Republic of the Philippines

SUPREME COURT
Manila
EN BANC

PEDRO E. NIEVA, JR., petitioner,

vs.
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the
Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO,
and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. L-34038 June 18, 1976

G.R. No. L-40031 June 18, 1976

Customhouse, Pasay City, petitioner,

vs.
District, stationed at Pasig, Rizal, and CESAR T.
MAKAPUGAY, respondents.

PEDRO E. NIEVA, petitioner,

vs.
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the
Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO
and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. L-34243 June 18, 1976

NICANOR MARCELO, petitioner,
vs.
HON. ONOFRE A. VILLALUZ, as Judge of the Circuit Criminal
Court, 7th Judicial District stationed at Pasig, Rizal, and
SALVADOR T. MASCARDO, as Collector of Customs stationed
at the MIA Airport Customhouse, respondents.
G.R. No. L-36376 June 18, 1976
CALIXTO D. ENRIQUEZ, REYNALDO REYES AND LUCILA
ENRIQUEZ, petitioners,
vs.
HON. ONOFRE A. VILLALUZ, GREGORIO CONDE AND
ANASTACIA TORILLO, respondents.
G.R. No. L-38688 June 18, 1976
FRANCISCO P. FELIX, petitioner,
vs.
THE HON. JUDGE ONOFRE A. VILLALUZ and FELIX C.
HALMAO, respondents.
G.R. No. L-39525 June 18, 1976

MAKASIAR, J.:p
G.R. No. L-34038
On July 1, 1971, petitioner Collector of Customs, Salvador T.
Mascardo filed against Cesar T. Makapugay, a letter complaint with
respondent Judge of the Circuit Criminal Court for violation of: (a)
Section 174 of the National Internal Revenue Code, as amended by
Republic Act No. 4713, (b) Central Bank Circular No. 265, in
relation to Section 34 of Republic Act No. 265, otherwise known as
The Central Bank Act, and (c) Section 3601 and 3602 of Republic
Act No. 1937, in relation to Sections 2505 and 2530 (m) 1 of the
same Act, claiming that Cesar T. Makapugay "with malicious
intention to defraud the government criminally, willfully and
feloniously brought into the country FORTY (40) cartons of
"untaxed blue seal" Salem cigarettes and FIVE (5) bottles of Johny
Walker Scotch Whiskey, also "untaxed", without the necessary
permit from the proper authorities. The respondent submitted a
Baggage Declaration Entry which did not declare the said articles.
The Customs Examiner assigned further asked him if he has
something more to declare but the answer was in the negative.
And in utter disregard of existing Central Bank Circulars
particularly C.B. Circular 265, as amended, the respondent brought
into the country various Philippine Money in the amount of Two

Thousand Two Hundred Eighty (P2,280.00) Pesos cleverly hidden in

one of the pieces of baggage examined by the assigned customs
examiner, without any prior permit from the Central Bank
authorities. ... " (p. 11, rec.).
Respondent Judge assumed jurisdiction to conduct and did conduct
the preliminary investigation, and on July 6, 1971, issued the
challenged order, dismissing "the case with prejudice and ordering
the return to private respondent the amount of P2,280.00, his
passport No. Ag-2456 FA - No. B103813, and one (1) box of airconditioning evaporator only, as well as the forfeiture of forty (40)
cartons of untaxed blue seal Salem cigarettes and five (5) bottles
of Johnny Walker Scotch Whiskey" (p. 13, rec.).
Armed with said order, private respondent Makapugay demanded
that petitioner release the articles so stated. Petitioner Collector of
Customs refused to obey the order due to the "prior institution of
seizure proceedings thereon." The refusal prompted respondent
Makapugay to file a complaint for "Open Disobedience" under
Article 231 of the Revised Penal Code, before the City Fiscal of
Pasay City.
Hence, this petition for certiorari with preliminary injunction,
seeking to annul and set aside the order dated July 6, 1971 on the
ground that respondent Judge has no power to conduct a
preliminary investigation of criminal complaints directly filed with
him, cannot legally order the dismissal "with prejudice" of a
criminal case after conducting a preliminary investigation thereon,
and is without authority to order the return of articles subject of
seizure proceedings before Customs authorities.
In due time, respondents filed their respective answers to the
petition and subsequently both parties submitted their respective
memoranda in lieu of oral argument.
G. R. No. L-34243
On June 22, 1971, respondent Collector of Customs filed a lettercomplaint with respondent Judge against petitioner Nicanor
Marcelo for an alleged violation of Section 3602 in relation to

Section 2505 of Republic Act 1937, otherwise known as the Tarif

and Customs Code, supposed to have been committed in the
following manner:
... Mr. Marcelo who is an arriving passenger from
Hongkong on board a Philippine Air Lines plane,
Flight 307, on June 22, 1971, criminally, feloniously,
and with intention to defraud the government did
not declare the contents of his pieces of baggage in
the Baggage declaration Entry nor with the assigned
Customs Examiner. ... When his pieces of baggage
were examined, instead of personal efects as
declared in the Baggage Declaration Entry, what
were found were various assorted Watches, Bags,
Montagut shirts and Dress materials which are
highly taxable.
The act of passenger Marcelo in intentionally
refusing to declare the said articles in the Baggage
Declaration Entry, and before the Customs Examiner
despite inquiries made, constitute a criminal ofense
within the meaning of Section 3602 of the Tarif and
Customs Code of the Philippines. ... (p. 19, rec.).
The criminal complaint having been docketed as Case No. CCC-VII854-P.C., the respondent Judge assumed jurisdiction over the
objection of petitioners counsel, conducted the preliminary
examination and investigation, simultaneously in the manner
provided for by Section 13, Rule 112 of the New Rules of Court,
and thereafter on October 6, 1971 issued the following order:
WHEREFORE, there being a preliminary investigation
and examination conducted by the Court and
considering that the respondent was given a chance
to defend himself let a Warrant of Arrest be issued
for his apprehension. The respondent is hereby
ordered to post a bond in the amount of P5,000.00
for his provisional release.

Pursuant to Section 6, Rule 135 of the New Rules of

Court, in relation to Section 13, Rule 113 thereto, the
City Fiscal of Pasay is hereby ordered to file the
corresponding information against the respondent
before this court of competent jurisdiction within
FORTY EIGHT (48) HOURS from receipt hereof (p. 23,
rec.)
Petitioner Nicanor Marcelo filed this action for certiorari with
preliminary injunction, impugning the validity of the order of
respondent Judge dated October 6, 1971, on the same ground as
the petition in G.R. No. L-34038.
On October 20, 1971, the Supreme Court adopted resolution
requiring respondents to rile an answer and likewise issued a writ
of preliminary injunction, "restraining respondent Judge, his
representatives, assigns or persons acting upon his orders, place
or stead, from executing, enforcing and implementing his order of
October 6, 1971 ... "(p. 32, rec.)
In compliance therewith, respondent Judge filed a petition for
admission of answer on November 29, 1971 (pp. 43-44, rec.),
which was granted by this Court in its December 13, 1971
resolution (p. 62, rec.).
On the other hand, respondent Collector of Customs, through the
Solicitor General, filed a manifestation on February 1, 1972,
adopting as his answer to the petition, the legal grounds averred in
the original petition in G.R. No. , Collector of Customs, etc. versus
Hon. Onofre A. Villaluz, etc., et al (p. 72, rec.).
On June 13, 1972, the Supreme Court by resolution resolved to
consider the case submitted for decision after noting the failure of
petitioner to file his memorandum (p. 94, rec.).
G. R. No. L-36376
On February 22, 1973, private respondents Gregorio Conde and
Anastacia Torillo, filed a complaint directly with the Circuit Criminal
Court, indicting petitioners with violations of the Anti-Graft Law.

The complaint was ultimately docketed and on the same day

(February 22, 1973), respondent Judge forthwith issued an order of
the following tenor:
Considering that the complaint filed ... sufficient in
form and substance, the same having been filed in
accordance with Section 13, Rule 112 of the New
Rules of Court, and pursuant to the doctrine laid
down by the Supreme Court in the case of "Mateo
vs. Villaluz," let the preliminary investigation of this
case be set on February 24, 1973 at 8:00 o'clock in
the morning (p. 22, rec.).
On the day set, petitioners appeared at the sala of respondent
Judge who proceeded to conduct a preliminary investigation of the
case. The same was reset on February 26, 1973.
Immediately before the hearing of February 26, 1973, petitioners,
through counsel, filed an "Urgent Motion to Suspend Preliminary
Investigation" contesting the power of the respondent Judge to
conduct the preliminary examination and investigation (p. 23,
rec.), which was denied by respondent Judge in his order dated
February 27, 1973 (p. 31, rec.). Counsel for petitioners then asked
for time to raise the issue before this Court, which respondent
Judge granted by giving petitioners a period of just one (1) day to
seek relief from this Tribunal.
Accordingly, herein petitioners filed this petition.
On March 2, 1973, this Court required respondents to answer the
petition and issued a temporary restraining order "enjoining
respondent Judge from ... causing and efecting the arrest of
petitioners herein" (p. 39, rec.).
In his answer filed on March 14, 1973, respondent Judge, invoking
the same arguments in G.R. No. L-34243, held on to the view that
the Circuit Criminal Courts are vested with the power and authority
to conduct preliminary investigations.
G. R. No. L-38688

On May 23, 1974, private respondent Felix Halimao filed a criminal

complaint directly with the Circuit Criminal Court presided over by
respondent Judge charging herein petitioner with alleged violations
of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, which complaint was docketed as Criminal
Case No. Prel. Inv. 116-Rizal.
At the hearing of May 27, 1974, petitioner, through counsel, filed
an "Urgent Motion to Suspend Preliminary Investigation" (p. 9, rec.)
based on the ground that respondent Judge has no authority to
conduct the same.
After arguments by counsels for both parties, the respondent Judge
denied petitioner's motion. An oral motion for reconsideration was
likewise denied (pp. 14-15, rec.).
Hence, this petition.
On May 31, 1974, this Court by resolution gave due course to the
petition and issued a restraining order, "enjoining respondent
Judge, his agents, representatives, and/or any person or persons
acting upon his orders or in his place or stead from proceeding
further with the preliminary investigation ... " (p. 24, rec.)
On June 17, 1974, it appearing that the case involved in the
petition is criminal in nature, the Court required herein petitioner
to IMPLEAD the People of the Philippines as party-respondent (p.
26, rec.). In conformity thereto, petitioner through counsel, filed on
June 28, 1974 an amended petition impleading The People (pp. 4950, rec.).
Except for the Solicitor General who appeared for The People of the
Philippines, respondents in answer, frontally met the averments of
petitioner.
G. R. No. L-39625
On October 24, 1974, petitioner filed this instant petition seeking
to annul "any preliminary investigation conducted by respondent
Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal Court, 7th

Judicial District, as well as the warrant, if any, that may be issued

for the arrest and imprisonment of petitioner" and to enjoin
permanently respondent Judge from conducting preliminary
investigations and from ordering petitioner's arrest.
On October 30, 1974, the Court required the respondents to file
their answer within ten (10) days from notice thereof and issued,
efective immediately, a temporary restraining order against
respondent Judge (p. 64, rec.).
On November 13, 1974, the Solicitor General filed a manifestation
requesting to be excused from filing an answer considering that in
three other cases (The Collector of Customs v. Hon. Onofre A.
Villaluz, G.R. No. L-34038; Nicanor Marcelo v. Hon. Onofre A.
Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon. Onofre A.
Villaluz, G.R. No. L-38688) which involve the same legal issue, his
office maintains that respondent Judge has no authority to conduct
a preliminary investigation of criminal cases which he may try and
decide under Republic Act No. 5179 (p. 81, rec.).
On November 20, 1974, private respondent filed his answer (pp.
87-104, rec.).
Petitioner, on January 22, 1975, filed a motion praying that the
instant case be consolidated and decided jointly with G.R. Nos. L34038, L-34243, L-36376 and L-38688 as they involve the same
issue; and that the memoranda filed for petitioners in said four
cases be reproduced and adopted as the memorandum for
petitioner in this case, which should be deemed submitted for
decision together with the aforementioned cases (pp. 122-124,
rec.). Said motion was granted in the resolution of February 10,
1975 (p. 129, rec.).
In his pleading dated February 5, 1975, private respondent (pp.
130-132, rec.) stated that he joins the petitioner in his plea for the
consolidation of the instant case with cases Nos. L-34038, L-36376
and L-38688 and prayed that the memorandum filed by
respondent in L-38688 be considered reproduced and adopted as
the memorandum for private respondent in this case, in addition to
the affirmative defenses and arguments contained in private

respondent's answer to the petition, and that this case be

submitted for decision together with the aforementioned cases (p.
137, rec.).

pending preliminary investigation and also before

this Honorable Court. Hence, this endorsement in
order to avoid duplication of efort and time in' the
resolution and disposition of the same incident.

The records disclosed the following antecedent facts.

On January 11, 1974, herein private respondent Jose Arellano filed
a complaint against Pedro E. Nieva, Jr., herein petitioner, together
with his wife Pacita and daughter Patricia N. with the Circuit
Criminal Court, Seventh Judicial District, Pasig, Rizal, for violation
of the Anti-Graft and Corrupt Practices Act (RA No. 3019) in
connection with the P230,000.00 industrial loan obtained by the
Areson Woodtech Manufacturing Company headed by the
complainant, Jose Arellano, from the Development Bank of the
Philippines, where herein petitioner holds the Position of Auditor.
The cm was docketed therein as Criminal Case Prel. Inv. CCC-VII-72
Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.).
On the same day the aforesaid complaint was filed in court,
respondent Judge issued an order that reads:
Pursuant to Section 14, Rule 112 of the New Rules of
Court in relation to the doctrine laid down by the
Supreme Court in the mu of "Mateo versus Villaluz",
Assistant City Fiscal Teodoro B. Santos is hereby
ordered to conduct the preliminary investigation of
the above-entitled case within five (5) days from
receipt hereof and to file the necessary information
in a court of competent jurisdiction if the evidence
so warrants.

In an urgent ex-parte motion dated May 24, 1974 filed with the
Circuit Criminal Court pursuant to paragraph 1 of the Joint Circular
of the Department of Justice and the Department of National
Defense dated April 29, 1974, herein private respondent prayed
that the endorsement of Fiscal Santos be given due course and
that the preliminary investigation be conducted by the respondent
Judge (pp. 3, 92, 104 [Annex "I"], rec.).
Herein petitioner opposed the same in a pleading dated June 1,
1974 (p. 3, pp. 40-49 [Annex "F"], rec.), which was amplified in
another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex
"G"], rec.).
Under date of June 18, 1974, private respondent filed a motion to
strike out herein petitioner's opposition to complainant's ex parte
urgent motion for preliminary investigation in view of the failure of
herein petitioner's counsel to comply with the order of the Court to
furnish a copy of his opposition to complainant Jose Arellano (pp.
93, 105-106 [Annex "2"], rec.).
On September 24, 1974, herein petitioner filed his opposition to
the motion to strike out herein respondent's opposition (pp. 7, 5559 [Annex "G"], rec.). On the same day, a hearing was conducted
by the respondent Judge on the urgent motion for preliminary
investigation and immediately thereafter, he denied said
opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.).

... (pp. 2, 91 [Annex "B"], pp. 21-22, rec.).

Hence, this petition.
On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed
the records of the case back to respondent Judge, because
... (T)he facts and circumstances which has (sic)
been the basis of this instant suit is the same set of
first and circumstances and involving the same
parties in a case of ESTAFA THRU FALSIFICATION now

G. R. No. L-40031
On November 2, 1973, Jose Arellano, private respondent herein,
filed with the Circuit Criminal Court at Pasig, Rizal, a complaint
charging herein petitioner with estafa, allegedly committed under
the circumstances provided for in paragraph 4 1(b) Article 315 of

the Revised Penal Code (p. 12, rec.). Said complaint was
subsequently docketed as CCC Case No. Prel. Inv. -65-Rizal.
Thereupon, respondent Judge proceeded to conduct the
preliminary investigation in question. After the termination of the
proceedings, respondent Judge issued on May 31, 1974 the
challenged resolution which reads:
Wherefore, pursuant to Section 13, Rule 113 of the
New Rules of Court, Assistant City Fiscal Teodoro B.
Santos is hereby ordered to file the necessary
information for the crime of Estafa against
respondent Pacita Nieva, in a court of competent
jurisdiction, within forty-eight (48) hours from receipt
hereof.
Let a warrant of arrest be issued for the immediate
apprehension of respondent Mrs. Pacita Nieva, and
for her provisional liberty, she is hereby ordered to
post a bond in the amount of P20,000.00. (p. 24,
rec.).

taken the position that respondent Judge has no authority or

jurisdiction to conduct a preliminary investigation of criminal cases
which he may try and decide under Republic Act No. 5179.
Private respondent, on the other hand, through the Citizens Legal
Assistance Office of the Department of Justice, filed his answer on
February 20, 1975, maintaining that respondent Judge has
jurisdiction to conduct preliminary investigation invoking
particularly Section 13, Rule 112 of the Revised Rules of Court in
relation to Sections 1, 3 and 6 of Republic Act No. 5179.
The one common legal issue posed by these six cases is whether a
Circuit Criminal Court possesses the power to conduct preliminary
investigations. Neither the explanatory note to House Bill No. 9801
(now R.A. No. 5179,) nor the available Congressional debates
intimate that Circuit Criminal Courts are clothed with the authority
to
conduct
preliminary
examinations
and
investigations
(Congressional Records of House, March 28, 1967, pp. 41-45; May
15, 1967).
WE therefore examine the law.

