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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1123

March 5, 1947

ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.
Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio Araneta, Antonio Barredo, and Jose W. Diokno
for petitioners.
Secretary of Justice Ozaeta, Solicitor General Taada, and First Assistant Solicitor General Reyes for respondents.
TUASON, J.:
This is a petition for prohibition to prevent the enforcement of a congressional resolution designated "Resolution of both houses
proposing an amendment to the Constitution of the Philippines to be appended as an ordinance thereto." The members of the
Commission on Elections, the Treasurer of the Philippines, the Auditor General, and the Director of the Bureau of Printing are
made defendants, and the petitioners are eight senators, seventeen representatives, and the presidents of the Democratic
Alliance, the Popular Front and the Philippine Youth Party. The validity of the above-mentioned resolution is attacked as contrary
to the Constitution.
The case was heard on the pleadings and stipulation of facts. In our view of the case it is unnecessary to go into the facts at
length. We will mention only the facts essential for the proper understanding of the issues. For this purpose it suffices to say that
three of the plaintiff senators and eight of the plaintiff representatives had been proclaimed by a majority vote of the Commission
on Elections as having been elected senators and representatives in the elections held on April 23, 1946. The three senators
were suspended by the Senate shortly after the opening of the first session of Congress following the elections, on account of
alleged irregularities in their election. The eight representatives since their election had not been allowed to sit in the lower
House, except to take part in the election of the Speaker, for the same reason, although they had not been formally suspended. A
resolution for their suspension had been introduced in the House of Representatives, but that resolution had not been acted upon
definitely by the House when the present petition was filed.
As a consequence these three senators and eight representatives did not take part in the passage of the questioned resolution,
nor was their membership reckoned within the computation of the necessary three-fourths vote which is required in proposing an
amendment to the Constitution. If these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of Congress.
At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny that this Court has
jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or resolution. There is some merit in the petitioners'
contention that this is confusing jurisdiction, which is a matter of substantive law, with conclusiveness of an enactment or
resolution, which is a matter of evidence and practice. This objection, however, is purely academic. Whatever distinction there is
in the juridical sense between the two concepts, in practice and in their operation they boil down to the same thing. Basically the
two notions are synonymous in that both are founded on the regard which the judiciary accords a co-equal coordinate, and
independent departments of the Government. If a political question conclusively binds the judges out of respect to the political
departments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.
It is a doctrine too well established to need citation of authorities, that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express
constitutional or statutory provision. (16 C.J.S., 431.) This doctrine is predicated on the principle of the separation of powers, a
principle also too well known to require elucidation or citation of authorities. The difficulty lies in determining what matters fall
within the meaning of political question. The term is not susceptible of exact definition, and precedents and authorities are not
always in full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the actions of the political
departments of the government.
But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent decision of the United States
Supreme Court reported and annotated in 122 A.L.R., 695. The case, by a majority decision delivered by Mr. Chief Justice
Hughes, is authority for the conclusion that the efficacy of ratification by state legislature of a proposed amendment to the
Federal Constitution is a political question and hence not justiciable. The Court further held that the decision by Congress, in its
control of the Secretary of State, of the questions of whether an amendment has been adopted within a reasonable time from the
date of submission to the state legislature, is not subject to review by the court.
If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The two
steps complement each other in a scheme intended to achieve a single objective. It is to be noted that the amendatory process
as provided in section 1 of Article XV of the Philippine Constitution "consists of (only) two distinct parts: proposal and ratification."
There is no logic in attaching political character to one and withholding that character from the other. Proposal to amend the
Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its
charge by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on
grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for
judicial inquiry into the validity of a proposal than into that of a ratification. As the Mississippi Supreme Court has once said:
There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or
that could render it dangerous to the stability of the government; because the measure derives all its vital force
from the action of the people at the ballot box, and there can never be danger in submitting in an established
form, to a free people, the proposition whether they will change their fundamental law. The means provided for
the exercise of their sovereign right of changing their constitution should receive such a construction as not to
trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of

free government, which is inherent in the people; and the best security against tumult and revolution is the free
and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by the
instrument. (Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)
Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in Miller vs.Coleman, supra,
finds no basis for discriminating between proposal and ratification. From his forceful opinion we quote the following paragraphs:
The Constitution grant Congress exclusive power to control submission of constitutional amendments. Final
determination by Congress that ratification by three-fourths of the States has taken place "is conclusive upon the
courts." In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether
submission, intervening procedure or Congressional determination of ratification conforms to the commands of
the Constitution, call for decisions by a "political department" of questions of a type which this Court has
frequently designated "political." And decision of a "political question" by the "political department" to which the
Constitution has committed it "conclusively binds the judges, as well as all other officers, citizens and subjects of .
. . government." Proclamation under authority of Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its
traditional authority of interpretation. To the extent that the Court's opinion in the present case even impliedly
assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable to agree.
The State court below assumed jurisdiction to determine whether the proper procedure is being followed between
submission and final adoption. However, it is apparent that judicial review of or pronouncements upon a
supposed limitation of a "reasonable time" within which Congress may accept ratification; as to whether duly
authorized State officials have proceeded properly in ratifying or voting for ratification; or whether a State may
reverse its action once taken upon a proposed amendment; and kindred questions, are all consistent only with an
intimate control over the amending process in the courts. And this must inevitably embarrass the course of
amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely
to the political branch of government.
The Court here treats the amending process of the Constitution in some respects as subject to judicial
construction, in others as subject to the final authority of the Congress. There is no disapproval of the conclusion
arrived at in Dillon vs. Gloss, that the Constitution impliedly requires that a properly submitted amendment must
die unless ratified within a "reasonable time." Nor does the Court now disapprove its prior assumption of power to
make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if
there is any such implication in Article 5 of the Constitution. On the other hand, the Court's opinion declares that
Congress has the exclusive power to decide the "political questions" of whether as State whose legislature has
once acted upon a proposed amendment may subsequently reverse its position, and whether, in the
circumstances of such a case as this, an amendment is dead because an "unreasonable" time has elapsed. No
such division between the political and judicial branches of the government is made by Article 5 which grants
power over the amending of the Constitution to Congress alone. Undivided control of that process has been given
by the Article exclusively and completely to Congress. The process itself is "political" in its entirely, from
submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control
or interference at any point.
Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed, arrives at the same
conclusion. Though his thesis was the petitioner's lack of standing in court a point which not having been raised by the parties
herein we will not decide his reasoning inevitably extends to a consideration of the nature of the legislative proceeding the
legality of which the petitioners in that case assailed. From a different angle he sees the matter as political, saying:
The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett, 258 U.S., 130; 66 Law.
ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The historic source of this doctrine and the
reasons for it were explained in Nixon vs. Herndon, 273 U.S., 436, 540; 71 Law. ed., 759, 761; 47 S. Ct., 446.
That was an action for $5,000 damages against the Judges of Elections for refusing to permit the plaintiff to vote
at a primary election in Texas. In disposing of the objection that the plaintiff had no cause of action because the
subject matter of the suit was political, Mr. Justice Homes thus spoke for the Court: "Of course the petition
concerns political action, but it alleges and seeks to recover for private damage. That private damage may be
caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two
hundred years, since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld.
Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this Court." "Private damage" is the clue to the
famous ruling in Ashby vs. White, supra, and determines its scope as well as that of cases in this Court of which it
is the justification. The judgment of Lord Holt is permeated with the conception that a voter's franchise is a
personal right, assessable in money damages, of which the exact amount "is peculiarly appropriate for the
determination of a jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for which
there is no remedy outside the law courts. "Although this matter relates to the parliament," said Lord Holt, "yet it is
an injury precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston vs. Some, 2 Lev.,
114, 116; 83 Eng. Reprint, 175. The parliament cannot judge of this injury, nor give damage to the plaintiff for it:
they cannot make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521.)
The reasoning of Ashby vs. White and the practice which has followed it leave intra-parliamentary controversies
to parliaments and outside the scrutiny of law courts. The procedures for voting in legislative assemblies who
are members, how and when they should vote, what is the requisite number of votes for different phases of
legislative activity, what votes were cast and how they were counted surely are matters that not merely
concern political action but are of the very essence of political action, if "political" has any connotation at all.
Marshall Field & Co. vs. Clark, 143 U.S., 649, 670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495;
Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511; 42 S. Ct., 217. In no sense are they matters of
"private damage." They pertain to legislators not as individuals but as political representatives executing the
legislative process. To open the law courts to such controversies is to have courts sit in judgment on the manifold
disputes engendered by procedures for voting in legislative assemblies. If the doctrine of Ashby vs. White
vindicating the private rights of a voting citizen has not been doubted for over two hundred years, it is equally
significant that for over two hundred years Ashby vs. White has not been sought to be put to purposes like the
present. In seeking redress here these Kansas senators have wholly misconceived the functions of this Court.
The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.
We share the foregoing views. In our judgment they accord with sound principles of political jurisprudence and represent liberal
and advanced thought on the working of constitutional and popular government as conceived in the fundamental law. Taken as
persuasive authorities, they offer enlightening understanding of the spirit of the United States institutions after which ours are
patterned.

