspension
of the privilege of the ,rit.
&'. Delegate 3unigundo$s interpellations ,ere on the subject of effectivity and validity of Presidential
Proclamations as Proclamation ?o. ))( and ))(CA. he -enator emphasi"ed that the effectivity of
proclamations hinges on the time it ,as made public, not necessarily though, that it be published in the
0fficial 3a"ette, nor copies of the contents be furnished the metropolitan ne,spapers for publication.
&). -enator Diokno categorically ans,ered Delegate -anche" that he ,as suggesting a proposal to
totally remove the po,er to suspend the ,rit of *a#eas corpus in the proposed Constitution, since being
silent about it ,ill allo, Congress or the President to e8ercise its po,er of such procedure. %n ans,er to
Delegate Calderon ;..<, he reiterated that the suspension of the ,rit of *a#eas corpus can be e8ercised
,ith or ,ithout being provided for in the Constitution.
&(. Delegate Aruego ,as informed by -enator Diokno that those detained can only apply for bail if a case
is filed against a detainee in court, so ,hat is done is to file a petition for *a#eas corpus, ,hich includes
the right to bail, it the case is bailable.
*9. Delegate 6ele" e8plained that he ,as recommending t,o alternative proposals to the /8ecutive
Po,er Committee7 &< to prevent forever the suspension of the privilege, or *< to put safeguards, meaning
the President may suspend it but only in actual cases of invasion or rebellion for a specific period of time
in specific areas ,here public safety re#uires it, ,ith the concurrence of t,oCthirds vote of the members of
Congress, if in session, and if not, it ,ill be subject to the automatic revie, by the -upreme Court.
*9.& -enator Diokno ,as in favor of Delegate 6ele"$ first proposal, ho,ever, in the event
the thinking of the Convention does not agree, the -enator did not ,ant to limit the
President, or ,hoever e8ercises the po,er to suspend, for a specific period, because it
,ill be infle8ible and meaningless. >e ,as not agreeable to a concurrence by Congress
because he does not ,ant to tie the hands of the President in of emergency, since it is
very hard to muster a #uorum in both houses of Congress. >o,ever, he ,as for its
revie, by the -upreme Court. >e ,as for the immediate proclamation, but a limit of time
should be set ,ithin ,hich, the revie, should be made.
*9.* Delegate Barrera insisted that the right to protect itself is an inherent sovereign right
of any -tate, so that for any organi"ation of government to e8ercise those means of
protection ;declaration of martial la, and suspension of the privilege of the ,rit< should
be so stated in the Constitution, and the necessary safeguards provided for.
*&. Delegates Barrera and -iguion !eyna engaged the -enator in a discussion critici"ing
the actuations of the incumbent President in connection ,ith the suspension of the ,rit of
*a#eas corpus.
AD.0=!?M/? 01 M//%?3
**. he Chair thanked -enator Diokno for his elucidation and participation in the discussions of the topics
for the day, and adjourned the joint public hearing at &*7&9 p.m.
P!/PA!/D A?D /D%/D B@7 ;-gd.< >0?. C/+-0 P. AB=/?A
A/-/D B@7
;-gd.< 6%C0! D/ +A -/!?A
Chairman
Committee on Civil and Political !ights
yped by7 Alice 3. A#uino
Proofread by7 -alome 0rti"F6ivencio 3opole
Gno)in+ t*e Govern(entDs stan! an! t*e Presi!entDs action, t*e Constitutional Convention !eci!e!
to retain t*e (artial la) po)er ver#ati( in t*e ne) Constitution. T*e ,ra(ers not onl rati,ie! t*e
vali!it o, t*e e6istin+ state o, (artial la) #ut rea,,ir(e! t*e Presi!entDs interpretation as t*e correct
(eanin+ o, t*e constitutional provision ,or ,uture occasion re;uirin+ its e6ercise. T*e political
c*aracter o, a (artial la) procla(ation )it* its continuation )as t*en con,ir(e! # t*e Constitution
Convention.
he political character of continued martial la, is also sustained by the parliamentary system under
the ne, Charter. he po,er to declare martial la, is vested e8clusively in the Prime Minister by
Article %D, -ection &*. 1ollo,ing established precedents, such a vesting of po,er is supposed to
mean that its e8ercise is to the e8clusion of all others ,ho may ,ant to share in the po,er. %n
practice, ho,ever, this ,ill no longer be true.
he &('A Constitution joined together the /8ecutive and the +egislative departments of the
government, ,hich ,ere distinctly separate from each other under the &(AB Constitution. he ?e,
Charter provides7 4he legislative po,er shall be vested in a ?ational Assembly.4 ;Article 6%%%, -ec. &<:
4he /8ecutive po,er shall be e8ercised by the Prime Minister ,ith the assistance of the Cabinet.4
;Article %D, -ec. &<: 4he Prime Minister shall be elected by a majority from among themselves.4
4;Article %D, -ec. A<: 4he Prime Minister shall appoint the Members of the Cabinet ,ho shall be the
heads of ministries at least a majority of ,hom shall come from the ?ational Assembly. Members of
the Cabinet may be removed at the discretion of the Prime Minister.4 ;Article %D, -ec. J<.
hus, ,e no, have a Parliamentary system of government under the ?e, Charter. An essential
feature thereof is the direct responsibility of the Prime Minister and the members of his Cabinet to the
?ational Assembly, for they hold their positions only for as long as they enjoy the confidence of the
Assembly. More accurately, Article 6%%%, -ec. &A ;&< provides for the ,ithdra,al of confidence through
the election of a successor or a ne, Prime Minister by a majority vote of all members of the ?ational
Assembly.
A Prime Minister under the ne, Charter must al,ays take into account the desires of the ?ational
Assembly ,hen he makes important decisions. As a matter of fact, he and the majority of his cabinet
are also members of the ?ational Assembly. %n fact, they are the leaders of the predominant party in
the legislature. hey control legislative policy. he Prime Minister is responsible to the ?ational
Assembly and must e8ecute its ,ill on the one hand and he is its political leader and helps shape that
,ill on the other. 3rave public issues ,ill be handled by the /8ecutive and the +egislature acting
together. En!er t*e ne) Constitution, (artial la) )ill #e a 5oint responsi#ilit o, t*e t)o political
!epart(ents :e6ecutive an! le+islative< even i, its ,or(al procla(ation is veste! solel in t*e Pri(e
'inister.
Before % could release this opinion, % ,as able to get the 4ranscript of the Proceedings of the &22C
man -pecial Committee & Meeting ?o. &, 0ctober *J, &('*4 ,hich fully sustains my vie,, and %
#uote7
!A?-C!%P 01 >/ P!0C//D%?3- 01 >/ &22CMA?
-P/C%A+ C0MM%// K M//%?3 ?0. &
0C0B/! *J, &('*
O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O
P3GE && P @O0. I@I O NO. &
D/+/3A/ =PA5 ;A.<7 -ection J K
>/ P!%M/ M%?%-/! ->A++ B/ >/ C0MMA?D/!C%?CC>%/1 01 A++ A!M/D 10!C/- 01 >/
P>%+%PP%?/- A?D, E>/?/6/! % B/C0M/- ?/C/--A!@, >/ MA@ CA++ 0= -=C> A!M/D
10!C/- 0 P!/6/? 0! -=PP!/-- +AE+/-- 6%0+/?C/, %?6A-%0?, %?-=!!/C%0?, 0!
!/B/++%0?. %? CA-/ 01 %?6A-%0?, %?-=!!/C%0?, 0! !/B/++%0?, 0! %MM%?/? DA?3/!
>/!/01, E>/? >/ P=B+%C -A1/+@ !/P=%!/- %, >/ MA@ -=-P/?D >/ P!%6%+/3/ 01 >/
E!% 01 C3"E3S CO>PES, 0! P+AC/ >/ P>%+%PP%?/- 0! A?@ PA! >/!/01 =?D/!
MA!%A+ +AE.
his provision is an e8act copy of a provision in the present Constitution. his provision complements
-ection &B, Article %6 on the Bill of !ights of this draft. May %, therefore, move for its approval, Mr.
ChairmanI
C>A%!MA? D/ 3=5MA? ;A<7 Any observation or commentI @es, 3entleman from BatangasI
D/+/3A/ +/6%-/ ;0.<7 hank you, Mr. Chairman. Ee notice, @our >onor, that in these t,o sections,
-ection &B of the Bill of !ights and -ection &* of Article %D, ,e are, in a ,ay of speaking, remedying the
seeming discrepancy bet,een similar provisions in the present Constitution. Both provisions ,ill no,
contain the phrase 4or in case of imminent danger thereof4. Eith such a change, % believe that no conflict
as to the true intent ,ill arise in the future. But allo, me, @our >onor, to recall, briefly, our recent
jurisprudence on the matter of the declaration of martial la, and of the suspension of the privilege of the
,rit of *a#eas corpus. @our >onor ,ill recall that under the .ones Act, the 3overnorC3eneral of the
Philippines ,as given the po,er to suspend the privilege of the ,rit of *a#eas corpus and to declare
martial la,. Ehen such po,er ,as #uestioned in court, the -upreme Court came out ,ith the decision, in
the case of "arcelon vs. "a-er, that the findings of the Chief /8ecutive on the e8istence of the grounds
for the declaration of martial la, or the suspension of the privilege of the ,rit of *a#eas corpus are
conclusive and may not be in#uired into by the courts. Ehen the Philippine Common,ealth ,as
established under the &(AB Constitution, the President thereof ,as like,ise given the po,er to suspend
the privilege of the ,rit of *a#eas corpus and to proclaim or declare martial la, for any of the causes
enumerated in the pertinent provisions. -ometime in the &(B9$s, then President Puirino suspended the
privilege of the ,rit of *a#eas corpus. Ehen a case arose, that of 'ontene+ro vs. CastaAe!a, the
-upreme Court affirmed its stand in "arcelon vs. "a-er, that the assessment by the Chief /8ecutive of
the e8istence of the cause or causes giving rise to the proclamation of martial la, or the suspension of
the ,rit of *a#eas corpus is conclusive and may not be contested in the courts. !ecently, ho,ever, only a
little less than a year ago, ,hen President Marcos suspended the privilege of the ,rit of *a#eas corpus,
the -upreme Court ruled, in the case of 0ansan+ vs. Garcia and other companion cases, that the
e8istence of insurrection, rebellion, invasion, or imminent danger thereof, may be properly in#uired into by
the courts. ?o,, % ,ould like to pose before this body, ,hether this Convention should no, affirm the
latest doctrine or ,hether ,e should revert to the old theory and doctrine in the t,o cases of "arcelon vs.
"a-er and 'ontene+ro vs. CastaAe!a.
D/+/3A/ =PA5 ;A.<7 %n vie, of the fact that Chairman de 3u"man is also the Chairman of -ubC
council %% on Citi"ens$ !ights ,hich conducted an e8haustive study on this matter of martial la,, may %
re#uest that he be the one to ans,er #ueries on this pointI
C>A%!MA? D/ 3=5MA? ;A.<7 %n that case, may % re#uest Delegate upa" to act as Chairman in the
meantimeI ;At this point, Chairman De 3u"man yielded the Chair to Delegate Antonio upa"<
D/+/3A/ D/ 3=5MA? ;A.<7 % am personally in favor of abandoning the doctrine laid do,n in the case
of 0ansan+ vs. Garcia, and % ,ould recommend such a vie, to this Committee, and to the Convention as
a ,hole. At this very moment, the -olicitor 3eneral, in representation of President Marcos is urging the
-upreme Court that such a doctrine be abandoned and that ,e revert to the old theory laid do,n in the
cases mentioned by @our >onor. %ndeed, our courts, especially the -upreme Court, ,here these cases
are invariably taken up, are illCe#uipped to make findings on the e8istence of rebellion, insurrection, or
la,lessness.
D/+/3A/ +/6%-/ ;0.<7 But is not @our >onor a,are that there are a number of resolutions filed in the
Convention that the Chief /8ecutive may suspend the privilege of the ,rit of *a#eas corpus or proclaim
and declare martial la, only for a limited period andFor ,ith the concurrence of the +egislatureI
D/+/3A/ D/ 3=5MA? ;A.<7 @es, @our >onor, but ,e are not bound. his Committee is not bound by
those resolutions. As already agreed upon ,hen the &22CMan -pecial Committee ,as created, that
Committee of ,hich ,e are a part ,as merely advised to take into consideration such resolutions. Ee
should bear in mind also that ,e are adopting the parliamentary system ,here there is more, rather than
less, fusion of legislative and e8ecutive po,ers. Ee are adopting, @our >onor, the concept and principle
of an e8ecutive more directly and immediately responsible to the +egislature so that the e8ercise by the
Chief /8ecutive of any of his po,ers ,ill be subject to the ever present scrutiny of the +egislature.
D/+/3A/ +/6%-/ ;0.<7 But my point, @our >onor, is to emphasi"e the fact that the filing of those
resolutions re#uiring even the concurrence of the ?ational Assembly for the valid e8ercise by the Prime
Minister of these e8traordinary constitutional prerogative indicates that there is a sentiment among the
Delegates to further restrict, rather than e8pand, the po,ers. And % ,ould say that the decision of the
-upreme Court in 0ansan+ vs. Garcia ,hich repudiated the doctrine earlier laid do,n in Baker and
CastaLeda lends support to that sentiment.. %f ,e are to interpret the provision under consideration in the
,ay @our >onor ,ould ,ant it interpreted, in the sense that the factual findings of the Chief /8ecutive for
the suspension of the privilege of the ,rit of *a#eas corpus or the declaration of martial la, ,ould be
conclusive insofar as the .udicial Department is concerned, then ,e are retrogressing and, in effect,
going against the sentiment to further restrict the e8ercise of these great constitutional po,ers.
D/+/3A/ D/ 3=5MA? ;A.<7 % can go along ,ith @our >onor$s arguments if, as % have already stated,
this Convention opted for the presidential form of government. But as ,e have already opted and chosen
the parliamentary system, % think further restrictions on the po,ers of the Chief /8ecutive ,ill no longer be
justified. %t may be trite to repeat here, but % repeat them nevertheless, the arguments in favor of a
parliamentary form of government7 that this system is for a strong e8ecutive, but one ,ho is immediately
and instantly ans,erable to his peers at all times. hus, should a Prime Minister suspend the privilege of
the ,rit of *a#eas corpus or declare martial la, arbitrarily or, even perhaps, irrationally, % don$t think that
there can be any better or more immediate check on such arbitrary and irrational e8ercise of po,er than
the Parliament itself. he courts cannot pretend to be in a better position than the Parliament in this
regard. 1or the Parliament on the very day, or perhaps even on the very hour, that the Prime Minister
proclaims martial la, or suspends the privilege of the ,rit of *a#eas corpus may file a motion to depose
him and should this motion be successful, then the prevailing party ,ith its Prime Minister ,ill just issue
another proclamation restoring normalcy and order.
D/+/3A/ +/6%-/ ;0.<7 hank you, @our >onor. 1or the moment, Mr. Chairman, % have no more
#uestions to ask.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Are there any further comments or interpellationsI
D/+/3A/ P=%!%?07 .ust one #uestion, Mr. Chairman, in connection ,ith the point raised by Delegate
+eviste.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @ou may proceed.
D/+/3A/ P=%!%?07 Before % ask my #uestion, @our >onor, let me state my position clearly lest % be
misunderstood. % am asking this #uestion not because % disagree ,ith @our >onor$s position but only for
the purpose of enriching this debate ,ith e8changes of vie,s for future researchers and scholars. ?o,, if,
as @our >onor puts it, the decision of the Prime Minister on the e8istence of grounds justifying the
declaration of martial la, or the suspension of the privilege of the ,rit of *a#eas corpus ,ould no longer
be opened to judicial scrutiny, ,ould that not enable the Prime Minister to abuse his po,ersI
D/+/3A/ D/ 3=5MA? ;A.<7 @our >onor ,as not listening. % just stated that there is a more immediate
check on the part of the Parliament, and aside from this practical check, it must be understood that an act
of the Chief /8ecutive suspending the privilege of the ,rit of *a#eas corpus or proclaiming martial la, is
political act, the remedy must also be political, in a political forum, be in Parliament or directly before our
people. And it must be stated that there is no po,er ,hich may not be abused. % think, @our >onor, ,e
should once and for all agree as to the nature of this po,er ,e are investing in the Chief /8ecutive. 0nce
and for all, ,e should agree that this po,er is eminently political and e8ecutive in nature. he .udiciary, %
submit, is not the best, much less is it the most practical agency, to possess, to e8ercise, or to limit this
po,er, the need for ,hich cannot be denied.
D/+/3A/ P=%!%?07 Eell, @our >onor, % am not a la,yer, so % hope you ,ill pardon me if cannot fully
appreciate ,hat you are talking about. Because, to me, an act is political if it is done by a politician. hat$s
all, Mr. Chairman.
P!/-%D%?3 011%C/! =PA5 ;A.<7 +et$s be serious, please. All right, are there further interpretations or
commentsI @es, Delegate 0rti", ,hat is it that you ,ant to askI
D/+/3A/ 0!%5 ;!.<7 Eell, Mr. Chairman, this is not a #uestion but just additional observations. %t is
unfortunate really that the doctrine first laid do,n in "arcelon vs. "a-er and affirmed more than half a
century later in 'ontene+ro vs. CastaAe!a ,as reversed by the -upreme Court in 0ansan+ vs. Garcia. %
say it is unfortunate because more than anyone else, only the President is in the best position to evaluate
and the e8istence of the causes ,hich ,ould ,arrant the e8ercise of this constitutional po,er. As it ,ere,
the Prime Minister is the head of the /8ecutive Department. More than that, he is the CommanderCinC
Chief of all the armed forces of the Philippines. >e has, therefore, all the resources and facilities not
available to any other official of the government, much less to the -upreme Court, to make authoritative
findings and assessments of the threats to national security. But even in the +ansang case, % ,ould say
that the Court had to rely on the findings of the /8ecutive Department. % have here a copy of the decision
of the -upreme Court in that case, and % ,ould say that the Court had to rely on the findings of the
/8ecutive Department. % have here a copy of the decision of the -upreme Court in that case, and % ,ould
like to #uote a portion thereof. %n this decision, the -upreme Court stated, and % #uote7
%n the year &(2(, the ?PA had K according to the records of the Department of ?ational
Defense K conducted raids, resorted to kidnapping and taken part in other violent
incidents, summing over *A9, in ,hich it inflicted J9J casualties and, in turn, suffered *JA
losses. %n &('9, its record of violent incidents ,as about the same but the ?PA casualties
more than doubled.
% ,ish to call the attention of the Members of this Committee to the phrase appearing in this portion of
court$s decision, namely, 4according to the records of the Department of ?ational Defense4. his
phrase is, to me, significant in the sense that even the -upreme Court itself had to rely on the records
of an agency of the /8ecutive Department, ,hich only proves or, at least indicates an admission on
the part of the Court that by itself, it is not in a position to make its o,n factual findings on the grounds
justifying the suspension of the privilege of the ,rit of *a#eas corpus in the +ansang case. %n short,
even in the +ansang case ,here the -upreme Court repudiated the conclusiveness of e8ecutive
findings on facts to justify the e8ercise of the po,er, the same court, nonetheless, had to resort to
such findings made by an arm of the /8ecutive Department. %f % may further add, % ,ould like to say
that, to my recollection, during that hearing ,hen the -upreme court received this evidence, or
perhaps ,e may call them pieces of information, from the military, ,hich information ,as classified,
there ,ere objections on the part of some counsel ,ho ,ere e8cluded from the hearing, to the effect
that they should also be afforded the opportunity of hearing such information. All of these, of course,
merely sho, the impracticability on the part of any court, be it the -upreme Court or a lo,er court, to
receive evidence ,hich is, perhaps, not even acceptable under the !ules of Court and, thereafter, to
determine for itself ,hether such evidence or information is legally sufficient for the President or the
Prime Minister to act upon. Ee are therefore here abandoning the +ansang doctrine.
-0M/ D/+/3A/-7 ?o objectionW ?o objectionW
D/+/3A/ AD%+7 -o, it is then the understanding of this Committee, and % take it to be its position, that
,hen the Prime Minister suspends the privilege of the ,rit of *a#eas corpus or declares martial la,, the
findings by the Prime Minister on the causes that justify such suspension or proclamation are conclusive
and may not, therefore, be in#uired into by the courts.
D/+/3A/ D/ 3=5MA? ;A.<7 May not be in#uired into by the courts or by anyone, and the Chief
/8ecutive is fully responsible for his acts. he courts, of course, are po,erless to take remedies against
any arbitrary acts of the Chief /8ecutive, but such arbitrary act, if there be any, may he checked by the
political branch or department of the government and, ultimately, by the people themselves.
D/+/3A/ +/6%-/ ;0.<7 %f that is our understanding, @our >onor, ,hy don$t ,e put it here, in black and
,hite, that the findings of the Prime Minister on the e8istence of the grounds for the suspension of the
privilege of the ,rit of *a#eas corpus or the proclamation of martial la, are conclusive upon the courtsI
P!/-%D%?3 011%C/! =PA5 ;A.<7 @our >onor, % suppose you are a,are that ,e are here drafting a
Constitution and not annotating an e8isting one. %f ,e are to include in this document every intent and
interpretation ,e have on each provision, % cannot imagine the kind of bulk of such Constitution ,hich ,e
shall submit to our people.
D/+/3A/ +/6%-/ ;0.<7 % made that suggestion, @our >onor, because % ,ant to leave no doubt on our
position regarding this point.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eell, % think the records of our deliberations here suffice to erase that
doubt.
D/+/3A/ +/6%-/ ;0.<7 ?o,, Mr. Chairman, if % may go to another point, % ,ould like to in#uire
,hether this provision on the po,ers of the Chief /8ecutive or the Prime Minister concerning the
declaration of martial la, is limited to the #uelling of the suppression of rebellion, insurrection, invasion or
la,lessness, or ,hether such a po,er includes in it the establishment of a ne, order of things, a ne,
society. % say this, @our >onor, because on the evening President Marcos announced the proclamation of
martial la,, he underscored his action by saying that he proclaimed martial la, in order according to him,
4to save the !epublic and form a ?e, -ociety4.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Delegate De 3u"man ,ill please ans,er that.
,hich ,e are not ready to accept, and President Marcos, a,are, as he is, that the 1ilipino people ,ill not
back of the rebel elements but to form a ?e, -ociety, to create a ne, atmosphere, ,hich ,ill not be a
provoked the President in declaring martial la, may be #uantified. %n fact, it is completely different from a
case of invasion ,here the threat to national security comes from the outside. he martial la, declared by
the President ,as occasioned by the acts of rebellion, subversion, la,lessness and chaos that are
,idespread in the country. heir origin, therefore, is internal. here ,as no threat from ,ithout, but only
from ,ithin. But these acts of la,lessness, rebellion, and subversion are mere manifestations of more
serious upheavals that beset the deepest core of our social order. %f ,e shall limit and constrict martial la,
to its traditional concept, in the sense that the military ,ill be merely called upon to discharge civilian
functions in areas ,here the civil functionaries are not in a position to perform their normal duties or,
better still, to #uell la,lessness and restore peace and order, then martial la, ,ould be a mere temporary
palliative and ,e shall be helpless if bound by the old ma8im that martial la, is the public la, of military
necessity, that necessity calls it forth, that necessity justifies its e8istence, and necessity measures the
e8tent and degrees to ,hich it may be employed. My point here, @our >onor, is that beyond martial
necessity lies the graver problem of solving the maladies ,hich, in the first place, brought about the
conditions ,hich precipitated the e8ercise of his martial authority, ,ill be limited to merely taking a military
measure to #uell the rebellion and eliminating la,lessness in the country and leave him ,ith no means to
create an enduring condition of peace and order, then ,e shall have failed in providing in this Constitution
the basic philosophy of martial la, ,hich, % am sure, ,e are embodying in it for the great purpose of
preserving the -tate. % say that the preservation of the -tate is not limited merely to eliminating the threats
that immediately confront it. More than that, the measure to preserve the -tate must go deeper into the
root causes of the social disorder that endanger the general safety.
D/+/3A/ D/ 3=5MA? ;A.<7 % need not add more, Mr. Chairman, to the very convincing remarks of my
good friend and colleague, !elegate 0rti". And % take it, Mr. Chairman, that is also the position of this
Committee.
P!/-%D%?3 011%C/! =PA5 ;A.<7 @es, also of this Committee.
,ould oblige.
,hich authori"es such proclamation, is set aside or that at least some provisions of the Constitution are
suspendedI
D/+/3A/ D/ 3=5MA? ;A.<7 he Constitution is not set aside, but the operation of same of its
provisions must, of necessity, be restricted, if not suspended, because their continuance is inconsistent
Constitution provides martial la, as its ,eapon for survival, and ,hen the occasion arises ,hen such is at
stake, prudence re#uires that certain individual rights must have to be sacrificed temporarily. 1or indeed,
detained by the military authorities, % cannot avail of the normal judicial processes to obtain my liberty and
guaranty cannot definitely be had unless the -tate is in a position to assert and enforce its authority.
statutes, regulating, as they do, various and numerous norms of conduct of both the private and the public
D/+/3A/ D/ 3=5MA? ;A.<7 Certainly, and that is the position of this Committee. As martial la,
/8ecutive must not be harmstrung or limited to his traditional po,ers as Chief /8ecutive. Ehen martial
la, is declared, the declaration gives rise to the birth of po,ers, not strictly e8ecutive in character, but
may be safe.
has nothing to do ,ith the invasion, insurrection, rebellion or imminent danger thereof. My point, @our
>onor, is that this measure basically has nothing to do ,ith the restoration of peace and order or the
#uelling of rebellion or insurrection. >o, could ,e validly say that the President$s assumption of such
po,ers is justified by the proclamation of martial la,I
D/+/3A/ D/ 3=5MA? ;A.<7 As % have repeatedly stated, @our >onor, ,e have no, to abandon the
traditional concept of martial la, as it is understood in some foreign te8tbooks. Ee have to look at martial
la, not as an immutable principle, !ather, ,e must vie, it in the light of our contemporary e8perience
and not in isolation thereof. he #uelling of rebellion or la,lessness or, in other ,ords, the restoration of
peace and order may admittedly be said to be the immediate objective of martial la,, but that is to beg
the #uestion. 1or ho, could there really be an enduring peace and order if the very causes ,hich
spa,ned the conditions ,hich necessitated the e8ercise of martial po,ers are not remediedI @ou cite as
an e8ample the decree on land reform. @our >onor ,ill have to admit that one of the major causes of
social unrest among peasantry in our society is the deplorable treatment society has given to our
peasants. As early as the &(A9$s, the peasants have been agitating for agrarian reforms to the e8tent that
during the time of President Puirino they almost succeeded in overthro,ing the government by force.
Eere ,e to adopt the traditional concept of martial la,, ,e ,ould be confined to merely putting do,n one
peasant uprising after another, leaving unsolved the maladies that in the main brought forth those
uprisings. %f ,e are really to establish an enduring condition of peace and order and assure through the
ages the stability of our Constitution and the !epublic, % say that martial la,, being the ultimate ,eapon of
survival provided for in the Constitution, must penetrate deeper and seek to alleviate and cure the ills and
the seething furies deep in the bo,els of the social structure. %n a very real sense, therefore, there is a
profound relationship bet,een the e8ercise by the martial la, administrator of legislative and judicial
po,ers and the ultimate objective of martial la,. And % may add that in the ultimate analysis, the only
kno,n limitation to martial la, po,ers is the convenience of the martial la, administrator and the
judgment and verdict of the people and, of course, the verdict of history itself.
D/+/3A/ +/6%-/ ;0.<7 @our >onor, just for purpose of discussion, may % kno, from you ,hether
there has been an occasion in this country ,here any past President had made use of his martial la,
po,erI
that ,e are of the impression that since its incorporation into the &(AB Constitution, the martial la,
provision has never been availed of by the President. % recall, @our >onor, that during the .apanese
occupation, President +aurel had occasion to declare martial la,, and % recall that ,hen President +aurel
declared martial la,, he also assumed legislative and judicial po,ers. Ee must, of course, reali"e that
during the time of President +aurel, the threats to national security ,hich precipitated the declaration
came from the outside. he threats therefore, ,ere not internal in origin and character as those ,hich
prompted President Marcos to issue his historic proclamation. %f, in case K as ,hat happened during the
time of President +aurel K the declaration of martial la, necessitated the e8ercise of legislative po,ers
by the martial la, administrator, % say that greater necessity calls forth the e8ercise of that po,er ,hen
the threats to national security are posed not by invaders but by the rebellious and seditious elements,
both of the left and right, from ,ithin. % say that because every rebellion, ,hether in this country or in other
foreign countries, is usually the product of social unrest and dissatisfaction ,ith the established order.
!ebellions or the acts of rebellion are usually preceded by long suffering of those ,ho ultimately choose
to rise in arms against the government. A rebellion is not born overnight. %t is the result of an accumulation
of social sufferings on the part of the rebels until they can no longer stand those sufferings to the point
that, like a volcano, it must sooner erupt. %n this conte8t, the stamping out of rebellion must not be the
main and only objective of martial la,. he Martial la, administrator should, nay, must, take steps to
remedy the crises that lie behind the rebellious movement, even if in the process, he should e8ercise
legislative and judicial po,ers. 1or ,hat benefit ,ould it be after having put do,n a rebellion through the
e8ercise of martial po,er if another rebellion is again in the offing because the root causes ,hich
propelled the movement are ever presentI 0ne might succeed in capturing the rebel leaders and their
follo,ers, imprison them for life or, better still, kill in the field, but someday ne, leaders ,ill pick up the
torch and the tattered banners and lead another movement. 3reat causes of every human undertaking do
not usually die ,ith the men behind those causes. =nless the root causes are themselves eliminated,
there ,ill be a resurgence of another rebellion and, logical the endless and vicious e8ercise of martial la,
authority. his reminds me of the ,ise ,ords of an old man in our to,n7 hat if you are going to clear your
field of ,eeds and grasses, you should not merely cut them, but dig them out.
P!/-%D%?3 011%C/! =PA5 ;A.<7 Eith the indulgence of the 3entleman from +a =nion, the Chair
%t is for the foregoing reasons that % find continued martial la, to be a political #uestion under the ne,
Charter. he present Constitution does not give the -upreme Court any po,er to $cheek the e8ercise
of a supremely political prerogative. %f there is any checking or revie, of martial la,, the Constitution
gives it, not to the -upreme Court, but to the ?ational Assembly. =ltimately, the checking function is
vested in the people. Ehether the ?ational Assembly e8presses displeasure and ,ithdra,s its
confidence from the Prime Minister through election of a successor or the Prime Minister asks the
President to dissolve the ?ational Assembly under Article 6%%%, -ection &A, the issue of martial la,
ultimately rests ,ith the people. Anything dependent upon the popular ,ill is, of course, political.
Although the interim ?ational Assembly has not yet been convened, the intent of the Constitutional
Convention to make the #uestion political is clear.
/8clusive of the ransitory Provisions, other provisions of the present Charter may be cited. he Bill
of !ights, Article %6, -ection &B had added 4or imminent danger thereof4 to the &(AB provision. %t no,
reads K
-/C. &B. he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion,
insurrection, rebellion, or i((inent !an+er t*ereo,, ,hen the public safety re#uires it.
Article %D, -ection &2, another ne, provision reads K
-/C. &2. All po,ers vested in the President of the Philippines under the nineteen hundred and thirtyCfive
Constitution and the la,s of the land ,hich are not herein provided for or conferred upon any official shall
be deemed, and are hereby, vested in the Prime Minister, unless the ?ational Assembly provides
other,ise.
All the foregoing features of the ne, Constitution strengthen and do not decrease the e8clusivity and
political nature of the po,er to proclaim martial la, and to lift it.
D%6
G>3NTING TC3T TCE CONTINE3TION OF
'3>TI30 03K IS NOT PO0ITIC30 "ET
JESTICI3"0E, IT IS STI00 @30I. EN.E>
TCE TEST OF 3>"IT>3>INESS
/ven if ,e grant that the continuation of martial la, and the determination ,hen to lift it are justiciable
in character, 0ur decision is still the same. Correctness of the President$s acts, % must repeat, is not
the test. Assuming that the Court has jurisdiction to determine ,hen martial la, should he lifted, the
test is still arbitrariness.
Aside from asserting that there ,as no basis for the initial proclamation of martial la,, the petitioners
insist there is no real emergency in the country today. Petitioner Diokno cites various ne,spaper
items reporting statements of the President and defense officials. Among them are assurances of the
President that reservists ,on$t undergo combat duty, statements of Defense -ecretary Ponce /nrile
citing gains in peace and order, disclosures of commanding generals that the Mindanao rebellion is
crushed and arlac is no, peaceful, and reports from ?ueva /cija that the rebel backbone is broken.
;-upplemental Petition and Motion for %mmediate !elease dated .une *(, &('A.<
he petitioners assert that the 4actual state of ,ar aspect ,as dropped from general orders as early
as -eptember A9, &('* and that the transformation of a ?e, -ociety has become the ne, theme.
%t is the second purpose K the building of a ?e, -ociety K that is no, being emphasi"ed every,here.
he instruments of mass communication that have been allo,ed to often drum this theme ,ithout
ceasing. 6ery little space and time is devoted no, to the idea of saving the !epublic. 0ne can, of course,
handle this difficulty by a semantic manipulation, namely, that the building of a ?e, -ociety is the only
,ay of saving the !epublic.
%n a Manifestation dated .uly 2, &('J, petitioner Diokno cites other circumstances sho,ing that peace
and order conditions in the country are normal.
&. he President left the country a fe, ,eeks ago for a meeting at Menado ,ith President -uharto of
%ndonesia, something he obviously ,ould not have done if there really ,as an emergency.
*. ourists and foreign investors are coming to our shores in hordes, not just to Manila but also its
environs and outlaying provinces, ,hich they ,ould certainly not do if they ,ere not assured of security
and stability.
A. Basketball, chess, s,imming and even karate international tournaments are being held in the
Philippines. he President even attended the latter event.
J. he &('J Miss =niverse contest is scheduled to be held in Manila this month ,ith e8penses in
preparation therefor amounting to millions of pesos. he 3overnment ,ould not have been so thoughtless
as to spend so much money for such an unnecessary affair, if there is really an 4actual and imminent
danger of insurrection and rebellion.4
B. -ince the proclamation of martial la,, the Philippines has hosted several international conferences, the
latest being the =nited ?ations Development Program sessions ,hich ,ere attended by delegates and
observers from si8tyCsi8 ;22< countries, t,entyCsi8 ;*2< =nited ?ations Agencies, and the =.?.D.P.
-ecretariat. he event last mentioned brought in so many visitors that facilities of no less than fourteen
;&J< hotels had to be utili"ed. his can only happen in a country ,here peace and tran#uility prevail.
hese circumstances, K some bordering on the frivolous, couple! )it* t*e Presi!ent clear an! repeate!
assurances t*at t*ere is 1no real e(er+enc to!a1 :.ail E6press, June 22, $%77< an! t*at 1actuall Ke
*ave re(ove!1 (artial la) ;ime Maga"ine, April &B, &('J< K all confirm that the conditions under ,hich
4persons may be detained ,ithout ,arrant but ,ith due process4 ;to use the #uotation from petitioner$s
cited by respondents<, no longer e8ist, if indeed they ever e8isted, and that, therefore, the po,er of
indefinite detention claimed by the -olicitor 3eneral and the respondents for the President in their last t,o
pleadings, is actually and patently 4beyond the pale of the la, because it is violative of the human rights
guaranteed by the Constitution.4
Ehile % believe that the continuation of a state of martial la, is a political #uestion under the ne,
Constitution, these arguments deserve ans,er for the sake of our people ,ho ,ill read the Court$s
decision.
% am not convinced, at this stage of martial la, that the President is acting arbitrarily in not lifting the
proclamation.
A Manifestation dated May &A, &('J from the respondents states7
a. Pursuant to the President$s constitutional po,ers, functions, and responsibilities in a state of martial
la,, he periodically re#uires to be conducted a continuing assessment of the factual situation ,hich
necessitated the promulgation of Proclamation ?o. &9)& on -eptember *&, &('* and the continuation of
martial la, through Proclamation ?o. &&9J, dated .anuary &', &('A:
b. he 3overnment$s current and latest assessment of the situation, including evidence of the subversive
activities of various groups and individuals, indicates that there are still pockets of actual armed
insurrection and rebellion in certain parts of the country. Ehile in the major areas of the active rebellion
the military challenge to the !epublic and its duly constituted 3overnment has been overcome and
effective steps have been and are being taken to redress the centuriesCold and deepCseated causes upon
,hich the fires of insurrection and rebellion have fed, the essential process of rehabilitation and
renascence is a slo, and delicate process. 0n the basis of said current assessment and of consultations
,ith the people, the President believes that the e8igencies of the situation, the continued threat to peace,
order, and security, the dangers to stable government and to democratic processes and institutions, the
re#uirements of public safety, and the actual and imminent danger of insurrection and rebellion all re#uire
the continuation of the e8ercise of po,ers incident to martial la,:
c. he majority of persons ,ho had to be detained upon the proclamation of martial la, have been
released and are no, engaged in their normal pursuits. >o,ever, the President has deemed that,
considering the overall situation described above and in vie, of ade#uate evidence ,hich can not no, be
declassified, the continued detention of certain individuals ,ithout the filing of formal charges in court for
subversive and other criminal acts is necessary in the interest of national security and defense to enable
the 3overnment to successfully meet the grave threats of rebellion and insurrection. %n this regard, the
-ecretary of ?ational Defense and his authori"ed representatives have acted in accordance ,ith
guidelines relating to national security ,hich the President has prescribed.
he President believes that the continued threat to peace and order, the dangers to stable
government and democratic institutions and the actual and imminent danger of insurrection and
rebellion re#uire continuation of martial la,. his finding is based on a continuing assessment of the
factual situation ,hich resulted in Proclamation ?o. &9)&. 0n the other hand, petitioners believe
other,ise.
%n the e8ercise of judicial revie,, one reasonable mind assessing the factual situation no, obtaining
could probably agree ,ith the petitioners. Another reasonable mind, ho,ever, vie,ing the same
factual situation could very understandably arrive at an opposite conclusion. Assuming Ee have the
Po,er, Ee should not try to ,eigh evidence on either side and determine ,ho is correct and ,ho is
,rong. As stated earlier, the test of validity is arbitrariness and not correctness % do not doubt the
President$s sincerity and good faith in making the determination outlined in the respondent$s
Manifestation. here can, therefore, be no finding that he is acting arbitrarily in not lifting martial la,.
he 4evidence4 present by petitioner Diokno ,eakens his arguments. %f, as he claims, the mass
media are controlled, the ne,s items on rebellion that he cites should not be accorded strong
probative value. %t is possible that the ne,s about rebels and insurrectionist activities is deliberately
played do,n as part of the peace and order campaign under martial la,. he ne,s could be intended
to convince those ,ho may ,aver bet,een seeking amnesty or prolonging the rebellion to take the
first course of action.
%n fact, there is over,helmingly a greater number of reasonable men and ,omen ,ho agree , ,ith the
President$s findings than ,ith the petitioners$ convictions. 0n .uly *', &('A and .uly *), &('A, voters
in a national referendum ,ere asked K Do you ,ant President Marcos to continue beyond &('A and
finish the reforms he has initiated under martial la,I he Commission on /lections has reported that
&),B9B,*&2 voters ans,ered 4@es4 and &,)B2,'JJ voted 4?o4. he vote of the &),B9B,*&2 people
from all parts of the country ,ho ans,ered 4@es4 can clearly be interpreted as sustaining the finding
that the President is not acting arbitrarily. %n fact, it can be read in no other ,ay but to confirm even
the correctness of the President$s determination on the continuing need for martial la,. And since
other referenda are forthcoming, a more reliable gauge of arbitrariness and correctness than press
clippings is available to our people as they judge the President.
he petitioners, in urging this Court to decide the petitions and to decide them in their favor, raise the
alarm that unless Ee do so, Ee may never he able to decide at all. Ee are ,arned that 4in the face
of an assault on the .udiciary, it ,ould be ridiculous, if it ,ere not tragic, if this Court did not even so
much as defend itself. ... %n the face of a dismantling of the entire constitutional order of ,hich the
.udiciary is a vital, indispensable part, ho, can it even afford the lu8ury of ac#uiescence in its o,n
ruinI And ho, can it continue to inspire the high respect of the people, if it merely indulges in
sculptured rhetoric and fails to protect their civil liberties in live, concrete petitions such as thisI4
;!eply Memorandum for Petitioners dated ?ovember A9, &('*, page J9<. he petitioners speak of
4constitutional suicide4 ;I#i!, p. 29< and allege that 4the gloom deepens and is encircling, and only a
fe, lights remain. 0ne remaining light is that provided by this -upreme ribunal. he entire nation
no, looks in its direction and prayerfully hopes it ,ill continue burning4 ;i#i!, p. )&<.
% do not share the same doomsday impressions about martial la,. My decision is based not alone on
my sincere conviction about ,hat the Constitution commands and ,hat the relevant constitutional
provisions mean. >appily, my reading of the Constitution as a legal document coincides ,ith ,hat %
feel is right, morally and conscienceC,ise, for our country and people. %t confirms my lifeClong
conviction that there is indeed ,isdom, profundity and even genius in the seemingly short and
uncomplicated provisions of our fundamental la,.
D6
'3>TI30 03K 3N. TCE SESPENSION OF
TCE K>IT OF C3"E3S CO>PES
Another issue in the instant petitions is ,hether the privilege of the ,rit of *a#eas corpus is
suspended upon a proclamation of martial la,. he ans,er is obviously in the affirmative.
he proclamation of martial la, is conditioned on the occurrence of the gravest contingencies. he
e8ercise of a more absolute po,er necessarily includes the lesser po,er especially ,here it is
needed to make the first po,er effective. 4he suspension enables the e8ecutive, ,ithout interference
from the courts or the la, to arrest and imprison persons against ,hom no legal crime can be proved
but ,ho may, nevertheless, be effectively engaged in morning the rebellion or inviting the invasion, to
the imminent danger of the public safety.4 ;Barcelon v. Baker, B Phil. )', &&*<. %t ,ould negate the
effectivity of martial la, if detainees could go to the courts and ask for release under the same
grounds and follo,ing the same procedures obtaining in normal times. he President in the
dispositive paragraph of Proclamation ?o. &9)& ordered that all persons presently detained or others
,ho may thereafter be similarly detained for the crimes of insurrection and rebellion and all other
crimes and offenses committed in furtherance or on the occasion or in connection there,ith shall be
kept under detention until other,ise ordered released by him or his duly designated representative.
=nder 3eneral 0rder ?o. *CA, the President ordered the arrest and taking into custody of certain
individuals. 3eneral 0rder ?o. *CA directs that these arrested individuals ,ill be held in custody until
other,ise ordered by the President or his duly designated representative. hese general orders
clearly sho, that the President ,as precluding court e8amination into these specified arrests and
court orders directing release of detained individuals.
Martial la, is intended to overcome the dangers from rebellion or insurrection. he purpose ,ould be
subverted if martial la, is declared and yet individuals committing acts of direct rebellion and
insurrection or acts ,hich further the goals of the rebels cannot be detained ,ithout filing charges. %f
the President decides to proclaim martial la, and to use all the military forces of the Philippines to
preserve the !epublic and safeguard the interests of the people, it is sophistry to state that the lesser
po,er of suspending the privilege of the ,rit of *a#eas corpus is not included. his is especially true
,here, as in these cases, the President has specifically ordered the detention ,ithout filing of charges
of individuals ,ho further or might further the rebellion. his appears clear from Proclamation ?o.
&9)& itself and from pertinent general orders issued pursuant to it.
D6%
TCE EFFECT OF 3>TIC0E I@II, SEC 7
:2< OF TCE NEK CONSTITETION
here is another reason for denying the instant petitions.
Article D%% -ection A, -ubsection ;*< of the present Constitution ;ratified on .anuary &', &('A< has a
transitory provision ,hich reads7
superseded by subse#uent proclamations, or other acts of the incumbent President, or unless e8pressly
and e8plicitly modified or repealed by the regular ?ational Assembly.
%t is noted from the foregoing that all proclamations and orders of the President, specifically
Proclamation ?o. &9)& and the relevant orders and decrees affecting the herein petitioners and
others similarly situated, are by the e8press ,ords of the Constitution, part of the la, of the land. %n
fact, the transitory provision considers them valid, legal, binding and effective even after lifting of
martial la, or the ratification of this Constitution. hey are valid not only at the inception of but also
during martial la,. 0nly an e8press and e8plicit modification or repeal by the regular ?ational
Assembly may modify, revoke, and supersede the proclamations, orders, decrees, instructions or
other acts of the incumbent President under martial la,. his transitory provision does not, as many
people believe, merely validate Proclamation ?o. &9)&. his section confirms the validity of the
proclamation under the old Constitution and its continuing validity under the ?e, Constitution. he
Constitutional Convention concurred ,ith the President and declared that the proclamation ,as
validly issued under the old Charter and continues to be constitutional under the ne, Constitution. 0n
the basis of the constitutional provision alone, the declaration of martial la, under Proclamation ?o.
&9)& may, therefore, be justified and validated. -imilarly, the orders of the President on the continued
detention of the petitioners and, in effect, the suspension of the privilege of the ,rit of *a#eas corpus
have been definitely declared valid and constitutional.
% ,ish to add that ,ith the aboveCcited portion of the ransitory Provision, the Constitutional
Convention ,anted to foreclose any constitutional attack on the validity of 4all proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President4 mentioned
therein. As a matter of fact, during the discussions of this portion of the ransitory Provision before
the &22Cman special committee, formed to finally draft the Constitution of ,hich % ,as a member,
;being the 6iceCChairman of the panel of floor leaders<, ans,ering a #uery from Delegate +eviste,
Delegate Pacificador said7
T>3NSC>IPT OF TCE P>OCEE.INGS OF TCE $//4'3N SPECI30 CO''ITTEE K 'EETING
No. 77
NO@E'"E> 2/, $%72
By the provisions of -ubsection *, ,e are rendering the decrees of the incumbent President as more than
mere statutes. Ee are constituting them as highly political acts, the validity of ,hich cannot be in#uired
into even by our courts, but are appealable only to the people themselves. here ,ill be no other ,ay of
revoking or repealing such decrees e8cept by the t,o ,ays mentioned in -ubsection * of -ection A.
.ustifying martial la, and the suspension of the privilege of the ,rit of *a#eas corpus by citing the
transitory provisions of the present Constitution leads to another argument in the petitions. According
to petitioner Diokno, the statements in the dispositive portion of the decision in the ratification cases
that 4there is no further judicial obstacle to the ne, Constitution being considered in force and effect4
is clearly not a ruling that the ?e, Constitution is legally in force and effect. Petitioner Diokno
stresses ho, carefully the Court has chosen its language. According to him, the Court does not say
that there is no further le+al obstacle and that it says merely that there is no further 5u!icial obstacle.
Petitioner finds a ,orld of difference bet,een a legal and a judicial obstacle. /very illegal act,
according to him, is per se barred by a legal obstacle but not necessarily by a judicial obstacle. he
petitioner points out that the Court does not state that the ne, Constitution is in force and effect. %t
merely speaks of the ne, Constitution #ein+ consi!ere! in force and in effect. >e alleges that
bet,een 4being4 and 4being considered4, there is again a ,orld of difference. 1rom the decision of the
-upreme Court in the ratification cases, the petitioner believes that the Court ,as trying to make it as
plain as circumstances permitted that it had not decided that the ne, Constitution is legally and
factually in force.
0ther pleadings submitted in these cases have raised basically the same major issues that ,ere
raised in the ratification cases already decided by the Court.
o my mind, the dispositive portion of the -upreme Court$s decision is best interpreted by the
-upreme Court itself. ?o amount of argumentation, submission of pleadings, play of ,ords, and
semantic niceties can overcome or ignore the fact that the -upreme Court is interpreting and applying
the ne, Constitution. he members have taken an oath to defend this ne, Constitution. By both
action and ,ords, all the members of this Court have made it plain beyond any shado, of doubt that
the ne, Constitution is legally and factually in force. he justices of this Court ,ould be the last
persons to interpret and enforce something they do not consider valid, legitimate, and effective. %t is
not alone the taking of an oath to support and defend the ne, Constitution that indicates clearly ,hat
the Court meant ,hen it rendered the Javellana vs. E6ecutive Secretar ;+CA2&J*< decision. he
meaning of the decision is #uite clear from the fact that the Court has been enlarged beyond its
earlier composition. %t has reorgani"ed itself into t,o divisions. /ach division is no, trying cases
pursuant to the ?e, Constitution. All courts are under the administrative supervision of the -upreme
Court. An e8amination of decisions rendered by the Court since the Javellana vs. E6ecutive
Secretar decision ,ill sho, that there is constant reference to the &('A Constitution. %ts provisions
form the basis for its authority to interpret and e8pound on the la,s. Ehenever a provision of the
Constitution is invoked, the Court turns to the &('A Constitution as the present Constitution. % can see
no clearer interpretation of a decision of this Court than these various acts of the Court itself.
D6%%
3 FEK OTCE> POINTS
here are a fe, other points ,hich % ,ould like to ans,er briefly. Petitioner 1rancisco $-oc$ !odrigo
states that ,hile he ,as released from detention on December B, &('*, his release is conditional and
subject to some restrictions. >e is not allo,ed to leave the confines of the 3reater Manila area unless
specifically authori"ed by the military. >e states that his petition for *a#eas corpus is not moot and
academic cause of his release.
Considering my opinion on the constitutionality of Proclamation ?o. &9)&, it follo,s that the release of
petitioners .ose E. Diokno and Benigno -. A#uino may not be ordered. he petitions for their
release, as in the case of detainees already released, must be directed to the President. > %f such is
the case ,ith petitioners ,ho are actually detained and confined, ,ith more reason should the
principles herein enunciated apply to those no longer confined or detained.
%n the case of former -enator Benigno -. A#uino, criminal charges have been filed against him. As a
rule, a petition for the ,rit of *a#eas corpus is satisfactorily ans,ered by a sho,ing that a prisoner is
detained on the basis of valid criminal charges. >o,ever, petitioner A#uino challenges the jurisdiction
of the military tribunal and the validity of the charges filed against him.
herefore, insofar as all issues in the case of "eni+no S. 3;uino vs. 'ilitar Co((ission ?o. *, +C
A'A2J, ,hich are common to the issues in these instant petitions are concerned, this decision
applies. 0n any other issue not common to the issues in these Petitions, % am reserving my opinion
for +CA'A2J.
D6%%%
TCE >E'E.IES 3G3INST C0E3> 3"ESE OF POKE>
he general remedy against an arbitrary, ,himsical, or capricious e8ercise of the martial la, po,er of
the President, as it is the remedy on all political #uestions, is the voice of the people in an election
,hen one is held, or through the Barangays ,hich the President himself has consulted in the .uly *'
and *), &('A referendum on ,hether the people ,anted President Marcos to continue beyond &('A
and finish the reforms he has initiated under martial la,. he President has officially announced a
number of times that he ,ould consult ,ith the Barangays periodically. =nder this remedy, the
people, in the e8ercise of their sovereign po,er, can base their decision, not only on ,hether the acts
of the President has been arbitrary, ,himsical, or capricious: they can base their decision on a
broader basis and K that is ,hether, in their o,n opinion, the President acted correctly or not.
0r if and ,hen the interim assembly is convened, a majority of the members thereof, as
representatives of the people, can also remedy an arbitrary, ,himsical, capricious, or even an un,ise
e8ercise of the po,er, by so advising the Prime Minister to lift martial la, under pain of being
deposed as Prime Minister.
As ,e declare the proclamation and the continuation of martial la, political and therefore nonC
justiciable in nature, Ee are only ackno,ledging the constitutional limitation of that po,er to
justiciable #uestions only, just as ,e had defined the constitutional limitations of the po,ers of
Congress and of the /8ecutive. As the interpreter of the Constitution, the Court has to lead in
respecting its boundaries.
0ur jurisprudence is replete ,ith e8amples ,here this Court e8ercised its judicial po,er in
appropriate cases ;Avelino vs. Cuenco, )A Phil. &': Araneta vs. Dinglasan, )J Phil. A2): ?ationalists
Party vs. Bautista, )B Phil. &9&: !odrigue" vs. 3ella, (* Phil. 29A: !utter vs. /steban, (A Phil. 2):
Aytona vs. Castillo, J -C!A BAA, to name only the fe,<, ,hich should more than prove that no matter
ho, grave or urgent, delicate or formidable and novel or uncommon a legal problem is, the Court ,ill
kno, ,hen and ho, to resolve it. -pecifically, it ,ill kno, ,hat to do if, as petitioners fear, a
President may someday ,ake up and out of the blue proclaim martial la,. 0f course, this is already
almost an impossibility under the parliamentary system established by the ?e, Constitution.
D%D
C O N C 0 E S I O N
he voluminous pleadings and the lengthy arguments supporting the petitions are generally couched
in erudite and elo#uent language. %t is regrettable that they have been tainted in a number of
instances ,ith fren"ied and biting statements indicative of a sense of e8asperation. % am certain,
ho,ever, that these statements cannot affect the high sense of impartiality of the members of the
Court as they give their opinion in these cases.
he President is the highest elective official in the country. %t ,as no casual or perfunctory choice
,hich elevated him to the position. %t is his duty, no less than that of this Court, to save the !epublic
from the perils of rebellion and insurrection. %n order to preserve public safety and good order, he has
been forced to proclaim a state of martial la,. o insure the continuation of civilian authority and
democratic institutions, he has utili"ed the armed forces to #uell the armed challenge and to remedy
the ancient evils upon ,hich rebellion and insurrection flourish.
he petitioners dispute the President$s determination and #uestion his motives. o them the e8ercise
of his constitutional po,ers is an abuse of e8ecutive po,ers and assumption of a dictatorship.
%nasmuch as the real reason for the imposition of martial la,, according to petitioner Diokno, is not to
preserve the nation but to keep the President in po,er, there is only one decision the Court should
make. %t should invalidate Proclamation ?o. &9)&. he dire conse#uences are given by the petitioner
K eventual resort to arms, shedding of blood. destruction of property and irreparable loss of
invaluable lives K ,hich, of course, are the same conse#uence sought to be avoided ,hen martial
la, ,as proclaimed.
he -upreme Court may be the highest court of the land. %t is not, ho,ever, a super Being over and
above the /8ecutive, the +egislature and the Constitution, deciding cases on an infallible sense of
ruth and a faculty of divination. Principles of liberty, right, and justice are not interpreted in an
abstract and dogmatic form. hey are applied in the manner the sovereign people adopted our
institutions of government and formulated our ,ritten Constitution.
he -upreme Court can rule on the proclamation of martial la, only insofar as its validity under the
Constitution is raised as an issue. %f the Constitution, as the e8pression of sovereign ,ill, vests the
determination of the necessity for martial la, in the President, the Court shall so declare and respect
it.
>o,ever, the determination of the ,isdom or the propriety of the proclamation must rest ,ith the
people. Eisdom and propriety in the making of supremely political decisions and in the e8ercise of
political functions are for the people to assess and determine. =nder our constitutional form of
government, no official or department can effectively e8ercise a po,er unless the people support it.
!evie, by the people may not be as clearcut and fre#uent as judicial revie, but it is actual, present,
and most affective.
he constitutional process and the rule of la, are interpreted and enforced by the -upreme Court but
their viability and strength depend on the support and faith of the people. Conse#uently, if our people
allo, the system of government to be changed, no pronouncements of this Court can reverse the
change or topple an alleged dictator from po,er. 0nly the people can do it.
1ortunately, the trend of present events clearly sho,s that martial la,, instead of destroying
constitutional government as advanced by the petitioners, is, in fact, saving and strengthening it.
E>/!/10!/, % vote to render judgment7 ;&< o grant the Diokno motion to ,ithdra, his petition for
*a#eas corpus:
;*< Declaring that the decision to proclaim martial la, is a political #uestion and the Court may not
e8amine the grounds upon ,hich Proclamation ?o. &9)& is based: granting that the Court may do so,
there is sufficient constitutional factual basis for the same and certainly the President has not acted
arbitrarily, ,himsically or capriciously in issuing the Proclamation: that on both grounds, said
Proclamation ?o. &9)& is constitutional:
;A< Declaring that the privilege of the ,rit of *a#eas corpus is ipso facto suspended upon a
proclamation of martial la,: and in effect, 3eneral 0rder ?o. *CA suspended said privilege:
;J< Declaring that the continuation of the state of martial la, is similarly a political #uestion and that it
is for the President or the Prime Minister, under the ?e, Constitution, to determine ,hen it may be
lifted: and granting that this Court may e8amine the factual basis for the continuation of martial la,,
Ee find sufficient basis for the same: and
;B< Dismissing the various petitions for the ,rit of *a#eas corpus of petitioners still detained, or under
4community arrest,4 ,ithin the 3reater Manila area, ,ithout costs.