On July 26, 1974, petitioner's counsel filed an urgent motion to

declare the preliminary investigation proceedings null and void ab
initio due to lack of jurisdiction on the part of the court. to conduct
the same, re-echoing the arguments invoked by petitioners in G. R.
Nos. L-34038, L-34243, L-36376 and L-38688 (p. 14, rec.).
In an order dated August 8, 1974, respondent Judge denied the
same (p. 22, rec.).
On January 28, 1975, this Court by resolution required respondents
to file an answer to the petition and not to move for the dismissal
of the same. The Court further' resolved to consolidate the case
with Cases Nos. L-38688, L-34038, L-34243, and L-36376 (p. 26,
rec.).
In a manifestation filed on February 10, 1975, the Solicitor General
requested that he be excused from filing an answer on the ground
that in three cases (G.R. Nos. L-34038, L-34243 and L-38688),
which involve the same legal issue, the counsel for the People has

Petitioners, in maintaining that respondent Judge has no such

power, rest their claim on Section I of Republic Act No. 5179, which
provides:
In each of the sixteen judicial districts for the Court
of First Instance as presently constituted, there is
hereby created a Circuit Criminal Court with limited
jurisdiction, concurrent with the regular Court of First
Instance, to try and decide the following criminal
cases falling under the original and exclusive
jurisdiction of the latter:
a. Crimes committed by public officers, crimes
against persons and crimes. against property as
defined and penalized under the Revised Penal
Code, whether simple or complex with other crimes;

b. Violations of Republic Act No. 3019, otherwise

known as the Anti-Graft and Corrupt Practices Act, ...
;
c. Violations of Sections 3601, 3602 and 3604 of the
Tarif and Customs Code and Sections 174, 175 and
345 of the National Internal Revenue Code.
(emphasis supplied).
Petitioners argue that said courts, having been conferred limited
jurisdiction, cannot exercise such power of preliminary
investigation, the same not being embraced and contemplated
within its given function to "try and decide" specific criminal cases.
What is limited by Republic Act No. 5179 is the scope of the cases
that may be tried by Circuit Criminal Courts.
Circuit Criminal Courts are of limited jurisdiction, only because
they cannot try and decide all criminal cases falling under the
jurisdiction of the Courts of First Instance as courts of general
jurisdiction. They can only take cognizance of cages expressly
specified in Section 1 of Republic Act No. 5179, as amended by
Presidential Decree No. 126. Nevertheless, they have the same
powers and functions as those conferred upon regular Courts of
First Instance necessary to efectively exercise such special and
limited jurisdiction. This is plain and evident from Sections 3 and 6
of their organic law, Republic Act No. 5179:
Section 3. The provisions of all laws and the Rules of
Court relative to the judges of the Courts of First
Instance and the trial, and disposition and appeal of
criminal cases therein shall be applicable to the
circuit judge and the cases cognizable by them
insofar as they are not inconsistent with the
provisions of this act.
xxx xxx xxx
Section 6. ... Unless inconsistent with the provisions
of this Act, the Circuit Criminal Courts shall have the

same powers as those conferred by the Judiciary Act

and the Rules of Court upon regular Courts of First
Instance, insofar as may be necessary to carry their
jurisdiction into efect.
Judges of the regular Courts of First Instance are expressly
conferred the authority to conduct preliminary examination and
investigation by Sections 13 and 14 of Rule 112 of the Revised
Rules of Court:
Section
13.
Preliminary
examination
and
investigation by the judge of the Court of First
Instance. Upon complaint filed directly with the
Court of First Instance, without previous preliminary
examination and investigation conducted by the
fiscal, the judge thereof shall either refer the
complaint to the justice of the peace referred to in
the second paragraph of Section 2, hereof - for
preliminary examination and investigation, or
himself conduct both preliminary examination and
investigation simultaneously in the manner provided
in the preceding sections, and should he find
reasonable ground to believe that the defendant has
committed the ofense charged, he shall issue a
warrant for his arrest, and thereafter refer the case
to the fiscal for the filing of the corresponding
information. (emphasis supplied).
Section
14.
Preliminary
examination
and
investigation by provincial or city fiscal or by state
attorney in cases cognizable by the Court of First
Instance. Except where an investigation has been
conducted by a judge of first instance, justice of the
peace or other officer in accordance with the
provisions of the preceding sections no information
for an ofense cognizable by the Court of First
Instance shall be filed by the provincial or city fiscal,
or state attorney, without first giving the accused a
chance to be heard in a preliminary investigation

conducted by him or by his assistant by issuing a

corresponding subpoena. ...
The power of preliminary examination and investigation, which
may be exercised by judges of the Circuit Criminal Courts, is
without doubt, "not inconsistent with the provisions of Republic Act
No. 5179," and likewise, "necessary to carry their jurisdiction into
efect."
Moreover, Congress further confirmed that the Court of First
Instance has the power to conduct preliminary investigation by
approving on September 8, 1967 Republic Act No. 5180,
prescribing a uniform system of preliminary investigation by all
government prosecutors, which provides:
Sec. 1. Notwithstanding any provision of law to the
contrary and except when an investigation has been
conducted by a Judge of First Instance, city or
municipal judge or other officer in accordance with
law and the Rules of Court of the Philippines, no
information for an ofense cognizable by the Court of
First Instance shall be filed by the provincial or city
fiscal or any of his assistants, or by a state attorney
or his assistants, without first giving the amused a
chance to be heard in a preliminary investigation
conducted by him by issuing a corresponding
subpoena. ...
Sec. 2. The provisions of Section fifteen, Rule 112, of
the New Rules of Court Of the Philippines, shall be
observed in the investigations of persons in custody.
From the abovequoted Provisions, Republic Act No. 5180 likewise
continues the procedure prescribed in the Revised Rules of court of
1964, Particularly Rule 112 thereof.
The aforequoted portion of Section 1 of Republic Act No. 5180 was
not modified by the amendatory Presidential Decrees Nos. 77 and
911 issued respectively on December 6, 1972 and March 23, 1976.

More decisively, the 1935 as well as 1973 Constitution vests this

essential
power
in
all
courts
to
first
determineprobable cause before ordering the arrest of those
charged with a criminal ofense (Section 1[3], Art. III, 1935
Constitution; See. 3, Art. IV, 1973 Constitution). The determination
of "Probable cause" is the sole object of preliminary examinations.
Surely, congress could not have possibly intended to deny the
Circuit Criminal Courts such constitutional prerogative, which is
part of the basic constitutional right of an individual whose person
cannot be legally seized without prior preliminary examination by a
judge.
WE enunciated that the creation of the Circuit Criminal Courts is
for the purpose of alleviating the burden of the regular Courts of
first Instance and to accelarate the disposition of criminal cases
pending to be filed therein(People vs. Gutierrez, etc., et al., 36
SCRA 172; Osmea vs. Sec. of Justice, G.R. No. L-32033, Sept 30,
1971, 199) or to contribute to the speedy resolution of criminal
cases and help curb the progress of criminality in the
country (Paraguya vs. Tiro, 41 SCRA 13s). As opined by Mr. Justice
Barredo in his concurring opinion in the Gutierrez case, supra, "...
Circuit Criminal Courts are nothing but additional branches of the
regular Courts of First Instance in their respective districts ..." ,
which he reiterated in his concurring opinion in the Osmea case,
thus:
My principal reason for my vote in favor of the
judgment in this case is that I cannot find any
justification for allowing the Secretary of Justice to
have any part at all in the distribution or assignment
of cases among the different branches of any Court
of First Instance, of which the corresponding Circuit
Criminal Court is one. I took this view in my
concurring opinion in the case of People v. Gutierrez,
cited in the main opinion of Justice Villamor, and I
cannot see why I must opine differently now. ... (41
SCRA 211).
If the main purposes then in creating Circuit Criminal Courts are to
alleviate the burden of the regular Courts of First Instance and to

accelerate the disposition of the cases therein as well as stem the

tide of criminality, it is only logical that such authority vested in
the judges of the Courts of First Instance is likewise conferred on
Circuit Criminal Courts. Otherwise, the Courts of First Instance
would still be carrying the burden of conducting preliminary.
investigations in those cases where Circuit Criminal Courts have
jurisdiction and consequently delaying the trial and disposition of
criminal cases pending before such Courts of First Instance.
That Congress, in enacting Republic Act No. 5179 clearly intended,
by Sections 3 and 6 thereof, to clothe the Circuit Criminal Court
with all the powers vested in regular Courts of First Instance
including the authority to conduct preliminary examinations and
investigations, is confirmed by the Dangerous Drugs Act of 1972,
otherwise known as Republic Act No. 6425, as amended by
Presidential Decree No. 44, Section 39 of which confers on Circuit
Criminal Courts, Courts of First Instance and Juvenile and Domestic
Relations Courts concurrent original jurisdiction over all ofenses
punishable thereunder and expressly directs that the "preliminary
investigation of cases filed under this Act shall be terminated
within a period of thirty (30) days from the date-of their filing."
Before the amendment, the law required only seven (7) days from
the date of the commencement of the preliminary investigation.
Section 39, as amended, reads:
Sec. 39. Jurisdiction. The Court of First Instance,
Circuit Criminal Court and Juvenile and Domestic
Relations Court shall have concurrent original
jurisdiction over all cases involving ofenses
punishable under this Act: Provided, that in cities or
provinces where there are Juvenile and Domestic
Relations Courts, the said courts shall take exclusive
cognizance of cases where the ofenders are under
sixteen years of age.
The preliminary investigation of cases filed under
this Act shall be terminated within a period of thirty
(30) days from the date of their filing.

Where the preliminary investigation is conducted by

a prosecuting officer and a prima facie case is
established, the corresponding information shall be
filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary
investigation is conducted by a judge and a prima
facie case is found to exist, the corresponding
information shall be filed by the proper prosecuting
officer within forty-eight (48) hours from the date of
receipt of the records of the case.
Trial of the cases under this section shall be finished
by the court not later than ninety (90) days from the
date of the filing of the information. Decision on said
cases shall be rendered within a period of fifteen
(15) days from the date of submission of the case.
It is patent that the aforequoted provision of Section 39 of Republic
Act No. 6425 affirms the power of the Circuit Criminal Courts to
conduct preliminary examination and investigation in all the cases
falling under their jurisdiction and additionally fixes the period for
preliminary investigation, the filing of the information and the
rendition of decisions in all ofenses penalized by the Dangerous
Drugs Act of 1972.
Under the amendment, the Circuit Criminal Court no longer has
exclusive, but still retains concurrent, jurisdiction with the Court of
First Instance and Juvenile and Domestic Relations Courts under
the Dangerous Drugs Act. Its authority to conduct preliminary
examination and investigation granted under Section 6 of Republic
Act No. 5179, remains intact and undiminished; because the
amendatory decree expressly directs that "If the preliminary
investigation is conducted by a judge and a prima facie case is
found to exist, the corresponding information should be filed by
the proper prosecuting officer ... " There is nothing in the
amendatory decree from which it can be reasonably inferred that
since the jurisdiction of the Circuit Criminal Court over violations of
the Dangerous Drugs Act is no longer exclusive, Circuit Criminal
Court Judges no longer possess the authority to conduct
preliminary examination and investigation.

Recognizing the constitutional power of the courts, including the

Courts of First Instance, to conduct preliminary examination, other
special laws specifically vest such authority exclusively in the
Court of First Instance in case of violation of the Revised Election
Code (Sec. 187, 1947 Revised Election Code, as amended; Sec.
234, 1971 Rev. Election Code) and of the Anti-subversion Act when
the penalty imposable for the ofense is prision mayor to death
(Sec. 16, Rep. Act No. 1700).
It is urged that the word "judge" in the above-quoted section of
Presidential Decree No. 44 (and also in the. 1935 and 1973
Constitutions) contemplates not the Court of First Instance Judge
nor the Circuit Criminal Court Judge but the municipal judge. As
heretofore stated, it is an elementary precept in statutory
construction that where the law does not distinguish, WE should
not distinguish (Colgate Palmolive Philippines, Inc. vs. Gimenez, L14787, Jan. 28, 1961, 1 SCRA 267). The Statute cannot give a
restricted meaning to the generic term "judge", used in the
constitutional guarantee against unreasonable searches and
seizures.
Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5
SCRA 684), a justice of the peace, accuse of violating Section 54 of
the Revised Election Code, moved to dismiss the information on
the ground that the law refers merely to a justice, judge, or fiscal
and that being a justice of the peace, he is beyond the coverage of
the said Code. The Supreme Court in denying such contention,
held that there was no need of including justices of the peace in
the enumeration in said section because the legislature had
availed itself of the more generic term "judge". The term "judge",
not modified by any word or phrase, is intended to comprehend all
kinds of judges, including justices of the peace.
The cases of People versus Paderna (22 SCRA 273) and Paraguya
versus Tiro (41 SCRA 137) involved not the power of the Circuit
Criminal Court to conduct preliminary investigation, but its
jurisdiction to try and decide certain They do not at all reveal an
iota of any further restriction on the limited jurisdiction of the
Circuit Criminal Court other than those delineated in existing laws.

Thus, in the Paderna case, supra, involving a violation of Section

174 of the Tax Code, Mr. Chief Justice Castro, then Associate
Justice, speaking for the Supreme Court in ruling that the Circuit
Criminal Court was without jurisdiction to take cognizance of the
case, stated:
... [T]he charge is for unlawful possession of untaxed
"blue seal cigarettes" of an appraised value of less
than P500.00 ... and the penalty provided under
Republic Act 4713 is a fine of not less than P50.00
nor more than P200.00 and imprisonment of not less
than 5 nor more than 30 days because the value of
the cigarettes does not exceed P500.00, this case
falls within the original and exclusive jurisdiction of
the city court. ...
... Section 1 of Republic Act 5179, which took efect
on September 8, 1967, provides in part that circuit
criminal courts shall have limited jurisdiction
concurrent with the regular court of first instance, to
try and decide the following criminal cases falling
under the original and exclusive jurisdiction of the
latter.
xxx xxx xxx
The jurisdiction of the circuit criminal courts is thus
dependent not only on the type of cases but also on
the penalties provided for those cases. Inasmuch as
the case at bar falls within the exclusive and original
jurisdiction of the City Court, it cannot, even if it
involves a violation of section 174 of the Tax Code,
be taken cognizance of by circuit criminal courts, the
jurisdiction of which is concurrent with that of courts
of first instance where the latter's jurisdiction is
original and exclusive.
The same ruling was substantially reiterated in the more recent
Tiro case, supra, involving indirect bribery committed by a public
officer. In passing upon the issue of the Circuit Criminal Court's

limited jurisdiction, the Supreme Court, through Mr. Justice Jose B.

L. Reyes, held:
... The law (R.A. 5179) confined the jurisdiction of
the circuit criminal courts (which is even made
concurrent with the courts of first instance) to
crimes committed by public officers; ... only where
they are falling within the original and exclusive
jurisdiction of the court of first instance. In short,
circuit criminal courts' jurisdiction was limited
merely to cases involving crimes specifically
enumerated in Section 1 of Republic Act 5179, for
which the penalty prescribed by law is imprisonment
for more than 3 year (or 6 years in proper cases), or
fine of more than 3 years (or 6 years in proper
cases), or fine of more than P3,00.00 (or P6,000.00
as the case may be), or both such fine and
imprisonment (sec. 44[f] in relation to Sec. 87[c],
Judiciary Act of 1948, as amended; Esperat vs. Avila,
L-25922, June 30, 1967, 20 SCRA 596; Mangila vs.
Lantin, L-24735, October 31, 1969, 30 SCRA 81;
People vs. Tapayan , L-36885, November 28, 1969,
30 SCRA 529; Andico vs. Roan, L-26563, April 16,
1968, 23 SCRA 93).
Since indirect bribery is penalized under the Revised
Penal Code with imprisonment for a period not
exceeding six months, suspension and public
censure (Art. 211, RPC), the case is clearly removed
from the competence of the circuit criminal court to
pass upon. It is not denied that the crime of indirect
bribery is essentially one committed by public
officers. Jurisdiction of the court, however, is
determined not only by nature of the ofense
charged in the information, but also by the penalty
imposable thereto. ... (emphasis supplied).
In these two cases, it was made clear that for the Circuit Criminal
Court to acquire jurisdiction, the ofense must not only be one of
those enumerated under Section 1 of Republic Act No. 5179; it

should also be within the original and exclusive jurisdiction of the

regular Courts of First Instance. In the aforesaid cases, the Circuit
Criminal Court was clearly without jurisdiction to hear and decide
the ofenses involved, by command of the specific provisions of its
charter, the Judiciary Act and the Revised Penal code; and not by a
directive of the Supreme Court, which merely applied in said cited
cases the statutory prescriptions. The Supreme Court cannot
legally define additional restrictions, which is the sole prerogative
of the law-making authority.
The contrary view appears to entertain the mistaken notion that
Section 13, Rule 112 of the Revised Rules of Court, being a rule of
procedure, the same should be rendered inoperative by reason of
the fact that the Supreme Court cannot, by promulgating a rule of
procedure, arrogate jurisdiction unto itself or grant any to the
lower courts.
It is of course basic that only the Constitution and the law can
confer jurisdiction to hear and decide certain cases. But equally
true is the fact that both the 1935 and 1973 Constitutions
expressly delegated to the Supreme Court the rule-making
authority the power to promulgate rules of pleading, practice
and procedure and to amend the existing laws thereon. The law or
rule of preliminary investigation is undoubtedly a rule of
procedure.
The 1935 Constitution states:
The Supreme court shall have the power to
promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the
practice of law. Said rules shall be inform for all
courts of the same grade and shall not diminish,
increase or modify, substantive rights. The existing
laws on pleading, practice, and substantive rights.
The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are
declared Rules of Courts, subject to the power of the
Supreme court to alter and modify the same. The
Congress shall have the power to repeal, alter or

supplement the rules concerning pleading, practice,

and procedure, and the admission to the practice of
law in the Philippines (Sec. 13, Art. VIII, 1935
Constitution).
The 1973 Constitution similarly authorizes the Supreme Court to
Promulgate rules concerning pleading, practice, and
procedure in all courts, the admission to the practice
of law, and the integration of the Bar, which,
however,
may
be
repeated,
altered,
or
supplemented by the National Assembly. Such rules
shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform
for all courts of the same grade. and shall not
diminish, increase or modify substantive rights (Sec.
5[5], Art, X, 1973 Constitution).
Sections 13 and 14 of Rule 112 of the Revised Rules of Court
merely implement Section 3 of Article Ill of the 1935 Constitution
(now Section 3 of Article IV of the 1973 Constitution). Section 13 of
Rule 112 of the Revised Rules of Court was not an innovation as it
merely restated Section 13 of General Order No. 58, Section 37 of
Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules
of Court, in obedience to its rule-making authority under Section
13, Article VIII of the 1935 Constitution. Rule 112 does not modify
substantive rights but continues the procedure already operative
prior to the 1935 Constitution.
WE have ruled that Rule 108 of the 1940 Rules of Court, which is
the predecessor of Rule 112 of the 1964 Revised Rules of Court, is
an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640).
While admitting that Court of First Instance were previously
clothed with the power of preliminary investigation by virtue of
Section 37 of Act 1627, nevertheless, it is argued that this same
section was amended when the Judiciary Act of 1948 was enacted
since under Section 99 of said Judiciary Act, "All laws and rules
inconsistent with the provisions of this Act' were repealed. the
inconsistency, it is claimed, lies in the fact that while the authority

of municipal courts and city courts to conduct preliminary

investigation was reiterated in said Judiciary Act, there was no
mention therein whether Courts of First Instance Judges are still
possessed of such authority.
If such repeal was intended, it is unconstitutional; because the
Constitutions of 1935 and 1973 vest in the Judge the power to
issue a warrant of arrest or search warrant after conducting a
preliminary investigation or examination. Congress could not
divest the court of such authority as the Constitution does not
permit it, for the constitutional guarantee on arrest or search
warrant is not qualified by some such phrase as "unless otherwise
provided by law." For a clearer appreciation, the Constitutional
guarantee on arrest and search warrant reads:
(3) The rights of the people to be secure in their
persons, houses, papers, and efects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched,
and the persons or things to be seized (Art. III, 1935
Constitution, emphasis supplied).
Sec. 3. The right of the people to be secure in their
persons, houses, papers, and efects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by
the judge, or such other responsible officer as may
be authorized by law, after examination under oath
or affirmation of the complaint and the witness he
may produce, and particularly describing the place
to be searched, and the persons or things to be
seized (Art. IV, 1973 Constitution, emphasis
supplied).