But these concurring opinions have more than persuasive value. As will be presently shown, they are the opinions which should
operate to adjudicate the questions raised by the pleadings. To make the point clear, it is necessary, at the risk of unduly
lengthening this decision, to make a statement and an analysis of the Coleman vs. Miller case. Fortunately, the annotation on
that case in the American Law Reports, supra, comes to out aid and lightens our labor in this phase of the controversy.
Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of Kansas by twenty-one members of
the Senate, including twenty senators who had voted against a resolution ratifying the Child Labor Amendment, and by three
members of the House of Representatives, to compel the Secretary of the Senate to erase in indorsement on the resolution to
the effect that it had been adopted by the Senate and to indorse thereon the words "as not passed." They sought to restrain the
offices of the Senate and House of Representatives from signing the resolution, and the Secretary of State of Kansas from
authenticating it and delivering it to the Governor.
The background of the petition appears to have been that the Child Labor Amendment was proposed by Congress in June, 1924;
that in January, 1925, the legislature of Kansad adopted a resolution rejecting it and a copy of the resolution was sent to the
Secretary of State of the United States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying
the proposed amendment; that there were forty senators, twenty of whom voted for and twenty against the resolution; and that as
a result of the tie, the Lieutenant Governor cast his vote in favor of the resolution.
The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior rejection of the proposed
amendment and alleged that in the period from June 1924 to March 1927, the proposed amendment had been rejected by both
houses of the legislatures of twenty-six states and had been ratified only in five states, and that by reason of that rejection and
the failure of ratification within a reasonable time, the proposed amendment had lost its vitality.
The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition on the merits. When the case
reached the Supreme Court of the United States the questions were framed substantially in the following manner:
First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have the judgment of the state
court reversed; second, whether the Lieutenant Governor had the right to vote in case of a tie, as he did, it being the contention
of the petitioners that "in the light of the powers and duties of the Lieutenant Governor and his relation to the Senate under the
state Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a part of the 'legislature' so
that under Article 5 of the Federal Constitution, he could be permitted to have a deciding vote on the ratification of the proposed
amendment, when the Senate was equally divided"; and third, the effect of the previous rejection of the amendment and of the
lapse of time after its submission.
The first question was decided in the affirmative. The second question, regarding the authority of the Lieutenant Governor to
vote, the court avoided, stating: "Whether this contention presents a justiciable controversy, or a question which is political in its
nature and hence not justiciable, is a question upon which the Court is equally divided and therefore the court expresses no
opinion upon that point." On the third question, the Court reached the conclusion before referred to, namely, (1) that the efficacy
of ratification by state legislature of a proposed amendment to the Federal Constitution is a political question, within the ultimate
power of Congress in the exercise of its control and of the promulgation of the adoption of amendment, and (2) that the decision
by Congress, in its control of the action of the Secretary of State, of the questions whether an amendment to the Federal
Constitution has been adopted within a reasonable time, is not subject to review by the court.
The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the grounds stated in the United States
Supreme Court's decision. The nine justices were aligned in three groups. Justices Roberts, Black, Frankfurter and Douglas
opined that the petitioners had no personality to bring the petition and that all the questions raised are political and non-justiciable
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had jurisdiction of all such
questions, and that the petition should have been granted and the decision of the Supreme Court of Kansas reversed on the
ground that the proposal to amend had died of old age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded
some of the issues as political and non-justiciable, passed by the question of the authority of the Lieutenant Governor to case a
deciding vote, on the ground that the Court was equally divided, and took jurisdiction of the rest of the questions.
The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on the one hand and the Chief Justice, Mr.
Justice Stone and Mr. Justice Reed, on the other, was on the question of jurisdiction; on the result to be reached, these two
groups were divided. The agreement between Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief
Justice and Justices Stone and Reed, on the other, was on the result and on that part of the decision which declares certain
questions political and non-justiciable.
As the annotator in American Law Reports observes, therefore going four opinions "show interestingly divergent but confusing
positions of the Justices on the issues discussed. "It cites an article in 48 Yale Law Journal, 1455, amusingly entitled "Sawing a
Justice in Half," which, in the light of the divergencies in the opinions rendered, aptly queries" whether the proper procedure for
the Supreme Court would not have been to reverse the judgment below and direct dismissal of the suit for want of jurisdiction." It
says that these divergencies and line-ups of the justices "leave power to dictate the result and the grounds upon which the
decision should be rested with the four justices who concurred in Mr. Justice Black's opinion." Referring to the failure of the Court
to decide the question of the right of the Lieutenant Governor to vote, the article points out that from the opinions rendered the
"equally divided" court would seem under any circumstances to bean equal division of an odd number of justices, and asks
"What really did happen? Did a justice refuse to vote on this issue? And if he did, was it because he could not make up his mind,
or is it possible to saw a justice vertically in half during the conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not be avoided on grounds of irrelevance, since if the court
had jurisdiction of the case, decision of the issue in favor of the petitioners would have required reversal of the judgment below
regardless of the disposal of the other issues.
From this analysis the conclusion is that the concurring opinions should be considered as laying down the rule of the case.
The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution imports absolute verity and is
binding on the courts. This is the rule prevailing in England. In the United States, "In point of numbers, the jurisdictions are
divided almost equally pro and con the general principle (of these, two or three have changed from their original position), two or
three adopted a special variety of view (as in Illinois), three or four are not clear, and one or two have not yet made their
decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to bear in mind, in this connection, that the United
States Supreme Court is on the side of those which favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood,
38 Law. ed., 854; Field vs. Clark, 36 Law. ed., 294.)
If for no other reason than that it conforms to the expressed policy of our law making body, we choose to follow the rule. Section
313 of the old Code of Civil Procedure, as amended by Act No. 2210, provides: "Official documents may be proved as
follows: . . . (2) the proceedings of the Philippine Commission, or of any legislative body that may be provided for in the Philippine
Islands, or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or resolutions, or by
copies certified by the clerk or secretary, or printed by their order; Provided, That in the case of Acts of the Philippine Commission
or the Philippine Legislature, when there is an existence of a copy signed by the presiding officers and secretaries of said bodies,