M"DO1 .ALMA, J.:
*. %n 3.!. +CABBA(, Carmen %. Diokno, in behalf of her husband, .ose E. Diokno, petitioner7
>e 1'otion to Kit*!ra) Petition1 !ate!
.ece(#er 2%, $%77=
% shall e8plain ,hy % voted to +rant t*e (otion. % believe that a petition for *a#eas corpus basically
involves the life and liberty of the petitioner, and, if for reasons of his o,n K the ,isdom andFor
correctness of ,hich are best left to him to determine K he desires to ,ithdra, the same and leave
his present condition of indefinite detention as it is, such is his right ,hich % as a fello,Chuman being
and as a magistrate of the la, should not deny him. My distinguished colleagues ,ho opted to deny
said 4Motion to Eithdra,4 argue mainly that to grant the motion of petitioner Diokno is for the Court to
accept the truth of his allegations and deny itself the opportunity to act on and resolve the basic
issues raised in the Petition for *a#eas corpus ,hich issues are of 4utmost public importance4 and
involve 4the very life and e8istence of the present 3overnment under the ne, Constitution.4 Ehat %
can say is that the other Petitions for *a#eas corpus no, being decided jointly in this Decision afford
a forum ,here the legal and constitutional #uestions presented in Diokno$s petition can very ,ell he
discussed, dissected to their minutes details, and decided by the Court. Ehat concerns this ,riter
most is that the thrust of Diokno$s motion to ,ithdra, is his belief that he 4cannot reasonably e8pect
either right or reason, la, or justice4 from this Court it being a ne, Court under the ne, Constitution,
a different Court from the -upreme Court to ,hich he originally applied for his release.
1
%n plain and
simple language, petitioner Diokno is bereft of faith in this Court and prefers that his fate be left
undecided: ,ho are ,e then to impose our ,ill on him and force him to litigate under a cloud of
distrust ,here his life and liberty are ine8tricably involvedI .ust as love is an emotion ,hich springs
spontaneously from the heart and never coerced into e8istence, so also is faith, trust, born and
nurtured in freedom and never under compulsion. hus, to deny petitioner Diokno$s motion is to
compel him to have faith in this Court: can ,e do so ,hen faith has to be earned, and cannot be
forced into beingI >ence, my vote.
On t*e 'erits o, t*e Petition
Because petitioner Diokno$s 4Motion to Eithdra, Petition4 ,as considered denied as only seven
.ustices voted to grant it,
4
and his Petition for *a#eas corpus ,as to be decided on its merits, and at
the time of the ,riting of this 0pinion Diokno ,as in custody for almost t,o years ,ithout charges
having been filed against him, % resolved to treat his Petition differently from that of the other
petitioners ,ho, during the pendency of these cases, ,ere conditionally released from the prison
camps of respondents. >o,ever, after completion of my 0pinion but before the Decision in these
cases could be promulgated on -eptember &*, &('J, as scheduled, President 1erdinand /. Marcos
ordered the release of petitioner, .ose E. Diokno, on -eptember &&, &('J. > his development led the
Court to dismiss the Petition of .ose E. Diokno for having become moot and academic, and forced
me to revise my 0pinion as it became unnecessary to discuss the issue of Diokno$s continued
detention.
TCE F3CTS
0n -eptember *&, &('*, President 1erdinand /. Marcos signed ,hat is no, kno,n as Proclamation
?o. &9)& proclaiming a state of martial la, in the Philippines, based inter alia on the follo,ing
consideration7
... the rebellion and armed action undertaken by these la,less elements of the communist and other
armed aggrupations organi"ed to overthro, the !epublic of the Philippines by armed violence and force
have assumed the magnitude of an actual state of ,ar against our people and the !epublic of the
Philippines:
he Proclamation thus concluded7
vested upon me by Article 6%%, -ection &9, Paragraph ;*< of the Constitution, do *ere# place t*e entire
P*ilippines as !e,ine! in 3rticle I, Section $ o, t*e Constitution un!er (artial la) and, in my capacity as
%n addition, I !o *ere# or!er t*at all person presentl !etaine!, as ,ell as all ot*ers )*o (a *erea,ter
#e si(ilarl !etaine! ,or the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in, connection there,ith, for
public officers, and for such other crimes as ,ill be enumerated in 0rders that % shall subse#uently
other,ise ordered released by me or by my duly designated representative. ;emphasis supplied<
0n -eptember **, 3eneral 0rder ?o. & ,as issued from ,hich ,e #uote7
E>/!/A-, martial la, has been declared under Proclamation ?o. &9)& dated -ept. *&, &('* and is no,
in effect throughout the land:
888 888 888
?0E, >/!/10!/, %, 1erdinand /. Marcos, President of the Philippines, by virtue of the po,ers vested
in me by the Constitution as CommanderCinCChief of the Armed 1orces of the Philippines, do hereby
proclaim that % shall govern the nation and direct the operation of the entire 3overnment, including all its
agencies and instrumentalities, in my capacity and shall e8ercise all the po,ers and prerogatives
appurtenant and incident to my position as such CommanderCinCChief of all the armed forces of the
Philippines.
Also on -eptember **, 3eneral 0rder ?o. * ,as signed by the President ,hich provided7
3