It is clear from the aforequoted provisions of the 1973 Constitution

that until now only the judge can determine the existence of
probable cause and can issue the warrant of arrest. No law or
presidential decree has been enacted or promulgated vesting the
same authority in a particular "responsible officer." Hence, the
1973 Constitution, which was ratified and took efect on January
17, 1973, should govern the last four cases, namely, Nos. L-36376,
L-38688, L-39525 and L-40031, which arose after January 17,
1973.
But
even
under
the
1935
Constitution,
the
term seizures or seized comprehends arrest. Thus, in Vivo versus
Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in
the cases of Qua Chee Gan, et al. vs. Deportation Board (L-20280,
Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20
SCRA 162), WE ruled unanimously through Mr. Justice J.B.L. Reyes:
Nevertheless, we are of the opinion that the
issuance of warrants of arrest by the Commissioners
of Immigration, solely for purposes of investigation
and before a final order of deportation is issued,
conflicts with paragraph 3, Section 1, of Article III
(Bill of Rights) of our Constitution, providing:
3. The right of the people to be secure
in their persons, houses, papers and
efects against unreasonable searches
and seizures shall not be violated, and
no warrants shall issue but upon
probable cause, to be determined by
the judge after examination under
oath or affirmation of the complainant
and the witnesses he may produce,
andparticularly describing the place to
be searched, and the persons or
things to be seized. (Art. III, 1773
Constitution, emphasis supplied).
It will be noted that the power to determine probable
cause for warrants of arrest is limited by the

Philippine Constitution to judges exclusively, unlike

in previous organic laws and the Federal Constitution
of the United States that left undetermined which
public officials could determine the existence of
probable cause. And in Qua Chee Gan, et al. vs.
Deportation Board, L-20280, promulgated on
September 30, 1963, this Court pointed out that
Executive Order No. 69, of July 29, 1947, issued by
President Roxas, in prescribing the procedure for
deportation of aliens, only required the filing of a
bond by an alien under investigation, but did not
authorize his arrest.
Discussing the implications of the provision of our
Bill of Rights on the issuance of administrative
warrants of arrest, this Court said in the same case:
xxx xxx xxx
Under the express terms of our
Constitution it is, therefore, even
doubtful whether the arrest of an
individual may be ordered by any
authority other than the judge if the
purpose is merely to determine the
existence of probable cause, leading
to an administrative investigation. The
Constitution does not distinguish
between warrants in a criminal case
and
administrative
warrants
in
administrative proceedings. And if one
suspected of having committed a
crime is entitled to a determination of
the probable cause against him, by a
judge, why should one suspected of a
violation of an administrative nature
deserve less guarantee? Of course it
is diferent if the order of arrest is
issued to carry out a final finding of a
violation, either by an executive or

legislative officer or agency duly

authorized for the purpose, as then
the warrant is not that mentioned in
the Constitution which is issuable only
on probable cause. Such, for example,
would be a warrant of arrest to carry
out a final order of deportation, or to
efect compliance of an order of
contempt.
The(n) contention of the Solicitor
General that the arrest of a foreigner
is necessary to carry into efect the
power of deportation is valid only
when, as already stated, there is
already an order of deportation. To
carry out the order of deportation, the
president obviously has the power to
order the arrest of the deportee. But,
certainly, during the investigation, it is
not indispensable that the alien be
arrested. It is enough, as was true
before
the
executive
order
of
President Quirino, that a bond be
required to insure the appearance of
the alien during the investigation, as
was authorized in the executive order
of President Roxas.
Following the same trend of thought, this Court,
in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA,
562; Phil. 1967-B, page 741), distinguished between
administrative arrest in the execution of a final
deportation order and arrest as preliminary to
further administrative proceedings. The Court
remarked in said case:
Section 1 (3), Article Ill of the
Constitution, we perceive, does not
require judicial intervention in the

execution of a final order of

deportation issued in accordance with
law. The constitutional limitation
contemplates an order of arrest in the
exercise of judicial power as a step
preliminary
or
incidental
to
prosecution or proceedings for a given
ofense or administrative action, not
as a measure indispensable to carry
out a valid decision by a competent
official, such as a legal order of
deportation issued Commissioner of
Immigration,
in circumstance of
legislation (L-24576, pp. 161-1621).
The foregoing doctrine was last reiterate in Ang, et al. versus
Galang, etc. (L-21426, Oct. 22, 1975).
Under the American Constitution, the aforesaid terms include not
only arrest but also invitations for police interview or interrogation
as well as stop-and-frisk measures. In the 1968 case of Terry
versus Ohio, the United States Supreme Court enunciated:
... It is quite plain that the Fourth Amendment
governs "seizures" of the person which do not
eventuate in a trip to the station house and
prosecution for crime "arrests" in traditional
terminology. It must be recognized that whenever a
police officer accounts an individual and restrain his
freedom to walk away, he has "seized" that person
(392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D. 2d 889; 903
[1968].)
That the aforesaid terms seizures and seized signify arrest was
deliberately intended by the founding fathers of the 1935
Constitution, which words are likewise employed in the 1973
Constitution, Delegate Miguel Cuaderno categorically recounted:
An amendment affecting the issuance of an order of
arrest and search warrant, to the efect that in each

case the order must be supported by the testimony

of the complainant and the witnesses he may
produce, made before the judge, and also an
amendment providing that prisoners charged with
capital ofenses shall be bailable before conviction
unless the evidence of guilt is strong, were
approved upon the initiative of Delegates Francisco.
It was the prevailing opinion among many delegate
that one courts had been rather easy in the
issuance of order of arrest or search warrants,and
charged with capital ofenses (Cuaderno, the
Framing of the Philippine Constitution, p. 65,
Emphasis supplied).
Delegate Jose Aruego added:
During the debates on the draft, Delegate Francisco
proposed an amendment being the insertion of the
words, to be determined by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce. The
Idea in the Francisco amendment was not new in the
Philippines; for it was provided for in the Code of
Criminal Procedure of the Philippines. The
signification of the Idea into a constitutional
provision was zealously insisted upon, in order to
make the principle more sacred to the judges and to
prosecuting pointed out in the debates, causes by
the issuance of search warrants, which were
generally found afterwards to be false (Aruego,
Framing of the Philippine Constitution, Vol. I, p.160).
The term "judge" employed in both Constitutions cannot be so
limited to "municipal judge" as to exclude the judge of the Court of
First Instance and Circuit Criminal Court (People vs. Manantan, 5
SCRA 684, 690-695). WE are not justified to create a distinction
where the Constitution does not make any.
In general, "judge" is a term employed to designate a public officer
selected to preside and to administer the law in a court of justice

(Ark. School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W.
2d 765, 766, 184 Ark. 863, 48 CJS 946).
According to intent or context, the term "judge" may include an
assistant judge (N.H. City Bank v. Young, 43 N.H. 457); a country
or court justice (Mo. State v. O'Gorman, 75 Mo. 370); a justice of
the peace (N.Y. People v. Mann 97 N.Y. 530, 49 Am. R.556).
The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that "a
judge" may cause any house or building to be searched for the
protection of gambling tables, etc., is equivalent to "any judge"
and comprehends an entire class, and cannot, without disturbing
its meaning, be restricted in its applications to judges of county,
city and police courts and therefore the judge of the Louisville Law
and equity court has authority to issue a warrant for such a
research (Com. v. Watzel, 2 S.W. 123, 125, 84 KY 537).
Admittedly, Section 99 of the Judiciary Act contains a repealing
clause which provides: "All laws and rulesinconsistent with the
provisions of this Act are hereby repealed." The question may now
be asked: What is the nature of this repealing clause? It is certainly
not an express repealing clause because it fails to Identify or
designate the Act or Acts that are intended to be repealed
(Sutherland, Statutory Construction, [1934], Vol. 1, p. 467). Rather,
it is a clause which predicates the intended repeal upon the
condition that a substantial and an irreconcilable conflict must be
found in existing and prior Acts. Such being the case, the
presumption against implied repeals and the rule against strict
construction regarding implied repeals apply ex propio vigore, for
repeals and amendments by implication are not favored (Jalandoni
vs. Andaya, L-23894, Jan. 24, 1974, 55 SCRA 261, 265-6; Villegas
vs. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190; Quimseng vs.
Lachica, 2 SCRA 182). Indeed, the legislature is presumed to know
the existing laws; so that, if a repeal is intended, the proper step is
to so express it with specificity (Continental Insurance Co. vs.
Simpson, 8 F[2d] 439; Webb vs. Bailey, 151 Ore. 2188, 51 P[2d]
832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to
add a specific repealing clause indicates that the intent was not to
repeal any existing law (Crawford, Construction of Statute, 1940
ed., p. 631), unless an irreconcilable inconsistency and repugnancy

exist between the terms of the new and of the old statutes (Iloilo
Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA
377). Here, there is no such inconsistency.
To begin with, the two laws, although with a common objective,
refer to diferent persons and diferent methods applicable under
diferent circumstances. Thus, while Section 87 of the Judiciary Act
provides that municipal judges and judges of city courts may also
conduct preliminary investigation for arty ofense alleged to have
been committed within their respective municipalities and
cities ... ; Section 37 of Act 1627 reads in part that such power of
"every justice of the peace including the justice of Manila, ... shall
not exclude the proper judge of the Court of First Instance ... from
exercising such jurisdiction."
WE should not, and cannot, adopt the theory of implied repeal
except upon a clear and unequivocal expression of the will of
Congress, which is not manifest from the language of Section 99 of
the Judiciary Act, apart from the fact that Congress by itself alone
had no power to amend the Constitution.
The opposite view likewise denies that the jurisdiction of our courts
to conduct preliminary investigation could be traced to the
Constitution, adding that the Charter of Manila and other cities
confer upon the respective fiscals of said cities the power to
conduct preliminary investigations.
The organic acts prior to the 1935 Constitution did not prohibit the
conferment of such a power to conduct preliminary examination or
investigation on quasi-judicial officers like the city fiscals of
chartered cities (see the instructions of President McKinley to First
Philippine Commission, the Philippine Bill of 1902, Jones Law of
1916, and the Revised Administrative Code of 1917).
But the power thus granted to the Manila City Fiscals (and later to
City Fiscals and City Attorneys of other chartered cities) to conduct
preliminary investigations did not and does not include the
authority to issue warrants of arrest and search warrants, which
warrants the courts alone can issue then as now. The constitutional
guarantee against unreasonable searches and seizures under the

1935 Constitution provides that only a judge can issue a search

warrant or warrant of arrest after he has by himself personally
determined the existence of probable cause upon his examination
under oath of the complainant and his witnesses; although as ruled
in one case, he may rely on the investigation conducted by the
fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42).
It is patent that under the 1935 Constitution, only the "judge" is
directed to conduct a preliminary examination for the issuance of
the warrant of arrest by express constitutional conferment.
But the 1973 Constitution empowers the National Assembly to
grant the power to issue search warrants or warrants of arrest after
conducting the necessary preliminary examination to "other
responsible officer." Until such a law is enacted by the National
Assembly, only the judge can validly conduct a preliminary
examination for the issuance of a warrant of arrest or search
warrant.
Even when the fiscal or prosecutor conducts the preliminary
investigation, only the judge can validly issue the warrant of arrest.
This is confirmed by Section 6 of Rule 112 of the 1964 Revised
Rules of Court, which directs the judge to issue the warrant of
arrest when he is "satisfied from the preliminary. examination
conducted by him or by the investigating officer (referring to the
fiscal or the municipal mayor under Sec. 5) that the ofense
complained of has been committed and that there is reasonable
ground to believe that the accused has committed it, ... ."
Thus, the power of the city prosecutors to conduct preliminary
examination and investigation (minus the authority to issue
warrants of arrest or search warrant) is purely statutory. On the
other hand, the judge derives his authority not only from the Rules
of Court, but also and originally from the fundamental law to
which all other laws are subordinate. If an objection must be
raised, it should be against the authority of the fiscal to exercise
such power of preliminary investigation, which, as has been stated,
is merely statutory. No less than the Constitution confers upon the
judge the power to conduct such examination and investigation.

The case of Albano versus Alvarez (December 22, 1965, 15 SCRA

518) is authority for the proposition that Sec. 13 of Rule 112 of the
1964 Revised Rules of Court contains an innovation, which requires
that, when the Court of First Instance itself conducts the
preliminary investigation, it must not only conduct the preliminary
examination proper but the preliminary investigation as well since
Section 13 commands the Court of First Instance to conduct both
the preliminary examination and investigation simultaneously
(523-524). Said Albano case does not negate but recognizes the
authority of the judge of the Court of First Instance to conduct such
preliminary investigation.
It is true that this COURT held expressly and impliedly that under
the charters of the cities of Manila, Bacolod and Cebu, the power
to conduct preliminary investigation is exclusively lodged in the
city prosecutor (Sayo vs. Chief of Police, 80 Phil. 859, 868-869, May
12, 1948; Espiritu vs. De la Rosa, 45 OG 196; Montelibano vs.
Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA
280, 285-286, Sept. 30, 1966). But the charters of the cities of
Manila, Bacolod and Cebu do not contain any provision making
such grant of power to city prosecutors exclusive of the courts
(Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be
deprived of such authority to conduct preliminary examination
because said prerogative of the courts emanates from the
Constitution itself. Unless the Constitution is amended, the judge
cannot be divested of such a power, which is an essential element
of the cardinal right of an individual against unreasonable searches
and seizures. If the present city charters conferred on city fiscals or
city prosecutors the power to issue warrants of arrest it would be
an unconstitutional grant of power under the 1935 Constitution. As
heretofore intimated, the present practice or rule of court
authorizing the judge to issue warrants of arrest based on the
preliminary investigation conducted by the city fiscal, seems to
violate the 1935 Constitution, which requires the judge himself to
conduct the preliminary examination. Neither the judge nor the law
can delegate such an authority to another public officer without
trenching upon this constitutional guarantee against unreasonable
searches and seizures.

The theory that Courts of First Instance and Circuit Criminal Courts
Judges cannot exercise the power of preliminary examination and
investigation, and that as a necessary consequence, they cannot
also issue warrants of arrest, obviously collides with the 1935 and
1973 Constitutions.
Moreover, the theory tolerates an unthinkable because
anomalous situation wherein the Court of First Instance and the
Circuit Criminal Court must wait for prosecutors and courts inferior
to them to conduct the preliminary examination and/or to issue the
needed warrants of arrest before they could efectively exercise
their power to try and decide the cases falling under their
respective jurisdiction. This situation would make the Courts of
First Instance and Circuit Criminal Courts totally dependent upon
state prosecutors and municipal courts, which are inferior to them,
for their proper functioning. The possibility that the administration
of criminal justice might stand still will not be very remote.
The two-fold purpose for which the Circuit Criminal Courts were
created was to alleviate the burden of the regular Courts of First
Instance and accelerate the disposition of criminal cases filed
therein (Osmea vs. Secretary of Justice, supra; People vs.
Gutierrez, supra). Such being the admitted purpose, the power to
conduct preliminary examination must necessarily attach to the
duties of a Circuit Criminal Court Judge; for aside from being one of
the instruments by which a case may be accelerated and disposed
of, it is a duty which trully lies within the scope of the office,
essential to the accomplishment of the main purpose for which the
office was created (Sec. 3, Art III, 1935 Constitution; Sec 3, Art. IV,
1973 Constitution), even if regarded as incidental and collateral, is
germane to and serves to promote the accomplishment of the
principal purpose (Lo Cham vs. Ocampo, 77 Phil. 635).
WE RULE that both Section 1(3), Article III of the 1935 Constitution
provide the source of the power of all Judges, including Judges of
the Court of First Instance, the Circuit Criminal Courts, and other
courts of equivalent rank, to conduct the examination to determine
probable cause before the issuance of the warrant of arrest and
therefore sustain the proceedings conducted by respondent Judge
leading to the issuance of the warrants of arrest and his referral of

the cases to the fiscal or other government prosecutor for the filing
of the corresponding information.
II
It may be well to trace briefly the historical background of our law
on criminal procedure.
During the Spanish regime, the rules of criminal procedure were
found in the Provisional Law on Criminal Procedure which
accompanied the Spanish Penal Code. The two laws were
published in the Official Gazette in Manila on March 13 and 14,
1887 and became efective four (4) months thereafter(U.S. vs.
Tamparong, 31 Phil. 32-33; Francisco, Criminal Procedure, 1969,
ed., p. 8).
While the Provisional Law on Criminal Procedure provided
or governadorcillo, it did not require any preliminary examination
or investigation before trial. The sumario was abolished by General
Order No. 58 (U.S. vs. Tamparong, supra; Navarro, Criminal
Procedure, 1960 ed., pp. 171, 174; Revilla, Vol. 2. Philippine Penal
Code and Procedure, 1930 ed., pp. 1134-35).

thing to be seized" (Secs. 95 and 97). The term "magistrate"

comprehended the court of First Instance (Temporosa vs. Yatco, 79
Phil. 225, 226 [1947]; Marcos vs. Cruz, 68 Phil. 96, 104-107 [1939];
People vs. Red, 55 Phil. 706, 710 [1931]; People vs. Solon, 47 Phil.
443 441 [1925]; Navarro Criminal Procedure, 960 ed., 1973;
Padilla, Criminal Procedure, 1965 ed., p. 270).
A "magistrate" is an officer having power to issue a
warrant for the arrest of a person charged with a
public ofense. People vs. Swain, 90 P. 720, 722 5
Cal. App. 421 citing Pen. Code, S807.
A "magistrate" is an officer having power to issue a
warrant for the arrest of a person charged with the
commission of a crime. The arrest of a person
charge with the commission of a crime. The
following persons are magistrates:
(1) the justices of the Supreme Court;
(2) the judges of the Circuit Court;
(3) the county judges and justices of the peace;

When the Philippine came under American sovereignty General

Order No. 58 was promulgated by the U.S. Military Governor in the
exercise of his legislative powers as commander-in-chief of the
occupation army and took efect on April 13, 1900. General Order
No. 58 was amended by Act No. 194 of August 10, 1901, the
Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No.
1627 of July 1, 1907, the Jones Law of 1916, Section 2474 of the
Revised Administrative Code of 1917, Act No. 3042 of March 10,
1922, and Act No. 4178 of December 5, 1934.
General Order No. 58 amended (Sec.1) the Criminal Code of
Procedure enforced during the Spanish regime and vested in
the magistrate "the authority to conduct preliminary investigation
(Sec. 13) for the issuance of the warrant of arrest" and authorized
"a judge or a justice of the peace" to issue a search warrant upon
his determination of the existence of probable cause therefor
"particularly describing the place to be searched and the person or