it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof."
But there is more than statutory sanction for conclusiveness.
This topic has been the subject of a great number of decisions and commentaries written with evident vehemence. Arguments for
and against the rule have been extensive and exhaustive. It would be presumptuous on our part to pretend to add more, even if
we could, to what has already been said. Which such vast mass of cases to guide our judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion of adaptability to a sound public
policy.
The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our opinion, almost decisive.
Some of these reasons are summarized in 50 American Jurisprudence, section 150 as follows:
SEC. 150. Reasons for Conclusiveness. It has been declared that the rule against going behind the enrolled
bill is required by the respect due to a coequal and independent department of the government, and it would be
an inquisition into the conduct of the members of the legislature, a very delicate power, the frequent exercise of
which must lead to endless confusion in the administration of the law. The rule is also one of convenience,
because courts could not rely on the published session laws, but would be required to look beyond these to the
journals of the legislature and often to any printed bills and amendments which might be found after the
adjournment of the legislature. Otherwise, after relying on the prima facie evidence of the enrolled bills,
authenticated as exacted by the Constitution, for years, it might be ascertained from the journals that an act
theretofore enforced had never become a law. In this respect, it has been declared that these is quite enough
uncertainty as to what the law is without saying that no one may be certain that an act of the legislature has
become such until the issue has been determined by some court whose decision might not be regarded as
conclusive in an action between the parties.
From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these passages:
I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things would be more
mischievous than the introduction of the opposite rule. . . . The rule contended for is that the Court should look at
the journals of the Legislature to ascertain whether the copy of the act attested and filed with the Secretary of
State conforms in its contents with the statements of such journals. This proposition means, if it has any legal
value whatever, that, in the event of a material discrepancy between the journal and the enrolled copy, the former
is to be taken as the standard of veracity and the act is to be rejected. This is the test which is to be applied not
only to the statutes now before the Court, but to all statutes; not only to laws which have been recently passed,
but to laws the most ancient. To my mind, nothing can be more certain than that the acceptance of this doctrine
by the Court would unsettle the entire statute law of the State. We have before us some evidence of the little
reliability of these legislative journals. . . . Can any one deny that if the laws of the State are to be tested by a
comparison with these journals, so imperfect, so unauthenticated, the stability of all written law will be shaken to
its very foundations? . . . We are to remember the danger, under the prevalence of such a doctrine, to be
apprehended from the intentional corruption of evidences of this character. It is scarcely too much to say that the
legal existence of almost every legislative act would be at the mercy of all persons having access to these
journals. . . . ([1866], Beasley, C.J., in Pangborn vs. Young, 32 N.J.L., 29, 34.)
But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a quorum of each
House may be the aid of corrupt presiding officers imposed laws upon the State in defiance of the inhibition of the
Constitution. It must be admitted that the consequence stated would be possible. Public authority and political
power must of necessity be confided to officers, who being human may violate the trusts reposed in them. This
perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit that the Judiciary
should claim for itself a purity beyond all others; nor has it been able at all times with truth to say that its high
places have not been disgraced. The framers of our government have not constituted it with faculties to supervise
coordinate departments and correct or prevent abuses of their authority. It cannot authenticate a statute; that
power does not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in Evans vs. Brownem 30 Ind.,
514, 524.)
Professor Wigmore in his work on Evidence considered a classic, and described by one who himself is a noted jurist, author,
and scholar, as "a permanent contribution to American law" and having "put the matured nineteenth-century law in form to be
used in a new era of growth" unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i.e., the impossibility of securing in any other way
the enforcement of constitutional restrictions on legislative action, says:
(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the Judiciary are bound to
enforce the constitutional requirements of three readings, a two-thirds vote, and the like, and if therefore an act
must be declared no law which in fact was not read three times or voted upon by two-thirds, this duty is a duty to
determine according to the actual facts of the readings and the votes. Now the journals may not represent the
actual facts. That duty cannot allow us to stop with the journals, if it can be shown beyond doubt that the facts
were otherwise than therein represented. The duty to uphold a law which in fact was constitutionally voted upon is
quite as strong as the duty to repudiate an act unconstitutionally voted upon. The Court will be going as far wrong
in repudiating an act based on proper votes falsified in the journal as it will be in upholding an act based on
improper votes falsified in the enrollment. This supposed duty, in short, is to see that the constitutional facts did
exist; and it cannot stop short with the journals. Yet, singularly enough, it is unanimously conceded that an
examination into facts as provable by the testimony of members present is not allowable. If to support that it be
said that such an inquiry would be too uncertain and impracticable, then it is answered that this concedes the
supposed constitutional duty not to be inexorable, after all; for if the duty to get at the facts is a real and inevitable
one, it must be a duty to get at them at any cost; and if it is merely a duty that is limited by policy and practical
convenience, then the argument changes into the second one above, namely, how far it is feasible to push the
inquiry with regard to policy and practical convenience; and from this point of view there can be but one answer.
(2) In the second place, the fact that the scruple of constitutional duty is treated thus inconsistently and pushed
only up to a certain point suggests that it perhaps is based on some fallacious assumption whose defect is
exposed only by carrying it to its logical consequences. Such indeed seems to be the case. It rests on the
fallacious motion that every constitutional provision is "per se" capable of being enforced through the Judiciary
and must be safeguarded by the Judiciary because it can be in no other way. Yet there is certainly a large field of
constitutional provision which does not come before the Judiciary for enforcement, and may remain unenforced
without any possibility or judicial remedy. It is not necessary to invoke in illustration such provisions as a clause
requiring the Governor to appoint a certain officer, or the Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor or Legislature to act, and yet the Judiciary cannot
safeguard and enforce the constitutional duty. A clearer illustration may be had by imagining the Constitution to
require the Executive to appoint an officer or to call out the militia whenever to the best of his belief a certain state