CommanderCinCChief of all the Armed 1orces of the Philippines, % *ere# or!er ou as -ecretary of
?ational Defense to ,ort*)it* arrest and ta-e into our custo! the individuals named in the attached lists
for being participants or *avin+ +iven ai! an! co(,ort in the conspiracy to sei"e political and state po,er
in the country and to take over the government by force, the e8tent of ,hich has no, assumed the
proportion of an actual ,ar against our people and our legitimate government and in order to prevent
them from further committing acts that are inimical or injurious to our people, the government and our
national interest, and to hold said individuals until other,ise so ordered by me or by my duly designated
representative. ;emphasis supplied< .
%mplementing 3eneral 0rder ?o. *, respondent -ecretary of ?ational Defense, >on. .uan Ponce
/nrile, immediately effected the arrest of a good number of individuals among ,hom ,ere the herein
petitioners ,ho, by reason of their arrest ,ithout charges having been filed against them, came to this
Court to seek relief through their respective Petitions for *a#eas corpus, the earliest of ,hich, +C
ABBA), ,as filed in the morning of -eptember *A, &('*.
5
he Court in the respective Petitions
promptly issued the Erit returnable to it, and re#uired respondents to ans,er. Eith e#ual dispatch
respondents filed their 4!eturn to Erit and Ans,er to the Petition4 in all the cases ,hich contained a
common 4-pecial and Affirmative Defenses4 reading as follo,s7
B. Pursuant to said proclamation, the President issued 3eneral 0rders ?os. &, *, A, ACA, J, B, 2, and '
and +etters of %nstructions ?os. &, * and A. rue copies of these documents are hereto attached and
made integral parts hereof as Anne8es *, A, J, B, 2, ', ), (, &9, and &&. A copy of the President$s
statement to the country on -eptember *A, &('* is also attached as Anne8 &*:
2. 1inally, the petition states no cause of action. ;p. *&, rollo +CABBJ2<
he Ans,er prayed that the petition be dismissed.
Pending resolution of these Petitions, petitioners, e8cept for t,o, ,ere released from custody on
different dates under a 4Conditional !elease4 0rder of the same tenor as the follo,ing7 >
B December &('*
Any violation of these provisions ,ould subject you to immediate;ly< arrest and confinement.
0ffice indicating the provincial address and e8pected duration of stay thereat. Contact this office through
;-3D.< MA!%A?0 3. M%!A?DA +t. Colonel PA 3roup Commander
P0E.GE
% >/!/B@ P+/D3/ to conduct myself accordingly and ,ill not engage in any subversive activity. % ,ill
immediately report any subversive activity that ,ill come to my kno,ledge.
;-3D.< 1. !0D!%30
Address7 29 .uana !odrigue" Pue"on City
el. ?o. '9C*BC22: '9CJ(C*9 '9C*'CBB
;p. 2*&, rollo +CABBJ2<
?ot,ithstanding their release from detention, petitioners concerned did not ,ithdra, their respective
Petitions for *a#eas corpus, ,hile petitioner 1rancisco !odrigo filed a Manifestation dated ?ovember
*', &('A stating that his release did not render his Petition moot and academic. ;p. 2*9, rollo +C
ABBJ2< he t,o petitioners ,ho have not been released up to the present are -enator Benigno -.
A#uino, .r. against ,hom in the meantime certain criminal charges have been filed ,ith Military
Commission ?o. * and -enator .ose E. Diokno ,ho has not been charged neither before a civil court
nor a military tribunal or commission. >
TCE ISSEES
hese petitions being essentially for the issuance of the ,rit of *a#eas corpus the ,un!a(ental issue
is the le+alit of the detention of petitioners, and ,hen ,e say detention, that includes the state of
those petitioners ,ho have been conditionally released from the prison camps of respondent for it is
claimed that their conditional release still constitutes a restraint on their personal liberty.
he purpose of the ,rit of *a#eas corpus is to in#uire into the cause or reason ,hy a person is being
restrained of his liberty against his ,ill, and if there is no legal andFor valid justification sho,n for such
restraint the ,rit ,ill forth,ith issue to restore to that person his liberty or freedom. %t 4e8ists as a
speedy and effectual remedy to relieve persons from unla,ful restraint, and as the best and only
sufficient defense of personal freedom ... ,hose principal purpose is to set the individual at liberty.4
5

?oted authors have elo#uently described the ,rit as 4the ,rit of liberty4,
:
as 4the most important and
most immediately available safeguard of that liberty4,
7
as 4the greatest of the safeguards erected by
the civil la, against arbitrary and illegal imprisonment by ,homsoever detention may be e8ercised or
ordered4,
8
and as 4the great bul,ark of personal liberty.4
9
hese concepts of the ,rit of *a#eas
corpus bring out the blessed sacred truth that personal liberty is one of the basic freedoms of man
jealously protected by any civili"ed society by a fundamental la,, ,ritten or un,ritten, and any
deprivation or curtailment of that personal liberty must find a basis in la,, substantive or procedural.
10
%n the petitions under consideration respondents justify the arrest and detention of petitioners by
virtue of the proclamation of martial la, in the country. !espondents aver ;&< that the e8ercise of the
po,er granted to the President of the !epublic by -ee. &9 ;*<, Art. 6%% of the &(AB Philippine
Constitution, to place the country or any part thereof under martial la,, is not subject to judicial
revie,: ;*< that even if said e8ecutive po,er may be in#uired into, there is factual bases for the
President$s action: and ;A< that the proclamation of martial la, carries ,ith it the automatic
suspension of the ,rit of *a#eas corpus and conse#uently these petitions should be dismissed.
11

Eith the ne, Constitution having been adopted in the meantime, respondents pose in subse#uent
pleadings additional grounds for dismissal, and these are7 ;&< that Art. %D, -ec. &*, of the &('A
Constitution adopted in toto the CommanderCinCChief clause of the &(AB Constitution, and ;*< that Art.
D6%%, section A ;*< e8pressly and categorically declares that 4t*e procla(ations, or!ers, an! !ecrees,
Instructions an! acts issue! or !one # t*e incu(#ent Presi!ent are to ,or( 1part o, t*e la) o, t*e
lan!1 an! are to 1re(ain vali! le+al, #in!in+, an! e,,ective even a,ter t*e li,tin+ o, (artial la) or t*e
rati,ication o, t*is Constitution4, and that means the present martial la, regime and all the measures
taken under it, particularly Proclamation ?o. &9)& and 3eneral 0rders & and *, as amended.
14

0n the other hand, petitioners vigorously assert ;&< a martial la, proclamation is justiciable: ;*<
conditions in the country as of -eptember *&, &('*, did not justify a proclamation of martial la,: ;A<
assuming that Proclamation ?o. &9)& is valid, 3eneral 0rders ?os. &, *, A, and ACA are violative of
the Constitution and are void: and ;J< the return is palpably insufficient to justify continued detention
of petitioners.
13
1or petitioner Diokno, additional arguments ,ere submitted, viz7 ;a< e8isting
conditions today do not ,arrant the continuance of martial la,, assuming that the proclamation ,as
initially justified: and ;b< the uncertainty of petitioner$s fate renders his e8ecutive imprisonment
oppressive and la,less.
15

%
Ee shall first dispose of the issue of the alleged insufficiency of the !eturn. .
Petitioners contend that respondents$ 4!eturn to Erit4 ,hich is #uoted in page 2 of this 0pinion is
fatally insufficient because a return must assert facts and not conclusions as to the basis of the
detention, and must be supplemented by affidavits or ,ith evidence at the *a#eas corpus hearing,
citing Carlson vs. 0an!on, &)2 1. *d. &)A.
he pertinent provision of -ec. &9, !ule &9*, !ules of Court, on the contents of the return re#uires
that it must state plainly and une#uivocably ,hether the officer to ,hom the ,rit is addressed has or
has not the party in his custody or po,er or under restraint, and if he has the party in his custody or
po,er or under restraint, the authority and the true and ,hole cause thereof, set forth at large, ,ith a
copy of the ,rit, order, e8ecution, or other process, if any, upon ,hich the party is held. ;pars. a and
b< All that this provision of the !ules of Court re#uires therefore is that the return must state if the
subject of the ,rit is in custody or under restraint and if so, the authority for such restraint and the
cause thereof. %t is not necessary for or indispensable to the validity of the return that the evidentiary
facts supporting the cause for the restraint be given or enumerated therein. %n the petitions at bar the
return sufficiently complies ,ith the re#uirements of the aforementioned provision of the !ules of
Court because it states the authority and the cause for the detention of petitioners ,hich after all is
the purpose or object of a return. he authority for the detention lies in the statement in the return that
the President e8ercising his po,ers under Art. 6%%, -ec. &9 ;*< of the Philippine Constitution
15

proclaimed martial la, in the country and pursuant to such proclamation issued 3eneral 0rders % to '
inclusive and +etters of %nstruction & to A, copies of ,hich are all attached to the return as anne8es &
to &&, ,hile the cause for the arrest of petitioners is given in 3eneral 0rder ?o. * ;Anne8 A< ,herein it
is stated that said petitioners are participants or have given aid and comfort in the conspiracy to sei"e
political and state po,er in the country, etc. At any rate, any deficiency in the aforesaid return
constitutes a mere technical violation ,hich is to be disregarded in vie, of the substantial issues
involved in the cases under consideration. %mperfections of form and technicalities of procedure are to
be disregarded unless substantial rights ,ould other,ise be prejudiced,
1:
and in the instant cases
there is no such prejudice as petitioners are sufficiently informed of the authority and cause of their
detention.
%%
he ne8t issue is K is this Court ,ith jurisdiction to in#uire into the constitutional sufficiency of the
proclamation of martial la,I
Petitioners assert the authority of this Court to in#uire into the necessity of placing the country under
martial la, in the same manner that it in#uired into the constitutional sufficiency of the suspension of
the privilege of the ,rit of *a#eas corpus in 0ansan+ vs. Garcia.
1:
> !espondents affirm, ho,ever, that
the determination of the e8istence of invasion, insurrection, rebellion, or imminent danger thereof,
,hen the public safety re#uires it is lodged ,ith the President under Art. 6%%, -ec. &9 ;*<, &(AB
Constitution, and the President$s determination is conclusive on all persons, including the courts:
hence, this Court is ,ithout jurisdiction to resolve on the constitutional sufficiency, of the basis for the
e8ercise of that presidential po,er, it being a purely political #uestion.
he Constitutional provision referred to reads7
he President shall be the CommanderCinCChief of all armed forces of the Philippines and, ,henever it
invasion, insurrection or rebellion. %n case of invasion, insurrection, or rebellion, or imminent danger
thereof, ,hen the public safety re#uires it, he may suspend the privilege of the ,rit of *a#eas corpus, or
17