(4) all municipal officers authorized to exercise the

power and perform the duties of a justice of the
peace. Wallowa County v. Oakes, 78 P. 892, 46 Or.
33 (26 Words and Phrases, pp. 44, 45).
Act No. 194 of August 10, 1901 amended General Order No. 58 by
empowering "every justice of the peace ... to make preliminary
investigation of any crime allege to have been committed within
his municipality, jurisdiction to hear and determine which is by law
now vested in the judges of the Courts of First Instance" (emphasis
supplied).
The obvious inference from the aforequoted provision of Act No.
194 is that before its passage, the justice of the peace had no
power to conduct preliminary investigation of any ofense triable
by the Court of First Instance, which alone can conduct such

preliminary investigation of a crime under its original jurisdiction

pursuant to General Order No. 58. But its enactment did not divest
the Court of First Instance of such authority.
In the 1939 case of Marcos, et al. versus Cruz, the Supreme Court,
through Justice Imperial, sustained the power of the Court of First
Instance to conduct preliminary investigations under Sections 13
and 14 of General Order No. 58 (68 Phil. 96, 106-107), which was
impliedly followed in the 1947 case of Temporosa versus Yatco, et
al., supra.
While General Order No. 58 vested the authority in a magistrate, a
generic term which includes judges of the Courts of First Instance
and justices of the peace; Section 1 of Act No. 194 is less
categorical by employing the clause "jurisdiction to hear and
determine which is by law now vested in the judges of the Courts
of First Instance."
The Philippine Bill of 1902 in a similar ambiguous vein contained
such authority when it merely provided that the "Supreme Court
and the Courts of First Instance of the Philippine Islands shall
possess and exercise jurisdiction as heretofore provided and such
additional jurisdiction as shall hereafter be prescribed by the
Government of said Islands, subject to the power of said
Government to change the practice and method of procedure. The
municipal courts of said Islands shall possess and exercise
jurisdiction as heretofore provided by the Philippine Commission,
subject in all matters to such alteration and amendment as maybe
hereafter enacted by law; ... " (Sec. 9, emphasis supplied).
Act No. 590 of January 9, 1903 further amended Act No. 194 by
extending the power to conduct preliminary investigation to the
justice of the peace of the provincial capital or of the town wherein
the provincial jail is situated of crimes committed anywhere within
the province but again utilized the equivocal clause "jurisdiction to
hear and determine which is by law now vested in the Court's of
First Instance; ... (Sec. 7, Act 590, emphasis supplied).
Act No. 1627 of July 1 1907 had the virtue of greater clarity when if
authorized expressly every justice of the peace, including the

justice of the peace of Manila, to "conduct preliminary

investigation of all crimes and ofenses alleged to have been
comitted within his municipality and cognizable by Court of First
Instance, but this shall not exclude the proper judge of the Court of
First Instance of a municipal court from or of a municipality in
which the provincial jail is located, when directed by an order from
the judge of First Instance, shall have jurisdiction to conduct
investigation at the expense of the municipality wherein the crime
or ofense was committed although alleged to have been
committed anywhere within the province, to issue orders of
arrest, ... (Sec. 37, Act No. 1627, emphasis supplied).
The Jones Law of 1916, like the Philippine Bill of 1902, merely
provides "that the Supreme Court and the Courts of First Instance
of the Philippine Islands shall possess and exercise jurisidiction as
heretofore provided and such additional jurisdiction as shall
hereafter be prescribed by law" (Sec. 26, Jones Law).
Section 2474 of the Revised Administrative Code of 1917 re-affirms
the power of the Court of First Instance of Manila to conduct
preliminary examination
Sec. 2474. Persons arrested to be promptly brought
before a court. Preliminary examination in
municipal court and Court of First Instance. Every
person arrested shall, without unnecessary delay, be
brought before the municipal court, or the Court of
First Instance for preliminary hearing,release on bail,
or trial. In cases triable in the municipal court the
defendant shall not be entitled as of right to a
preliminary examination, except a summary one to
enable the court to fix the bail, in any case where
the prosecution announces itself and is ready for
trial within three days, not including Sundays, after
the request for an examination is presented. In
cases triable only in the Court of First Instance the
defendant shall not be entitled as of right to a
preliminary examination in any case where the fiscal
of the city, after a due investigating of the facts,
shall have presented an information against him in

proper form. But the Court of Firs Instance may

make such summary investigation into the case as it
may necessary to enable it to fix the bail or to
determine
whether
the
offense
is
bailable. (emphasis supplied).
It is clear that both the Manila Court of First Instance and municipal
court can conduct a preliminary hearing or examination. Section
2474 aforequoted, adds, however, that the City Fiscal impliedly
may conduct such preliminary examination; because it provides
that in "cases triable only in the Court of First Instance the
defendant shall not be entitled as of right to a preliminary
examination in any case where the fiscal of the city, after a due
investigation of the facts, shall have presented an information
against him in proper form. It will be noted, however, that it is only
after the City Fiscal has conducted a preliminary examination that
the accused ceases to "be entitled as of right" to a preliminary
examination by the Judge of the Court of Firs Instance who,
however, retains inferentially the discretion to conduct another
preliminary investigation because the Court of First Instance Judge
is not foreclosed by the preliminary examination conducted by the
City Fiscal. But, when the City Fiscal has not conducted any
preliminary examination, the Court of First Instance Judge himself
certainly can proceed with such preliminary examination, which
the defendant can demand as a matter of right.
Act No. 3042 of March 10, 1922, while amending Section 13 of
General Order No. 58, re-states the power of the magistrate to
conduct the preliminary examination for the issuance of the
warrant of arrest.
Act No. 4178 of December 5, 1934 further amended Section 13 of
General Order No. 58 but still retained the authority of
the magistrate to conduct the preliminary examination. As
herefofore stated, Sections 13 and 14 of General Order No. 58, as
amended, were applied by the Supreme Court in Marcos, et al.
versus Cruz (68 Phil. 96, 106-107).
Under the jurisprudence then or prior to the 1935 Constitution, the
preliminary investigation before the justice of the peace or

muncipal court consisted of two stages, namely, preliminary

examination for the issuance of the warrant of arrest where only
the complainant and his witnesses are heard by the justice of the
peace; and the second stage where the accused and his witnesses
are heard. The Judge of the Court of First Instance conducts only
the first stage, that is, preliminary examination for purposes of the
issuance of the warrant of arrest, to be followed by the actual trial
(Marcos, vs. Cruz, supra; People vs. Moreno, 77 Phil. 548, 555
[1946]).
The basic source of the power of the Courts of First Instance to
conduct preliminary examination or investigation from May 14,
1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III
of the 1935 Constitution, which guarantees "the right of the people
to be secure in their persons ... against unreasonable ... seizures ...
and no warrants shall issue but upon probable cause, to be
determined by the judge after an examination under oath or
affirmation of the complainant and the witnesses he may produce,
and particularly describing ... the persons ... to be seized."
Construing the foregoing constitutional right against unreasonable
searches and seizures, the Supreme Court, through then Chief
Justice Ricardo Paras, pronounced that the determination of the
existence of "probable cause must depend upon the judgment and
discretion of the judge ... issuing the warrant. ... His conclusion as
to whether "probable cause" existed or not is final and conclusive.
If he is satisfied that "probable cause" exists from the facts stated
in the complaint, made upon the investigation by the prosecuting
attorney, then his conclusion is sufficient upon which to issue a
warrant of arrest. He may, however, if he is not satisfied, call such
witnesses as he may deem necessary before issuing the
warrant. ... There is no law which prohibits him from reaching the
conclusion that "probable cause" exists from the statement of the
prosecuting attorney alone, or any other person whose statement
or affidavit is entitled to credit in the opinion of the judge ... The
preliminary investigation conducted by the petitioner (Provincial
Fiscal) under Republic Act No. 732 ... does not, as correctly
contended by the respondent Judge, dispense with the latter's duty
to exercise his judicial power of determining, before issuing the
corresponding warrant of arrest, whether or not probable cause
exists therefor. The Constitution vests such power in the

respondent judge who, however, may rely on the facts stated in

the prosecuting attorney" (Amarga vs. Abbas, March 28, 195l, 98
Phil. 739, 741-742).

government prosecutors whose power to conduct preliminary

investigation in all other cases is affirmed in the first clause of
Section 5 thereof.

While the power to conduct preliminary examination may be

delegated by law to government prosecutors, only the judge can
issue the warrant of arrest under the 1935 Constitution and prior
thereto (Sayo, et al. vs. Chief of Police, et al. 80 Phil. 859; Lino vs.
Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil. 216).

Sections 13 and 14 of the 196.4 Revised Rules of Court re-state

Sections 2 and 4 of Rule 108 of the 1940 Rules of Court.

The valid seizure of a person can only be executed through a

lawful warrant of arrest. Arrest without a warrant can only be
legally efected by a police officer or private individual a) when the
person to be arrested has committed, is actually committing, or is
about to commit an ofense in his presence; b) when an ofense
has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it; and c)
when the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another (Sec. 6,
Rule 113, 1964 Revised Rules of Court).
In all other cases, there must be a valid warrant of arrest. When
the seizure of a person is made without a warrant of arrest or with
a warrant of arrest which is not based on a determination by the
judge of the existence of probable cause, the arrest becomes
unreasonable and therefore unconstitutional.
Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly
confer on the municipal or city judge, the City Final and the Judge
of the Court of First Instance the power to conduct preliminary
examination or investigation.
On June 20, 1957, Republic Act No. 1700, otherwise known as the
Anti-Subversion Law, was approved. The proviso of Section 5
thereof expressly provides that the preliminary investigation of
ofenses defined and penalized therein by prision mayor to death
shall be conducted by the proper Court of First Instance. This grant
obviously is exclusive of the provincial or city fiscal or other

As aforestated, aside from the challenged Sections 3 and 6 of

Republic Act No. 5179 creating the Circuit Criminal Courts,
Republic Act 5180 was approved on September 8, 1967, which
affirms the prerogative of the Courts of First Instance to conduct
preliminary investigation of ofenses punishable by said courts.
Presidential Decrees Nos. 77 and 911 promulgated respectively on
December 6, 1972 and March 23, 1976. amending Republic Act No.
5180, did not modify the opening clause of Section 1 of said
Republic Act 5180 affirming the power of the Court of First Instance
to conduct preliminary investigation in accordance with law and
the Rules of Court.
Section 234 of the 1971 Revised Election Code, otherwise known
as Republic Act No. 6388, vests in the Court of First Instance
"exclusive original jurisdiction to make preliminary investigations,
issue warrants of arrest and try and decide any criminal case or
proceeding for violation of" the Election Law. This provision was a
reiteration of the previous election laws (Act No. 1582 of 1907;
Com. Act No. 357 of 1938; and Republic Act No. 180 of 1947, as
amended).
After the ratification of the 1973 Constitution on January 17, 1973,
the source of the authority of the judge to conduct preliminary
examination for purposes of issuing a warrant of arrest, is still the
Constitution, this time the 1973 Constitution, which likewise
guarantees "the right of the people to be secure in their persons ...
against unreasonable ... seizures for whatever nature and for any
purpose ... and no search warrant or warrant of arrestshall issue
except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing ... the

persons ... to be seized" (Sec. 3 of Art. IV, 1973 Constitution). The

1973
Constitution,
instead
of
employing
the
generic
term warrants to comprehend both search warrants and warrants
of arrest, as did the 1935 Constitution, expressly specifies "search
warrants or warrants of arrest." The purpose of such specification
was apparently to clarify the doubt raised by the dissenting
opinion of Mr. Justice Montemayor in the Amarrga case, supra, that
the 1935 Constitution merely guarantees against unreasonable
searches but not against unreasonable arrests, despite the fact
that the constitutional guarantee expressly affirms "the right of the
people to be secure in their persons ... against unreasonable ...
seizures ... and no warrant shall issue but upon probable cause, to
be determined by the persons ... to be seized" (Par. 3, See. 1, Art.
III, 1935 Constitution).
In passing, the dissent of Justice Montemayor in the Amarga case
seems to deny equal, if not greater, importance to individual
freedom from illegal arrest or arbitrary detention vis-a-vis property
rights and right against self-incrimination. It will also likewise be
noted that the 1973 Constitution also authorizes the law-making
authority to empower other responsible officers to conduct such
preliminary examination for purposes of the issuance of a warrant
of arrest. As enunciated in the Amarga case and in U.S. versus
Ocampo (18 Phil. 1, 41-42), the government prosecutors may be
authorized to conduct such preliminary examination and their
determination of the existence of probable cause may be relied
upon by the , 23 SCRA judge, who may, as a consequence, issue
the warrant of arrest; although the judge himself is not precluded
from conducting his own preliminary examination despite the
conclusion of the prosecuting attorney as to the existence or nonexistence of probable cause.
III
1. The challenged order of July 6, 1971 issued by the respondent
Judge in G.R. No. L-34038 (Collector of Customs, etc. vs. Hon.
Onofre Villaluz, et al.) dismissed the criminal complaint filed by
petitioners therein against private respondent with prejudice,
obviously meaning that the case may not be refiled without
exposing the accused to double jeopardy. The respondent Judge

seriously erred in so issuing said order, contravening as it does a

basic legal principle on double jeopardy, and committing thereby a
grave abuse of discretion. The constitutional right against double
jeopardy exists, not after the first preliminary examination or
investigation, but only after the first trial which results either in
conviction or acquittal or in the dismissal or termination of the
case without the express consent of the accused by a court of
competent jurisdiction upon a valid complaint or information and
after the accused had pleaded to the charge (Sec. 9, Rule 117,
Revised Rules of Court; Taladua vs. Ochotorena, et al. L-25595,
February 15, 1974; Republic vs. Agoncillo, L-27257, August 31,
1971, 40 SCRA 579; People vs. Obsania, L-24447, June 29, 1968,
23 SCRA 1249; People vs. Ylagan, 58 Phil. 851).
As correctly stated by the Solicitor General, petitioner's counsel,
"dismissal at preliminary investigation is never with prejudice. Refiling of the same is allowed if evidence has become sufficient to
warrant conviction of private respondent." There has been no
deviation from such established jurisprudence exemplified
in People vs. Bagsican (6 SCRA 400), Wherein the Court held that
"the finding in the preliminary investigation that no prima facie
case existed against the accused does not bar subsequent
prosecution and conviction. Such finding is not final acquittal as
would preclude further proceedings" (Emphasis supplied).
2. Aggravating his grave mistake and misapprehension of the law,
respondent Judge also directed through the same order the return
of the articles allegedly seized from the person of respondent
Makapugay. This portion of the question order is fraught with
undesirable consequences.
As stated heretofore, the dismissal of a case, even with prejudice,
during the stage of preliminary investigation does not bar
subsequent prosecution and conviction if the evidence warrants
the re-filing of the same becomes next to impossible. For the
enforcement of such order would virtually deprive herein petitioner
Collector of Customs of the evidence indispensable to a successful
prosecution of the case against the private respondent. Worse, the
order nullified the power of seizure of the customs official.

Respondent Judge ignored the established principle that from the

moment imported goods are actually in the possession or control
of the Customs authorities, even if no warrant of seizure had
previously been issued by the Collector of Customs in connection
with seizure and forfeiture proceedings, the Bureau of Customs
acquires exclusive jurisdiction over such imported goods for the
purpose of enforcing the Customs laws, subject to an appeal only
to the Court of Tax Appeals and to final review by the Supreme
Court (Section 2205 and 2303, Tarif and Customs Code; Papa, et
al. vs. Mago, et al., Feb. 28, 1968, 22 SCRA 857; Virata, et al. vs.
Aquino, et al. Sept 30, 1973, 53 SCRA, 24; see also Vierneza vs.
Commissioner, July 30, 1968, 24 SCRA 394; Farm Implement &
Machinery vs. Commissioner, August 30, 1968, 24 SCRA 905;
Lazatin vs. Commissioner, et al., July 30, 1969, SCRA 1016; Asaali,
et al. vs. Commissioner, December 16, 1968, 26 SCRA 382; Sare
Enterprises vs. Commissioner, Aug. 28, 1969, 29 SCRA 112;
Geotina, etc. vs. Court of Tax Appeals, et al., August 30, 1971, 40
SCRA 362; Commissioner vs. Court of Tax Appeals, et al., January
31, 1972; Lopez vs. Commissioner, et al., January 30, 1971, 37
SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971, 37,
SCRA 410; Auyong Hian vs. Court of Tax Appeals, et al., September
12, 1974, 59 SCRA 110; and Pacis, et al., vs. Pamaran, etc., et al.,
March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes
the Court of First Instance as well as the Circuit Criminal Court from
assuming cognizance of the subject matter (Enrile, et al. vs.
Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such
courts of the prerogative to replevin properties subject to seizure
and forfeiture proceedings for violation of the Tarif and Customs
Code (Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA
836; Seares vs. Frias, June 10, 1971, 39 SCRA 533); because
proceedings for the forfeiture of goods illegally imported are not
criminal in nature since they do not result in the conviction of
wrongdoer nor in the imposition upon him of a penalty (Lazatin vs.
Commissioner, et al., July 30, 1969, 28 SCRA 1016).
Respondent Judge claims that the pendency of a seizure
proceeding was never brought to his attention (p. 038, rec.) and
that he could not have foreseen the possibility that petitioner
would be instituting seizure proceedings ... and besides, it is
understood that the order of the court commanding the release of

the subject articles was on a premise that herein petitioner was

not holding or withholding the same for some other lawful reason
(p.39, rec.).
The questioned order of respondent Judge is unqualified and
contains no intimation that the "release ... was on a premise that
herein petitioner was not holding or withholding the same for some
other lawful reason." On the contrary, the tenor of the order is so
absolute and so emphatic that it really leaves no alternative for
petitioner Collector of Customs except to return the articles.
The records of the case, moreover, reveal that a report of
seizure (p. 14, rec.) and warrant of seizure and detention (p. 15,
rec.) were made by petitioner Collector of Customs on June 30,
1971 and on July 9, 1971 respectively. It is patent that respondent
Judge knew actually of the existence at least of the report of
seizure of June 30, 1971, which is six days prior to his order of
dismissal dated July 6, 1971. He should have anticipated that a
warrant of seizure and detention will logically be issued as in fact it
was issued on July 9, 1971, because it was the petitioner Collector
of Customs who filed the criminal complaint directly with him on
July 1, 1971. Respondent Judge chose to ignore the presence of the
report of seizure dated June 30, 1971, six days before his order of
dismissal and the filing of the criminal complaint on July 1, 1971.
Prudence should have counselled him, so as not to frustrate the
petitioner Collector of Customs in enforcing the tarif and customs
laws, against ordering the release of the seized articles without
first ascertaining from the petitioner Collector of Customs whether
the latter intended to institute or had instituted seizure
proceedings.
As aptly expressed by Mr. Justice Barredo in his Concurring Opinion
in People vs. Gutierrez, supra, "It is not enough that a judge trusts
himself or can be trusted as capable of acting in good faith, it is
equally important that no circumstance attendant to the
proceedings should mar that quality of trust worthiness." We have
enjoined judges to apply the law as interpreted by the Supreme
Court and not to dispose of a case according to their personal
views (Albert vs. Court of First Instance, 23 SCRA 948).