of facts exists; suppose he appoints or calls out when in truth he has no such belief; can the Judiciary attempt to
enforce the Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the Legislators to
pass a law upon a certain subject whenever in their belief certain conditions exist; can the Judiciary declare the
law void by inquiring and ascertaining that the Legislature, or its majority, did not have such a belief? Or suppose
the Constitution commands the Judiciary to decide a case only after consulting a soothsayer, and in a given case
the Judiciary do not consult one; what is to be done?
These instances illustrate a general situation in which the judicial function of applying and enforcing the
Constitution ceases to operate. That situation exists where the Constitution enjoins duties which affect the
motives and judgment of a particular independent department of government, Legislature, Executive, and
Judiciary. Such duties are simply beyond enforcement by any other department if the one charged fails to perform
them. The Constitution may provide that no legislator shall take a bribe, but an act would not be treated as void
because the majority had been bribed. So far as the Constitution attempts to lay injunctions in matters leading up
to and motivating the action of a department, injunctions must be left to the conscience of that department to obey
or disobey. Now the act of the Legislature as a whole is for this purpose of the same nature as the vote of a single
legislator. The Constitution may expressly enjoin each legislator not to vote until he has carefully thought over the
matter of legislation; so, too, it may expressly enjoin the whole Legislature not to act finally until it has three times
heard the proposition read aloud. It is for the Legislature alone, in the latter case as well as in the former, to take
notice of this injunction; and it is no more the function of the Judiciary in the one case than in the other to try to
keep the Legislature to its duty:
xxx

xxx

xxx

The truth is that many have been carried away with the righteous desire to check at any cost the misdoings of
Legislatures. They have set such store by the Judiciary for this purpose that they have almost made them a
second and higher Legislature. But they aim in the wrong direction. Instead of trusting a faithful Judiciary to check
an inefficient Legislature, they should turn to improve the legislature. The sensible solution is not to patch and
mend casual errors by asking the Judiciary to violate legal principle and to do impossibilities with the Constitution;
but to represent ourselves with competent, careful, and honest legislators, the work of whose hands on the
statute-roll may come to reflect credit upon the name of popular government. (4 Wigmore on Evidence, 699-702.)
The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing the case of United
States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in that case to find out whether or not the
contention of the appellant was right. We think the petitioners are in error.
It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act No. 2210, that, roughly, it
provides two methods of proving legislative proceedings: (1) by the journals, or by published statutes or resolutions, or by copies
certified by the clerk or secretary or printed by their order; and (2) in case of acts of the Legislature, by a copy signed by the
presiding officers and secretaries thereof, which shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof.
The Court looked into the journals in United States vs. Pons because, in all probability, those were the documents offered in
evidence. It does not appear that a duly authenticated copy of the Act was in existence or was placed before the Court; and it has
not been shown that if that had been done, this Court would not have held the copyconclusive proof of the due enactment of the
law. It is to be remembered that the Court expressly stated that it "passed over the question" of whether the enrolled bill was
conclusive as to its contents and the mode of its passage.
Even if both the journals and an authenticated copy of the Act had been presented, the disposal of the issue by the Court on the
basis of the journals does not imply rejection of the enrollment theory, for, as already stated, the due enactment of a law may be
proved in either of the two ways specified in section 313 of Act No. 190 as amended. This Court found in the journals no signs of
irregularity in the passage of the law and did not bother itself with considering the effects of an authenticated copy if one had
been introduced. It did not do what the opponents of the rule of conclusiveness advocate, namely, look into the journals behind
the enrolled copy in order to determine the correctness of the latter, and rule such copy out if the two, the journals and the copy,
be found in conflict with each other. No discrepancy appears to have been noted between the two documents and the court did
not say or so much as give to understand that if discrepancy existed it would give greater weight to the journals, disregarding the
explicit provision that duly certified copies "shall be conclusive proof of the provisions of such Acts and of the due enactment
thereof."
In view of the foregoing consideration, we deem it unnecessary to decide the question of whether the senators and
representatives who were ignored in the computation of the necessary three-fourths vote were members of Congress within the
meaning of section 1 of Article XV of the Philippine Constitution.
The petition is dismissed without costs.
Moran, C.J., Pablo, and Hontiveros, JJ., concur.

Separate Opinions

BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for them, because the enrolled copy of the
resolution and the legislative journals are conclusive upon us.
A. The overwhelming majority of the state courts are of the opinion that the question whether an amendment to the existing
constitution has been duly proposed in the manner required by such constitution properly belongs to the judiciary. That is the
position taken by Alabama, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, Ohio, Oregon, Rhode
Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S., 437.) (See also 11 Am. Jur., 639.) Only North Dakota and
Oklahoma have adopted a different view. (16 C.J.S., 437, notes 41 and 43.)
"The authorities are thus practically uniform in holding that whether a constitutional amendment has been
properly adopted according to the requirements of an existing constitution is a judicial question."
(McConaughy vs. Secretary of State, 106 Minn., 392, 409; 119 N.W., 408.) (12 C.J., 880.)