!espondents cite a host of American authorities and principally fall back on the rulings of this Court in
"arcelon vs. "a-er, B Phil. )', ;&(9B< and 'ontene+ro vs. CastaAe!a, (& Phil. ))*, ;&(B*<
18
,hich
held that t*e aut*orit to !eci!e ,hether the e8igency has arisen re#uiring the suspension of the ,rit
of *a#eas corpus belongs to the President and his declaration is final and conclusive upon the courts
and upon all other persons.
he opinions of my colleagues lengthily discuss this issue of justiciability or nonCjusticiability of the
e8ercise of e8ecutive po,er to proclaim martial la, and % ,ill not repeat the arguments for one or the
other. % adopt by reference their dissertation on the leading American jurisprudence and Constitutional
+a, authorities on the matter, but % conclude for my part that the decision of this Court in 0ansan+ vs.
Garcia is the better rule to adopt. %n +ansang, the Court held that it has the authority under the
Constitution to in#uire into the e8istence of a factual basis for the issuance of a presidential
proclamation suspending the privilege of the ,rit of *a#eas corpus for the purpose of determining the
constitutional sufficiency thereof.
19
%f this Court can make that in#uiry in the event of suspension of
the privilege of the ,rit of *a#eas corpus, a ,ortiori, the Court can in#uire into the factual basis for the
proclamation of martial la, considering the more e8tensive effects of the latter on the individual rights
of the citi"enry, for it cannot be denied that martial la, carries ,ith it curtailment and infringement not
only of one$s liberty but also of property rights, rights of free e8pression and assembly, protection
against unreasonable searches and sei"ures, privacy of communication and correspondence, liberty
of abode and of travel, etc., ,hich justify judicial intervention to protect and uphold these liberties
guaranteed under the Constitution.
19
>
%n 0ansan+, the Court said in the ,ords of Chief .ustice !oberto Concepcion7
%ndeed, the grant of po,er to suspend the privilege is neither absolute nor un#ualified. he authority
conferred by the Constitution, both under the Bill of !ights and under the /8ecutive Department, is limited
and conditional. he precept in the Bill of !ights establishes a general rule, as ,ell as an e8ception
thereto. Ehat is more, it postulates the former in the ne+ative, evidently to stress its importance, by
providing that $;t<he privilege of the ,rit of *a#eas corpus shall not be suspended ....$ %t is only by ,ay of
e6ception that it permits the suspension of the privilege in cases of invasion, insurrection, or rebellion$ K
or, under Art. 6%% of the Constitution, $imminent danger thereof$ K $,hen the public safety re#uires it, in
any of ,hich events the same may be suspended ,herever during such period the necessity for such
suspension shall e8ist.$ A13 1or from being full and plenary, the authority to suspend the privilege of the ,rit
is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions
essential to its e8istence, but, also, as regards the time ,hen and the place ,here it may be e8ercised.
hese factors and the aforementioned setting or conditions mark, establish and define the e8tent, the
confines and the limits of said po,er, beyond ,hich it does not e8ist. And, like the limitations and
restrictions imposed by the 1undamental +a, upon the legislative department, a!*erence t*ereto an!
co(pliance t*ere)it* (a, )it*in proper #oun!s, #e in;uire! into # courts o, 5ustice. 0ther,ise, the
e8plicit constitutional provisions thereon ,ould be meaningless. -urely, the framers of our Constitution
could not have intended to engage in such a ,asteful e8ercise in futility. ....
888 888 888
Article 6%% of the Constitution vests in the /8ecutive the po,er to suspend the privilege of the ,rit of
*a#eas corpus under specified conditions. Pursuant to the principle of separation of po,ers underlying
the system of government, the /8ecutive$s supreme ,ithin his o,n sphere. >0E/6/!, >/
-/PA!A%0? 01 P0E/!-, =?D/! >/ C0?-%=%0?, %- ?0 AB-0+=/, E>A %- M0!/, %
30/- >A?D %? >A?D E%> >/ -@-/M 01 C>/CN- A?D BA+A?C/-, =?D/! E>%C> >/
/D/C=%6/ %- -=P!/M/, A- !/3A!D- >/ -=-P/?-%0? 01 >/ P!%6%+/3/, B= 0?+@ IF
A?D KCEN >/ AC- KITCIN >/ -P>/!/ A++0/D 0 >%M B@ >/ BA-%C +AE, A?D >/
A=>0!%@ 0 D//!M%?/ E>/>/! 0! ?0 >/ >A- -0 AC/D %- 6/-/D %? >/ .=D%C%A+
D/PA!M/?, E>%C>, IN TCIS >ESPECT, %-, %? =!?, C0?-%=%0?A++@ SEP>E'E. ;J*
-C!A, pp. J'ACJ'J,J'(CJ)9, capitali"ation 0urs<
Ee are no, called upon by respondents to reCe8amine the aboveC#uoted ruling, abandon it, and
return to the principle laid do,n in "a-er and 'ontene+ro.
40
o do that, ho,ever, ,ould be to
retrogress, to surrender a momentous gain achieved in judicial history in this country. Eith +ansang,
the highest Court of the land takes upon itself the grave responsibility of checking e8ecutive action
and saving the nation from an arbitrary and despotic e8ercise of the presidential po,er granted under
the Constitution to suspend the privilege of the ,rit of *a#eas corpus andFor proclaim martial la,: that
responsibility and duty of the Court must be preserved and fulfilled at all costs if Ee ,ant to maintain
its role as the last bul,ark of democracy in this country. o some, the Court could have gone further
in delineating its function in the determination of the constitutional sufficiency of a proclamation
suspending the privilege of the ,rit of *a#eas corpus: ,hile that may be true, as it is, the +ansang
decision is a 4giant leap4 in the interest of judicial supremacy in upholding fundamental rights
guaranteed by the Constitution, and for that reason % cannot agree that Ee discard said decision or
emasculate it so as to render its ruling a farce. he test of arbitrariness of e8ecutive action adopted in
the decision is a sufficient safeguard: ,hat is vital to the people is the manner by ,hich the test is
applied by the Court in both instances, i.e., suspension of the privilege of the ,rit of *a#eas corpus
andFor proclamation of martial la,.
%%%
Ee come to the third issue K the validity of Proclamation &9)&. !espondents contend that there is
factual basis for the President to proclaim martial la, in the country, ,hile petitioners assert
other,ise.
0n this point, % agree ,ith respondents that the e8treme measure taken by the President to place the
entire country under martial la, ,as necessary. he President$s action ,as neither capricious nor
arbitrary. An arbitrary act is one that arises from an unrestrained e8ercise of the ,ill, caprice, or
personal preference of the actor ;Eebster$s Ard ?e, %nternational Dictionary, p. &&9<, one ,hich is
not founded on a fair or substantial reason ;Bedford %nv. Co. vs. 1olb, &)9 P. *d A2&, A2*, cited in
Eords M Phrases, Permanent /d., 6ol. ACA, p. B'A<, is ,ithout ade#uate determining principle, nonC
rational, and solely dependent on the actor$s ,ill. ;-,eig vs. =.-., D.C. e8., 29 1. -upp. ')B, Eords
M Phrases, supra, p. B2*< -uch is not the case ,ith the act of the President, because the
proclamation of martial la, ,as the result of conditions and events, not of his o,n making, ,hich
undoubtedly endangered the public safety and led him to conclude that the situation ,as critical
enough to ,arrant the e8ercise of his po,er under the Constitution to proclaim martial la,.
As found by this Court in 0ansan+ vs. Garcia7 the communist activities in the country aimed principally
at incitement to sedition or rebellion became #uite evident in the late t,enties to the early thirties ,ith
the first convictions dating 0ctober *2, &(A*, in People vs. Evan+elista, et al. B' Phil. A'B, and
People vs. Guiller(o Capa!ocia, et al. B' Phil. A2J: ,hile there ,as a lull in such communist
activities upon the establishment of the Common,ealth of the Philippines there ,as a resurgence of
the communist threat in the late forties and on .une *9, &(B', Congress approved !epublic Act &'99
other,ise kno,n as the AntiC-ubversion Act ,hich in effect outla,ed the soCcalled Communist Party
of the Philippines ;CPP<: in &(2(, the Communist Party ,as reorgani"ed and split into t,o groups,
one of ,hich, composed mainly of young radicals constituting the Maoist faction, established a ?e,
People$s Army: the CPP managed to infiltrate or control nine major labor organi"ations, e8ploited the
youth movement and succeeded in making communist fronts of eleven major student or youth
organi"ations, so that there are about thirty mass organi"ations actively advancing the CPP interests,
among ,hich are the Malayang -amahan ng Magsasaka ;MA-ANA<, the Nabataang Makabayan
;NM<, the Movement for the Advancement of ?ationalism ;MA?<, the -amahang Demokratiko ng
Nabataan ;-DN<, the -amahang Molave ;-M<, and the Malayang Pagkakaisa ng Nabataang Pilipino
;MPNP<.
41