IV
In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.),
the arbitrary denials displayed by respondent Judge of motions
presented before him likewise invite some cautionary reminders
from this Court.
In this case, petitioners were given an unreasonable period of one
(1) day within which to elevate the matter before this Tribunal. But
considering the novelty of the issue, a grant of twenty-four hours
to prepare a petition for certiorari is a virtual denial of the motion.
And petitioners' motion for an extension of at least one (1) day was
peremptorily brushed aside by respondent Judge with one single
word DENIED.
The fact that petitioners succeeded in bringing the matter before
the Supreme Court within the constricted period of time granted
them is beside the point. More important is the consideration by
this Court of the dangers posed by respondent Judge's peremptory
denial of a reasonable time.
Indeed, it is commendable to see judges hasten the disposition of
cases pending before them. But more commendable would be for
judges to contribute their share in maintaining the unswerving
faith of litigants in the courts of justice. WE once again stress that
"One important judicial norm is that a judge's official conduct
should be free from appearance of impropriety" (Luque vs.
Kayanan, 29 SCRA 165).

intimated, is to mitigate the case load of the Courts of First

Instance as well as to expedite the disposition of criminal cases
involving serious ofenses specified in Section I of Republic Act
5179, as amended. Circuit Criminal Judges therefore, should not
encumber themselves with the preliminary examination and
investigation of criminal complaints, which they should refer to the
municipal judge or provincial or city fiscal, who in turn can utilize
the assistance of the state prosecutor to conduct such preliminary
examination and investigation. Or the Judge of the Circuit Criminal
Court can directly request the Secretary of Justice to assign a state
prosecutor for the same purpose (See. 3, Republic Act No. 5184).
Moreover, it seems that respondent Judge does not have adequate
time to hear and dispose of the 34 criminal cases with detention
prisoners pending in his sala, aside from the 479 pending cases of
voluntary submission by drug addicts, as of January 31, 1975 (A.M.
No. 230-CCC, Item 42, Agenda of March 13, 1975), as revealed by
his letter dated February 26, 1975, wherein he requested the
Supreme Court to renew the detail in his sala of Municipal Judge
Hermenegildo C. Cruz of Mandaluyong, Rizal, to assist him. This
significant fact should further dissuade him from actively
conducting the preliminary investigation of criminal cases directly
filed with him.
Furthermore, Judges of the Circuit Criminal Courts whose dockets
permit, may be assigned by the Supreme Court for a period not
exceeding 6 months, unless with their consent, to assist Judges of
regular Courts of First Instance with clogged dockets (Sec. 5[3],
Art. X, 1973 Constitution).

V
But while w sustain the power of the Circuit Criminal to conduct
preliminary examination (p. 36), pursuant to OUR constitutional
power of administrative supervision over all courts (Sec. 6, Art. X,
1973 Constitution) as a matter of policy, WE enjoin the respondent
Judge and other Circuit Criminal Court Judges to concentrate on
hearing and deciding criminal cases filed before their courts (see
Mateo vs. Villaluz, 50 SCRA 18, 28-29, March 31, 1973). The
primary purpose of the creation of the Circuit Criminal Courts in
addition to the existing Courts of First Instance, as above

WHEREFORE, IN G.R. NOS. L-34243, 36376, 38688 AND 39525,

THE PETITIONS ARE HEREBY DISMISSED AND THE WRITS OF
PRELIMINARY INJUNCTION AND/OR RESTRAINING ORDERS ISSUED
THEREIN ARE HEREBY LIFTED; IN G.R. No. L-40031, THE PETITION
IS HEREBY DISMISSED; AND IN G.R. NO. L-34038, THE ORDER OF
RESPONDENT JUDGE DATED JULY 6, 1971 IS HEREBY SET ASIDE AS
NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL
CASE WITH PREJUDICE AND INSOFAR AS THE SAME DIRECTED THE
RETURN TO PRIVATE RESPONDENT THEREIN OF THE ARTICLES
SEIZED FROM HIM WHICH ARE NOW SUBJECT OF SEIZURE

PROCEEDINGS BEFORE THE CUSTOMS AUTHORITIES, AND THE

WRIT OF PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY
MADE PERMANENT. NO COSTS.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

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

MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M.
PATAJO and CESAR MILAFLOR, as members
thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY
JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132,
OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION
ACT OF 1970. RAUL M. GONZALES,petitioner,
vs.
COMELEC, respondent.
MAKASIAR, J.:

These two separate but related petitions for declaratory relief were
filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B.
Imbong and Raul M. Gonzales, both members of the Bar, taxpayers
and interested in running as candidates for delegates to the
Constitutional Convention. Both impugn the constitutionality of
R.A. No. 6132, claiming during the oral argument that it prejudices
their rights as such candidates. After the Solicitor General had filed
answers in behalf the respondents, hearings were held at which
the petitioners and the amici curiae, namely Senator Lorenzo
Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and
Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a
Constituent Assembly pursuant to Art. XV of the Constitution,
passed Resolution No. 2 which among others called for a
Constitutional Convention to propose constitutional amendments
to be composed of two delegates from each representative district
who shall have the same qualifications as those of Congressmen,
to be elected on the second Tuesday of November, 1970 in
accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the
November elections of that year, Congress, acting as a legislative
body, enacted Republic Act No. 4914 implementing the aforesaid
Resolution No. 2 and practically restating in toto the provisions of
said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent
Assembly, passed Resolution No. 4 amending the aforesaid
Resolution No. 2 of March 16, 1967 by providing that the
convention "shall be composed of 320 delegates apportioned
among the existing representative districts according to the
number of their respective inhabitants: Provided, that a
representative district shall be entitled to at least two delegates,
who shall have the same qualifications as those required of
members of the House of Representatives," 1 "and that any other
details relating to the specific apportionment of delegates, election
of delegates to, and the holding of, the Constitutional Convention
shall be embodied in an implementing legislation: Provided, that it
shall not be inconsistent with the provisions of this Resolution." 2

On August 24, 1970, Congress, acting as a legislative body,

enacted Republic Act No. 6132, implementing Resolutions Nos. 2
and
4,
and
expressly
repealing
R.A.
No.
4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as
well as the particular provisions embodied in Sections 2, 4, 5, and
par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132
practically on the same grounds advanced by petitioner Gonzales.
I
The validity of Sec. 4 of R.A. No. 6132, which considers, all public
officers and employees, whether elective or appointive, including
members of the Armed Forces of the Philippines, as well as officers
and employees of corporations or enterprises of the government,
as resigned from the date of the filing of their certificates of
candidacy, was recently sustained by this Court, on the grounds,
inter alia, that the same is merely an application of and in
consonance with the prohibition in Sec. 2 of Art. XII of the
Constitution and that it does not constitute a denial of due process
or of the equal protection of the law. Likewise, the constitutionality
of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4
II
Without first considering the validity of its specific provisions, we
sustain the constitutionality of the enactment of R.A. No. 6132 by
Congress acting as a legislative body in the exercise of its broad
law-making authority, and not as a Constituent Assembly, because

1. Congress, when acting as a Constituent Assembly

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

convention were passed by the required threefourths vote.

2. The grant to Congress as a Constituent Assembly
of such plenary authority to call a constitutional
convention includes, by virtue of the doctrine of
necessary implication, all other powers essential to
the efective exercise of the principal power granted,
such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates
as well as appropriation of funds to meet the
expenses for the election of delegates and for the
operation of the Constitutional Convention itself, as
well as all other implementing details indispensable
to a fruitful convention. Resolutions Nos. 2 and 4
already embody the above-mentioned details,
except the appropriation of funds.
3. While the authority to call a constitutional
convention is vested by the present Constitution
solely and exclusively in Congress acting as a
Constituent Assembly, the power to enact the
implementing details, which are now contained in
Resolutions Nos. 2 and 4 as well as in R.A. No. 6132,
does not exclusively pertain to Congress acting as a
Constituent Assembly. Such implementing details
are matters within the competence of Congress in
the exercise of its comprehensive legislative power,
which power encompasses all matters not expressly
or by necessary implication withdrawn or removed
by the Constitution from the ambit of legislative
action. And as lone as such statutory details do not
clash with any specific provision of the constitution,
they are valid.
4. Consequently, when Congress, acting as a
Constituent Assembly, omits to provide for such
implementing details after calling a constitutional
convention, Congress, acting as a legislative body,
can enact the necessary implementing legislation to

fill in the gaps, which authority is expressly

recognized in Sec. 8 of Res No. 2 as amended by
Res. No. 4.
5. The fact that a bill providing for such
implementing details may be vetoed by the
President is no argument against conceding such
power in Congress as a legislative body nor present
any difficulty; for it is not irremediable as Congress
can override the Presidential veto or Congress can
reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing
details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the
apportionment of delegates is not in accordance with proportional
representation and therefore violates the Constitution and the
intent of the law itself, without pinpointing any specific provision of
the Constitution with which it collides.
Unlike in the apportionment of representative districts, the
Constitution does not expressly or impliedly require such
apportionment of delegates to the convention on the basis of
population in each congressional district. Congress, sitting as a
Constituent Assembly, may constitutionally allocate one delegate
for, each congressional district or for each province, for reasons of
economy and to avoid having an unwieldy convention. If the
framers of the present Constitution wanted the apportionment of
delegates to the convention to be based on the number of
inhabitants in each representative district, they would have done
so in so many words as they did in relation to the apportionment of
the representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot
possibly conflict with its own intent expressed therein; for it merely
obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which
provides that the 320 delegates should be apportioned among the

existing representative districts according to the number of their

respective inhabitants, but fixing a minimum of at least two
delegates for a representative district. The presumption is that the
factual predicate, the latest available official population census, for
such apportionment was presented to Congress, which,
accordingly employed a formula for the necessary computation to
efect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by
Senator Pelaez which is now R.A. No. 6132, submitted to this
Tribunal by the amici curiae, show that it based its apportionment
of the delegates on the 1970 official preliminary population census
taken by the Bureau of Census and Statistics from May 6 to June
30, 1976; and that Congress adopted the formula to efect a
reasonable apportionment of delegates. The Director of the Bureau
of Census and Statistics himself, in a letter to Senator Pelaez dated
July 30, 1970, stated that "on the basis of the preliminary count of
the population, we have computed the distribution of delegates to
the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5
to 32 and p. 3 line 12) which is a fair and an equitable method of
distributing the delegates pursuant to the provisions of the joint
Resolution of both Houses No. 2, as amended. Upon your request
at the session of the Senate-House Conference Committee
meeting last night, we are submitting herewith the results of the
computation on the basis of the above-stated method."
Even if such latest census were a preliminary census, the same
could still be a valid basis for such apportionment. 6 The fact that
the lone and small congressional district of Batanes, may be overrepresented, because it is allotted two delegates by R.A. No. 6132
despite the fact that it has a population very much less than
several other congressional districts, each of which is also allotted
only two delegates, and therefore under-represented, vis-a-vis
Batanes alone, does not vitiate the apportionment as not efecting
proportional representation. Absolute proportional apportionment
is not required and is not possible when based on the number of
inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as
daily death and birth. It is enough that the basis employed is

reasonable and the resulting apportionment is substantially

proportional. Resolution No. 4 fixed a minimum of two delegates
for a congressional district.

from assuming "any appointive office or position in any branch of

the government government until after the final adjournment of
the Constitutional Convention."

While there may be other formulas for a reasonable apportionment

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

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

In the Macias case, relied on by petitioner Gonzales, the

apportionment law, which was nullified as unconstitutional,
granted more representatives to a province with less population
than the provinces with more inhabitants. Such is not the case
here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only
two delegates, which number is equal to the number of delegates
accorded other provinces with more population. The present
petitions therefore do not present facts which fit the mould of the
doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is
recognized by the Constitution itself when it directs that the
apportionment of congressional districts among the various
provinces shall be "as nearly as may be according to their
respective inhabitants, but each province shall have at least one
member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The
employment of the phrase "as nearly as may be according to their
respective inhabitants" emphasizes the fact that the human mind
can only approximate a reasonable apportionment but cannot
efect an absolutely proportional representation with mathematical
precision or exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue
deprivation of liberty without due process of law and denies the
equal protection of the laws. Said Sec. 5 disqualifies any elected
delegate from running "for any public office in any election" or

As admitted by petitioner Gonzales, this inhibition finds analogy in

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

As observed by the Solicitor General in his Answer, the overriding

objective of the challenged disqualification, temporary in nature, is
to compel the elected delegates to serve in full their term as such
and to devote all their time to the convention, pursuant to their
representation and commitment to the people; otherwise, his seat
in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise
"designed to prevent popular political figures from controlling
elections or positions. Also it is a brake on the appointing power, to
curtail the latter's desire to 'raid' the convention of "talents" or
attempt to control the convention." (p. 10, Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No.
6132 is a valid limitation on the right to public office pursuant to
state police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the
Constitutional Convention is likewise constitutional; for it is based
on a substantial distinction which makes for real diferences, is
germane to the purposes of the law, and applies to all members of
the same class. 7 The function of a delegate is more far-reaching
and its efect more enduring than that of any ordinary legislator or
any other public officer. A delegate shapes the fundamental law of
the land which delineates the essential nature of the government,
its basic organization and powers, defines the liberties of the
people, and controls all other laws. Unlike ordinary statutes,
constitutional amendments cannot be changed in one or two
years. No other public officer possesses such a power, not even
the members of Congress unless they themselves, propose
constitutional amendments when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution. The classification,
therefore, is neither whimsical nor repugnant to the sense of
justice of the community.
As heretofore intimated, the inhibition is relevant to the object of
the law, which is to insure that the proposed amendments are
meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the

convention who will be elected on the second Tuesday of
November, 1970.
V
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both
petitioners as violative of the constitutional guarantees of due
process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process,
equal protection of the laws, peaceful assembly, free expression,
and the right of association are neither absolute nor illimitable
rights; they are always subject to the pervasive and dormant
police power of the State and may be lawfully abridged to serve
appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and
present danger test to determine whether a statute which trenches
upon the aforesaid Constitutional guarantees, is a legitimate
exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented
as being a candidate of any political
party or any other organization; and
2. any political party, political group, political
committee, civic, religious, professional or other
organizations or organized group of whatever nature
from

(a) intervening in the nomination of

any such candidate or in the filing of
his certificate, or
(b) from giving aid or support directly
or indirectly, material or otherwise,
favorable to or against his campaign
for election.
The ban against all political parties or organized groups of
whatever nature contained in par. 1 of Sec. 8(a), is confined to
party or organization support or assistance, whether material,
moral, emotional or otherwise. The very Sec. 8(a) in its provisos
permits the candidate to utilize in his campaign the help of the
members of his family within the fourth civil degree of
consanguinity or affinity, and a campaign staf composed of not
more than one for every ten precincts in his district. It allows the
full exercise of his freedom of expression and his right to peaceful
assembly, because he cannot be denied any permit to hold a
public meeting on the pretext that the provision of said section
may or will be violated. The right of a member of any political
party or association to support him or oppose his opponent is
preserved as long as such member acts individually. The very party
or organization to which he may belong or which may be in
sympathy with his cause or program of reforms, is guaranteed the
right to disseminate information about, or to arouse public interest
in, or to advocate for constitutional reforms, programs, policies or
constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is
so narrow that the basic constitutional rights themselves remain
substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked by
petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the period
for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates

presents a question that is not too formidable in
character. According to the act: "It shall be unlawful
for any political party, political committee, or
political group to nominate candidates for any
elective public office voted for at large earlier than
one hundred and fifty days immediately preceding
an election, and for any other elective public office
earlier than ninety days immediately preceding an
election.
The right of association is afected. Political parties
have less freedom as to the time during which they
may nominate candidates; the curtailment is not
such, however, as to render meaningless such a
basic right. Their scope of legitimate activities, save
this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can
do so, but not for such a purpose. We sustain its
validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the
period for the conduct of an election campaign or partisan political
activity may be limited without ofending the aforementioned
constitutional guarantees as the same is designed also to prevent
a "clear and present danger of a substantive evil, the debasement
of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the
purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against any candidate or party; and (c) giving, soliciting, or
receiving contributions for election campaign either directly or
indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the
abridgment was still affirmed as constitutional by six members of
this Court, which could not "ignore ... the legislative declaration

that its enactment was in response to a serious substantive evil

afecting the electoral process, not merely in danger of happening,
but actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the
reality of the situation." 12;
Likewise, because four members dissented, this Court in said case
of Gonzales vs. Comelec, supra, failed to muster the required eight
votes to declare as unconstitutional the limitation on the period for
(a) making speeches, announcements or commentaries or holding
interviews for or against the election of any party or candidate for
public office; (b) publishing or distributing campaign literature or
materials; and (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any
candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A.
4880. 13
The debasement of the electoral process as a substantive evil
exists today and is one of the major compelling interests that
moved Congress into prescribing the total ban contained in par. 1
of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the
said Gonzales vs. Comelec case, this Court gave "due recognition
to the legislative concern to cleanse, and if possible, render
spotless, the electoral process," 14 impressed as it was by the
explanation made by the author of R.A. No. 4880, Sen. Lorenzo
Taada, who appeared as amicus curiae, "that such provisions
were deemed by the legislative body to be part and parcel of the
necessary and appropriate response not merely to a clear and
present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has marred election
campaigns and partisan political activities in this country. He did
invite our attention likewise to the well-settled doctrine that in the
choice of remedies for an admitted malady requiring governmental
action, on the legislature primarily rests the responsibility. Nor
should the cure prescribed by it, unless clearly repugnant to
fundamental rights, be ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement
of the electoral process, as conceded by Senator Pelaez, the basic

motivation, according to Senate Majority Floor Leader Senator

Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment
embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the
candidates equal protection of the laws by according them equality
of chances. 16 The primary purpose of the prohibition then is also
to avert the clear and present danger of another substantive evil,
the denial of the equal protection of the laws. The candidates must
depend on their individual merits and not on the support of
political parties or organizations. Senator Tolentino and Senator
Salonga emphasized that under this provision, the poor candidate
has an even chance as against the rich candidate. We are not
prepared to disagree with them, because such a conclusion,
predicated as it is on empirical logic, finds support in our recent
political history and experience. Both Senators stressed that the
independent candidate who wins in the election against a
candidate of the major political parties, is a rare phenomenon in
this country and the victory of an independent candidate mainly
rests on his ability to match the resources, financial and otherwise,
of the political parties or organizations supporting his opponent.
This position is further strengthened by the principle that the
guarantee of social justice under Sec. V, Art. II of the Constitution,
includes the guarantee of equal opportunity, equality of political
rights, and equality before the law enunciated by Mr. Justice
Tuazon in the case Guido vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not
wrong per se it is equally true that Congress in the exercise of its
broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such
act is the party or organization support proscribed in Sec.
8(a),which ban is a valid limitation on the freedom of association
as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be
better attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the
balancing-of-interest test. 19
In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the