"An examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments. It has been
judicially determined whether a proposed amendment received the constitutional majority of votes.
(Knightvs. Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark., 432; 96 S. W. 396; Green vs. State Canvassers, 5
Ida., 130; 47 P., 259; 95 Am. S.R., 169; In re Denny, 156 Ind., 104; 59 N.E., 359; 51 L. R. A., 722; Dayton vs. St.
Paul, 22 Minn., 400; Tecumseh Nat. Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L.,
289; 43 A., 744, 881; 45 L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6 L.R.A., 422.)" (12 C.J.,
880.)
As our constitutional system ("limitation" of powers) is more analogous to state systems than to the Federal theory of "grant" of
powers, it is proper to assume that the members of our Constitutional convention, composed mostly of lawyers, and even the
members of the American Congress that approved the Tydings-McDuffie enabling legislation, contemplated the adoption of such
constitutional practice in this portion of the world. Hence, my conclusion that in Philippine polity, courts may and should take
cognizance of the subject of this controversy.
B. The petitioners' grievance is that, contrary to the provisions of the Constitution (Article XV), the proposed amendment was not
approved "by a vote of three-fourths of all the members of the Senate and of the House of Representatives." They complain that
certain Senators and some members of the House of Representatives were not allowed to participate and were not considered in
determining the required three fourths vote.
The respondents, besides denying our power to revised the counting, assert that the persons mentioned, for all practical
purposed did not belong to the Congress of the Philippines on the day the amendment was debated and approved.
Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for approval or disapproval, the amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto, proposed by the Congress of the Philippines in a
Resolution of both Houses, etc."
Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides that "the amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto, proposed by the Congress of the Philippines in a
Resolution of both Houses, adopted on September eighteen, nineteen hundred and forty-six, shall be submitted to the people, for
approval or disapproval, at a general election which shall be held on March eleven, nineteen hundred and forty-seven, in
accordance with the provisions of this Act."
By this provision, the Legislative Department with the concurrence of the Executive, declares in the most solemn manner that the
resolution proposing the amendment was duly carried. Therefore, it would be pertinent to inquire whether those petitioners who
are members of the Congress that approved Republic Act No. 73 are not precluded from questioning its validity or veracity,
unless they assert and prove that in Congress they opposed its enactment. In default of a contrary showing, it is not reasonable
to suppose that as members of Congress they endorsed-- or at least are bound by the declarations of Republic Act No. 73?
And if a private party is estopped from challenging the constitutional efficacy of a law whose enactment he has procured (see 16
C.J.S., 198 and 11 Am. Jur., 767) should not a member of Congress be estopped from impugning a statute he helped
(presumably) to pass? Parenthetically it should be added that the remaining petitioners, as mere citizens, would probably have
no suable claim. (Cf. 16 C.J.S., 169.)
C. But perhaps these points should be left to future study and decision, because the instant litigation may be solved by the
application of other well-established principles founded mainly on the traditional respect which one department of the
Government entertains for the actions of the others.
On account of the separation of powers, which I firmly believe, I agree to the applicability and binding effect of section 313 of Act
No. 190, as amended by Act No. 2210, which, in my opinion, has not been abrogated by the Rules of Court. I likewise believe the
soundness of the doctrine expounded by the authoritative Wigmore on a question admittedly within the domain of the law on
evidence: conclusiveness of the enrolled bill of resolution upon the judicial authorities.
D. Withal, should that principle of conclusiveness be denied, the respondents could plausibly fall back on the time-honored rule
that the courts may not go behind the legislative journals to contradict their veracity. (United Statesvs. Pons, 34 Phil., 729.)
According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16) senators approved the resolution against five
(5), with no absences; whereas in the house sixty-eight (68) congressmen voted "yes", eighteen(18) voted "no", one abstained
from voting and one was absent. Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus
5), and 68 being more than three-fourths of the total membership of eighty-eight (88) of the House of Representatives (68 plus 18
plus 1 plus 1), it is crystal clear that the measure was upheld by the number of votes prescribed by the Constitution.
True, there are in the said exhibit statements by two Senators and one congressman to the effect that the votes did not constitute
the majority required by the Constitution. However, in the fact of the incontestable arithmetical computation above shown, those
protests must be attributed to their erroneous counting of votes; none of them having then asserted that "there were absent
Senators or Congressmen who had not been taken into account. "Ford although we might have judicial notice of the number of
proclaimed members of Congress, still we are no better qualified than the Legislature to determine the number of its actual
membership at any given moment, what with demises or demissions, remotions or suspensions.

HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the same in so far as they are not inconsistent
with the applicable reasons supporting my concurring opinion in Vera vs. Avelino (77 Phil., 192). But I dissent from that part of the
majority opinion (page 3, ante) wherein it is stated that if the suspended members of the Senate and House of Representatives
had been counted "the affirmative votes in favor of the proposed amendment would have been short of the necessary threefourths of vote in either branch of Congress."
The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino, supra, are, first, that the questions therein
raised were political in nature within the exclusive province of the legislature, and, second, that the judiciary does not possess
jurisdiction over such questions. It is to me evidence that the questions involved in the present proceeding are no less political
than those involved in that former Senate case. It is deemed unnecessary to dwell at more length upon the grounds of my said
concurring opinion.
The ground for my dissent from the above-quoted statement of the majority opinion in the instant proceeding is that the
suspension of the said members of the Senate and the House of Representatives being a political question, the judiciary, being
without jurisdiction to interfere with the determination thereof by the proper political department of the government, has perforce
to abide by said determination if it were to go any further in the consideration of the case. In other words, any further discussion