A recital of contemporary events from &(2( to &('* taken from reports of leading ne,spapers in the
country ,ill give the factual background of the proclamation of martial la, and, ,ith the indulgence of
the reader, % am giving it hereunder7
$%/%
Januar 7, Evenin+ Ne)s7 >uks ambushed five persons including a former mayor of Bagac, Bataan,
along the national road in the province and investigation of the Philippine Constabulary revealed that
the ambushers ,ere members of a >uk li#uidation s#uad.
44
Januar J, i#i!7 Army %ntelligence
sources disclosed that the >uks ,ere regrouping and steadily building up strength through a vigorous
recruitment and training program. Januar $F, i#i!7 An encounter occurred in -itio Bilaong, -ibul,
0rani Bataan, ,hich ,as considered the biggest encounter bet,een the Armed 1orces and >uks in
recent years resulting in the killing of a number of dissidents. Januar 2J, 28, 2%, an! 7$, i#i!7 %n the
City of Manila school campuses ,ere not spared from clashes during riotous demonstrations held by
more than &,B99 students of the 1ar /astern =niversity, the number increasing to about &9,999 of
them, and at the +yceum of the Philippines classes ,ere suspended because of a bloody students$
demonstration resulting in the ,ounding of at least one student. Fe#ruar $, i#i!7 he night before,
scores of students ,ere injured during a demonstration at the Mapua %nstitute of echnology initiated
by radical elements. Fe#ruar 2J an! 2&, i#i!7 >uks continued to strike at government forces in -an
1ernando, Pampanga, and arlac, arlac. 3pril $%, 'anila C*ronicle7 A demonstration of about B,999
farmers from arlac reinforced by Nabataang Makabayan members clashed ,ith riot policemen after
they had stoned the =- /mbassy on !o8as Boulevard, Manila, shattered glass ,indo,s of the
building, and put to torch an American flag. 'a $%, P*ilippines Ceral!7 he church ,as not spared
from the onslaught of student activism ,hen a march of activists ,as held to Manila$s prominent
Catholic churches. June $2, an! $J, Manila Chronicle7 Assaults ,ere intensified by government
troops on >uk liars in the provinces of Pampanga and arlac. Jul J, Philippines >erald7 he >uks
practically ,ere in control of si8 to,ns in the province of arlac. Jul 27, i#i!7 he Nabataang
Makabayan ,hich according to the Armed 1orces %ntelligence sources had a tieCup ,ith the >uks
staged a tumultuous demonstration during a state dinner at MalacaLang in honor of =- President
!ichard ?i8on ,hich resulted in a freeCforCall fight and injuries to several demonstrators. Septe(#er
2, %, an! $F, 'anila, .ail "ulletin7 6iolent student demonstrations ,ere staged including a oneCday
noisy siege of MalacaLang Palace. Octo#er 7, an! $$, 'anila C*ronicle7 Bloody demonstrations
continued near the gates of the =- /mbassy on !o8as Boulevard during ,hich at least *9 persons
including 2 policemen, A ne,smen and several bystanders ,ere injured. Nove(#er $&, 'anila .ail
"ulletin7 A jeeploads of >uks raided the poblacion of Porac, Pampanga, killing seven and ,ounding
si8teen. Nove(#er 2F, i#i!7 More persons ,ere killed in the continuing carnage in Pampanga.
Nove(#er 28, i#i!7 >uks killed t,o more persons in Pampanga and arlac even after constabulary
soldiers saturated the provinces on orders of President Marcos. .ece(#er 8, i#i!7 1ive persons ,ere
massacred by >uks in Pampanga.
$%7F
Januar $%, P*ilippines Ceral!7 J99 students demonstrated at MalacaLang Palace against po,er
groups in the country. Januar 22, i#i!7 A bomb e8ploded at the .oint =- Military Advisory 3roup
>ead#uarters in Pue"on City injuring a Philippine Army enlisted man. Januar 27, i#i!7 -tudent
demonstrators mauled a palace guard. Januar 2J, i#i!7 -ome A,999 students demonstrated at
MalacaLang for the second day and the ?ational -tudents +eague announced a nation,ide boycott
of classes. Januar 27, i#i!7 0pening session of the -eventh Congress ,as marred by riotous
demonstrations by thousands of students and ,orkers in front of the +egislative building during ,hich
President and Mrs. Marcos ,ere the target of stones and missiles as they ,alked to their car and '*
persons ,ere injured in that demonstration. Januar 7$, i#i!7 Mob attacked MalacaLang Palace ,ith
ignited bottles and fought ,ith military and police troops until early morning. June $2 an! $J, 'anila
Ti(es7 ?ilo ayag, Chairman of the Nabataang Makabayan ,as arrested for subversion and a
submachinegun and documents concerning Communism ,ere confiscated from him. Jul 8, /, 7, $7,
$%, 2$, 27, 28, 2/, 27, an! 7$, i#i!7 Continued demonstrations ,ere held in front of the =- embassy
building, in the campus of the 1ar /astern =niversity and the =niversity of the /ast, ,hile violent
bet,een the army and the >uks in Central +u"on c continued unabated. Septe(#er $8, $&, 2F, 28,
2/, 27 an! 2%, i#i!7 6iolent strikes and student demonstrations ,ere reported. Octo#er $, 7, J, /, &,
$7, 27 an! 2J, i#i!7 Demonstrations continued ,ith e8plosions of pillbo8es in at least t,o schools.
he =niversity of the Philippines ,as not spared ,hen its &),999 students boycotted their classes to
demand academic and nonCacademic reforms in the -tate =niversity resulting in the 4occupation4 of
the office of the President of the =niversity by student leaders. 0ther schools ,hich ,ere scenes of
violent demonstrations ,ere -an -ebastian College, =niversity of the /ast, +etran College, Mapua
%nstitute of echnology, =niversity of -to. omas, and 1eati =niversity. -tudent demonstrators even
succeeded in 4occupying the office of the -ecretary of .ustice 6icente Abad -antos for at least seven
hours4. Nove(#er /, 7, & an! $&, i#i!: he Armed 1orces continued its encounters ,ith the >uks in
Central +u"on and ,ith the leaders of the ?e, People$s Army. .ece(#er 8, % an! $F, i#i!7 More
instances of violent student demonstrations in the City ,ere, reported, the most violent of ,hich
occurred after an indignation rally at Pla"a +a,ton ,here pillbo8es and other e8plosives ,ere thro,n
resulting in the ,ounding of several students, policemen and bystanders. ,o Catholic schools and
t,o government buildings in Calbayog City ,ere blasted ,ith dynamite. .ece(#er $J, $8, $&, 27 an!
2&, i#i!7 1ighting ,as reported in the province of Cotabato bet,een ,ellCarmed tribesmen and the
local police forces, as ,ell as in %locos -ur, ,hile in Cavite the Police Chief and t,o of his men ,ere
shot to death in front of the >all of .ustice building. .ece(#er 7$, i#i!7 %n Baguio City, +t. 6ictor ?.
Corpus joined the ?e, People$s Army and effected a raid on the Philippine Military Academy and fled
,ith AB highCpo,ered guns ,ith ammunition.
$%7$
Januar $J, 'anila Ti(es7 1our students died during a rally at Pla"a Miranda of this city. Januar 2$,
i#i!7 -tudents picketed the Philippine Constabulary Camp at Camp Crame to e8press their protest on
the use of the military forces against students, and to demand the impeachment of President Marcos.
Januar 27, i#i!7 0il firms in the city ,ere the object of bombings resulting in death to at least t,o
persons and injuries to others. Januar 27, I#i!7 A hand grenade ,as hurled at the to,er of the AB-C
CB? Broadcasting Corporation in Pue"on City. Fe#ruar 2, i#i!7 A freshman student of the =niversity
of the Philippines ,as shot and critically ,ounded, AB injured, *2 ,ere arrested in violent incidents at
the campus ,hich at that time ,as in barricades, ,hile in do,nto,n Manila more than *.999 students
occupied and barricaded Claro M. !ecto Avenue and &2 persons ,ere injured in separate clashes
bet,een the police and students. Fe#ruar 7, i#i!7 A senior engineering student ,as shot ,hen
government forces drove into the heart of the =niversity of the Philippines campus to disperse
students ,ho had set up barricades in the area, and at least A9 ,omen students ,ere ,ounded in the
clima8 of the dayClong pitch battle in the =niversity bet,een students and the local police and
soldiers. Fe#ruar J, 8, / an! 7, i#i!7 %n do,nto,n Manila, fighting continued bet,een the police and
student demonstrators resulting in the death of at least t,o students and ,ounding of scores of
demonstrators and policemen. Fe#ruar $$, i#i!7 he =.P. +os BaLos Armory ,as blasted by an
e8plosion. Fe#ruar $7, i#i!7 he =nited -tates /mbassy ,as again bombed. Fe#ruar $7, i#i!7 %n
the province of Davao student riots erupted in the =niversity of Mindanao killing at least one student.
Fe#ruar 27, i#i!7 At least &) persons ,ere killed in Cotabato during encounters bet,een government
forces and the soCcalled rebels. 'arc* $7, $&, $% an! 28, i#i!7 6iolent demonstrations and indignation
rallies ,ere held in Manila as ,ell as in the province of arlac. 3pril 27, Evenin+ Ne)s7 ,o
Constabulary troopers ,ere ambushed by >uks under Commander Dante in the poblacion of Capas,
arlac. 3pril 7F, i#i!7 A bomb e8ploded in Pue"on City destroying the statue symboli"ing friendship
bet,een the 1ilipinos and the Americans. 'a 2 an! 7, P*ilippines Ceral!7 he month of May ,as a
bloody one. +abor Day, May &, ,as celebrated by the ,orkers and student activists ,ith a
demonstration before Congress, and a clash bet,een the demonstrators and the Police and
Metrocom forces resulted in death to several demonstrators and injuries to many. 'a 7, i#i!7 ,o
army troopers and at least ) >uks including a Commander ,ere killed during military operations
against the communist ?e, People$s Army in %sabela. June 2J, 28 an! 2/, 'anila ti(es7 Peace and
order situation in Mindanao ,orsened. Continued clashes bet,een government forces and rebels
resulted in the evacuation of thousands of Muslims and Christians alike from several to,ns in
Cotabato and a band of B9 gunmen attacked a party of top government officials led by Defense
-ecretary .uan /nrile ,hile inspecting a Mos#ue ,here B2 Muslims ,ere reportedly massacred in
Barrio Manalili, Carmen, Cotabato. June 22, Evenin+ Ne)s7 6iolence continued to be unabated in
Manila ,ith a Pue"on City activist shot dead and A drivers involved in the jeepney strike bombed and
injured. 3u+ust 2$, i#i!7 A public meeting being held at Pla"a Miranda, Manila, by the +iberal Party for
the presentation of its candidates in the general elections scheduled for ?ovember ), &('& ,as
marred by ,hat is no, kno,n as the brutal Pla"a Miranda incident ,here ) persons ,ere killed and
scores ,ere injured including the candidates of the party, caused by the thro,ing of t,o hand
grenades at the platform. 3u+ust 27, i#i!7 President Marcos issued a proclamation suspending the
privilege of the ,rit of *a#eas corpus.
$%72
Januar $2, 'anila Ti(es7 President Marcos restored the privilege of the ,rit of *a#eas corpus in the
entire country. Januar 2%, I#i!7 %n the meantime, in Congress a bill ,as introduced to repeal the antiC
subversion la,. Fe#ruar 2, 7, 8 an! $F, I#i!7 6iolent demonstrations in the school belt resumed.
Fe#ruar J, i#i!7 %n the province of 5ambales an encounter bet,een PC troopers and the ?e,
People$s Army ,as reported. March &, i#i!7 he province of Cavite ,as placed under Philippine
Constabulary control because of the rash of killings in ,hich local officials ,ere the victims, one of
,hom ,as Cavite City Mayor !o8as. 'arc* 2, i#i!7 A raid ,as conducted by the Philippine
Constabulary in a house in Pue"on City resulting in the sei"ure of A2 highCpo,ered firearms, * hand
grenades and a dismantled machinegun ,hile in the province of %sabela 2 persons including a nonC
commissioned officer of the &9th %nfantry Battalion ,ere killed in a gun battle bet,een government
soldiers and the ?e, People$s Army. 'arc* 8, i#i!7 he ?e, People$s Army raided Capas, arlac,
destroying a portion of the to,n hall. 'arc* %, i#i!7 More person died in Cotabato and +anao due to
continued violence. 'arc* $J, $/, $&, 2$ an! 27, i#i!7 he student demonstration on its ,ay to
Congress to agitate for the repeal of the antiCsubversion la, resulted in injuries to a good number of
student demonstrators ,hen they clashed ,ith security guards in front of the =niversity of -to.
omas. %n another violent demonstration in front of Arellano =niversity at least one student ,as killed
and others ,ere ,ounded in an encounter bet,een the demonstrators and security guards. Pillbo8
e8plosives ,ere hurled at the gate of MalacaLang Palace and a mysterious e8plosion sparked a fire
that gutted the northern ,ind of the 3reater Manila erminal 1ood Market in aguig, !i"al, ,hich had
been preceded by other mysterious e8plosions ,hich shattered portions of the Arca building on aft
Avenue, Pasay, during ,hich propaganda leaflets ,ere found sho,ing that radical elements ,ere
behind the bombings, ,hile ( sticks of dynamite ,ere found dumped in front of the -ecurity Bank and
rust Company branch office in /spaLa -treet. 'arc* 27, i#i!7 Another public official, Mayor !odolfo
3an"on of %loilo City ,as ,ounded in an ambush and J of his companions ,ere killed. 'arc* 2/, i#i!7
-i8 more persons ,ere killed as government troopers clashed ,ith the ?e, People$s Army in the
province of %sabela. 3pril $/ an! $7, i#i!7 Clashes continued bet,een the Army troops and the ?e,
People$s Army in %sabela ,hich led the government to send more troops to that province. 3pril 2F an!
28, i#i!7 he =- /mbassy ,as again bombed ,hile strikes in factories ,ere joined by soCcalled
activists. 3pril 2/, i#i!7 >and grenades in the to,n of Cabugao, %locos -ur ,ere thro,n resulting in
the death of &A. 3pril 27, i#i!7 Clashes continued bet,een government troopers and the ?e,
People$s Army in the %locos provinces as ,ell as in the provinces of +anao and 5ambales. 3pril 7F,
i#i!7 he ?e, People$s Army invaded the provinces of -amar and +eyte. 'a J, i#i!7 ,o big
shipments of dynamite sticks estimated at &9,999 pieces had already been shipped to %locos -ur
before a third shipment ,as intercepted on a bus bound for Cabugao. 'a $2 an! $/, i#i!7 More
pillbo8 e8plosions occurred in the =- /mbassy during ,hich at least B persons ,ere hurt ,hile the
pickets at the embassy led by the Nabataang Makabayan continued. 'a 2$, i#i!7 At least A9
persons ,ere ,ounded ,hen radical vanguards of about B,999 demonstrators clashed ,ith about
*99 Metrocom troopers in the vicinity of the =- /mbassy. June $7, i#i!7 he Philippine %ndependence
Day ,as marred by rallies of youth and ,orker groups ,hich denounced =- imperialism, ,ith
demonstrators numbering about &9,999 from -outhern +u"on, Central +u"on and the 3reater Manila
area converging at Pla"a Miranda and during the demonstration e8plosions of pillbo8 bombs
occurred. June $&, i#i!7 he situation in Mindanao ,as critical and had ,orsened. June 2J, i#i!7 A
time bomb e8ploded in one of the rooms in the second floor of the Court of %ndustrial !elations
building in Manila. Jul J, i#i!7 An e8plosion shattered the ,estern section of the Philamlife building in
/rmita, Manila. Jul 8, i#i!7 hirtyCfive persons ,ere ,ounded in pillbo8 e8plosions ,hen * groups of
demonstrators clashed ,ith each other at +i,asang Bonifacio, then ,ith policemen near the =-
/mbassy, as the protest rallies against =- imperialism held in conjunction ,ith the .uly Jth
celebration came to a bloody end. Deputy Police Chief Col. .ames Barbers ,ho suffered J9 pellet
,ounds on the left side of the body ,as among the victims. Jul /, i#i!7 !aiders killed BA in
5amboanga: fighting ,as also going on in +anao del ?orte. Defense -ecretary .uan Ponce /nrile
yesterday described the Mindanao developments as 4grave4. Jul 7, i#i!7 President Marcos ordered
5amboanga drive: Armed 1orces of the Philippines landCseaCair operations ,ere launched ,hile
Mayor Diogracias Carmona of Dimataling, 5amboanga del -ur, ,as killed in a ne, clash. Jul &, i#i!7
A panel of la,yers have advised President Marcos that it ,ould be perfectly legal for him to declare
martial la,, suspend elections, and continue in office beyond &('A, if the 4proper4 situation develops
ne8t year. Jul %, i#i!7 President Marcos said that the Communist infiltration of feuding Muslim and
Christian groups in Mindanao could be just a ploy to dra, a,ay government troops from Central
+u"on and thus leave Manila open to a !ed attack. President Marcos ordered the PC and the army to
counterCattack and recapture Digoyo Point, Palanan, %sabela: upon receipt of reports that
outnumbered government troopers battling ?e, People$s Army guerrillas in Palanan ,ere forced to
,ithdra,. >e said that the primary target should be the suspected ammunition dump and supply
depot of the ?e, People$s Army on Digoyo Point. -i8teen PC officers and enlisted men ,ere rescued
from &99 ?e, People$s Army guerrillas ,ho had pinned them do,n on board a ship during a sea and
air operations. he occupied the ship named 4Nuya Maru Naragatan4 reported to be of ?orth Norean
origin. Ehile inspecting the ship, some &99 ?e, People$s Army guerrillas massed on the beach and
fired at them. Jul $F, i#i!7 President Marcos said that the vessel ,hich landed off Palanan, %sabela,
allegedly ,ith military supplies and e#uipment for the ?e, People$s Army is o,ned by 1ilipinos and is
registered under Philippine la,s. he President also sa, in the landing incident evidence of a tieCup
bet,een local Communists and foreign suppliers of ,eapons. Jul $8, i#i!7 Camp Crame, ?ational
PC head#uarters, announced a report from ask 1orce -aranay that government troopers had found
hundreds of ,eapons of American make, including J2' MC&J rifles, in * abandoned camps in Digoyo
Point, Palanan, %sabela. August &(, i#i!7 !allies ,ere held to mark the first year of the Pla"a Miranda
bombing and suspension of the ,rit of *a#eas corpus by the Movement of Concerned Citi"ens for
Civil +iberties ,hich declared August *& as a national day of protest against militari"ation. 3u+ust 7$,
i#i!7 he Department of ?ational Defense at a conference of defense and military officials e8posed a
plan of the ?e, People$s Army to so, terror and disorder in the major cities of the country before the
end of the year &('*, and because of several bombing incidents at the Department of 1oreign Affairs,
Philamlife building, 4he Daily -tar 0ffice4 a ne,spaper publication, the %P% building and an armored
car of the Philippine Banking Corporation, the Philippine Constabulary declared a red alert in the
metropolitan area. Septe(#er 7, i#i!7 -i8 army soldiers ,ere killed ,hen they ,ere ambushed by the
?e, People$s Army in Ca,ayan, %sabela. -eptember 2, i#i!7 0ne ,oman ,as killed and 29 others
,ere injured ,hen a time bomb e8ploded in a department store in Cariedo -treet, Puiapo, Manila, at
about )7A9 in the evening of -eptember B ,hich incident ,as the most serious in the series of
bombings ,hich took place in greater Manila and ,hich according to Army %ntelligence sources ,as
the ,ork of 4subversive elements out to so, fear, confusion and disorder in the heart of the
population.4 Septe(#er $F, i#i!7 errorist bombers struck again the night before destroying three vital
offices in the ground floor of the City hall of Manila and ,ounding * telephone operators. Septe(#er
$2, i#i!7 A gun battle ensued bet,een the ?e, People$s Army and Metrocom soldiers at Pandacan,
Manila, near the 0il refineries ,hich led to the sending of Army troops to guard oil depots. Septe(#er
$7, i#i!7 President Marcos ,arned that he has under consideration the necessity for e8ercising his
emergency po,ers under the Constitution in dealing ,ith intensified activities of local Maoists.
Septe(#er $%, i#i!7 As if in ans,er to this ,arning of the President, t,o time bombs e8ploded in the
Pue"on City >all ,hich disrupted the plenary session of the constitutional Convention and a
subversion case Court of 1irst %nstance .udge .ulian +ustre.
he foregoing events together ,ith other data in the possession of the President as CommanderCinC
Chief of the Armed 1orces led him to conclude that 4there is throughout the land a state of anarchy
and la,lessness, chaos and disorder, turmoil and destruction of a magnitude e#uivalent to an actual
,ar bet,een the force of our duly constituted government and the ?e, People$s Army and their
satellite organi"ations ... in addition to the aboveCdescribed social disorder, there is also the e#ually
serious disorder in Mindanao and -ulu resulting from the unsettled conflict bet,een certain elements
of the Christian and Muslim population of Mindanao and -ulu, bet,een the Christian $%laga$ and the
Muslim $Barracudas$, and bet,een our government troops, and certain la,less organi"ations such as
the Mindanao %ndependence Movement ...4, that this state of 4rebellion and armed action4 caused
4serious demorali"ation among our people and have made the public apprehensive and fearful4 and
that 4public order and safety and the security of the nation demand that immediate, s,ift, decisive and
effective action be taken to protect and insure the peace, order and security of the country and its
population and to maintain the authority of the government.4 ;see Proclamation &9)&<
Petitioners vigorously dispute all the above conclusions of the President and maintain that the
situation in the country as of -eptember *&, &('*, did not ,arrant a proclamation of martial la,: thus,
Congress ,as in session, the courts ,ere open, the Constitutional Convention of &('& ,as in
progress, etc. Petitioners invoke in their favor the 4open court rule4 espoused in the American cases
of E6 Parte 'illi+an, J Eallace *, &)22, and .uncan vs. Ga*ana(o-u, A*' =.-. A9J, &(JB, (9 +. /d.
2)). %n Milligan the majority of five .ustices of the -upreme Court held among others that 4;M<artial
rule can never e8ist ,here the courts are open and in the proper and unobstructed e8ercise of their
jurisdiction4, ,hich ruling ,as reCaffirmed in .uncan.
Much has been said and ,ritten by my Colleagues on the merits and demerits of the 'illi+an and
.uncan jurisprudence. 1or my part % shall simply state that % do not vie, these t,o cases as
controlling authority on ,hat is the test of an 4actual and real necessity4 for martial la, to e8ist
because these t,o cases ,ere mainly concerned ,ith the jurisdiction of a military commission
;Milligan case< and a military tribunal ;Duncan case< to try civilians for offenses generally cogni"able
by civil courts, and the decision in these t,o cases simply upholds the principle that ,here courts are
open to e8ercise their jurisdiction, these civilians must not be denied their rights guaranteed under the
Bill of !ights one of ,hich is trial by jury in a civil court. 4%n other ,ords, the civil courts must be utterly
incapable of trying criminals or dispensing justice in their usual manner before the Bill of !ights may
be temporarily suspended.4 ;Duncan vs. Nahanamoku supra, p. '9A< 1urthermore, % ,ould ans,er
the arguments of petitioners ,ith the follo,ing critical observation of Professor Eilloughby on the
'illi+an ruling based on the dissent of four .ustices in the case, and % #uote7
... he statement is too absolutely made that $martial la, cannot arise from a threatened invasion. he
deposes the civil administration.$ %t is correct to say that $the necessity must be actual and present,$ but it
is not correct to sa t*at t*is necessit cannot #e present e6cept )*en t*e courts are close! an! !epose!
,ro( civil a!(inistration, ,or, as the minority justices correctly pointed out, t*ere (a #e ur+ent necessit
,or (artial rule even )*en t*e courts are open. he better doctrine, then, is, not for the court to attempt to
determine in advance ,ith respect to any one element, ,hat does, and ,hat does not create a necessity
for martial la,, but, as in all other cases of the e8ercise of official authority, to test the legality of an act by
its special circumstances. Certainly the fact that the courts are open and undisturbed ,ill in all cases
furnish a po,erful presumption that there is no necessity for a resort to martial la,, but it should not
furnish an irrebuttable presumption. ;Eilloughby, Constitution of the =nited -tates, 6ol. A, */d., p. &29*,
emphasis supplied<
o stress his point, Professor Eilloughby gave the follo,ing e8ample7
he /nglish doctrine of martial la, is substantially similar to this, and an e8cellent illustration of the point
under discussion is given by certain events gro,ing out of the late BritishCBoer ,ar.
During that struggle martial la, ,as proclaimed by the British 3overnment throughout the entire e8tent of
Cape Colony, that is, in districts ,here no active military operations ,ere being conducted and ,here the
courts ,ere open and undisturbed, but ,here considerable sympathy ,ith the Boers and disaffection ,ith
the /nglish rule e8isted. -ir 1rederick Pollock, discussing the proper la, of the subject ,ith reference to
the arrest of one Marais, upholds the judgment of the .udicial Committee of the Privy Council ;A.C. &9(,
&(9*< in ,hich that court declined to hold that the absence of open disorder, and the undisturbed
operation of the courts furnished conclusive evidence that martial la, ,as unjustified. ;i#i!, pp. &29*C
&29A<
Coming back to our present situation, it can be said, that the fact that our courts ,ere open on
-eptember *&, &('*, did not preclude the e8istence of an 4actual and present necessity4 for the
proclamation of martial la,. As indicated earlier, the state of communist activities as ,ell as of other
dissident movements in this country summari"ed by this Court in 0ansan+ vs. Garcia and manifested
in the recital of events given in this 0pinion constituted the 4actual and present necessity4 ,hich led
the President to place the entire country under martial la,.
%6
Contrary to respondent$s claim, the proclamation of martial la, in the country did not carry ,ith it the
automatic suspension of the privilege of the ,rit of *a#eas corpus for these reasons7 First, from the
very nature of the ,rit of *a#eas corpus ,hich as stressed in the early portion of this 0pinion is a 4,rit
of liberty4 and the 4most important and most immediately available safeguard of that liberty4, the
privilege of the ,rit cannot be suspended # (ere i(plication. he Bill of !ights ;Art. &&&, -ec. &;&J<,
&(AB Constitution, Art. %6, -ec. &B, &('A Constitution< categorically states that the privilege of the ,rit
of *a#eas corpus shall not be suspended e6cept for causes therein specified, and the proclamation of
martial la, is not one of those enumerated.
43
Secon!, the soCcalled CommanderCinCChief clause,
either under Art. 6%%, -ec. &9;*<, &(AB Constitution, or Art. %D, -ec. &*, &('A Constitution, provides
specifically for three different modes of e8ecutive action in times of emergency, and one mode does
not necessarily encompass the other, viz, ;a< calling out the armed forces to prevent or suppress