threshold of rewriting its Constitution in a hopeful
endeavor to find a solution to the grave economic,
social and political problems besetting the country.
Instead of directly proposing the amendments
Congress has chosen to call a Constitutional
Convention which shall have the task of fashioning a
document that shall embody the aspirations and
ideals of the people. Because what is to be amended
is the fundamental law of the land, it is
indispensable that the Constitutional Convention be
composed of delegates truly representative of the
people's will. Public welfare demands that the
delegates should speak for the entire nation, and
their voices be not those of a particular segment of
the citizenry, or of a particular class or group of
people, be they religious, political, civic or
professional in character. Senator Pelaez, Chairman
of the Senate Committee on Codes and
Constitutional Amendments, eloquently stated that
"the function of a constitution is not to represent
anyone in interest or set of interests, not to favor
one group at the expense or disadvantage of the
candidates but to encompass all the interests that
exist within our society and to blend them into one
harmonious
and
balanced
whole.
For
the
constitutional system means, not the predominance
of interests, but the harmonious balancing thereof."
So that the purpose for calling the Constitutional
Convention will not be deflated or frustrated, it is
necessary
that
the
delegatee
thereto
be
independent, beholden to no one but to God,
country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent
lies in the election of delegates who, because they
have been chosen with the aid and resources of

organizations, cannot be expected to be sufficiently

representative of the people. Such delegates could
very well be the spokesmen of narrow political,
religious or economic interest and not of the great
majority of the people. 20
We likewise concur with the Solicitor General that the equal
protection of the laws is not unduly subverted in par. I of Sec. 8(a);
because it does not create any hostile discrimination against any
party or group nor does it confer undue favor or privilege on an
individual as heretofore stated. The discrimination applies to all
organizations, whether political parties or social, civic, religious, or
professional associations. The ban is germane to the objectives of
the law, which are to avert the debasement of the electoral
process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal
protection of the laws.
The political parties and the other organized groups have built-in
advantages because of their machinery and other facilities, which,
the individual candidate who is without any organization support,
does not have. The fact that the other civic of religious
organizations cannot have a campaign machinery as efficient as
that of a political party, does not vary the situation; because it still
has that much built-in advantage as against the individual
candidate without similar support. Moreover, these civic religious
and professional organization may band together to support
common candidates, who advocates the reforms that these
organizations champion and believe are imperative. This is
admitted by petitioner Gonzales thru the letter of Senator Ganzon
dated August 17, 1970 attached to his petition as Annex "D",
wherein the Senator stated that his own "Timawa" group had
agreed with the Liberal Party in Iloilo to support petitioner
Gonzales and two others as their candidates for the convention,
which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and
working in joint collective efort" they cannot "exercise efective
control
and
supervision
over
our
leaders the Women's League, the area commanders, etc."; but

with their joining with the LP's they "could have presented a solid
front with very bright chances of capturing all seats."
The civic associations other than political parties cannot with
reason insist that they should be exempted from the ban; because
then by such exemption they would be free to utilize the facilities
of the campaign machineries which they are denying to the
political parties. Whenever all organization engages in a political
activity, as in this campaign for election of delegates to the
Constitutional Convention, to that extent it partakes of the nature
of a political organization. This, despite the fact that the
Constitution and by laws of such civic, religious, or professional
associations usually prohibit the association from engaging in
partisan political activity or supporting any candidate for an
elective office. Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate
or join with others or join any existing organization. A person may
run independently on his own merits without need of catering to a
political party or any other association for support. And he, as
much as the candidate whose candidacy does not evoke sympathy
from any political party or organized group, must be aforded equal
chances. As emphasized by Senators Tolentino and Salonga, this
ban is to assure equal chances to a candidate with talent and
imbued with patriotism as well as nobility of purpose, so that the
country can utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of
Senator Taada for the invalidation of par. 1 of Sec. 8(a) of R.A. No.
6132, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of Rights, We
are not persuaded to entertain the belief that the challenged ban
transcends the limits of constitutional invasion of such cherished
immunities.
WHEREFORE, the prayers in both petitions are hereby denied and
R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1,
thereof, cannot be declared unconstitutional. Without costs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and
MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO
PEDROSA & CARMEN PEDROSA, in their capacities as
founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitionersintervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the
people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of
the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of
this country, except perhaps to a few scholars, before the drafting
of the 1987 Constitution. The 1986 Constitutional Commission
itself, through the original proponent 1 and the main sponsor 2 of
the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative". 3 Indeed it

is, for both under the 1935 and 1973 Constitutions, only two
methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of
three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed,
we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed
with public respondent Commission on Elections (hereafter,
COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits
of Elective Officials, by People's Initiative" (hereafter, Delfin
Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering
all over the country;
2. Causing the necessary publications of said Order
and the attached "Petition for Initiative on the 1987
Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the
time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for People's Initiative, 6 a group of citizens desirous to
avail of the system intended to institutionalize people power; that
he and the members of the Movement and other volunteers intend
to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the
Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC;
that, as required in COMELEC Resolution No. 2300, signature
stations shall be established all over the country, with the
assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the
Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the

purpose be first fixed in an order to be issued by the COMELEC;

and that to adequately inform the people of the electoral process
involved, it is likewise necessary that the said order, as well as the
Petition on which the signatures shall be affixed, be published in
newspapers of general and local circulation, under the control and
supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, 7Section 4 of Article
VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to
the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which
consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following
proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF
ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING
FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE
VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be
submitted to the people, and after it is signed by at least twelve
per cent of the total number of registered voters in the country it
will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its
Chairman, issued an Order 11 (a) directing Delfin "to cause the
publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and
the notice of hearing in three (3) daily newspapers of general
circulation at his own expense" not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00
a.m.
At the hearing of the Delfin Petition on 12 December 1996, the
following appeared: Delfin and Atty. Pete Q. Quadra;

representatives
of
the
People's
Initiative
for
Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator
Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to
Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and
the
oppositors
to
file
their
"memoranda
and/or
oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin
filed this special civil action for prohibition raising the following
arguments:
(1)
The
constitutional
provision
on
people's initiative to amend the Constitution can
only be implemented by law to be passed by
Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitution Amendments by People's
Initiative, which petitioner Senator Santiago filed on
24 November 1995, is still pending before the
Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three
systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle on initiative
on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in
Subtitle II and Subtitle III. This deliberate omission
indicates that the matter of people's initiative to
amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this
deficiency in the law in his privilege speech

delivered before the Senate in 1994: "There is not a

single word in that law which can be considered as
implementing [the provision on constitutional
initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the efectivity
of the law after publication in print media. This
indicates that the Act covers only laws and not
constitutional amendments because the latter take
efect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16
January 1991 to govern "the conduct of initiative on
the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar
asinitiative on amendments to the Constitution is
concerned, since the COMELEC has no power to
provide rules and regulations for the exercise of the
right of initiative to amend the Constitution. Only
Congress is authorized by the Constitution to pass
the implementing law.
(5)
The
people's
initiative
is
limited
to amendments to
the
Constitution,
not
to revision thereof. Extending or lifting of term limits
constitutes a revision and is, therefore, outside the
power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds
for people's initiative; neither the COMELEC nor any
other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for
prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the people's initiative spearheaded by
PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to

mention the millions of additional pesos in expenses which would

be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure
and calling for the admission of a taxpayer's and legislator's
suit. 14 Besides, there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten
days from notice; and (b) issued a temporary restraining order,
efective immediately and continuing until further orders, enjoining
public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative to amend
the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed
their Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL
EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO
AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00)" IF THE "COMELEC GRANTS THE
PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS
THE PETITION OF RESPONDENT DELFIN. ALL
EXPENSES IN THE SIGNATURE GATHERING ARE ALL
FOR THE ACCOUNT OF RESPONDENT DELFIN AND
HIS VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER
DIEM OF THE SUPERVISING SCHOOL TEACHERS IN
THE SIGNATURE GATHERING TO BE DEPOSITED and

TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS

P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS
ONLY ON THE SIGNATURE GATHERING WHICH BY
LAW COMELEC IS DUTY BOUND "TO SUPERVISE
CLOSELY"
PURSUANT
TO
ITS
"INITIATORY
JURISDICTION" UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN
THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS.COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4,
1989 IS THE ENABLING LAW IMPLEMENTING THE
POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR
DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED
FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED
ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735
WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE
BILL NO. 1290 CONTAINS A PROVISION DELEGATING
TO THE COMELEC THE POWER TO "PROMULGATE
SUCH RULES AND REGULATIONS AS MAY BE
NECESSARY TO CARRY OUT THE PURPOSES OF THIS
ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX
E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF

OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER
THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT.
"AMENDMENT ENVISAGES AN ALTERATION OF ONE
OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A REEXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097
PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment 16 which starts of with an assertion that the
instant petition is a "knee-jerk reaction to a draft 'Petition for
Initiative on the 1987 Constitution'. . . which is not formally filed
yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to
start the signature campaign to amend the Constitution or to put
the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin
maintains as follows:
(1) Contrary to the claim of the petitioners, there is a
law, R.A. No. 6735, which governs the conduct
of initiative to amend the Constitution. The absence
therein of a subtitle for such initiative is not fatal,
since subtitles are not requirements for the validity
or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides
that the proposition in an initiative to amend the
Constitution approved by the majority of the votes
cast in the plebiscite shall become efective as of
the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300
is ultra vires is contradicted by (a) Section 2, Article
IX-C of the Constitution, which grants the COMELEC
the power to enforce and administer all laws and

regulations relative to the conduct of an election,

plebiscite, initiative, referendum, and recall; and (b)
Section 20 of R.A. 6735, which empowers the
COMELEC to promulgate such rules and regulations
as may be necessary to carry out the purposes of
the Act.

because, being national in scope, that system

of initiative is deemed included in the subtitle on
National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions of
the law when he claimed that nothing therein was
provided for initiative on the Constitution.

(4) The proposed initiative does not involve

a revision of,
but
mere amendment to,
the
Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more
specifically, only those which lay term limits. It does
not seek to reexamine or overhaul the entire
document.

(3) Senate Bill No. 1290 is neither a competent nor a

material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.

As to the public expenditures for registration of voters, Delfin

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

(5) COMELEC Resolution No. 2300 was validly issued

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

In the Comment 17 for the public respondent COMELEC, filed also

on 2 January 1997, the Office of the Solicitor General contends
that:
(1)
R.A.
No.
6735
deals
with, inter
alia,
people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its
Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution
and defines the same as the power to propose
amendments to the Constitution. Likewise, its
Section 5 repeatedly mentions initiative on the
Constitution.
(2) A separate subtitle on initiative on the
Constitution is not necessary in R.A. No. 6735

(4) Extension of term limits of elected officials

constitutes a mere amendment to the Constitution,
not a revision thereof.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order filed
by private respondents through Atty. Quadra, as well as the latter's
Manifestation stating that he is the counsel for private respondents
Alberto and Carmen Pedrosa only and the Comment he filed was
for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his
Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.
On
17
January
1997,
the Demokrasya-Ipagtanggol
ang
Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood
Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in
Intervention wherein they contend that:

(1) The Delfin proposal does not involve a

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

who may file the petition, (b) the appropriate agency

before whom the petition is to be filed, (c) the
contents of the petition, (d) the publication of the
same, (e) the ways and means of gathering the
signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures,
(g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the
appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of
funds for such people's initiative. Accordingly, there
being no enabling law, the COMELEC has no
jurisdiction to hear Delfin's petition.

(2) The prohibition against reelection of the

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

(5) The deficiency of R.A. No. 6735 cannot be

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

(3) The Delfin proposal runs counter to the purpose

of initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position
that may be availed of by the people only if they are
dissatisfied with the performance of their elective
officials, but not as a premium for good
performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself
to be called the enabling law that implements the
people's initiative on
amendments
to
the
Constitution. It fails to state (a) the proper parties

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

Intervention. 21 He avers that R.A. No. 6735 is the enabling law
that implements the people's right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17 and
House Bill No. 21505; he co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that
the COMELEC was empowered under Section 20 of that law to
promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to
take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading
contemplated under the Constitution, Republic Act No. 6735, and
COMELEC Resolution No. 2300. What vests jurisdiction upon the
COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signedby the required number of

registered voters. He also submits that the proponents of a

constitutional amendment cannot avail of the authority and
resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the
Constitution is limited to the determination of the sufficiency of the
initiative petition and the call and supervision of a plebiscite, if
warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law
mandated under Section 2, Article XVII of the 1987
Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute
for the required implementing law on the initiative to
amend the Constitution.
(3) The Petition for Initiative sufers from a fatal
defect in that it does not have the required number
of signatures.
(4) The petition seeks, in efect a revision of the
Constitution, which can be proposed only by
Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the

Motions for Intervention filed by the DIK and MABINI and by the
IBP, as well as the Motion for Leave to Intervene filed by LABAN;
(b) admitting the Amended Petition in Intervention of DIK and
MABINI, and the Petitions in Intervention of Senator Roco and of
the IBP; (c) requiring the respondents to file within a nonextendible
period of five days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its Petition
in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Petition
in Intervention.
At the hearing of the case on 23 January 1997, the parties argued
on the following pivotal issues, which the Court formulated in light
of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act Providing
for a System of Initiative and Referendum and
Appropriating Funds Therefor, was intended to
include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded,
adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No.
2300 (In re: Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering
the absence in the law of specific provisions on the
conduct of such initiative.
3. Whether the lifting of
national and local officials,
"Petition for Initiative on
would constitute a revision
the Constitution.

term limits of elective

as proposed in the draft
the 1987 Constitution,"
of, or an amendment to,

4. Whether the COMELEC can take cognizance of, or

has jurisdiction over, a petition solely intended to
obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal
election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c)
directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take
cognizance of the petition when there is a pending
case before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days
and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention
wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have
dismissed the Delfin Petition for failure to state a sufficient cause
of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of
both the Journal and the Record of the House of Representatives
relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the
Bicameral Conference Committee, Committee on Sufrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and
Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their
Consolidated Comments on the Petitions in Intervention of Senator
Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in
due time, their separate memoranda. 24

As we stated in the beginning, we resolved to give due course to

this special civil action.
For a more logical discussion of the formulated issues, we shall
first take up the fifth issue which appears to pose a prejudicial
procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY
IN THE COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this
Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:
28. The Comelec has no jurisdiction to take
cognizance of the petition filed by private
respondent Delfin. This being so, it becomes
imperative to stop the Comelec from proceeding any
further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial
writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is
an urgent necessity, in view of the highly divisive
and adverse environmental consequences on the
body politic of the questioned Comelec order. The
consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of
constitutional law is threatened by the political

ambitions of man, only the Supreme Court

can save a nation in peril and uphold the paramount
majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a
motion to dismiss the Delfin Petition on the ground that the
COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them
to
submit
within
five
days
their
memoranda
or
27
oppositions/memoranda. Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by
ordering Delfin to cause the publication of the petition, together
with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the
instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
Sec. 2. Petition for prohibition. Where the
proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or
ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty
and
praying
that
judgment
be
rendered
commanding the defendant to desist from further
proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the
COMELEC has no jurisdiction over the Delfin Petition because the
said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the
COMELEC gravely abused its discretion in refusing to dismiss the

Delfin Petition, which does not contain the required number of

signatures. In light of these claims, the instant case may likewise
be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of
procedure
in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural
technicality which it may, in the exercise of its
discretion, set aside in view of the importance of
issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality
because the transcendental importance to the public
of these cases demands that they be settled
promptly and definitely, brushing aside, if we must,
technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF
INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT
IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per
centum of the total number of registered voters, of
which every legislative district must be represented
by at least three per centum of the registered voters
therein. No amendment under this section shall be
authorized within five years following the ratification
of this Constitution nor oftener than once every five
years thereafter.

The Congress shall provide for the implementation of the exercise

of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot
operate. Thus, although this mode of amending the
Constitution is a mode of amendment which
bypasses congressional action, in the last analysis it
still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the
Constitution until Congress provides for its implementation.
Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the
draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed
Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed:
(a) by the National Assembly upon a vote of threefourths of all its members; or

After several interpellations, but before the period of

amendments, the Committee submitted a new formulation
of the concept of initiative which it denominated as Section
2; thus:
MR. SUAREZ. Thank you, Madam
President. May we respectfully call
attention of the Members of the
Commission that pursuant to the
mandate given to us last night, we
submitted this afternoon a complete
Committee Report No. 7 which
embodies the proposed provision
governing the matter of initiative. This
is now covered by Section 2 of the
complete committee report. With the
permission of the Members, may I
quote Section 2:
The people may, after five years from the date of
the
last
plebiscite
held,
directly
propose
amendments to this Constitution thru initiative upon
petition of at least ten percent of the registered
voters.
This completes the blanks appearing in the original
Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for
carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just
two simple, clarificatory questions.

(b) by a constitutional convention; or

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

First, on Section 1 on the matter of

initiative upon petition of at least 10
percent, there are no details in the
provision on how to carry this out. Do
we understand, therefore, that we are
leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam

President.

MR. SUAREZ. No, it does not exclude

that possibility because even the
legislature itself as a body could
propose that amendment, maybe
individually or collectively, if it fails to
muster the three-fourths vote in order
to constitute itself as a constituent
assembly and submit that proposal to
the people for ratification through the
process of an initiative.

FR. BERNAS. And do we also

understand, therefore, that for as long
as the legislature does not pass the
necessary implementing law on this,
this will not operate?
MR. SUAREZ. That matter was also
taken up during the committee
hearing, especially with respect to the
budget appropriations which would
have to be legislated so that the
plebiscite could be called. We deemed
it best that this matter be left to the
legislature. The Gentleman is right. In
any
event,
as
envisioned,
no
amendment through the power of
initiative can be called until after five
years from the date of the ratification
of this Constitution. Therefore, the
first amendment that could be
proposed through the exercise of this
initiative power would be after five
years. It is reasonably expected that
within that five-year period, the
National Assembly can come up with
the appropriate rules governing the
exercise of this power.
FR. BERNAS. Since the matter is left to
the legislature the details on how
this is to be carried out is it possible
that, in efect, what will be presented
to the people for ratification is the
work of the legislature rather than of
the people? Does this provision
exclude that possibility?

xxx xxx xxx

MS. AQUINO. Do I understand from the
sponsor that the intention in the
proposal is to vest constituent power
in the people to amend the
Constitution?
MR. SUAREZ. That is
correct, Madam President.

absolutely

MS. AQUINO. I fully concur with the

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

legal values, the Constitution is source

of all legal mandates and that
therefore we require a great deal of
circumspection in the drafting and in
the amendments of the Constitution?
MR. SUAREZ.
nondebatable.