of the case in this Court will have to start from the premise that said members have been suspended by the respective Houses of
Congress and that we, being powerless to interfere with the matter of said suspension, must consider ourselves bound by the
determination of said political branches of the government. As said by the Supreme Court of the United States in
Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the political departments of the
government, the judiciary is bound by such action." (Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511;
Kennel vs. Chambers, 14 How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60;
Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)
If, then, we are to proceed, as I think we should, upon the premise that said members have been thus suspended, there will be to
my mind, absolutely no justification, ground nor reason for counting them in the determination of whether or not the required
three-fourths vote was attained. Their case was entirely different from that of members who, not having been suspended nor
otherwise disqualified, had the right to vote upon the resolution. In the case of the latter, they had, like all other members similarly
situated, three alternatives, namely, to vote in favor of the resolution, to vote against it, or to abstain from voting. If they voted in
favor, of course, their votes had to be counted amount those supporting the resolution. If they voted against, of course, their
votes had to be counted with those opposing. And if they abstained from voting, there would be sound justification for counting
them as not in favor of the resolution, because by their very abstention they impliedly but necessarily would signify that they did
not favor the resolution, for it is obvious that if they did, they would have voted in favor of it. On the other hand, those suspended
members who, by reason of the suspension, whose validity or legality we are devoid of jurisdiction to inquire into, cannot be
similarly treated. In their case there would be no way of determining which way their votes would have gone or whether or not
they would have abstained from voting. In this connection, in considering the hypothesis of their voting in case they had not been
suspended, I must go upon the assumption that while those suspended members may belong to the political party which, as a
party, was opposed to the resolution, still they would have voted independently and following their individual convictions. In this
connection, it might not be amiss to mention that there were quite a number of minority members of the legislature who voted for
the resolution. Hence, we are not in a position to say that said suspended members, if they had not been suspended, would have
voted against the resolution, nor in favor of it either, nor that they would have abstained from voting. Why then should they bed
counted with the members who voted against the resolution or those who, having the right to vote, abstained from doing so? Why
should we count them as though we knew that they would have voted against the resolution, or even that they would have
abstained from voting? Soundly construed, I submit that the Constitution does not, and could not, include suspended members in
the determination of the required three-fourths vote.
I take it, that the drafters in providing in Article XV, section 1, of the Constitution that "The Congress in joint session assembled,
by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting (emphasis supplied)
separately . . .", advisedly used the vital and all-important word "voting" therein. I take it, that they meant to refer to the
members voting, undoubtedly expecting that all members not suspended or otherwise disqualified, would cast their votes one
way or the other. But I am here even making a concession in favor of the opponents when I say that those who, with the right to
vote, abstain from voting, may be counted among those not in favor of the measure. But what I cannot bring myself to conceive is
that the quoted provision should have intended to count suspended or disqualified members as opposed to the measure, or not
being in favor of it, without it being possible to know which way they would have voted or that they would have abstained from
voting that they would never have voted in favor of the measure. If I should ask why we should not count such suspended or
disqualified members among those in favor of the measure, I am sure those who opine differently would answer, because we do
not know that they would have voted in favor of it. By the same token, if they should ask me why we should not count them
among those against the measure, I would answer that we do not know that they would have voted against it or that they would
have abstained from voting. All this inevitably leads to the conclusion the only one possible that such suspended or
disqualified members should not and cannot be counted due to that very impossibility of knowing which way they would have
voted or whether they would have abstained from voting. I stand for a sound and rational construction of the constitutional
precept.

PARAS, J.:
I fully concur in the foregoing opinion of Mr. Justice Hilado.

PERFECTO, J., dissenting:

To surrender or not to surrender, that is the question.
The last bastion of democracy is in danger.
Those who are manning it are summoned to give up without the least resistance, and the banner of the Constitution is silently
and meekly hauled down from its pole to be offered as a booty to the haughty standard bearers of a new brand of Farcism. In t
he words of Cicero, "recedere de statu suae dignitatis."
Cardinal moral bearings have been lost in the psychological chaos suffered by those, throwing overboard all ideals as
burdensome and dangerous ballast, in desperate efforts to attain at all costs individual survival, even in ignominy, could not stand
the impact of initial defeats at the hands of invading fearsome military hordes.
The present is liable to confusion. Our minds are subjected to determinate and indeterminate ideological pressures. Very often
man walks in the darkness of a blind alley obeying the pullings and pushings of hidden and unhidden forces, or the arcane
predeterminations of the genes of human chromosomes. A rudderless ship floating in the middle of an ocean without any visible
shoreline, is bound to be wrecked at the advent of the first typhoon. From early youth we begin to hear and learn about the true
ideals. Since then we set them as the guiding stars in our actions and decisions, but in the long travel of life, many times the
clouds dim or completely darken those stars and then we have only to rely on our faith in their existence and on habit, becoming
unerring if long enough followed, of adjusting our conduct to their guidance in calm and cloudless nights. We are sitting in
judgment to pass upon the conflicts, disputes and disagreements of our fellowmen. Let us not forget that the day shall come that
we will be judged on how are are judging. Posterity shall always have the final say. When the time solvent has dissolved the
human snag, then shall be rendered the final verdict as to whether we have faced our task fearlessly or whether our hearts have
shrunk upon the magnitude of our duties and have chosen the most comfortable path of retreat. Then it will be conclusively
known whether did keep burning the tripod fire in the temples of old. Some of us will just return into anonymity, covered by the
cold mist of historical oblivion; others will have their names as by words repeatedly pronounced with popular hate or general
contempt; and still others will be remembered with universal gratefulness, love and veneration, the guard on accorded to all
those who remained faithful to the fundamental tenets of justice. Winnowing time will sift the chaff from the grain.
This is one of the cases upon which future generations will decide if this tribunal has the sturdy courage to keep its responsibility
in proper high level. It will need the passing of decades and perhaps centuries before a conclusive verdict is rendered, whether
we should merit the scorn of our fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice
Taney, the one that plunged the United States into civil war, or whether in the heart of each future Filipino citizen there will be a