la,lessness, etc., ;b< suspension of the privilege of the ,rit of *a#eas corpus, and ;e< placing the
country or a part thereof under martial la,. %n the latter t,o instances even if the causes for the
e8ecutive action are the same, still the e8igencies of the situation may ,arrant the suspension of the
privilege of the ,rit but not a proclamation of martial la, and vice versa. hird, there can be an
automatic suspension of the privilege of the ,rit ,hen, ,ith the declaration of martial la,, there is a
total collapse of the civil authorities, the civil courts are closed, and a military government takes over,
in ,hich event the privilege of the ,rit is necessarily suspended for the simple reason that there is no
court to issue the ,rit: that, ho,ever, is not the case ,ith us at present because the martial la,
proclaimed by the President upholds the supremacy of the civil over the military authority,
45
and the
courts are open to issue the ,rit.
6
!espondents argue that ,ith a valid proclamation of martial la,, all orders, decrees, and other acts of
the President pursuant to said proclamation are like,ise valid7 that these acts ,ere e8pressly
declared legal and binding in Art. D6%%, -ec. A;*<, of the &('A Constitution ,hich is no, in full force
and effect, and conse#uently the arrest of petitioners is legal, it having been made in accordance ,ith
3eneral 0rder ?o. * of the President.
% cannot give my un#ualified assent to respondents$ s,eeping statement ,hich in effect upholds the
vie, that ,hatever defects, substantive or procedural, may have tainted the orders, decrees, or other
acts of the President have been cured by the confirmatory vote of the sovereign people manifested
through their ratification of the &('A Constitution. % cannot do so, because % refuse to believe that a
people that have embraced the principles of democracy in 4blood, s,eat, and tears4 ,ould thus thro,
a,ay all their precious liberties, the sacred institutions enshrined in their Constitution, for that ,ould
be the result if ,e say that the people have stamped their approval on all the acts of the President
e8ecuted after the proclamation of martial la, irrespective of any taint of injustice, arbitrariness,
oppression, or culpable violation of the Constitution that may characteri"e such acts. -urely the
people acting through their constitutional delegates could not have ,ritten a fundamental la, ,hich
guarantees their rights to life, liberty, and property, and at the same time in the same instrument
provided for a ,eapon that could spell death to these rights. ?o less than the man concerned,
President 1erdinand /. Marcos, has time and again emphasi"ed the fact that not,ithstanding the
e8istence of martial la, ours is a government run under the Constitution and that the proclamation of
martial la, is un!er t*e >ule o, 0a).
45
%f that is so, and that is ho, it should be, then all the acts of
the President must bo, to the mandates of the Constitution.
hat this vie, that ,e take is the correct one can be seen from the very te8t of -ee. A;*<, Art. D6%% of
the &('A Constitution ,hich provides7
President s*all #e part o, t*e la) o, t*e lan!, and shall remain valid, legal, binding, and effective even
after lifting of martial la, or the ratification of this Constitution, unless modified, revoked, or superseded
by subse#uent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or
unless e8pressly and e8plicitly modified or repealed by the regular ?ational Assembly. ;emphasis
supplied<
As stated in the aboveC#uoted provision, all the proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part o, t*e la) o, t*e lan!: the te8t
did not say that they shall be part of the fundamental or basic la, K the Constitution. %ndeed, the
framers of the ne, Constitution ,ere careful in their choice of phraseology for implicit therein is the
Court$s po,er of judicial revie, over the acts of the incumbent President in the e8ercise of his martial
la, po,ers during the period of transition from the Presidential to the Parliamentary regime. 1or the
effect of the aforementioned transitory provision is to invest upon said proclamations, orders,
decrees, and acts of the President the imprimatur of a la, but not a constitutional mandate. +ike any
other la, or statute enacted by the legislative branch of the government, such orders, decrees, etc.
are subject to judicial revie, ,hen proper under the Constitution: to claim the contrary ,ould be
incongruous to say the least for ,hile the acts of the regular ?ational Assembly ,hich is the
permanent repository of legislative po,er under the ne, Constitution are subject to judicial revie,,
the acts of its temporary substitute, that is, the incumbent President, performed during the transitory
period are not.
%t is contended ho,ever that the true intention of the Constitutional Delegates in providing for -ection
A;*<, Article D6%%, in the &('A Constitution ,as to foreclose any judicial in#uiry on the validity not only
of Proclamation &9)& but also of all subse#uent orders, decrees issued and acts performed by the
incumbent President. %f that ,as the intent, then ,hy did that particular provision not state so in clear
and une#uivocal terms, especially since the effect ,ould be to restrict if not to deprive the judicial
branch of the government of its po,er of judicial revie, in these instancesI As it is, that is, as
presently ,orded, this particular provision ,as ratified by the people believing that although the acts
of the incumbent President ,ere being (a!e part o, t*e la) o, t*e lan! they still had a recourse to the
judicial branch of their government for protection or redress should such acts turn out to be arbitrary,
unjust, or oppressive.
3oing back to 3eneral 0rder ?o. *, its validity is assailed by petitioners on the ground that it ordered
their arrest and detention ,ithout charges having been filed against them before the competent court
nor ,arrants for their arrest issued by the latter, all in violation of their constitutional right to due
process of la,.
A state of martial la, vests upon the President not only the po,er to call the military or armed forces
to repel an invasion, prevent or suppress an insurrection or rebellion, ,henever public safety re#uires
it, but also the authority to take such measures as may be necessary to accomplish the purposes of
the proclamation of martial la,. 0ne such measure is the arrest and detention of persons ,ho are
claimed to be participants or suspected on reasonable grounds to be such, in the commission of
insurrection or rebellion, or in the case of an invasion, ,ho give aid and comfort to the enemy, the
arrest being necessary to insure public safety. %t is this element of necessity present in the case ,hich
justifies a curtailment of the rights of petitioners and so long as there is no sho,ing of arbitrariness or
oppression in the act complained of, the Court is duty bound to sustain it as a valid e8ercise of the
martial la, po,ers of the President. Eith the foregoing #ualification, % agree ,ith the follo,ing
statement7
Ehen it comes to a decision by the head of the -tate upon a matter involving its life, the ordinary rights of
individuals must yield to ,hat he deems the necessities of the moment. Public danger ,arrants the
substitution of e8ecutive process for judicial process. ;Moyer vs. Peabody, *&* =.-. '), BA +. /d., pp.
J&&, J&'<
he issuance of 3eneral 0rder ?o. * therefore ,as a valid initial step taken by the President to
render effective the suppression of armed resistance to our duly constituted government.
hus, % vote for the dismissal of the petitions for *a#eas corpus of those ,ho have been conditionally
released, because7 ;&< he arrest of said petitioners ,as effected by respondents under a valid 0rder
of the President. ;*< he petitioners concerned have been ordered released from detention. he
prime object of a ,rit of *a#eas corpus is to relieve a person from physical restraint and this has been
accomplished on respondent -ecretary$s initiative, ;A< Ehile it is true that the release of petitioners is
subject to certain conditions such as restrictions on petitioners$ freedom of movement, such
restrictions are reasonable precautionary measures in the face of public danger, and % do not see any
arbitrariness in the imposition of said restrictions.
Eith respect to the case of petitioner A#uino, % concur in the dismissal of his petition for reasons that7
;&< criminal charges have been filed against him before a military commission and ;*< the legal issues
posed by him ,hich are germane to this *a#eas corpus proceeding are disposed of and resolved in
the manner indicated in this 0pinion. As regards the other issues submitted by A#uino, % agree ,ith
my Colleagues that the same are to be resolved in the prohibition and certiorari case filed by him
,hich is no, pending before the Court.
CONC0ESION
%n closing, may % state that it ,as necessary for me to ,rite this separate 0pinion because % found
myself at variance ,ith my Colleagues on certain issues posed by these Petitions for *a#eas corpus.
o recapitulate7 ;&< %s the constitutional sufficiency of a proclamation of martial la, by the President a
political #uestionI K % hold that it is not a political, but is a justiciable one. ;*< Did the proclamation of
martial automatically suspend the privilege of the ,rit of *a#eas corpusI ?o, is my ans,er. ;A< Did
-ec. A;*<, Art. D6%% of the ransitory Provisions of the &('A Constitution foreclose judicial in#uiry into
the validity of all decrees, orders and acts of the incumbent President e8ecuted after the proclamation
of martial la, and during the ransitory PeriodI % say7 ?0, because those acts are still subject to the
po,er of judicial revie, if and ,hen they are sho,n to be arbitrary, oppressive, or unjust, in violation
of the Constitution andFor the generally accepted principles of %nternational +a,, usage$s and
customs.
My conclusions may not be supported by e8isting jurisprudence or may even be contrary to the
multiple authorities cited by my senior Colleagues in the Court: nonetheless, % humbly offer and
submit them as the spontaneous reactions of my conscience to the issues ,hich in the ,ords of my
distinguished Colleague, Mr. .ustice Antonio P. Barredo, affect not the petitioners alone but the ,hole
country and all our people.
Footot+s
Q& -he is the ,ife of the detainee .ose E. Diokno ,ho, in later pleadings, already considered himself directly as the Petitioner.
Q* /? BA?C. he petitions in this cases ,ere ,ithdra,n ,ith leave of Court, as stated in the body of the opinion, e8cept that in 3.!. ?o. +C
ABBJ' ,hich is deemed abated by the death of the petitioner.
QA /? BA?C. he petitions in these cases ,ere ,ithdra,n ,ith leave of Court, as stated in the body of the opinion, e8cept that in 3.!. ?o. +C
ABBJ' ,hich is deemed abated by the death of the petitioner.
& 5aldivar, 1ernando, eehankee, Barredo, MuLo" Palma and A#uino, ..., Castro, Makasiar, Antonio, /sguerra, and 1ernande", ..., voted
for denial of the motion to ,ithdra,.
* .ustice 5aldivar turned '9 on -eptember &A.
A he follo,ing individuals, on their o,n motions, ,ere allo,ed to ,ithdra, their petitions7 6eronica +. @uyitung ;-upreme Court !es. 0ct.
2,&('*< and an Chin >ian ;!es. 0ct. &&, &('*< in +CABBB2: Amando Doronila, >ernando .. Abaya, /rnesto 3ranada, +uis D. Beltran, Bren
3uiao, !uben Cusipag and Eillie Baun ;!es. 0ct. A, &('*: !es. 0ct. &&, &('*< in +CABB2': eresita M. 3uiao, in behalf of Bren 3uiao ;,ho
,as also a petitioner in +CABB2'< ;!es. 0ct. (, &('*< in +CABB'&.
he follo,ing individuals have since been released from custody7 .oa#uin P. !oces, eodoro M. +ocsin, -r., !olando 1adul, !osalind
3alang, 3o /ng 3uan, !enato Constantino and +uis !. Mauricio, all of ,hom ,ere petitioners in +CABBA): Ma8imo 6. -oliven, ?apoleon 3.
!ama and .ose Mari 6ele" in
+CABBJ9: !amon Mitra, .r., 1rancisco !odrigo and ?apoleon !ama in +CABBJ2: /nri#ue 6oltaire 3arcia %% ;deceased< in +CABBJ': an Chin
>ian and 6eronica @uyitung in
+CABBB2: Amando Doronila, .uan +. Mercado, >ernando .. Abaya, /rnesto 3ranada, +uis D. Beltran, !uben Cusipag, !oberto 0rdoLe",
Manuel Almario and Eillie Baun in +CABB2': /rnesto !ondon in +CABB'A: and Bren 3uiao in +CABB'&.
J Makalintal, C..., Castro, Barredo, Makasiar, Antonio, /sguerra, 1ernande" and A#uino, ..., 5aldivar, 1ernando, eehankee and MuLo"
Palma, ... voted for dismissal.
B 1rancisco 4-oc4 !odrigo, .oa#uin P. !oces, eodoro M. +ocsin, !olando 1adul, !osalind 3alang, 3o /ng 3uan, Ma8imo 6. -oliven,
!enato Constantino, +uis !. Mauricio, ?apoleon 3. !ama, .ose Mari 6ele", !amon 6. Mitra, .uan +. Mercado, !oberto 0rdoLe", Manuel
Almario and /rnesto !ondon.
CA-!0, ..7
& he follo,ing individuals, on their o,n motions, ,ere allo,ed to ,ithdra, their petitions7 6eronica +. @uyitung ;-upreme Court !es. 0ct. 2,
&('*< and an Chin >ian ;!es. 0ct. &&, &('*< in +CABBB2: Amando Doronila, >ernando .. Abaya, /rnesto 3ranada, +uis D. Beltran, Bren
3uiao, !uben Cusipag and Eillie Baun ;!es. 0ct. A, &('*: !es. 0ct. &&, &('*< in +CABB2': eresita M. 3uiao in behalf of Bren 3uiao ;,ho
,as also a petitioner in +CABB2'< ;!es. 0ct. (, &('*< in +CABB'&.
* he follo,ing individuals have since been released from custody7 .oa#uin P. !oces, eodoro M. +ocsin, -r., !olando 1adul, !osalind
3alang, 3o /ng 3uan, !enato Constantino and +uis !. Mauricio, all of ,hom ,ere petitioners in +CABBA): Ma8imo 6. -oliven, ?apoleon 3.
!ama and .ose Mari 6ele" in +CABBJ9: !amon Mitra, .r., 1rancisco !odrigo and ?apoleon !ama in
+CABBJ2: /nri#ue 6oltaire 3arcia %% ;deceased< in +CABBJ': an Chin >ian and 6eronica @uyitung in +CABBB2: Amando Doronila, .uan +.
Mercado, >ernando .. Abaya, /rnesto 3ranada, +uis D. Beltran, !uben Cusipag, !oberto 0rdoLe", Manuel Almario and Eillie Baun in +C
ABB2': /rnesto !ondon in +CABB'A7 and Bren 5. 3uiao in +CABB'&.
A .avellana vs. /8ecutive -ecretary, +CA2&J*, March A&, &('A, B9 -C!A A9.
J Chief .ustice Makalintal and Associate .ustices 5aldivar Castro, 1ernando, eehankee, Barredo, Makasiar, Antonio and /sguerra.
B -ee Anno., Public %nterest as 3round for !efusal to Dismiss an Appeal ,here Puestion has Become Moot or Dismissal is -ought by 0ne
or Both Parties. &A* A.+.!. &&)B to &*99: Eillis vs. Buchman, &A* A.+.!. &&'(: -tate e8 rel. raub vs. Bro,n ;&(A)<, &(' A J'): Melson vs.
-hetterley ;&(AA<, (B %nd. App. BA), &)A ?/ )9*.
2 +C*')AA, April &), &(2(, *' -C!A )AB.
' '( Phil. J2& ;&(J'<.
) Cranch &A', * +. ed. 29 ;&)9A<.
( Personally, % vie, this motion as a heretofore unheardCof curiosity. % cannot comprehend Diokno$s real motivation, since granting his motion
could conceivably result in his indefinite detention.
&9 &' 1ed. Cas. &JJ, Case ?o. (J)') ;C.C.D. Md. &)2&<.
&& J Eall. *, &) +. ed. *)& ;&)22<.
&* AB Colo. &B(, )B Pac. l(9 ;&(9J<.
&A Moyer vs. Peabody, *&* =.-. '), BA +. ed. J&9 ;&(9(<.
&J A*' =.-. A9J, (9 +. ed. 2)) ;&(J2<.
&B &J2 1. *d B'2 ;C.C.A. (th, &(JJ<.
&2 A*J =.-. )AA, )( +. ed. &A() ;&(JB<.
&' Supra, note &9.
&) -chubert, he Presidency in the courts, n.BJ, p. &)B ;&(B'<.
&( Supra, note A.
*9 -ee &J /ncyclopedia Britannica, pp. ()JC()B ;&(JB<.
*& /ngland has an un,ritten constitution, there is not even a baremention of martial la, in the 1ederal and in most of the -tate constitutions
of the =nited -tates ;see Appendi8 to this separate opinion<, and there is a paucity or complete absence of statutes or codes governing it in
the various commonCla, jurisdictions ,here it has been instituted.
** 1airman, he +a, of Martial !ule ;*nd ed., &(JA<, pp. *, B* and &JB.
*A 1airman, I!., pp. (J, &9A, &9)C&9(: Ealker, Military +a,, ;&(BJ ed.<, p. J'B.
*J Mental, Military 0ccupation and the !ule of +a, ;&(JJ ed.<, pp. (, *J, *', A&, J*CJJ.
*B Einthrop, Military +a, M Precedents ;*nd ed., &(*9<, p. '((.
*2 J Eallace *, &) +. ed. *)& ;&)22<.
*' Einthrop, id., p. )&'.
*) Common,ealth Act ?o. J9) recogni"es the eventuality of the declaration of martial la, in its Articles of Ear *, A', )* and )A. he A1P
Manual for CourtsCMartial defines martial la, as 4the e8ercise of military jurisdiction by a government temporarily governing the civil
population of a locality through its military forces, ,ithout authority of ,ritten la,, as necessity may re#uire.4 Martial la,, as thus e8ercisable,
is in many respects comparable to the state of siege of the continental nations of /urope.
*( -ee Manual for CourtsCMartial ;A1P<, p. &. Eilloughby observes that 4Ehere martial la, is invoked in the face of invasion, it is ,ar pure
and simple, and it is in this sense that 1ield defines martial la, as $simply military authority, e8ercised in accordance ,ith the la,s and
usages of ,ar,$ and that the =.-. -upreme Court defines it as $the la, of necessity in the actual presence of ,ar$ =pon the actual scene of
,ar, martial la, becomes indistinguishable from military government.4 ;Eilloughby, he Constitutional +a, of the =nited -tates, *nd ed.,
&(A(, vol. A, pp. &B(BC&B('<.
A9 -ee JB Mich. +a, !evie, )'.
A& Einthrop, i!., p. )*9.
A* +uther vs. Borden, ' >o,. &, &* +. ed. B)&, 299 ;&)J(<.
AA President Marcos ,rites7 4he compelling necessity Gof the imposition of martial la, in the PhilippinesH arises out of the seven grave
threats to the e8istence of the !epublic7 the communist rebellion, the rightist conspiracy, the Muslim secessionist movement, the rampant
corruption on all levels of society the criminal and criminalCpolitical syndicates K including the private armies deteriorating economy and the
increasing social justice.4 ;1erdinand /. Marcos, ?otes on the ?e, -ociety of the Philippines, () ;&('A<<.
AJ +CAA(2J, Dec. &&, &('&. J* -C!A JJ).
AB People vs. 1errer +CA*2&AC&J, Dec. *', &('*, J) -C!A A)*, J9B7
%n the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. %n &(A* ,e found the
Communist Party of the Philippines to be an illegal association. %n &(2( ,e again found that the objective of the Party ,as the $overthro, of
the Philippines 3overnment armed struggle and to establish in the Philippines a communist form of government similar to that of -oviet
!ussia and !ed China.$ More recently, in 0ansan+ vs. Garcia, ,e noted the gro,th of the Communist Party of the Philippines and the
organi"ation of Communist fronts among organi"ations such as the Nabataang Makabayan ;NM< and the emergence of the ?e, People$s
Army. After meticulously revie,ing the evidence, ,e said7 $Ee entertain, therefore, no doubts about the e8istence of a si"eable group of men
,ho have publicly risen in arms to overthro, the government and have thus been and still are engaged in rebellion against the 3overnment
of the Philippines.$
A2 People vs. /vangelista, B' Phil. A'B ;&(A*< ;illegal association<: People vs, /vangelista, B' Phil. ABJ ;&(A*< ;rebellion and sedition<7
People vs. Capadocia B' Phil. A2J ;&(A*< ;rebellion and sedition<: People vs. /vangelista, B' Phil. A'* ;&(A*< ;rebellion and sedition<:
People vs. 1eleo, B' Phil. JB& ;&(A*< ;inciting to sedition<: People vs. ?abong, B' Phil. JBB ;&(A*< ;inciting to sedition<.
A' People vs. +ava, +CJ('J, May &2, &(2(, *) -C!A '* ;rebellion<7 People vs. >ernande", +C29*B, May A9, &(2J, && -C!A **A ;rebellion<:
+ava vs. 3on"ales, +C*A9J), .uly A&, &(2J, && -C!A 2B9 ;rebellion<: People vs. Capadocia +CJ(9', .une *(, &(2A, ) -C!A A9& ;rebellion<.
A) Montenegro vs. CastaLeda, (& Phil. ))* ;&(B*<.
A( +CA&2)', 1eb. *2, &('9, A& -C!A 'A9 ;,ith Castro and 1ernando, ... dissenting<.
J9 Supra. note &(.
J& I!. at J)BCJ)2.
J* I!., at J)CJ)'.
JA he imes .ournal, Bulletin oday and Daily /8press, on Eednesday, August *), &('J, carried ne,s of a nation,ide armsCsmuggling
net,ork being operated by the Communist Party of the Philippines in collaboration ,ith a foreignCbased source. he Department of ?ational
Defense reported that several armsCsmuggling vessels had been sei"ed, that the net,ork had ac#uired several trucking services for its illegal
purposes, and that about P* million had not so far been e8pended for this operation by a foreign source. he Department stressed that 4the
clandestine net,ork is still operating ,ith strong indications that several arms landings have already been made.4 he Department also
revealed that the military has launched necessary counterCmeasures in order to dismantle in due time this e8tensive antiCgovernment
operation.4 he Department finally confirmed the arrest of A) subversives, including the follo,ing &A persons ,ho occupy important positions
in the hierarchy of the Communist movement in the Philippines7 Manuel Chiongson 1idel 6. Agcaoili, Danilo 6i"manos, Dante -imbulan,
Andy Pere", ?orman Puimpo, 1ernando ayag, Bonifacio P. %lagan, .ose 1. +acaba, Domingo M. +uneta, Mila 3arcia, !icardo 1errer and
Dolores 1eria.
he imes .ournal, Bulletin oday and Daily /8press, on hursday, August *(, &('J, carried the ne,s that a secret arm of the Communist
Party of the Philippines engaged e8clusively in the manufacture of e8plosives for sabotage and other antiCgovernment operations have been
uncovered by the military, follo,ing a series of raids by government security agents on underground houses, t,o of ,hich are business
establishments providing funds for the purchase of chemicals and other ra, materials for the manufacture of e8plosives. he documents
sei"ed in the raids indicated that the 4e8plosives movement4 ,as a separate subversive group organi"ed in early &('* under the direct
supervision of the CPP military arm and ,as composed of elite members kno,ledgeable in e8plosives and chemical research.
he imes .ournal, Bulletin oday and Daily /8press, on -unday, -eptember &, &('J, carried ne,s of a nation,ide 4communist insurgent
conspiracy4 to 4unite all groups opposing the ?e, -ociety, arm them and urge them to fight and overthro, the government, and establish a
coalition government under the leadership of the Communist Party of the Philippines.4 According to documents sei"ed by the military, 4local
communists and other insurgents stepped up efforts in midC&('A to set up a soCcalled ?ational Democratic 1ront.4 he Department of
?ational Defense revealed that the armed forces are continuing military operations in Cotabato, +anao, -ulu and 5amboanga.
JJ AB Colo. &BJ, (& Pac. 'A), 'J9 ;&(9B<.
JB E>0 vs. A#uino, +CAB&A&, ?ov. *(, &('*, J) -C!A *J*.
J2 Eilloughby calls this situation 4martial la, in sensu strictiore.4 ;Eilloughby, he Constitutional +a, of the =nited -tates, *nd ed., &(A(,
6ol. A, pp. &B)2 and &B(B<.
J' he corresponding provision in the &('A Constitution is art. %D, sec. &*.
J) -ee B +aurel Proceedings of the Philippine Constitutional Convention, *J(C*B( ;&(22<.J( President .ose P. +aurel, in a speech on the
draft of the &(AB constitution, gave as reasons for the adoption of the CommanderCinCChief Clause ;a< the desire of the members of the &(AJ
Constitutional Convention to afford the state ,ith an effective means for selfCdefense ;the e8perience of the +atinCAmerican countries ,as an
object lesson for the Convention<, and ;b< the sense of the Convention that the e8ecutive po,er should be made stronger ;Malcolm and
+aurel, Philippine constitutional +a,, p. *99, footnote no. J<.
B9 Barcelon vs. Baker, B Phil. )' ;&(9B<.
B& (& Phil. ()* ;&(B*<.
B* +C AA(2J, Dec. &&, &('&, J* -C!A JJ).
BA -terling vs. Constantin *)' =.-. A'), '' +. ed. A'B ;&(A*<: Martin vs. Mott, &* Eheat, &(, 2 +. ed. BA' ;&)*'<: +uther vs, Borden, ' >o,.
&, &* +. ed. B)& ;&)J(<: Moyer vs. Peabody, *&* =.-. '.), BA +. ed. J&9 ;&)9(<.
BJ J Eall. *, &) +. ed. *)& ;&)22<.
BB A*' =.-. A9J, (9 +. ed. 2)) ;&(J2<.
B2 Ehite ,as convicted of embe""lement, ,hile Duncan ,as convicted of bra,ling.
B' Ning, he +egality of Martial +a, in >a,aii, A9 California +. !ev. B((, 2*' ;&(J*<.
B) Montenegro vs. CastaLeda, (& Phil. ))* ;&(B*<.
B( 1airman, he +a, of Martial !ule and the ?ational /mergency, BB >arv. +. !ev. &*BAC&*BJ ;&(J*<.
29 !ossiter, he supreme Court and CommanderCinCChief, A2 ;&(B&<.
2& Einthrop, id., p. )&': see also /lphinstone vs. Bedreechund, % Nnap. P.C. A&2: D.1. Marais vs. he 3eneral 0fficer Commanding the
+ines of Communication of the Colony ;i.e., the Cape of 3ood >ope<, &(9* Appeal Cases &9(: &J /ncyclopedia Britannica, p. ('' ;&(2(<7 &J
/ncyclopedia Britannica, p. ()B ;&(BB<.
2* &' -up. Ct. !ep., Cape of 3ood >ope, AJ9 ;&(99<, cited by Charles 1airman in he +a, of Martial !ule, Chapter &9.
2A +uther vs. Borden, ' >o,. &, &* +. ed. B)&, 299 ;&)J(<.
2J *&* =.-. '), BA +. ed. J&9 ;&(9(<.
2B *)' =.-. A'), '' +. ed. A'B ;&(A*<.
22 AB Colo. &B(, )B Pac. &(9 ;&(9J<.
2' 4he proclamation Gof martial la,H is a declaration of an e8istent fact and a ,arning by the authorities that they have been forced against
their ,ill to have recourse to strong means to suppress disorder and restore peace. %t has, as hurman Arnold has ,ritten, merely $emotional
effect$ and cannot itself make up for the absence of the conditions necessary for the initiation of martial la,.4 ;Clinton +. !ossiter,
Constitutional Dictatorship ;Crisis 3overnment in the Modern Democracies<, p. &J2 ;&(J)<.
2) &('A Const. Art. %6, sec. &B.
2( I!., Art. D6%%, sec. A;*<.
'9 .avellana vs. /8ecutive -ecretary, +CA2&J*, March A&, &('A, B9 -C!A A9.
'& Clinton +. !ossiter, Constitutional Dictatorship ;Crisi 3overnment in the Modern Democracies<, pp. &JBC&J2 ;&(J)<.
'* 1rederick B. Eiener A Practical Manual of Martial +a,, p. ).;&(J9<. ;-ee also he -uspension of the privilege of the Erit of >abeas
Corpus7 %ts .ustification and Duration by 1lerida !uth Pineda and Augusto Ceasar /spiritu, ** Philippine +a, .ournal, ?o. &, 1ebruary &(B*,
pp. &(, A'<.
'A By 3eneral 0rder ?o. A dated -eptember **, &('*, as amended by 3eneral 0rder ?o. ACA of the same date, the President ordered, inter
alia, that 4the .udiciary shall continue to function in accordance ,ith its present organi"ation and personnel, and shall try and decide in
accordance ,ith e8isting la,s all criminal and civil cases, e8cept the follo,ing cases7 &. hose involving the validity, legality, or
constitutionality of Proclamation ?o. &9)&, dated -eptember *&, &('*, or of any decree, order or acts issued, promulgated or performed by
me or by my duly designated representative pursuant thereto.4
'J 1erdinand /. Marcos, ?otes on the ?e, -ociety of the Philippines, ((, &99 ;&('A<.
& Chin @o, v. =nited -tates, *9) =- ), &A ;&(9)<.
* -ecretary of -tate of >ome Affairs v. 0$Brien, A.C. 29A, 29( ;&(*A<. As the ,rit originated in /ngland, it may be of some interest to note
that as early as &**9 the ,ords habeat corpora appeared in an order directing an /nglish sheriff to produce parties to a trespass action