That

proposition

MR. SUAREZ. . . . This proposal was

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

is

MS. AQUINO. Such that in order to

underscore the primacy of constituent
power we have a separate article in
the constitution that would specifically
cover the process and the modes of
amending the Constitution?
xxx xxx xxx
MR. SUAREZ. That is right, Madam
President.
MS. AQUINO. Therefore, is the sponsor
inclined, as the provisions are drafted
now, to
again
concede
to
the
legislature the process or the
requirement of determining the
mechanics
of
amending
the
Constitution by people's initiative?
MR.
SUAREZ.
The
matter
of
implementing this could very well be
placed in the hands of the National
Assembly,
not
unless
we
can
incorporate into this provision the
mechanics that would adequately
cover all the conceivable situations. 33
It was made clear during the interpellations that the
aforementioned Section 2 is limited to proposals to AMEND not
to REVISE the Constitution; thus:

MS. AQUINO. In which case, I am

seriously bothered by providing this
process of initiative as a separate
section in the Article on Amendment.
Would the sponsor be amenable to
accepting an amendment in terms of
realigning Section 2 as another
subparagraph (c) of Section 1, instead
of setting it up as another separate
section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable
except that, as we clarified a while
ago, this process of initiative is limited
to the matter of amendment and
should
not
expand
into
a
revision which contemplates a total
overhaul of the Constitution. That was
the sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the

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

PERCENT
OF
THE
REGISTERED
VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS
THEREAFTER.

MR. SUAREZ. That is right. Those were

the
terms
envisioned
in
the
35
Committee.

THE NATIONAL ASSEMBLY SHALL BY

LAW
PROVIDE
FOR
THE
IMPLEMENTATION OF THE EXERCISE
OF THIS RIGHT.

Amendments to the proposed Section 2 were thereafter introduced

by then Commissioner Hilario G. Davide, Jr., which the Committee
accepted. Thus:

MR.
SUAREZ.
Madam
President,
considering
that
the
proposed
amendment is reflective of the sense
contained in Section 2 of our
completed Committee Report No. 7,
we
accept
the
proposed
amendment. 36

MR. DAVIDE. Thank you Madam

President. I propose to substitute the
entire Section 2 with the following:
MR. DAVIDE. Madam President, I have
modified the proposed amendment
after
taking
into
account
the
modifications
submitted
by
the
sponsor himself and the honorable
Commissioners Guingona, Monsod,
Rama, Ople, de los Reyes and Romulo.
The
modified
amendment
in
substitution of the proposed Section 2
will now read as follows: "SECTION 2.

AMENDMENTS
TO
THIS
CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE
THROUGH
INITIATIVE
UPON
A
PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER Of
REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE

The interpellations which ensued on the proposed modified

amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner
Davide's amendment, is it possible for
the legislature to set forth certain
procedures to carry out the initiative. .
.?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's
amendment does not prevent the
legislature from asking another body
to set the proposition in proper form.

MR. DAVIDE. The Commissioner is

correct.
In
other
words,
the
implementation of this particular right
would be subject to legislation,
provided
the
legislature
cannot
determine anymore the percentage of
the requirement.
MR. ROMULO. But the procedures,
including the determination of the
proper form for submission to the
people, may be subject to legislation.
MR. DAVIDE. As long as it will
destroy the substantive right
initiate. In other words, none of
procedures to be proposed by
legislative body must diminish
impair the right conceded here.

not
to
the
the
or

MR. ROMULO. In that provision of the

Constitution can the procedures which
I have discussed be legislated?
MR. DAVIDE. Yes.

37

Commissioner Davide also reaffirmed that his modified

amendment strictly confines initiative to AMENDMENTS to NOT
REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam
President.

MR. MAAMBONG. My first question:

Commissioner
Davide's
proposed
amendment on line 1 refers to
"amendment." Does it not cover the
word
"revision"
as
defined
by
Commissioner Padilla when he made
the distinction between the words
"amendments" and "revision"?
MR. DAVIDE. No, it does not, because
"amendments" and "revision" should
be covered by Section 1. So insofar as
initiative is concerned, it can only
relate
to
"amendments"
not
38
"revision."
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous
and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be
made that under this proposal, what is
involved is an amendment to the
Constitution. To amend a Constitution
would ordinarily require a proposal by
the National Assembly by a vote of
three-fourths;
and
to
call
a
constitutional
convention
would
require a higher number. Moreover,
just to submit the issue of calling a
constitutional convention, a majority
of the National Assembly is required,
the import being that the process of
amendment must be made more
rigorous and difficult than probably
initiating an ordinary legislation or
putting an end to a law proposed by
the National Assembly by way of a
referendum. I cannot agree to
reducing the requirement approved by

the Committee on the Legislative

because it would require another
voting by the Committee, and the
voting as precisely based on a
requirement of 10 percent. Perhaps, I
might present such a proposal, by way
of
an
amendment,
when
the
Commission shall take up the Article
on the Legislative or on the National
Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam
President. Section 2, as amended,
reads as follows: "AMENDMENT TO
THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE
THROUGH
INITIATIVE
UPON
A
PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE
PERCENT
OF
THE
REGISTERED
VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY
LAW
PROVIDE
FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions

was
approved
on
second
reading
on
9
July
41
1986. Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved
on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved
Section 2 be amended by changing "percent" to "per centum" and
"thereof" to "therein" and deleting the phrase "by law" in the
second
paragraph
so
that
said
paragraph
reads: The
Congress 43 shall provide for the implementation of the exercise of
this right. 44 This amendment was approved and is the text of the
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of
initiative on the Constitution under Section 2 of Article XVII of the
Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of
this right? Those who answer the question in the affirmative, like
the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.
There is, of course, no other better way for Congress to implement
the exercise of the right than through the passage of a statute or
legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the
last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for
implementation of the exercise of this right.

the

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

This substitute amendment was an investiture on Congress

of a power to provide for the rules implementing the
exercise of the right. The "rules" means "the details on how
[the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The
Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Sufrage and
Electoral Reforms of the House of Representatives on the basis of
two House Bills referred to it, viz., (a) House Bill No. 497, 47 which
dealt
with
the
initiative
and
referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House
Bill No. 988, 48 which dealt with the subject matter of House Bill
No. 497, as well as with initiative and referendum under Section 3
of Article X (Local Government) and initiative provided for in
Section 2 of Article XVII of the Constitution. Senate Bill No.
17 49 solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral
Conference Committee consolidated Senate Bill No. 17 and House
Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate 50and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on amendments
to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the
people under a system of initiative and referendum
to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon
compliance with the requirements of this Act is

hereby affirmed, recognized

(Emphasis supplied).

and

guaranteed.

The inclusion of the word "Constitution" therein was a

delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier,
initiative on the Constitution is confined only to proposals to
AMEND. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative. They can only
do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which solely
referred to a statement of policy on local initiative and referendum
and appropriately used the phrases "propose and enact," "approve
or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions
it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the
percentage of the registered voters who must submit the proposal.
But unlike in the case of the other systems of initiative, the Act
does not provide for the contents of a petition forinitiative on the
Constitution. Section 5, paragraph (c) requires, among other
things, statement of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be. It
does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as
follows:
(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to

be enacted, approved or rejected, amended or
repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided
therein;
c.5 signatures of the petitioners or registered voters;
and
c.6 an abstract or summary proposition is not more
than one hundred (100) words which shall be legibly
written or printed at the top of every page of the
petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted,
approved or rejected, amended or repealed" only
strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to
fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people
to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments
to the Constitution is subsumed under the subtitle on National
Initiative and Referendum because it is national in scope. Our

reading of Subtitle II (National Initiative and Referendum) and

Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is "national
initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local
initiative" if what is proposed to be adopted or enacted is a law,
ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of
the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition
proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should
have been a subtitle on initiative on amendments to the
Constitution. 53
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National
Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the

Constitution approved by the majority of the votes
cast in the plebiscite shall become efective 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 efective fifteen (15) days
after certification and proclamation of the
Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to
indirect initiative with the legislative bodies of local governments;
thus:
Sec. 11. Indirect Initiative. Any duly accredited
people's organization, as defined by law, may file a
petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of
the COMELEC on the findings of sufficiency or insufficiency
of the petition for initiative or referendum, which could be
petitions for both national
and localinitiative and
referendum.
Upon the other hand, Section 18 on "Authority of Courts" under
subtitle III on Local Initiative and Referendum is misplaced, 54 since
the provision therein applies to both national and local initiative
and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act
shall prevent or preclude the proper courts from
declaring null and void any proposition approved
pursuant to this Act for violation of the Constitution
or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and
care in providing for the details in the implementation of initiative

and referendum on national and local legislation thereby giving

them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent
the initiative on national legislation, the Act provides for the
following:
(a) The required percentage of registered voters to sign the
petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the
required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the
proposition;
(e) The publication of the approved proposition in the Official
Gazette or in a newspaper of general circulation in the Philippines;
and
(f) The efects of the approval or rejection of the proposition.

55

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

(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body
concerned;
(c) The efect of the legislative body's failure to favorably act
thereon, and the invocation of the power of initiative as a
consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;

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

(g) The issuance of a certification by the COMELEC through its
official in the local government unit concerned as to whether the
required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must
be within the period specified therein;
(i) The issuance of a certification of the result;

such rules and regulations as may be necessary to carry out the

purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or
as expressed in a Latin maxim: potestas delegata non delegari
potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tarif powers to the President under Section 28(2)
of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section
23(2) of Article VI of the Constitution;

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

(3) Delegation to the people at large;
(k) The limitations on local initiative; and
(4) Delegation to local governments; and
(l) The limitations upon local legislative bodies.

56

(5) Delegation to administrative bodies.

Upon the other hand, as to initiative on amendments to the
Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the
people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for
the date of efectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more
important or the paramount system of initiative. RA. No. 6735 thus
delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip
service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned. Its lacunae on this substantive matter are fatal and
cannot be cured by "empowering" the COMELEC "to promulgate

60

Empowering the COMELEC, an administrative body exercising

quasi-judicial functions, to promulgate rules and regulations is a
form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a
showing that the delegation itself is valid. It is valid only if the law
(a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the
performance of his functions. 61 A sufficient standard is one which
defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
efected. 62
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT

PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT
OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS
VOID.
It logically follows that the COMELEC cannot validly promulgate
rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution
through the system of initiative. It does not have that power under
R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or
(b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full
compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested
upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without
jurisdiction or with grave abuse of discretion in entertaining the
Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)
of R.A. No. 6735, a petition for initiative on the Constitution must
be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of
the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his
petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be
deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only

after its filing. The petition then is theinitiatory pleading. Nothing
before its filing is cognizable by the COMELEC, sitting en banc. The
only participation of the COMELEC or its personnel before the filing
of such petition are (1) to prescribe the form of the petition; 63(2)
to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each
legislative district; 64 (3) to assist, through its election registrars, in
the establishment of signature stations; 65 and (4) to verify,
through its election registrars, the signatures on the basis of the
registry list of voters, voters' affidavits, and voters' identification
cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No.
6735 and COMELEC Resolution No. 2300, it cannot be entertained
or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under
any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition
was merely entered as UND, meaning, undocketed. That petition
was nothing more than a mere scrap of paper, which should not
have been dignified by the Order of 6 December 1996, the hearing
on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying
it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of
whether the proposal to lift the term limits of elective national and
local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.

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

amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength.
Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the
right of the people under that system.
WHEREFORE, judgment is hereby rendered

EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976

a) GRANTING the instant petition;

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

b) DECLARING R.A. No. 6735 inadequate to cover the system of

initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS
the DELFIN petition (UND-96-037).

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

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:

The Temporary Restraining Order issued on 18 December 1996 is

made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

The capital question raised in these prohibition suits with

preliminary injunction relates to the power of the incumbent
President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which
has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum on
October 16, 1976 for the Citizens Assemblies ("barangays") to
resolve, among other things, the issues of martial law, the I .
assembly, its replacement, the powers of such replacement, the
period of its existence, the length of the period for tile exercise by
the President of his present powers.1

Republic of the Philippines

SUPREME COURT
Manila

Twenty days after or on September 22, 1976, the President issued

another related decree, Presidential Decree No. 1031, amending
the previous Presidential Decree No. 991, by declaring the
provisions of presidential Decree No. 229 providing for the manner
of voting and canvass of votes in "barangays" (Citizens

Assemblies) applicable to the national referendum-plebiscite of

October 16, 1976. Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2

rights, privileges, and disqualifications as the interim National

Assembly and the regular National Assembly and the members
thereof. However, it shall not exercise the power provided in Article
VIII, Section 14(l) of the Constitution.

On the same date of September 22, 1976, the President issued

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

3. The incumbent President of the Philippines shall, within 30 days

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

The questions ask, to wit:

(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you
approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the
efect of a plebiscite within the contemplation of Section 2 of
Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an
interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise
provided by law, shall include the incumbent President of the
Philippines, representatives elected from the diferent regions of
the nation, those who shall not be less than eighteen years of age
elected by their respective sectors, and those chosen by the
incumbent President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio while the sectors shall
be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be
prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers
and its members shall have the same functions, responsibilities,

4. The President (Prime Minister) and his Cabinet shall exercise all
the powers and functions, and discharge the responsibilities of the
regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime
Minister) may prescribe. The President (Prime Minister) if he so
desires may appoint a Deputy Prime Minister or as many Deputy
Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative
powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence thereof,
or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate
action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of
the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and under the
Supervision of the Commission on Elections may be called at any
time the government deems it necessary to ascertain the will of

the people regarding any important matter whether of national or

local interest.
8. All provisions of this Constitution not inconsistent with any of
these amendments shall continue in full force and efect.
9. These amendments shall take efect after the incumbent
President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National ReferendumPlebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite
on October 16; to declare without force and efect Presidential
Decree Nos. 991 and 1033, insofar as they propose amendments
to the Constitution, as well as Presidential Decree No. 1031, insofar
as it directs the Commission on Elections to supervise, control,
hold, and conduct the Referendum-Plebiscite scheduled on October
16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions
there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on
October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General
principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of this
Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with

Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is
expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was
filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR.,
and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative
powers under Martial Law, the incumbent President cannot act as a
constituent assembly to propose amendments to the Constitution;
a referendum-plebiscite is untenable under the Constitutions of
1935 and 1973; the submission of the proposed amendments in
such a short period of time for deliberation renders the plebiscite a
nullity; to lift Martial Law, the President need not consult the
people via referendum; and allowing 15-.year olds to vote would
amount to an amendment of the Constitution, which confines the
right of sufrage to those citizens of the Philippines 18 years of age
and above.
We find the petitions in the three entitled cases to be devoid of
merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the
valid source of a stature Presidential Decrees are of such naturemay be contested by one who will sustain a direct injuries as a in
result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined,
upon the theory that the expenditure of public funds by an officer
of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five Million

Pesos for the efective implementation of its purposes. 5

Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these
amounts of public money sufficiently clothes them with that
personality to litigate the validity of the Decrees appropriating said
funds. Moreover, as regards taxpayer's suits, this Court enjoys that
open discretion to entertain the same or not. 7 For the present
case, We deem it sound to exercise that discretion affirmatively so
that the authority upon which the disputed Decrees are predicated
may be inquired into.
2. The Solicitor General would consider the question at bar as a
pure political one, lying outside the domain of judicial review. We
disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8 This is especially true in
cases where the power of the Presidency to initiate the of normally
exercised by the legislature, is seriously doubted. Under the terms
of the 1973 Constitution, the power to propose amendments o the
constitution resides in the interim National Assembly in the period
of transition (See. 15, Transitory provisions). After that period, and
the regular National Assembly in its active session, the power to
propose amendments becomes ipso facto the prerogative of the
regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather
than calling the National Assembly to constitute itself into a
constituent assembly the incumbent President undertook the
proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a
Referendum-Plebiscite on October 16. Unavoidably, the regularity
regularity of the procedure for amendments, written in lambent
words in the very Constitution sought to be amended, raises a
contestable issue. The implementing Presidential Decree Nos. 991,
1031, and 1033, which commonly purport to have the force and
efect of legislation are assailed as invalid, thus the issue of the
validity of said Decrees is plainly a justiciable one, within the
competence of this Court to pass upon. Section 2 (2), Article X of
the new Constitution provides: "All cases involving the
constitutionality of a treaty, executive agreement, or law may shall
be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten
Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in
the Constitution, is in form a delegated and hence a limited power,

so that the Supreme Court is vested with that authorities to

determine whether that power has been discharged within its
limits.
Political questions are neatly associated with the wisdom, of the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on
the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure
followed or the authority assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his
theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that power,
a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not.
And, this inquiry must be done a prior not a posterior i.e., before
the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior
constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite
Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73 "submitting to the Pilipino
people (on January 15, 1973) for ratification or rejection the
Constitution of the Republic of the Philippines proposed by the
1971 Constitutional Convention and appropriating fund s therefore

"is a political one, was rejected and the Court unanimously

considered the issue as justiciable in nature. Subsequently in the
Ratification Cases 12involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the
Ratification by the Filipino people of the constitution proposed by
the 1971 Constitutional Convention," partakes of the nature of a
political question, the affirmative stand of' the Solicitor General
was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view,
said, Thus, in the aforementioned plebiscite cases, We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of
judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a
justiciable one. With Identical unanimity. We overruled the
respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation
suspending the privilege of the writ of habeas corpus on August
21, 1971, despite the opposite view taken by this Court in Barcelon
vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to
the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales vs. Commission on Elections, the
political-question theory adopted in Mabanag vs. Lopez
Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez
Vito, urged by the Solicitor General, was decisively refused by the
Court. Chief Justice Concepcion continued: "The reasons adduced
in support thereof are, however, substantially the same as those
given in support on the political question theory advanced in said
habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and
efect of a stare decisis which gained added weight by its virtual
reiteration."
II
The amending process as laid out
in the new Constitution.

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

SECTION 1. (1) Any amendment to, or revision of,
this Constitution may be proposed by the National
Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all
its Members, call a constitutional convention or, by a
majority vote of all its Members, submit the question
of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall
be held not later than three months after the
approval of such amendment or revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that
amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon
special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose
amendments to this Constitution. Such amendments
shall take efect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the
constitutional life of the nation, i.e., period of normalcy and period
of transition. In times of normally, the amending process may be
initiated by the proposals of the (1) regular National Assembly
upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the
Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of
the National Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion
as to when he shall initially convene the interim National Assembly.