shrine in which our memory will be remembered with gratefulness, because we have shown the far-reaching judicial
statesmanship of Chief Justice Marshall, the legal genius who fixed and held the rock bottom foundations which made of the
American Constitution the veritable supreme law of the land and established the role of the tribunals as the ultimate keepers of
the Constitution. But for sure it will be rendered, and it will be impartial and unbiased, exacting and pitiless, with unappealable
finality, and for the one condemned Dante wrote this lapidary line: "lasciate ogni speranza."
Unless the vision of our mental eyes should be shut up by the opaque cornea of stubborn refusal to see reality or should be
impaired by the polaroid visors of prejudice, there is no question that at the time when the resolution in question, proposing an
amendment to the Constitution, was adopted, the members of the Senate were 24 and the members of the House of
Representatives were 96, and that the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members thereof, and the 68 members of the House of
Representatives who voted for the resolution, by equally simple arithmetical operation, do not constitute three-fourths of the 96
members of the said chamber. The official certifications made by the presiding officers of the two houses of Congress to the
effect that three-fourths of all the members of the Senate and three-fourths of all the members of the House of Representatives
voted for the resolution, being untrue, cannot change the facts. Nothing in existence can. The certification, being a clear
falsification of public document punished by article 171 of the Revised Penal Code with prision mayor and a fine not to exceed
P5,000, cannot give reality to a fiction based in a narration of facts that is in conflict with the absolute metaphysical reality of the
events.
FACTS OF THE CASE
Petitioners are citizens of the Philippines, taxpayers and electors, and besides some of them are members of the Senate, others
are members of the House of Representatives, and still others are presidents of political parties, duly registered, with
considerable following in all parts of the Philippines.
The first three respondents are chairman and members, respectively, of the Commission on Elections and the remaining three
are respectively the Treasurer of the Philippines, the Auditor General and the Director of the Bureau of Printing.
Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in 1941 and 16 in April 23, 1946, and that the
House of Representatives is composed of 98 members, elected on April 23, 1946, minus 2d who resigned to assume other
positions in the Government.
On September 18, 1946, there was presented for adoption by the Congress of the Philippines a resolution proposing an
amendment to the Constitution of the Philippines to be appended as an ordinance thereto, which reads as follows:
Resolved by the Senate and House of Representatives, of the Philippines in joint session assembled, by a vote of
not less than three-fourths of all the Members of each House voting separately. To propose, as they do hereby
propose, the following amendment to the Constitution of the Philippines to be appended as an Ordinance thereto:
ORDINANCE APPENDED TO THE CONSTITUTION
"Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article Fourteen, of the
foregoing Constitution, during the effectivity of the Executive Agreement entered into by the President of the
Philippines with the President of the United States on the fourth of July, nineteen hundred and forty-six, pursuant
to the provisions of Commonwealth Act Numbered seven hundred and thirty-three, but in no case to extend
beyond the third of July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization, of all agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces and sources of potential energy, and other natural resources of the Philippines,
and the operation of public utilities, shall, if open to any person, be open to citizens of the United States and to all
forms of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in the
same manner as to, and under the same conditions imposed upon, citizens of the Philippines or corporations or
associations owned or controlled by citizens of the Philippines."
This amendment shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election at which it is submitted to the people for the ratification pursuant to Article XV of the Constitution.
Sixteen Senators voted in favor of the resolution and 5 against it, and 68 Representatives voted in favor and 18 against.
Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on March 11, 1947, for the purpose of submitting
to the people the proposed amendment embodied in the resolution, and appropriating P1,000,000 for said purpose.
Petitioners assail the validity of Republic Act No. 73 as unconstitutional because Congress may not, by said act, submit to the
people for approval or disapproval the proposed amendment to the Constitution embodied in resolution Exhibit B inasmuch as, to
comply with the express provisions of Article XV of the Constitution, requiring the affirmative votes of three-fourths of all the
members of the Senate and of the House of Representatives voting separately, three-fourths of the 24 members of the Senate is
constituted by at least 18 Senators, 2 more than those who actually voted for the resolution in question, and three-fourths of the
98 members of the House of Representatives should at least be 72 Representatives, or 4 more than those who actually voted for
the resolution.
Respondents deny that the Senate is composed of 24 Senators, by excluding from them petitioners Jose O. Vera, Ramon Diokno
and Jose E. Romero and allege that the House of Representatives is not composed of 98 members but of only 90. They admit
that at the joint session of Congress to consider the resolution Exhibit B, in favor of the resolution 16 votes were cast in the
Senate and in the House of Representatives 68 and 5 in the Senate and 18 in the House of Representatives had voted against.
They admit the approval of Republic Act No. 73 and that necessary steps to hold the plebiscite therein provided are being taken,
but deny that said act is unconstitutional, and byway of defense, allege that the resolution Exhibit B was adopted by three-fourths
of all the qualified members of the Senate and of the House of Representatives voting separately and, consequently, Republic
Act No. 73, ordering its submission to the people for approval or disapproval, fixing a date for a general election, and
appropriating public funds for said purpose, is valid and constitutional.
At the hearing of this case both parties submitted the following stipulation:
The parties through their undersigned counsel hereby stipulate the following facts:
1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the majority vote of the Commission
on Elections, proclaimed elected senators in the election of April 23, 1946;
2. That when the Senate convened on May 25, 1946, the said senators-elect took part in the election of the
President of that body; but that before the senators-elect were sworn in by the President of the Senate, a

resolution was presented, and subsequently approved, to defer the administration of oath and the seating of
Messrs. Jose O. Vera, Ramon Diokno, and Jose E. Romero, pending the hearing and decision of the protest
lodged against their election;
3. That on the 25th of May, 1946, the said senators individually took their alleged oath of office before notaries
public, and not on the floor, and filed said oaths with the Secretary of the Senate during the noon recess of the
said date;
4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of office accomplished by them
outside of the floor before a notary public and the Secretary of the Senate, on September 5 and August 31, 1946,
respectively; and that their corresponding salaries from April 23, 1946, were paid on August 31, 1946;
5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a copy of Mr. Diokno's alleged
oath of office dated May 25, 1946, with the Auditor of the Senate on October 15,1946, and on said date his salary
was paid corresponding to the period from April 23 to October 15, 1946;
6. That all three have subsequently received their salaries every fifteen days;
7. That since the approval of the resolution deferring their seating and oaths up to the present time, the said
Messrs. Vera, Diokno, and Romero have not been allowed to sit and take part in the deliberations of the Senate
and to vote therein, not do their names appear in the roll of the Senate;
8. That before May 25, 1946, the corresponding provincial boards of canvassers certified as having been elected
in the election held on April 23, 1946, ninety-eight representatives, among them Messrs. Alejo Santos and Jesus
B. Lava for Bulacan, Jose Cando and Constancio P. Padilla for Nueva Ecija, Amado M. Yuson and Luis Taruc for
Pampanga, Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for Negros Occidental;
9. That the aforesaid eight members-elect of the House of Representatives took part in the election of the
Speaker of the House of Representatives held on May 25, 1946;
10. That before the members-elect of the House of Representatives were sworn in by the Speaker, Mr. Topacio
Nueno, representative for Manila, submitted a resolution to defer the taking of oath and seating of Luis Taruc and
Amado Yuson for Pampanga, Constancio P. Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for
Tarlac, Alejo Santos and Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros Occidental "pending the
hearing and decision on the protests lodged against their election," copy of the resolution being attached to and
made part of this stipulation as Exhibit 1 thereof;
11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved by the House,
referred for study to a committee of seven, which up to the present has not reported, as shown by the
Congressional Record for the House of Representatives;
12. That the eight representatives-elect included in the resolution were not shown in on the floor and have not
been so sworn in or allowed to sit up to the present time, nor have they participated in any of the proceedings of
the House of Representatives except during the debate of the Escareal motion referred to in paragraph 11 hereof,
nor cast any vote therein since May 25, 1946, and their names do not appear in the roll of the members of the
House except as shown by the Congressional Record of the House of Representatives, nor in the roll inserted in
the official program for the inauguration of the Republic of the Philippines hereto attached as Exhibit 2 hereof;
13. That the eight representatives-elect above mentioned took their alleged oaths of office on the date set
opposite their names, as follows:

Jose Cando
Vicente Gustilo
Constancio Padilla
Alejo Santos
Luis M. Taruc
Amado M. Yuson
Jesus B. Lava
Alejandro Simpauco