before the Court of Common Pleas. %n succeeding centuries, the ,rit ,as made use of by ,ay of procedural orders to ensure that parties be
present at court proceedings.
A Cf. 1innick v. Peterson, 2 Phil. &'* ;&(92<: .ones v. >arding, ( Phil. *'( ;&(9'<: 6illaflor v. -ummers, J& Phil. 2* ;&(*9<: Carag v. Earden,
BA Phil. )B ;&(*(<: +ope" v. De los !eyes, BB Phil. &'9 ;&(A9<: /stacio v. Provincial Earden, 2( Phil. &B9 ;&(A(<: Arnault v. ?a"areno, )'
Phil, *( ;&(B9<: Arnault v. Balagtas, (' Phil. AB) ;&(BB<.
J Cf. !ubi v. Provincial Board, A( Phil. 229 ;&(&(<.
B Cf. +oren"o v. Director of >ealth, B9 Phil. B(B ;&(*'<.
2 Cf. %n re Carr, % Phil. B&A ;&(9*<: Mekin v. Eolfe, * Phil. 'J ;&(9A<: Cabantag v. Eolfe, 2 Phil. *'A ;&(92<: %n re -mith, &J Phil. &&* ;&(9(<:
Cabiling v. Prison 0fficer, 'B Phil. & ;&(JB<: !a#ui"a v. Bradford, 'B Phil. B9 ;&(JB<: !eyes v. Crisologo, 'B Phil. **B ;&(JB<: @amashita v.
-tyer, 'B Phil. B2A ;&(JB<: Cantos v. -tyer, '2 Phil. 'J) ;&(J2<: ubb and edro, v. 3riess ') Phil. *J( ;&(J'<: Mi#uiabas v. Phil. !yukyus
Command, )9 Phil. *2* ;&(J)<: Di"on v. Phil. !yukyus Command, )& Phil. *)2 ;&(J)<.
' Cf. +o Po v. McCoy, ) Phil, AJA ;&(9'<: +oren"o v. McCoy, &B Phil. BB( ;&(&9<: /d,ards v. McCoy, ** Phil. B() ;&(&*<: Pue Puay v.
Collector of Customs, AA Phil. &*) ;&(&2<: an Me ?io v. Collector of Customs, AJ Phil. (JJ ;&(&2<: Bayani v. Collector of Customs, A' Phil.
J2) ;&(&)<: %n re McCulloch Dick, A) Phil. J& ;&(&)<: Mateo v. Collector of Customs, 2A Phil. J'9 ;&(A2<: Chua v. -ecretary of +abor, 2) Phil.
2J( ;&(A(<: 6illahermosa v. Commissioner of %mmigration, )9 Phil. BJ& ;&(J)<: Mejoff v. Director of Prisons, (9 Phil. '9 ;&(B&<: Borovsky v.
Commissioner of %mmigration, (9 Phil. &9' ;&(B&<.
) Cf. !eyes v. Alvare", ) Phil. '*A ;&(9'<: +o"ano v. Martine", A2 Phil, ('2 ;&(&'<: Pelayo v. +avin Aedo, J9 Phil. B9& ;&(&(<: Bancosta v.
Doe, J2 Phil. )JA ;&(*A<: -anche" de -trong v. Beishir BA Phil. AA& ;&(*(<: Makapagal v. -antamaria, BB Phil. J&) ;&(A9<: -alvana v.
3aela, BB Phil. 2)9 ;&(A&<: 0rti" v. Del 6illar, B' Phil. &( ;&(A*<: 1lores v. Cru", (( Phil. '*9 ;&(B2<: Murdock v. Chuidian (( Phil. )*&
;&(B2<.
( As ,as so aptly put in an article ,ritten by the then Professor, no, -olicitor 3eneral, /stelito Mendo"a7 4%t is a ,ellCkno,n fact that the
privilege of the ,rit of the *a#eas corpus is an indispensable remedy for the effective protection of individual liberty. his is more so ,hen the
infringement arises from government action. Ehen liberty is threatened or curtailed by private individuals, only a loud cry ;in fact, it need not
even be loud< need be made, and the government steps in to prevent the threatened infringement or to vindicate the consummated
curtailment. he action is often s,ift and effective: the results generally satisfactory and gratifying. But ,hen the government itself is the
$culprit$, the cry need be louder, for the action is invariable made under color of la, or cloaked ,ith the mantle of authority. he privilege of
the ,rit, ho,ever, because it may be made to bear upon governmental officers, assures that the individual$s cry shall not, at least, be futile
and vain.4 Mendo"a, he -uspension of the Erit of Ca#eas corpus7 -uggested Amendments, AA Philippine +a, .ournal, 2A9, 2AB ;&(B)<.
&9 +ansang v. 3arcia, +CAA(2J. December &&, &('&, J* -C!A JJ).
&& People v. >ernande", (( Phil. B&B, BB&CBB* ;&(B2<. he reference ,as to the &(AB Constitution. %t applies as ,ell to the present
Constitution.
&* ?ava v. 3atmaitan, (9 Phil. &'*, &(JC&(B ;&(B&<.
&A he five affirmative votes came from the then Chief .ustice Paras and .ustices Beng"on, uason, !eyes and .ugo. he negative votes
,ere cast by .ustices 1eria, Pablo, Padilla, and Bautista Angelo.
&J +aurel, -., ed., %ll Proceedings of the Philippine Constitutional Convention AAJ ;&(22<.
&B Marcos, oday$s !evolution7 Democracy *( ;&('&<.
&2 Al"ona, ed., Puotations from !i"al$s Eritings '* ;&(2*<.
&' Mabini, he Philippine !evolution &9 ;&(2(<.
&) Cf. Preamble of the present Constitution as ,ell as that of the &(AB Constitution.
&( Cf. +aski, +iberty in the Modern -tate AJ ;&(J(<.
*9 Proclamation ?o. &9)&, -eptember *&, &('*.
*& Cf. aLada v. Cuenco, &9A Phil. &9B& ;&(B'<.
** Cf. Alejandrino v. Pue"on, J2 Phil. )A ;&(*J<: 6era v. Avelino, '' Phil. &(* ;&(J2<: Avelino v. Cuenco, )A Phil. &', !esolution of March
&(J(.
*A Cf. Morrero v. Bocar, 22 Phil. J*( ;&(A)<: Aytona v. Castillo, +C&(A&A, .anuary &(, &(2*, J -C!A &: !odrigue" v. Puirino, +C&()99,
0ctober *), &(2A, ( -C!A *)J.
*J Cf. +ansang v. 3arcia, +CAA(2J, December &&, &('&, J* -C!A JJ).
*B Cf. According to Article 6%%, -ection &9, par. ;*< of the &(AB Constitution7 4he President shall be commanderCinCchief of all armed forces
of the Philippines and, ,henever it becomes necessary, he may call out such armed forces to prevent or suppress la,less violence,
invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion or imminent danger thereof, ,hen the public safety re#uires
it, he may suspend the privileges of the ,rit of *a#eas corpus, or place the Philippines or any part thereof under martial la,.4 he relevant
provision of the present Constitution is found in Article %D, -ection &*. %t reads thus7 4he Prime Minister shall be commanderCinCchief of all
armed forces of the Philippines and, ,henever it becomes necessary, he may call out such armed forces to prevent or suppress la,less
violence, invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or imminent danger thereof, ,hen the public safety
re#uires it, he may suspend the privilege of the ,rit of *a#eas corpus, or place the Philippines or any part thereof under martial la,.4
*2 Proclamation ?o. &9)&, -eptember *&, &('*.
*' +ansang v. 3arcia, +CAA(2J, December &&, &('&, J* -C!A JJ), J'ACJ'J.
*) I#i!, J'JCJ'B.
*( I#i!, B9BCB92.
A9 I#i!, J'(CJ)9.
A& I#i!, B9'CB9).
A* Article D6%%, -ection A, par. ;*< of the Constitution.
AA I#i!.
AJ (A Phil. 2) ;&(BA<.
AB !epublic Act ?o. AJ* ;&(J)<.
A2 (A Phil. 2), )*.
A' Bridges v. California, A&J =- *B*, A9JCA9B.
A) 6illavicencio v. +ukban, A( Phil. ''), '(9 ;&(&(<.
A( A Eilloughby on the Constitution of the =nited -tates, &B(& ;&(*(<.
J9 -tory, Commentaries on the Constitution of the =nited -tates, Ard ed. ;&)B)<.
J& /8 parte Milligan, J Eall. *.
J* -terling v. Constantin, *)' =- A').
JA Duncan v. Nahanamoku A*' =- A9J.
JJ Cf. Dodd, Cases on Constitutional +a,, B*9CB*) ;&(J(<: Do,ling, Cases on Constitutional +a,s, JJ2CJB2 ;&(B9<: -holley Cases on
Constitutional +a,, *)BC*(B ;&(B&<: 1rank, Cases on Constitutional +a,, *B'C*2&, *'9 ;&(B*<: 1reund -utherland, >o,e Bro,n,
Constitutional +a,, &2J2C&2B&, &2'(C&2(A ;&(BJ<: Barrett, Bruton >onnold Constitutional +a,, &A9*C&A9) ;&(2A<: Nauper Constitutional +a,
*'2C*)J ;&(22<: +ockhart Namisar Choper Constitutional +a,, &J&&C&J&) ;&('9<.
JB & Cooley Constitutional +imitations, )th ed., 2A', 'B) ;&(*2<.
J2 Eatson on the Constitution of the =nited -tates ;&(&9<.
J' Burdick, he +a, of the American Constitution, *2& ;&(**<.
J) Eilloughby on the Constitution of the =nited -tates, *nd ed., &B(&;&(*(<.
J( Eillis on Constitutional +a,, JJ( ;&(A2<.
B9 -ch,art", %% he Po,ers of 3overnment, *JJ ;&(2A<.
B& I#i!, *J2.
B* *)' =- A'), J9*CJ9A ;&(A*<.
BA A*' =- A9J, A** ;&(J2<. he concurring opinion of .ustice Murphy ,as similarly generous in its reference to Milligan. %t is not to be lost
sight of that the statutory provision in #uestion ,as -ection 2' of the 0rganic Act of >a,aii ,hen it ,as still a territory. ?onetheless, since
according to .ustice Black, its language as ,ell as its legislative history failed to indicate the scope of martial la,, its interpretation ,as in
accordance ,ith the American constitutional tradition as embodied in Milligan.
BJ Dicey, he +a, of the Constitution, *)'C*)) ;&(2*<.
BB I#i!, *)).
B2 !ossiter, Constitutional dictatorship, ( ;&(J)<.
B' *&* =- ') ;&(9(<.
B) I#i!, )B.
B( I#i!.
29 *2J =- BJA ;&(*J<.
2& I#i!, BJ'CBJ).
2* !osto,, he -overeign Prerogative, *AB ;&(2A<. he ,ork of 1airman #uoted is the +a, of Martial !ule, *&'C*&) ;&(JA<.
2A +ass,ell, ?ational -ecurity and %ndividual 1reedom, &B& ;&(B9<.
2J J Eall. &*A ;&)22<.
//>A?N//, ..7
& Petitioner$s !eply to -olicitorC3eneral$s Comment dated March ',&('J, pp. J9CJ&.
* I!e(, pp. A(CJ97 see +CABBB2, +CABB2' and +CABB'& ,here petitions ,ere ,ithdra,n ,ith leave of the Court.
A Makalintal, C... and 5aldivar, 1ernando, eehankee, Barredo, MuLo" Palma and A#uino, ... voted for granting the ,ithdra,al motion.
Castro, Makasiar, Antonio, /sguerra and 1ernande", voted for denial of the motion.
J Article D, section *, ,hich further re#uires the concurrence of it least ten ;&9< members to declare unconstitutional a treaty, e8ecutive
agreement or la,.
B !espondents$ comment of .an. &', &('J on motion to ,ithdra, petition, p. 2.
2 I!e(, p. B.
' !espondents$ memorandum of ?ov. &', &('*, pp. J&CJ'.
) !espondents$ comment of .an. &', &('J, pp. A, B and &2. he -olicitorC3eneral$s line of judgment7 4;<he charge in the case at bar goes to
the very foundations of our system of justice and the respect that is due to it. %t is subversive of public confidence in the impartiality and
independence of courts and tends to embarrass the administration of justice. As has been aptly said, $he Court$s authority K possessed of
neither the purse nor the s,ord K untimately rests on sustained public confidence in its moral sanction. -uch feeling must be nourished by
the Court$s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash
of political forces in political settlements.$ ;Baker v. Carr, A2( =.-. &)2, *22, *2', 1rankfurter, .. dissenting G&(2*H.<
4=nless, therefore, the charge is rectified anything this Court ,ill do in the case at bar is likely to be misconstrued in the public mind. %f this
Court decides this case and renders judgment against petitioner, its decision is likely to be misinterpreted either as a vindictive action taken
against the petitioner or as proving his charge. %f it grants the Motion to Eithdra, it ,ill be confessing the very judgment e8pressed by the
petitioner K that this Court cannot do justice in this case. Perhaps the only ,ay open for it ,ould be to render judgment for the petitioner,
although then others ,ill likely think that the Court is reacting to the charge. $%t is this harmful obstruction and hindrance that the judiciary
strives to avoid, under penalty of contempt,$ as this Court e8plained in another case. ;>erras eehankee vs. Director of Prisons, re Antonio
Puirino, '2 Phil. 2A9 G&(J2H.<4
( -olicitorC3eneral$s !eply to petitioner$s comment ;re Manifestation< dated .une &9, &('J,
pp. *CJ.
&9 !espondents$ !eply to Petitioner$s -urC!ejoinder ;re motion to ,ithdra,< dated .une &9, &('J, pp. BC2, citing .ames, Ehat Pragmatism
Means in >uman /8perience and its Problems7 %ntroductory !eadings in Philosophy, *A, *B ;A sambassis ed. &(2'<.
&& 1iled on August *A, &('A.
&* !espondents$ comment of .an. &', &(C&J, p. &': emphasis supplied.
&A -olicitorC3eneral$s !eply to petitioner$s comment, dated .une &9, &('J, p. &A.
&J .avellana vs. /8ecutive -ecretary, +CA2&J*, et al., March A&, &('A.
&B Petitioner$s ,ithdra,al motion on Dec. *(, &('A, pp. A,J and '.
&2 hus, on April ', &('A, after its decision of March A&, &('A dismissing the ratification cases, acting upon the urgent petition of the ,ives of
petitioners Diokno and A#uino that their visitation privileges had been suspended and that they had lost all contact for over a month ,ith the
detainees ,hose personal effects ,ere returned to their homes, the Court in Case +CA2A&B 4upon humanitarian considerations .... resolved
unanimously to grant pending further action by this court, that portion of the prayer in petitioner$s action by this Court, that portion of the
prayer in petitioner$s 4-upplement andFor amendment to petition4 filed on April 2, &('A that the ,ives and minor children of petitioners Diokno
and A#uino be allo,ed to visit them, subject to such precautions as respondents may deem necessary.4
&' Petitioner$s ,ithdra,al motion, pp. 2C'.
&) -ubject to the transistor provisions of Article D%%.
&( Congress no longer convened on .anuary **, &('A as ordained by the &(AB Constitution7 see !o8as vs. /8ecutive -ecretary +CA2&2B,
March A&, &('A, ,ith a majority of its members opting to serve in the abortive %nterim ?ational Assembly under Art. D6%%, see. * of the &('A
Constitution.
*9 .avellana vs. /8ec. -ecretary, B9 -C!A A9, &J&.
*& .ustices 5aldivar, 1ernando and the ,riter, ,ith Chief .ustice Concepcion, retired, and no, Chief .ustice Makalintal and .ustice Castro.
** Article D%%, sec. ), &('A Constitution.
*A -/C. (. All officials and employees in the e8isting 3overnment of the !epublic of the Philippines shall continue in office until other,ise
provided by la, or decreed by the incumbent President of the Philippines, but all officials ,hose appointments are by this Constitution vested
in the Prime Minister shall vacate their respective offices upon the appointment and #ualification of their successors. 4
*J 4na pinapagpatuloy sa panunungkulan4 as stated in the original oath in Pilipino.
*B 1ernande", MuLo" Palma and A#uino, ...
*2 -/C J. All public officers and employees and members of the armed forces shall take an oath to support and defend the Constitution.4
*' -ee Phil. /8press, imes .ournal and Bulletin oday issues of 0ct. A9, &('A. he Court and the %ntegrated Bar have since then petitioned
the President to e8tend like,ise the same security of tenure to all other judges of inferior courts from the Court of Appeals do,n by setting a
time limit to the e8ercise of his po,er of summary replacement.
*) J* -C!A JJ), J2*, J(*.
*( /8cept .ustice 1ernando ,ho opined that 4;B<y the same token, if and ,hen formal complaint is presented, the court steps in and the
e8ecutive steps out. he detention ceases to be an e8ecutive and becomes a judicial concern. hereupon the corresponding court assumes
its role and the judicial process takes its course to the e8clusion of the e8ecutive or the legislative departments. >encefor,ard, the accused
is entitled to demand all the constitutional safeguards and privileges essential to due process.4 citing .ustice uason$s opinion in ?ava vs.
3atmaitan, (9 Phil. &'* ;&(B&<.
A9 -ince -eptember *A, &('*.
A& *)' =.-. A'B, A)B: emphasis copied from +ansang, J* -C!A at p. J'A.
A* !eferring to the re#uirements of Art. %%%, sec. &, par. &J and Art. 6%%, see. &&, par. * of the &(AB Constitution, no, Art. %6, sec. &B reads7
-/C. &*. he Prime Minister GPresidentH shall be commanderCinCchief of all armed forces of the Philippines and, ,henever it becomes
necessary, he may call out such armed forces to prevent or suppress la,less violence, invasion, insurrection, or rebellion. %n case of
invasion, insurrection, or rebellion, or imminent danger thereof, ,hen the public safety re#uires it, he may suspend the privilege of the ,rit of
*a#eas corpus or place the Philippines or any part thereof under martial la,. ;Art. %D, sec. &*, &('A Constitution and Art. 6%%, sec. && ;*<
&(AB Constitution<.
AA J* -C!A at pp. J'ACJ'J: emphasis copied.
AJ -/C. A. ;*< All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be
part of the la, of the land, and shall remain valid, legal, binding, and effective even after lifting of martial la, or the ratification of this
Constitution, unless modified, revoked, or superseded by subse#uent proclamations, orders, decrees, instructions or other acts of the
incumbent President, or unless e8pressly and e8plicitly modified or repealed by regular ?ational Assembly.
AB Art. %6, sec. % and &(, Bill of !ights, &('A Constitution.
A2 -alvador P. +ope", =.P. president$s keynote address, Dec. A, &('A at the =.P. +a, Center -eries on the &('A Constitution.
A' President Marcos7 4Democracy7 a living ideology delivered May *B, &('A before the =.P. +a, Alumni Association: imes .ournal issue of
May *),&('A.
A) President Marcos7 1ore,ord, ?otes on the ?e, -ociety p. vi.
A( =.-. ?e,s and Eorld !eport, intervie, ,ith President Marcos, reported in Phil. -unday /8press issue of August &), &('J.
J9 3on"ales vs. 6iola, 2& Phil. )*J: -ee also 5agala vs. %lustre J) Phil. *)*: and an vs. Collector of Customs: AJ Phil. (JJ.
BA!!/D0, .., concurring7
Q B9 -C!A A9.
& he court took no action on the prohibition aspect of 3.!. ?o. +CABBJ9 and later of 3.!. ?o.
+CABB'A. Any,ay, ,ith the outcome of the *a#eas corpus petitions and in the light of the grounds of his decision, it ,ould be academic to
prosecute the same further.
* Petitioner died at ABM -ison >ospital on March *, &('A of causes unrelated to his detention.
A Actually there are only *) petitioners, as J of them appear to have filed double petitions.
J /8cluding /nri#ue 6oltaire 3arcia %% ,ho, as mentioned earlier, had died.
B he ,riter$s reasons in favor of granting the motion to ,ithdra, are discussed in the addendum of this decision. -ince the Court as a body
has denied said motion, petitioner Diokno$s case has to be resolved on its merits. Accordingly, a discussion of some of the grounds alleged
in the said motion ,hich may have a bearing in one ,ay or another ,ith the fundamental issues herein involved is in order. %n vie,, ho,ever,
of the release of -enator Diokno on -eptember &&, &('J, the court has decided to dismiss his petition for being moot and academic. But this
development does not necessarily render the discussion of his contentions irrelevant because they can also support the cases of the other
petitioners, hence it seems better to retain said discussion in this opinion.
2 At best, such a pose could be true only as regards his arrest and detention up to .anuary &', &('A, but not ,ith respect to his continued
detention after the ?e, Constitution became effective.
2Q 6illavicencio v. +ukban, A( Phil. ''), at p. '(9.
' %t is a matter of contemporary that in a unanimous decision promulgated on .anuary ), &('A, in the case of -ergio 0smeLa, .r. vs.
1erdinand Marcos, the Presidential /lectoral ribunal upheld the election of President Marcos in ?ovember, &(2( and dismissed the protest
of 0smeLa, ruling as follo,s7.
%n the light of the foregoing, Ee are of the opinion and so hold that the result of the revision and appreciation of the ballots in the pilot
provinces, congressional districts and cities designated by the Protestant as best e8emplifying the rampant terrorism and massive voteC
buying, as ,ell as the fraud and other irregularities allegedly committed by the Protestee, has sho,n, beyond doubt, that the latter had
obtained a very substancial plurality andFor majority of votes over the former, regardless of ,hether Ee consider that the Protest is limited to
the elections in the provinces, congressional districts and cities specified in paragraph 6%%% of the Protestor includes, also, the result of the
elections in the provinces and municipalities mentioned in paragraph 6%% of the Protest, or even if the average reductions suffered by both
parties in said pilot provinces, congressional districts and cities ,ere applied to the entire Philippines: that it is necessary, therefore, to
continue the present proceedings and revise the ballots cast in the provinces and cities specified in paragraph 6%%% of the Protest K much
less those named in paragraph 6%% thereof K other than the pilot provinces and congressional districts designated by the Protestant, as
aboveCstated: that neither ,ould it serve any useful purpose to revise the ballots cast in the provinces and cities counterCprotested by the
Protestee herein: that, in filing his certificate of candidacy for Mayor of Cebu City, in the general elections held in &('&, and, particularly, in
assuming said office on .anuary &, &('*, ;as attested to by his oath of office, copy of ,hich is appended to this decision as Anne8 >< after
his proclamation as the candidate elected to said office, the Protestant had abandoned his Protest herein: that the Protestant has failed to
make out his case, that the Protestee has obtained the plurality and majority of the votes cast for the office of the President of the
Philippines, in the general elections held in &(2(: and that, accordingly, he ,as duly elected to said office in the aforementioned elections
and properly proclaimed as such.
) /8cluding ,eekCend suspension of sessions.
( =nless e8pressly stated other,ise, all references to the Constitution in this discussion are to both the &(AB and &('A charters, since, after
all, the pertinent provisions are practically identical in both.
&9 -ee provisions of both the 0ld and the ?e, Constitution infra, #uoted on page A)2.
he term /8ecutive is used to have a common reference to the President under the 0ld Constitution and to the Prime Minister under the ne,
one.
&& Art. %%%, sec. &, 0ld ;&(AB< Constitution: Art. %6, sec. &, ?e, ;&('A<Constitution.
&* Art. %%%, sec. &J. %n the ?e, Constitution, the corresponding provision reads as follo,s7 4he privilege of the ,rit of *a#eas corpus shall not
be suspended e8cept in cases of invasion, insurrection, rebellion, or imminent danger thereof, ,hen the public safety re#uires it.4 ;Art. %6,
sec. &B.<
&A Barcelon vs. Baker, B Phil. )': -everino vs. 3overnorC3eneral, &2 Phil. A22: Abueva vs. Eood, JB Phil. 2&*: Alejandrino vs. Pue"on, J2
Phil. )B: 6era vs. Avelino, '' Phil. &(*: Mabanag vs. +ope" 6ito, ') Phil. &: Cabili vs. 1rancisco, )) Phil. 2BJ: Montenegro vs. CastaLeda, (&
Phil. ))*: -antos vs. @atco, BB 0. 3. )2J& ;Minute !esolution of ?ov. 2, &(B(<: 0smeLa vs. Pendatun, 0ct. *), &(29.
&J Duncan v. Nahanamoku and Ehite vs. -teer, A*' =.-. A9JCAB).
&B Aytona vs. Castillo, J -C!A &.
&2 %n the referendum of .anuary &9C&B, &('A, the people e8pressed themselves against the holding of elections and the immediate
convening of the legislature. his ,as virtually reaffirmed in the referendum of .uly *'C*), &('A.
&' %t is interesting to note that the other petitioners have not discussed this issue and do not seemingly join him in his pose.
&) Ehich may not be surprising, considering that Counsel aLada of petitioner Diokno ,ho signed the motion to ,ithdra, ,as one of the
leading counsels of the petitioners in the !atification Cases.
&( %n 3. !. ?o. +CA2&J*, .avellana vs. /8ecutive -ecretary and the other !atification Cases, the ,riter, joined by .ustices Antonio and
/sguerra, ,as of the vie, that before allo,ing the entry of final judgment and despite the absence of any prayer for relief in the Constancia
and Manifestation mentioned above, it ,as best for the Court to correct the representations of counsel regarding the true juridical import of
the decision, but the majority ,ere of the opinion that misconstructions by the interested parties of the judgment of the Court cannot alter the
effect thereof intended by the Court and evident in its dispositive portion. he ,riter ,as afraid that future occasions might arise, as it has
happened no,, ,hen 0ur silence may be taken advantage of, even for the sake of propaganda alone. 0n the other hand, .ustice 5aldivar
stated that 4% find merit in the Constancia$ and manifestation of counsel for the petitioners ,here they assert that the sentence, $his being the
vote of the majority, there is no further judicial obstacle to the ?e, Constitution being considered in force and effect$ in the dispositive portion
of the resolution is not ,arranted ...4 and that 4his last sentence of the dispositive portion of the resolution should have been deleted.4
*9 he above e8position of the joint opinion is made in order to e8plain ,hy the rest of the members of the Court ;e8cept .ustice 5aldivar<
evidently felt that the vie, thus e8pressed by Chief .ustice Makalintal and .ustice Castro justified not only the judgment of dismissal but also
the statement that 4there is no more judicial obstacle to the ?e, Constitution being considered in force and effect.4
*& -ection &2 of Article D6%% of the &('A Constitution provides7 4his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, e8cept as herein provided, shall supersede the Constitution of nineteen
hundred and thirtyCfive and all amendments thereto.4 /ven this e8pressed desire of the Convention ,as disregarded by the people, and it is
difficult to see ,hat valid principle there is that can curtail them from e8ercising their ultimate sovereign authority in the manner then, deem
best under the circumstances.
A?0?%0, ..7
& -ome of those ,ho argued for the petitioners ,ere Attys. +oren"o aLada, .ovito -alonga, !amon A. 3on"ales, .oker D. Arroyo, -edfrey
0rdoLe", Pedro @ap, and 1rancis 3architorena, ,hile -olicitor 3eneral /stelito Mendo"a argued for the respondents.
* +CABBB2 K 6eronica +. @uyitung and an Chin >ian: +CABB2( K Amando Doronila, >ernando .. Abaya, /rnesto 3ranada, +uis D. Beltran,
Bren 3uiao, !uben Cusipag and Eillie Baun:
+CABB'& K eresita M. 3uiao in behalf of Bren 3uiao, also petitioner in +ABB2(...
A .oa#uin P. !oces, eodoro M. +ocsin, -r., !olando 1adul, !osalind 3alang, 3o /ng 3uan, !enato Constantino, and +uis !. Mauricio in +C
ABBA): Ma8imo -oliven, ?apoleon 3. !ama, and .ose Mari 6ele" in +CABBJ9: !amon Mitra, .r., 1rancisco !odrigo, and ?apoleon !ama in
+CABBJ2: /nri#ue 6oltaire 3arcia %% ;deceased< in +CABBJ'7 the petitioners in +CABBB2,
+CABB2', +CABB'&, and /rnesto !ondon in +CABB'A.
J Art. 6%%, -ee. &9;*<,&(AB Constitution.
B -ec. *&, .ones +a, of &(&2.
2 Art. %%, -ec. *, par. &, =.-. Constitution.
' 1airman at *AC*B: see also Do,ell at *A&CA*.
) Cor,in, he President7 0ffice and Po,ers, p. *)9.
( I#i!, p. A&).
&9 Cor,in and Noenig, he Presidency oday.
&& Cortes, he Philippine Presidency, p. &BB.
&* Art. 6%%, -ec. &9;*<, &(AB Philippine Constitution.
&A %n his report to the Constitutional Convention, Delegate Mariano .esus Cuenco, Chairman of the Committee on /8ecutive Po,er, stated7
-eLor President7 nosotros, los miembros del comite /jecutivo, teniendo en cuenta por un lado la fragmentacion de nuestro territorio en miles
de islas, y, por otro, las grandes crisis #ue agitan la humanidad, hemos procuradoformar un ejeccutivo fuerte #ue mantenga la unidad de la
nacion, con suficientes poderes y proregativas para salvar al pais en los momentos de grandes peligros. Para conseguir este objetivo,
nosotros hemos provisto #ue el jefe del poder ejecutivo sea eligido por el sufragio directo de todos los electores cualificados del pais:
reconocemos su facultad de supervisor los departamentos ejecutivos, todos los negociados administrativos las provincias y los municipios:
le nombramos central en jefe del ejercito y milicias filipinos: reconocemos su derecho de vetar leyes y de proponer el nobramientode los