Speaking for the majority opinion in that case, Justice Makasiar

said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the
prevailing conditions of peace and order in the country."
Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the
Constitutional Convention voted on the Transitory Provisions, they
were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene
the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened 'immediately', made by Delegate Pimentel (V) was
rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people
themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In
the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened
was eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were
against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that
body is not in the usual function of lawmaking. lt is not legislating
when engaged in the amending process.16 Rather, it is exercising
a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI of
the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the National Assembly).
While ordinarily it is the business of the legislating body to
legislate for the nation by virtue of constitutional conferment
amending of the Constitution is not legislative in character. In
political science a distinction is made between constitutional
content of an organic character and that of a legislative character'.
The distinction, however, is one of policy, not of law. 17Such being
the case, approval of the President of any proposed amendment is
a misnomer 18 The prerogative of the President to approve or
disapprove applies only to the ordinary cases of legislation. The

President has nothing to do with proposition or adoption of

amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the
Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of
the separation of powers is, as Madison wrote in the Federalist, No.
47, 'the very definition of tyranny.' In normal times the separation
of powers forms a distinct obstruction to arbitrary governmental
action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of
the state and its independent existence. There are moments in the
life of any government when all powers must work together in
unanimity of purpose and action, even if this means the temporary
union of executive, legislative, and judicial power in the hands of
one man. The more complete the separation of powers in a
constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and
presidential systems of government. In the former the allimportant harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship.
The power of the state in crisis must not only be concentrated and
expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other
hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of

special exigencies for which the legislative power had not

provided. 22 The rationale behind such broad emergency powers of
the Executive is the release of the government from "the paralysis
of constitutional restrains" so that the crisis may be ended and
normal times restored.
2. The presidential exercise of legislative powers in time of martial
law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus: 23
The incumbent President of the Philippines shall
initially convene the interim National Assembly and
shall preside over its sessions until the interim
Speaker shall have been elected. He shall continue
to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and
the powers vested in the President and the Prime
Minister under this Constitution until the calls upon
the interim National Assembly to elect the interim
President and the interim Prime Minister, who shall
then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and
acts promulgated, issued, or done by the incumbent
President shall be part of the law of the land, and
shall remain valid, binding, and efective even after
lifting of martial law or the ratification of this
Constitution,
unless
modified,
revoked,
or
superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified
or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while
giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be
convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an
extremely important factor in any constitutional dictatorship which
extends over a period of time. The separation of executive and

legislature ordained in the Constitution presents a distinct

obstruction to efficient crisis government. The steady increase in
executive power is not too much a cause for as the steady increase
in the magnitude and complexity of the problems the President has
been called upon by the Filipino people to solve in their behalf,
which involve rebellion, subversion, secession, recession, inflation,
and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power
as Commander-in-Chief to the direction of the operation of the
national forces, yet the facts of our political, social, and economic
disturbances had convincingly shown that in meeting the same,
indefinite power should be attributed to tile President to take
emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition
period. However, the initial convening of that Assembly is a matter
fully addressed to the judgment of the incumbent President. And,
in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's
preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim
National Assembly upon special call by the President (See. 15 of
the Transitory Provisions). Again, harking to the dictates of the
sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption
of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative
functions of the interim Assembly, there is no reason why he
cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although
peculiar, to its gross legislative power. This, of course, is not to say
that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only

the Presidency and the Supreme Court in operation, the urges of

absolute necessity render it imperative upon the President to act
as agent for and in behalf of the people to propose amendments to
the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments
without constitutional infractions. For the President to shy away
from that actuality and decline to undertake the amending process
would leave the governmental machineries at a stalemate or
create in the powers of the State a destructive vacuum, thereby
impeding the objective of a crisis government "to end the crisis
and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the
people reigns supreme. After all, constituent assemblies or
constitutional conventions, like the President now, are mere agents
of the people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations,
Sanggunians in 1,458 municipalities, 72 provinces, 3 subprovinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim
National Assembly. Other issues concerned the lifting of martial
law and amendments to the Constitution .27 The national
organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise
by the President of its present powers in a referendum to be held
on October 16 . 28 The Batasang Bayan (legislative council) created
under Presidential Decree 995 of September 10, 1976, composed
of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the
Katipunan ng mga Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October 16, the previously
quoted proposed amendments to the Constitution, including the
issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the
proposed amendments to the people on October 16. All the
foregoing led the President to initiate the proposal of amendments
to the Constitution and the subsequent issuance of Presidential
Decree No, 1033 on September 22, 1976 submitting the questions

(proposed amendments) to the people in the National ReferendumPlebiscite on October 16.

V
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary
state is easily seen. In the Philippines, a republican and unitary
state, sovereignty "resides in the people and all government
authority emanates from them.30 In its fourth meaning, Savigny
would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest
power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is
sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the
absence of express constitutional prohibition. 33 This is because, as
Holmes said, the Constitution "is an experiment, as all life is all
experiment." 34 "The necessities of orderly government," wrote
Rottschaefer, "do not require that one generation should be
permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the
people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the
people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the
collated thoughts of the sovereign will reduced only into enabling
forms by the authority who can presently exercise the powers of
the government. In equal vein, the submission of those proposed
amendments and the question of martial law in a referendumplebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may
well be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The
question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may participate.
This was prompted by the desire of the Government to reach the
larger mas of the people so that their true pulse may be felt to
guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only those
of voting age of 18 years may participate. This is the plebiscite
aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes
of those 18 years old and above which will have valid bearing on
the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite
question does not infirm the referendum-plebiscite. There is
nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of
proposed constitutional amendments. The fear of commingled
votes (15-year olds and 18-year olds above) is readily dispelled by
the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen
years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of
the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite
shall be separately prepared for the age groupings, i.e., ballots
contained in each of the two boxes. 38

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

"plebiscite." A "referendum" is merely consultative in character. It
is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of
which is derived from or within the totality of the executive power
of the President. 39It is participated in by all citizens from the age of
fifteen, regardless of whether or not they are illiterates, feebleminded, or ex- convicts . 40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six
months preceding the election Literacy, property or any other
substantive requirement is not imposed. It is generally associated
with the amending process of the Constitution, more particularly,
the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime
of martial law stultifies in main the freedom to dissent. That speaks
of a bygone fear. The martial law regime which, in the observation
of Justice Fernando, 41 is impressed with a mild character recorded
no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendumplebiscite on October 16 recognizes all the embracing freedoms of
expression and assembly The President himself had announced
that he would not countenance any suppression of dissenting
views on the issues, as he is not interested in winning a "yes" or
"no" vote, but on the genuine sentiment of the people on the
issues at hand. 42 Thus, the dissenters soon found their way to the
public forums, voicing out loud and clear their adverse views on
the proposed amendments and even (in the valid ratification of the
1973 Constitution, which is already a settled matter. 43 Even
government employees have been held by the Civil Service
Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues. 44
VIII
Time for deliberation
is not short.

1. The period from September 21 to October 16 or a period of 3

weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since
the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not
without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's
sufrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional
amendment to append as ordinance the complicated TydingsKocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional amendments providing for
the bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20
days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity Amendment,
an involved constitutional amendment afecting the economy as
well as the independence of the Republic was publicized in three
consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no
provision as to the specific date when the plebiscite shall be held,
but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant
conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may
act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the
natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity
therefor that amendments are to be proposed, the reasonable
implication being that when proposed, they are to be considered
and disposed of presently, and third, ratification is but the
expression of the approbation of the people, hence, it must be
done contemporaneously. 47 In the words of Jameson, "(a)n
alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early

while that sentiment may fairly be supposed to exist. it ought to be

regarded as waived, and not again to be voted upon, unless a
second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President
possess power to propose amendments to the Constitution as well
as set up the required machinery and prescribe the procedure for
the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper
submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
Justices Enrique M. Fernando, Claudio Teehankee, Antonio P.
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is
political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition
that there is concentration of powers in the Executive during
periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the
view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however that

the period of time may be extended. Associate Justices Fernando,

Makasiar and Antonio are of the view that the question is political
and therefore beyond the competence and cognizance of this
Court, Associate Justice Fernando adheres to his concurrence in the
opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21
SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold
that prescinding from the President's lack of authority to exercise
the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient
information and time to assure intelligent consent or rejection
under the standards set by this Court in the controlling cases of
Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the
three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate
Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions
are hereby dismissed. This decision is immediately executory.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or

Restraining Order filed by petitioners, in their own behalf and all
others allegedly similarly situated, seeking to enjoin respondent
Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Big. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former
Governor of Nueva Vizcaya, who has filed his certificate of
candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a
taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws of
the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a
qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of
section 4 of Batas Pambansa Blg. 52 as discriminatory and
contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to
violation of section 10 of Art. XI I-C of the
Constitution and disqualification mentioned in
existing laws, which are hereby declared as
disqualification for any of the elective officials
enumerated in section 1 hereof.
Any retired elective provincial city or municipal
official who has received payment of the retirement
benefits to which he is entitled under the law, and
who shall have been 6,5 years of age at the
commencement of the term of office to which he
seeks to be elected shall not be qualified to run for
the same elective local office from which he has
retired (Emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed

insidiously against him, and that the classification provided therein
is based on "purely arbitrary grounds and, therefore, class
legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity
of the following statutory provisions:
Sec 7. Terms of Office Unless sooner removed for
cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6)
years, which shall commence on the first Monday of
March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty
to the State, including acts amounting to subversion,
insurrection, rebellion or other similar crimes, shall
not be qualified to be a candidate for any of the
offices covered by this Act, or to participate in any
partisan political activity therein:
provided that a judgment of conviction for any of
the aforementioned crimes shall be conclusive
evidence of such fact and
the filing of charges for the commission of such
crimes before a civil court or military tribunal after
preliminary investigation shall be prima fascie
evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and
Emphasis supplied).
Section 1. Election of certain Local Officials ... The
election shall be held on January 30, 1980. (Batas
Pambansa, Blg. 52)

Section 6. Election and Campaign Period The

election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of
the Constitution. The period of campaign shall
commence on December 29, 1979 and terminate on
January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and
Salapantan, Jr. also question the accreditation of some political
parties by respondent COMELEC, as authorized by Batas Pambansa
Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of
the Constitution, which provides that a "bona fide candidate for
any public office shall be it. from any form of harassment and
discrimination. "The question of accreditation will not be taken up
in this case but in that of Bacalso, et als. vs. COMELEC et als. No.
L-52232) where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have
challenged be declared null and void for being violative of the
Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition sufers from
basic procedural infirmities, hence, traditionally unacceptable for
judicial resolution. For one, there is a misjoinder of parties and
actions. Petitioner Dumlao's interest is alien to that of petitioners
Igot and Salapantan Petitioner Dumlao does not join petitioners
Igot and Salapantan in the burden of their complaint, nor do the
latter join Dumlao in his. The respectively contest completely
diferent statutory provisions. Petitioner Dumlao has joined this suit
in his individual capacity as a candidate. The action of petitioners
Igot and Salapantan is more in the nature of a taxpayer's suit.
Although petitioners plead nine constraints as the reason of their
joint Petition, it would have required only a modicum more of efort
tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the
interest of orderly procedure.

For another, there are standards that have to be followed inthe

exercise of the function of judicial review, namely (1) the existence
of an appropriate case:, (2) an interest personal and substantial by
the party raising the constitutional question: (3) the plea that the
function be exercised at the earliest opportunity and (4) the
necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied
with, which is, that the parties have raised the issue of
constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three
criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the
determination of actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first
paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier,
as being contrary to the equal protection clause guaranteed by the
Constitution, and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not been adversely
afected by the application of that provision. No petition seeking
Dumlao's disqualification has been filed before the COMELEC.
There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question
posed in the abstract, a hypothetical issue, and in efect, a petition
for an advisory opinion from this Court to be rendered without the
benefit of a detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion of
now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96
[1978]) of respondent COMELEC as provided for in section 2, Art.
XII-C, for the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following
power and functions:

1) xxx
2) Be the sole judge of all contests relating to the
elections, returns and qualifications of all members
of the National Assembly and elective provincial and
city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of
Art. XII-C, which provides:
Section 11. Any decision, order, or ruling of the
Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty
days from his receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the
validity of a statute must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during
the hearing, not in their Petition, that Igot is said to be a candidate
for Councilor. Even then, it cannot be denied that neither one has
been convicted nor charged with acts of disloyalty to the State, nor
disqualified from being candidates for local elective positions.
Neither one of them has been calle ed to have been adversely
afected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no
personal nor substantial interest at stake. In the absence of any
litigate interest, they can claim no locus standi in seeking judicial
redress.
It is true that petitioners Igot and Salapantan have instituted this
case as a taxpayer's suit, and that the rule enunciated in People
vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may

be contested only by one who will sustain a direct
injury in consequence of its enforcement. Yet, there
are many decisions nullifying at the instance of
taxpayers, laws providing for the disbursement of
public funds, upon the theory that "the expenditure
of public funds, by an officer of the State for the
purpose of administering an unconstitutional act
constitutes a misapplication of such funds," which
may be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest
essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that
not only persons individually afected, but also
taxpayers have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation and
they may, therefore, question the constitutionality of
statutes requiring expenditure of public moneys.
(Philippine Constitution Association, Inc., et als., vs.
Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely,
sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not
directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege
that their tax money is "being extracted and spent in violation of
specific constitutional protections against abuses of legislative
power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual
vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public
money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law.
(Philippine Constitution Association vs. Mathay, 18 SCRA 300
[1966]), citing Philippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per

se is no assurance of judicial review. As held by this Court in Tan

vs. Macapagal (43 SCRA 677 [1972]), speaking through our present
Chief Justice, this Court is vested with discretion as to whether or
not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule
that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised
and presented in appropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must
be the very lis mota presented."
We have already stated that, by the standards set forth in People
vs. Vera, the present is not an "appropriate case" for either
petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for
resolving the issue of constitutionality is absent, and procedural
regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the
challenged provisions, the Courts not being entirely without
discretion in the matter. Thus, adherence to the strict procedural
standard was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu
vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27
SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons
which have impelled us are the paramount public interest involved
and the proximity of the elections which will be held only a few
days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is

discriminatory against him personally is belied by the fact that
several petitions for the disqualification of other candidates for
local positions based on the challenged provision have already
been filed with the COMELEC (as listed in p. 15, respondent's
Comment). This tellingly overthrows Dumlao's contention of
intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer
guard of equal protection is neither well taken. The constitutional
guarantee of equal protection of the laws is subject to rational
classification. If the groupings are based on reasonable and real
diferentiations, one class can be treated and regulated diferently
from another class. For purposes of public service, employees 65
years of age, have been validly classified diferently from younger
employees. Employees attaining that age are subject to
compulsory retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to
require that candidates should not be more than 65 years of age at
the time they assume office, if applicable to everyone, might or
might not be a reasonable classification although, as the Solicitor
General has intimated, a good policy of the law would be to
promote the emergence of younger blood in our political elective
echelons. On the other hand, it might be that persons more than
65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government
service may or may not be a reasonable disqualification for
elective local officials. For one thing, there can also be retirees
from government service at ages, say below 65. It may neither be
reasonable to disqualify retirees, aged 65, for a 65 year old retiree
could be a good local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local official, who has
retired from a provincial, city or municipal office, there is reason to
disqualify him from running for the same office from which he had
retired, as provided for in the challenged provision. The need for

new blood assumes relevance. The tiredness of the retiree for

government work is present, and what is emphatically significant is
that the retired employee has already declared himself tired and
unavailable for the same government work, but, which, by virtue of
a change of mind, he would like to assume again. It is for this very
reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal
protection neither does it permit of such denial (see People vs.
Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly
treated.
In fine, it bears reiteration that the equal protection clause does
not forbid all legal classification. What is proscribes is a
classification which is arbitrary and unreasonable. That
constitutional guarantee is not violated by a reasonable
classification based upon substantial distinctions, where the
classification is germane to the purpose of the law and applies to
all Chose belonging to the same class (Peralta vs. Comelec, 82
SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael
v. Embroidery and Apparel Control and Inspection Board, 21 SCRA
336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155
[1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question
being pursuant to that purpose, it cannot be considered invalid
"even it at times, it may be susceptible to the objection that it is
marred by theoretical inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of
the clear invalidity of the questioned provision. Well accepted is
the rule that to justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach. Courts are practically unanimous in the
pronouncement that laws shall not be declared invalid unless the
conflict with the Constitution is clear beyond reasonable doubt
(Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair
4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56).
Lastly, it is within the compentence of the legislature to prescribe
qualifications for one who desires to become a candidate for office
provided they are reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the

second paragraph of section 4 of Batas Pambansa Blg. 52, quoted
in full earlier, and which they challenge, may be divided in two
parts. The first provides:
a. judgment of conviction jor any of the
aforementioned crimes shall be conclusive evidence
of such fact ...
The supremacy of the Constitution stands out as the cardinal
principle. We are aware of the presumption of validity that
attaches to a challenged statute, of the well-settled principle that
"all reasonable doubts should be resolved in favor of
constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs.
Vera, supra). We are constrained to hold that this is one such clear
case.
Explicit is the constitutional provision that, in all criminal
prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from
running for public office on the ground alone that charges have
been filed against him before a civil or military tribunal. It
condemns before one is fully heard. In ultimate efect, except as to
the degree of proof, no distinction is made between a person
convicted of acts of dislotalty and one against whom charges have
been filed for such acts, as both of them would be ineligible to run
for public office. A person disqualified to run for public office on the
ground that charges have been filed against him is virtually placed
in the same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory penalty
of suspension of the right to hold office during the term of the
sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima
facie evidence, and therefore, may be rebutted, yet. there is "clear

and present danger" that because of the proximity of the elections,

time constraints will prevent one charged with acts of disloyalty
from ofering contrary proof to overcome the prima facie evidence
against him.

existing laws which are hereby declared as

disqualification for any of the elective officials
enumerated in Section 1 hereof, any retired elective
provincial, city or municipal official, who has
received payment of the retirement benefits to
which he is entitled under the law and who shall
have been 65 years of age at the commencement of
the term of office to which he seeks to be elected,
shall not be qualified to run for the same elective
local office from which he has retired.

Additionally, it is best that evidence pro and con of acts of

disloyalty be aired before the Courts rather than before an
administrative body such as the COMELEC. A highly possible
conflict of findings between two government bodies, to the
extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt
should not be allowed to be substituted for a judicial
determination.

2) That portion of the second paragraph of section 4

of Batas Pambansa Bilang 52 providing that "... the
filing of charges for the commission of such crimes
before a civil court or military tribunal after
preliminary
investigation
shall
be prima
facie evidence of such fact", is hereby declared null
and void, for being violative of the constitutional
presumption of innocence guaranteed to an
accused.

Being infected with constitutional infirmity, a partial declaration of

nullity of only that objectionable portion is mandated. It is
separable from the first portion of the second paragraph of section
4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas
pambansa Bilang 52 is hereby declared valid. Said paragraph
reads:
SEC. 4. Special disqualification. In addition to
violation of Section 10 of Article XII(C) of the
Constitution and disqualifications mentioned in

SO ORDERED.