altos funcionarios, desde los secretarios departamentales hasta los embajadores y consules, y en los momentos de grandes crisis, cuandola
nacion se vea confrontada de algunos peligros como en casos de guerra, etc.se reconoce en este proyecto el derecho del jefe del poder
ejecutivo de promulgar reglas, con fuer"a de ley, para llevar a cabo una politica nacional. .... ;Proceedings of the Philippine Constitutional
Convention, +aurel, 6ol.%%%, p. *&2, -ession of ?ov. &9, &(AJ<. ;/mphasis supplied.<
As Delegate Miguel Cuaderno observed7
... not only among the members of the -ubCcommittee of -even, but also ,ith a majority of the delegates ,as the feeling #uite prevalent that
there ,as need of providing for a strong e8ecutive. And in this the lessons of contemporary history ,ere a po,erful influence. %n times ,hen
rulers e8ercising the prerogatives of a dictator appear to give the last ray of hope to peoples suffering from chaos, one could not but entertain
the feeling that the safety and ,ellCbeing of our young nation re#uire a President ,ho ,ould be unhampered by lack of authority, or ve8atious
procrastination of other governmental units in case of emergency. ;Cuaderno, he 1raming of the Constitution of the Philippines, p. (9<.
&J he Philippine Constitution, published by the Phil. +a,yers Association, 6ol. %, &(2( /d., p. &)A.
&B 1ederalist ?o. *A.
&2 /8 Parte .ones, JB +!A ;?.-.< &9JJ.
&' A*9 =- (*, (J ;&(JA<, )' +.ed. &')*.
&) && Eallace J(A, B92 ;&)'9<.
&( Per Mr. .ustice 1rankfurter, Baker v. Carr, A2( =.-. &)2, ' +. ed. *d. '*A.
*9 Mr. .ustice .ackson, dissenting, Norematsu v. =.-., A*A =.-. *JB, )( +.ed. *&J.
*& 4?o court ,ill revie, the evidence upon ,hich the e8ecutive acted nor set up its opinion against his.4 ;6anderheyden v. @oung G&)&JH &&
.ohns G?.@.H &B9: Martin v. Mott G&)*'H &* Eheat. G=.-.H &(: +uther v. Borden G&)J)H ' >o,. G=.-.H &: /8 Parte Moore G&)'9H 2J ?.C. )9*:
Appeal of >artranft G&)''H )B Pa. -t. JAA: %n re Boyle G&)((H 2 %daho 29(: -,eeney v. Common,ealthG&(9JH &&) Ny. (&*: Barcelon v. Baker
G&(9BH B Phil., )', &99: %n re Moyer G&(9BH AB Colo. &B(: 1ranks v. -mith G&(&&H &J* Ny. *A*: /8 Parte McDonald, supra, ?ote &&.
** Aruego, he 1raming of the Philippine Constitution, 6ol. %, p. JA&, &(J( /d.
*A *') =.-. A')CJ9J: '' +. ed. A'B: Decided December &*, &(A*.
*J 3oh Neng -,ee, the ?ature and Appeals of Communism in ?onCCommunistAsian Countries,
p. JA.
*B .ames Amme >. 3arvey, Ma8istC+eninist China7 Military and -ocialDoctrine, &(29, p. *(.
*2 41inally, +in Piao in the same article, provides us ,ith a definition of Mao$s strategy of ,aging revolutionary ,arfare, the strategy of
people$s ,ar, ,hich comprises the follo,ing si8 major elements7
;&< +eadership by a revolutionary communist party ,hich ,ill properly apply Mar8ismC+eninism in analy"ing the clas character of a colonial or
semiCcolonial country, and ,hich am formulate correct policy to ,age a protracted ,ar against imperialism, feudalsism, and bureaucratic
capitalism.
;*< Correct utili"ation of the united front policy to build $the broadest possible$ national united front to $ensure the fullest mobili"ation of the
basic masses as ,ell as the unity of all the forces than can be united,$ in an effort to take over the leadership of the national revolution and
establish the revolution on an alliance of, first, the ,orkers and peasants and, second, an alliance of the ,orking peoples ,ith the
bourgeoisie and other nonC,orking people.$
;A< !eliance on the peasantry and the establishment of rural bases, because in agrarian and $semiCfeudal$ societies the peasants are the
great majority of the population: $subjected to threefold oppression and e8ploitation by imperialism, feudalism, and bureaucratCcapitalism,$
they ,ill provide of the human and material resources for the revolution. %n essence, the revolution is a peasant revolution led by the
communist par7 $to rely on the peasants, build rural base areas and use the countryside to encircle and finally capturethe cities such ,as the
,ay to victory in the Chinese revolution.$
;J< Creation of a communist partyCled army of a ne, type, for a $universal truth of Mar8ismC+eninism$ is that $,ithout a people$s army the
people have nothing.$ A ne, type of communist partyCled army in ,hich $politics is the commander$ must be formed, one ,hich focuses on
instilling in the minds of the population a $proletarian revolutionary consciousness and courage and ,hich actively seeks the support and
backing of the masses.$
;B< =se of the strategy and tactics of people$s ,ar as interpreted by Mao seCtung in a protracted armed struggle to annihilate the enemy and
take over state po,er, based on the support of a mobili"ed mass population and the use of guerrilla ,arfare, and ultimately mobile and even
positional ,arfare as the revolution progresses.
;2< Adherence to a policy of selfCreliance, because $revolution or people$sin any country is the business of the masses in that country and
should be carried out primarily by their o,n effect and there is no other ,ay.$4 ;Peter 6an ?ess, !evolution and Chinese 1oreign Policy, pp.
'9C'*.<
*' 4A report of the $Palanan %ncident$ submitted by defense and military authorities to the >ouse committee on national defense said that no
single incident had done so much to focus the dangers posed by the $reestablished$ Communist Party of the Philippines and the ?PA than
the discovery of an abandoned ship and the subse#uent recovery of military hard,are and documents in innocentClooking Digoyo Bay. he
discovery of these $instruments of ,ar$ ,hich ,ere intended for the insurgents ,as a cause of deep concern because of its direct bearing on
the national security, the report stated.
=nder,raps. Before the Naragatan entered the picture, there had been intelligence reports of increased ?PA activities in the mountain areas
and shorelines of Palanan and nearby DilasagCCasiguran in Pue"on Province. Military authorities, for ,ellCplaced reasons, had kept these
reports under ,raps. But a fe, of them leaked out. 1or instance, a coded dispatch from ask 1orce -aranay mentioned a submarine
unloaded some *99 men and ,hile off Dinapi#ue Point, north of Palanan.
Ehile skeptical ne,smen skimmed through the reports, they came across recorded instances of actual operations7 last May &(, a big
number of ?PA$s arrived and encamped in the vicinity of the Divinisa !iver. 0n May *2, a ship unloaded about *99 sacks of rice, firearms
and ammunition at the vicinity of Digollorin. -hipside unloading ,as effected and cargo ferried aboard small boats and bancas.
,o days later, on May *), a po,erboat painted red, ,hite and blue ,ith a Philippine flag flying astern, reconnoitered from Dinatadmo to
Divinisa Point.1ishermen from barrio Maligaya, Palanan, ,ere among those forced to unload food and military supplies. About the second
,eek of .une, another landing of supplies took place there.
Programs of action. By this time, Brig. 3en. ran#uilino Paranis, -aranay commander, started to move some of his men from task force
head#uarters in /chague, %sabela, to the Palanan area. 0n .une &), a patrol of the task force encountered a group of ?PA$s in barrio
aringsing, Cordon to,n. >ere government troops recovered CCP documents outlining programs of action for &('*. he documents
according to military analysts, contained timetables calling for the intensification of sabotage, violence and attacks on military camp and other
government installationd from .uly to December. 0n .uly A, information ,as received that an unidentified vessel had been seen off
Digoyopoint. Paranis relayed the message to Brig. 3en. omas Dia" at 1irst PC 5one head#uarters in Camp 0livas, Pampanga. 1rom then
on until army intellegence raided the home of a sister of one of the Naragatan 1ishing Co., in Cainta, !i"al and stumbled on stacks of
communist propaganda materials, the Naragatan had e8ploded on the public face in bold glaring headlines.
Ehat bothered army authorities most ,as not only the actual landing of about A,999 rifles of the MC&J type of ,hich 'A' had already been
recovered by troops ,ho stormed >ill **B in Palanan and also sei"ed 29,999 rounds of ammunition and another A9 bo8es of ammunition of
rocket launchers. %t ,as the presence of the rockets themselves. he J9 mm rockets are highCe8plosive antiCtank ,eapons. hey appear to
be copies of the -oviet !P3C* ,hile the rocket launchers are prototypes of the -oviet !P3C* antiCtank launchers used by the 6ietcong.
he landing of military hard,are in enormous #uantities have multiplied the dangers of the CCPCMaoist faction, the military said. Armed high
po,ered ,eapons and ,ith sufficient ammunition, the insurgents have become a more potent force to contend ,ith. his has emboldened
them to intensify operations ,ith the use of ne, recruits. he ne, recruits have been trained in the use of high e8plosives and ,ere to he
unleashed on the population centers of 3reater Manila as part of the continuing -eptemberC0ctober plan that includes the bombing of
Congress, the Constitutional Convention, City >all, public utilities, department stores and movie houses. he recruits ,ere to seek sanctuary
in safe houses installed for them by the ?PA in Caloocan City the army asserted.4 ;imeCtable for error, PAC/, 6ol. &, ?o. B*, -eptember,
&('*<.
*) 4he Communists have no scruples against sabotage, terrorism, assassination, or mob disorder. ... he Communist recogni"es that an
established government in control of modern technology cannot be overthro,n by force until it is about ready to fall of its o,n ,eight.4
!evolution is, therefore. 4not a sudden episode but as the consummation of a long process.4 ;Per Mr. .ustice .ackson, Dennis v. =nited
-tates, AJ& =.-. B2J, B2B, (B +.ed &&)&.<
*( he -upreme Court and the CommanderCinCChief, &Y(B&, Cornell =niversity Press, p. A2.
A9 4?ot even the aerial attack upon Pearl >arbor close the courts or of its o,n force deposed the civil administration, yet it ,ould be common
understanding of men that those agencies ,hich are charged ,ith the national defense surely must have authority to take on the spot some
measures ,hich in normal times ,ould be ultra vires.4
888 888 888
Ehen one considers certain characteristics of modern ,ar, mobility on land, surprise from the air, sabotage, and the preparation of fifth
columns K it must be apparent that the dictum that $martial rule cannot arise from a threatened invasion$ is not an ade#uate definition of the
e8tent of the ,ar po,er of the =nited -tates. An Army today has a dispersion in depth #uite unkno,n in our Civil Ear. hus =nder -ecretary
of Ear Patterson, in stressing the need for a state guard to protect installations in the rear, pointed to $the fact that the ,ars of today kno, no
front line: that a tiny village hundreds of miles behind the theoretical front may suddenly become the scene of desperate and bla"ing action.$
%f the problem ,ere to arise today it seems fair to assume that the -upreme Court ,ould not hold to the letter of .ustice Davis$ opinion. .ust
as in the construction of the commerce and other grants of national po,er the Court of late has notably sought to make them ade#uate to the
conditions ,hich ,e face, almost certainly it ,ould so construe the ,ar po,er as to include all that is re#uisite $to ,age ,ar successfully.$4
;Charles 1airman, +a, of Martial !ule, BB >arvard +a, !evie,, &*)'.<
A& ?otes on the ?e, -ociety, pp. *(CA9.
A* Dr. Abelardo -amonte, %naugural Address, =.P. +os BaLos, .an. &&, &('J.
AA -te,art v. Nahn, && Eallace J(A, B92.
AJ Pollock vs. 1armer$s +oan M . Co. ;&)(B< &B' =.-. J*(, A( +. ed. 'B(: -ee also +egal ender cases ;&))J< &&9 =.-. J*&, *) +. ed. *9J,
'9 A.+.!. A9.
AB -tate e8 rel. Miller vs. aylor ;&(&&< ** ?.D. A2*, &AA ?.E. &9J2.
A2 During the Civil Ear in the =nited -tates, the ,rit of habeas corpus ,as suspended and many thousands of persons suspected of
disloyalty to the =nion ,ere interned. ;.. !andall M D. Donald, he Civil Ear and !econstruction, A9& G&(2&H<. %t must be noted that the
Ca#eas Corpus Act of &)2A of the =nited -tates re#uired that lists of political prisoners be furnished to the judges of the federal courts:
limited the duration of detention to one session of the grand jury, at the end of ,hich courts ,ere to order the release of those prisoners ,ho
had not been indicted for a crime. >o,ever, during the Civil Ear the >abeas Corpus Act ,as virtually ignored by President +incoln, and the
arrest, confinement, and release of prisoners continued as if it had not been passed. ;+ee .. !andall M D. Donald, supra, p. A92<.
A' here are three reasons advanced ,hy this ,as found necessary. 41irst, the evidence to satisfy the re#uirements of legal procedure ,ill
blo, the cover of police agents ,ho have penetrated Communist openCfront organi"ations. 1urther, the possibility of prosecution assumes
that participation in Communist conspiratorial activities is a legal offense, ,hich it is not in most countries. hird, to ,ait for the Communist
activists to engage in overtly illegal action, for e8ample, riots and other sorts of violence before prosecution, ,ill give them a political
advantage ,hich fe, governments of the ne, states of Asia can afford. 1or by then the political situation ,ould have deteriorated to a state
of acute instability, ,hich in turn ,ould probably have caused economic decline due to loss of confidence. -hould political instability become
endemic serious doubts ,ill creep into men$s minds as to ,ho ,ould merge the ,inner. his can make the problem of control of subversion,
for ,hich public confidence and coCoperation are important, a very acute one.
he po,er of arrest and detention ,ithout trial is, therefore, a necessary ,eapon in the fight against Communists in the ne,ly established
Asian states. %t is, ho,ever, of the utmost importance that the highest standards of conduct on the part of the secret police are maintained.
here should be checks, in the form of revie, committees consisting of la,yers and professional men, on the actions of the police. hese
checks should be real and not perfunctory measures. ?othing ,ould be more favorable to the gro,th of Communist influence than e8tensive
and indiscriminate use of the po,ers of detention. 1or this ,ill generally cause ,idespread resentment against the authorities, ,hich the
Communist underground can use to stoke the fires of revolution. 1urther, it is important that police action is limited to really ,orth,hile
targets the thinkers and the planners, the able propagandists and the organi"ation men. ?inetyCnine per cent of those ,ho engage in
Communist openCfront activities are not ,orth detaining, not even the second echelon activists and the musclemen on ,hom the
Communists depend to discipline their follo,ers. hey are the e8pendables and can be replaced ,ithout much difficulty, unlike the thinker
and the plotter, and their detention serves no purpose beyond creating unnecessary disaffection among their families.4 ;3oh Neng -,ee7
Minister of Defense of the %nterior in -ingapore, he ?ature and Appeal of Communism in ?onCCommunist Asia Countries.<
A) DevelopmentsC?ational -ecurity, 6ol. )B, >arvard +a, !evie,, March &('*, ?o. B, p. &A&A.
A( 5emel v. !usk, A)& =.-. & G&(2BH upheld the constitutionality of the Cuba area restriction.
J9 Charles 1airman, Martial !ule and the -uppression of %nsurrection.
J& Miguel Cuaderno, -r., Martial +a, and the ?ational /conomy, &('J /d. Delegate to the &(AJ and &('& Constitutional Conventions,
member of the -ubCCommittee of -even that finali"ed the draft of the &(AB Constitution.
J* Modern Political Constitutions, p. BB.
JA 6ol. %, he Philippine Constitution, Debates on the 1irst Draft of the Constitution, p. &B'.
1/!?A?D/5, ..7
& 3eneral 0rder ?o. * reads as follo,s7
Pursuant to Proclamation ?o. &9)&, dated -eptember *&, &('*, and in my capacity as CommanderCinCChief of all the Armed 1orces of the
Philippines and for being active participants in the conspiracy to sei"e political and state po,er in the country and to take over the
3overnment by force, the e8tent of ,hich has no, assumed the proportion of an actual ,ar against our people and their legitimate
3overnment and in order to prevent them from further committing acts that are inimical or injurious to our people, the 3overnment and our
national interest, % hereby order you as -ecretary of ?ational Defense to forth,ith arrest or cause the arrest and take into custody the
individuals named in the attached list and to hold them until other,ise so ordered by me or by my designated representative.
4+ike,ise, % do hereby order you to arrest or cause the arrest and take into custody and to hold them until other,ise ordered released by me
or by my duly authori"ed representative, such persons as may have committed crimes and offenses in furtherance on the occasion of or
incident to or in connection ,ith the crimes of insurrection or rebellion, as ,ell as persons ,ho have committed crimes against national
security and the la, of nations, crimes against the fundamental la,s of the state, crimes against public order, crimes involving usurpation of
authority, title, improper use of name, uniform and insignia, including persons guilty of crimes as public officers, as ,ell as those people ,ho
may have violated any decree or order promoted by me personally or promulgated upon my direction.4
Q 0n the issue of ,ithdra,al, 4petitioner4 refers to former -enator .ose E. Diokno and not any of the other petitioners.
QQ Although this !ule &' falls under 4Procedure in Courts of 1irst %nstance,4 it may also serve as a guide to this Court in resolving a #uestion
of this nature. %n the Court of Appeals, and in the -upreme Court, 4An appeal ,ay be ,ithdra,n as of right at any time before filing of
appellee$s brief. After that brief is filed the ,ithdra,al may be allo,ed by the Court in its discretion ....4 ;-ection J, !ule B9: -ection &, !ule
B2<.
& ;*< he President shall be commanderCinCchief of all armed forces of the Philippines and, ,henever it becomes necessary, he may call out
such armed forces to prevent or suppress la,less violence, invasion, insurrection, or rebellion, or imminent danger thereof, ,hen the public
safety re#uires it, he may suspend the privelege of the ,rit of *a#eas corpus, or place the Philippines or any part thereof under martial. ;Par.
*, -ec. &9, Art. 6%%, &(AB Constitution<.
-ec. &*. he Prime Minister shall be commanderCinCchief or the Philippines and, ,henever it becomes necessary, he may call out such
armed forces to prevent or suppress la,less violence, invasion, insurrection, or rebellion. %n case of invasion, insurrection, or rebellion, or
imminent danger thereof, ,hen the public safety re#uires it, he may suspend the privelege of the ,rit of *a#eas corpus, or place the
Philippines or any part thereof under martial la,. ;-ec. &*, Art. %D, ?e, Constitution.<
M=U05 PA+MA, ..7
& Diokno$s petition for *a#eas corpus ,as filed on -eptember *A, &('*, the third day after the signing of Proclamation ?o. &9)&. %n .avellana
vs. he /8ecutive -ecretary, +CA2&J*, March A&, &('A, and allied cases, called the !atification Cases, this Court in its dispositive portion
stated7 4there is no further judicial obstacle to the ?e, Constitution being considered in force and effect4. 0n 0ctober *J, &('A, President
1erdinand /. Marcos s,ore into office the >on. Puerube C. Makalintal as Chief .ustice, and 0ctober *(, Associate .ustices7 Cali8to 0.
5aldivar, 1red !ui" Castro. /nri#ue M. 1ernando, Claudio eehankee, Antonio P. Barredo, 1eli8 6. Makasiar, 1eli8 P. Antonio, and -alvador
6. /sguerra took their 0ath under the ne, Constitution together ,ith ne, appointees, .ustices /stanislao 1ernande", Cecilia MuLo" Palma
and !amon A#uino.
* /ight votes ,ere considered by the Court necessary to grant the motion, and of the t,elve .ustices, only seven finally voted to grant the
,ithdra,al of the petition, namely7 Chief .ustice Makalintal, Associate .ustices 5aldivar, 1ernando, eehankee, Barredo, MuLo" Palma, and
A#uino: the rest voted to deny the motion.
A 3eneral 0rder ?o. * ,as amended as 3eneral 0rder ?o. *CA dated -eptember *2, &('*.
J here ,ere nine separate Petitions filed, to ,it, in chronological order7 3.!. ?os. +CABBA), ABBA(, ABBJ9, ABBJ2, ABBJ', ABBB2, ABB2',
ABB'&, and ABB'A, the last having been docketed on 0ctober A, &('*. 0f the nine petitions, only si8 are no, being decided because +C
ABBJ', 6oltaire 3arcia %%, petitioner, became moot upon the death of the petitioner on March *, &('A, ,hile on conditional release: an Chin
>ian and 6eronica +. @uyitung petitioners, ,as ,ithdra,n ,ith the approval of the Court on the ground that petitioners had been released
from custody: and +CABB'&, Bren 3uiao, petitioner, ,as like,ise ,ithdra,n ,ith the approval of the Court. Although there ,ere originally A*
petitioners only &) remain and they are as enumerated in the caption of these si8 cases under consideration. 0f these &) petitioners, three
,ere members of the Philippine -enate at the time of their arrest, namely7 .ose E. Diokno, Benigno -. A#uino, .r., and !amon 6. Mitra, .r.:
t,o ,ere delegates to the Constitutional Convention of &('&, namely7 .ose Mari 6ele" and ?apoleon 3. !ama ,hile the rest are ,ellCkno,n
journalists and men of the mass media.
B 6illavicencio vs. +ukban, A( Phil. ''), '(9, cited in .. 3. Bernas, -..., Constitutional !ights and Duties, 6ol. &, &('J /d., p. *2*. .
2 .ustice /. 1ernando, he Bill of !ights, &('* /d., p. *(2.
' Bernas, supra, p. *2*.
) Eilloughby on the Constitution, 6ol. A, p. &2&* ;&(*(< #uoted in 1ernando, supra.
( * -tory, Const. #uoted in Black$s Constitutional +a,, * /d. p. B((.
&9 Art. %%%, -ec. & par. &, Philippine Constitution of &(AB provides7
4?o person shall be deprived of life, liberty, or property ,ithout due process of la,, nor shall any person be denied the e#ual protection of the
la,s.4 his provision is adopted verbatim in Art. %6, -ec. &, Constitution of &('A.
he Preamble of the 1rench Constitution of &(B), Art. & provides7 4Men are born and remain free and e#ual in respect of rights ...4 and Art. '
states7 4?o one shall be accused, arrested, or imprisoned, save in the cases determined by la,, and according to the forms ,hich it has
prescribed ;aken from >o,ard and -ummers, +a, its nature, functions, and limits, p. *B'< .
he Constitution of the =nion of -oviet -ocialist !epublics: &(A2, Art. &*' provides7 4Citi"ens of the =--! are guaranteed inviolability of the
person. ?o person may be placed under arrest e8cept by decision of a court or ,ith the sanction of a procurator ;ibid, p. *B(< .
-ec. &, Art. D%6, =nited -tates Constitution reads 4?o state shall make or enforce any la, ,hich shall abridge the privileges or immunities of
citi"ens of the =nited -tates: nor shall any -tate deprive any person of life, liberty, or property, ,ithout due process of la,: nor deny to any
person ,ithin its jurisdiction the e#ual protection of the la,s.4 ;Black$s, supra, DD%6<
&& see Memorandum of !espondents dated ?ovember &', &('*, pp. JCB.
&* Ans,er to -upplemental Petition and Motion for %mmediate !elease, dated .uly *2, &('A, p. *A, +CABBA(.
&A Memorandum for Petitioners dated ?ovember (, &('*, pp. 2, *A, '&, ('.
&J -upplemental Petition and Motion for %mmediate !elease dated .une *(, &('A, pp. JBCB&, 2AC(J.
&B !eference is made to the &(AB constitution.
&2 Moran, !ules of Court, 6ol. A. &('9 /d. p. 2&B: Cloro8 Co. vs. Director of Patents, et al.,
+C&(BA&, August &9, &(2', *9 -C!A (2B, ('9, Palma vs. >on. 0reta, et al., AJ -C!A.
&2Q +CAA(2J, December &&, &('&, J* -C!A JJ).
&' -ame as -ec. &*, Art. %D Constitution of &('A, e8cept the term 4President4 is no, 4Prime Minister4.
&) he Baker case involved the suspension of the privilege of the ,rit of *a#eas corpus in the provinces of Batangas and Cavite by the
3overnorC3eneral pursuant to a !esolution of the Philippine Commission dated .anuary A&, &(92, ,hile the Montenegro case involved
Proclamation *&9 by Pres. /lpidio Puirino on 0ctober **, &(B9, suspending the privilege of the ,rit of Pursuant to Art. 6%%, -ection &9,
paragraph * of the Constitution.
&( p. J'A, supra.
&(Q see Bill of !ights, Art. %%%, &(AB Constitution: Bill of !ights, Art. %6, &('A Constitution. .
4&A Ehen ,ere, seemingly, taken from the seventh paragraph of -ection A, and -ection *& of the .ones +a, ;Act of Congress of the =.-. of
August *(, &(&2<. he only provision thereon in the =.-. Constitution is found in -ection (;*< of Art. & thereon K on the +egislative Po,er K
,hich provides that $the privilege of the ,rit of habeas shall not be suspended, unless in cases of rebellion or invasion the public safety may
re#uire it.$4 ;footnote inside #uotation<
*9 Memorandum of !espondents, supra pp. A2CJ9.
*& -upra, pp. J'2CJ'', J)J.
** he term $>uks$ refers to an army or group of men organi"ed and operating in Central +u"on for communistic activities. ;1ootnote **
inside #uotation<
+a, Puarterly !evie,, D6%%%, &B*. 1or an oppositive vie,, see /dinburgh !evie,, .anuary, &(9*.
*A Art. %%%, -ec. &;J<, &(AB Constitution7
he privilege of the ,rit of *a#eas corpus shall not be suspended e8cept in cases of invasion, insurrection, or rebellion, ,hen the public
safety re#uires it, in any of ,hich events the same may be suspended ,herever during such period the necessity for such suppression shall
e8ist.
Art. %6, -ec. &B, &('A Constitution7
he privilege of the ,rit of *a#eas corpus shall not be suspended in cases of invasion, insurrection, rebellion, or imminent danger thereof,
,hen the public safety re#uires it.
*J President 1erdinand /. Marcos, ?otes on the ?e, -ociety of the Philippines, &('A. p. A'.
*B I#i!.

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dis'issin% the petition

has posted the full te:t of

9 opined <that ta@en to%ether and interpreted properl( and

of the sa'e la& re>uires that the petition

the 6upre'e Court of Michi%an 'ade the

or the 'a)orit( of the 'e'bers of the

penned b( /ustice /.B.L. Re(es, in relation to

had not ac>uired value as

4here is no cause to adopt a stricter interpretative rule &ith

4his provision states* <Re>uire'ents. ? : : : :

6upra note "-.

G.R. No. "1.7, March "#, "##1, 1; 6CRA ";$.

- N. C. !#" 7# Mich ".

6ection ,"+, Article 9D-C, "#!1 Constitution.

";; Phil. 7;" ,"#7$+.

6ection ", Article 99, "#!1 Constitution.

6ee "#!1 Const., Art. D899, 6ec. .

..$ Phil. !-! ,"##1+.

G.R. No. "#17-, . 6epte'ber "##1.

Article D899, Constitution.

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