May 25, 1946

May 25, 1946
May 22, 1946
May 23, 1946
May 25, 1946
May 25, 1946
May 25, 1946
May 25, 1946

all of which oaths were taken before notaries public, with the exception of the first four who took their oaths before
Mr. Narciso Pimentel, Secretary of the House;
14. That said oaths were filed with the Auditor through the office of the Secretary of the House of
Representatives;
15. That the persons mentioned in paragraph 13 were paid salaries for the term beginning April 23, 1946, up to
the present, with the exception of Messrs. Luis Taruc and Jesus Lava, to whom payment was suspended since
August 16;
16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of the House of
Representatives and were allowed to sit on September 30, 1946, the last day of the Special Sessions;
17. That in addition to the eight persons above mentioned, two members of the House, Representatives Jose C.
Zulueta and Narciso Ramos, had resigned before the resolution proposing an amendment to the Constitution was
discussed and passed on September 18,1946;
18. That the voting on the resolution proposing an amendment to the Constitution was made by the Secretary
calling the roll of each house and the votes cast were as shown in the attached certificate of the Secretary of the
House of Representatives hereto attached, marked Exhibit 3 and made a part hereof; and
19. That the Congressional Records for the Senate and House of Representatives and the alleged oaths of office
are made a part of this Stipulation by reference thereto, respondents reserving the right to question their
materiality and admissibility.

Manila, Philippines, November 25, 1946.

For the petitioners:

For the respondents:

JOSE E. ROMERO
ANTONIO BARREDO

ROMAN OZAETA
Secretary of Justice

JOSE B.L. REYES

First Asst. Solicitor General

PETITIONER'S PERSONALITY
Whether petitioners have or have not the personality to file the petition in this case is the first question we have to consider.
No party raised the question, but it having arisen in the course of the Court's deliberation, we should not evade deciding it and
giving what in law and justice should be the answer.
To our mind there is no doubt that petitioners have the personality to institute the present recourse of prohibition. If petitioners
should lack that personality, such legal defect would not certainly have failed to be noticed by respondents themselves.
Respondents' failure to raise the question indicates their conviction that petitioners have the necessary legal personality to file
the petition, and we do not see any reason why such personality should be put in doubt.
Petitioners are divided into three groups: the first is composed of senators; the second, of representatives; and the third, of
presidents of four political parties.
All of the individuals composing the first two groups, with the exception of Senators Jose O. Vera, Ramon Diokno, and Jose E.
Romero, are members of either of the two houses of Congress and took part in the consideration of Resolution Exhibit B and of
Republic Act No. 73, while the above three excepted senators were the ones who were excluded in the consideration of said
resolution and act and were not counted for purposes of determining the three-fourths constitutional rule in the adoption of the
resolution.
In paragraph eight of the petition it is alleged that respondents have taken all the necessary steps for the holding of the general
election on March 11, 1947, and that the carrying out of said acts "constitute an attempt to enforce the resolution and act
aforementioned in open violation of the Constitution," is without or in excess of respondents' jurisdiction and powers, "violative of
the rights of the petitioners who are members of the Congress, and will cause the illegal expenditure and disbursement of public
funds and end in an irreparable injury to the taxpayers and the citizens of the Philippines, among whom are the petitioners and
those represented by them in their capacities mentioned above."
There should not be any question that the petitioners who are either senators or members of the House of Representatives have
direct interest in the legal issues involved in this case as members of the Congress which adopted the resolution, in open
violation of the Constitution, and passed the act intended to make effective such unconstitutional resolution. Being members of
Congress, they are even duty bound to see that the latter act within the bounds of the Constitution which, as representatives of
the people, they should uphold, unless they are to commit a flagrant betrayal of public trust. They are representatives of the
sovereign people and it is their sacred duty to see to it that the fundamental law embodying the will of the sovereign people is not
trampled upon.
The four political parties represented by the third group of petitioners, represent large groups of our population, perhaps nearly
one-half of the latter, and the numerous persons they represent are directly interested and will personally be affected by the
question whether the Constitution should be lightly taken and can easily be violated without any relief and whether it can be
amended by a process openly repugnant to the letter of the Constitution itself.
As a matter of fact, the vital questions raised in this case affect directly each and every one of the citizens and inhabitants of this
country. Whether our Constitution is, as it is supposed to be, a paramount law or just a mere scrap of paper, only good to be
thrown into a waste basket, is a matter of far-reaching importance to the security, property, personal freedom, life, honor, and
interests of the citizens. That vital question will necessarily affect the way of life of the whole people and of its most unimportant
unit. Each and every one of the individuals inhabiting this land of ours shall have to make plans for the future depending on how
the question is finally decided. No one can remain indifferent; otherwise, it will at his peril.
Our conclusion is that petitioners have full legal personality to institute the present action; and much more, those who are
members of Congress have the legal duty to institute it, lest they should betray the trust reposed in them by the electorate.
24 SENATORS
The first question raised by respondents' answer refers to the actual number of the members of the Senate. According to
petitioners there are 24 of them while according to respondents there are only 21, excluding Senators Jose O. Vera, Ramon
Diokno, and Jose E. Romero, because, according to them, "they are not duly qualified and sworn in members of the Senate."
This allegation appears to be belied by the first seven paragraphs of the stipulation of facts submitted by both parties.
No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects of the words placed by
respondents themselves in said seven paragraphs. No amount of argument may delude anyone into believing that Senators
Vera, Diokno, and Romero are not senators notwithstanding their having been proclaimed as elected senators, their having taken
part in the election of the President of the Senate, their having taken their oaths of office, and their receiving salaries as senators.
Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of the pithecanthropus or
gigantopithecus of five hundred millennia ago, but it would be unpardonably insulting o the human mind of the twentieth century.
Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the Senate, without taking into
consideration whatever legal effects the Pendatun resolution may have produced, a question upon which we have already

elaborated in our opinion in Vera vs. Avelino (77 Phil., 192). Suspended or not suspended, they are senators anyway, and there
is no way of ignoring a fact so clear and simple as the presence of the sun at day time. Therefore, counting said three Senators,
there are 24 Senators in all in the present Senate.
96 REPRESENTATIVES
The next question raised by respondents is their denial of petitioners' allegations to the effect that the present House of
Representatives is composed of 98 members and their own allegation to the effect that at present "only 90 members have
qualified, have been fully sworn in, and have taken their seats as such."
Again respondents' allegations are belied by paragraphs eight to seventeen of the stipulation of facts.
The disagreement between the parties is as to whether or not Representatives Cando, Gustilo, Padilla, Santos, Taruc, Yuson,
Lava and Simpauco, mentioned in paragraph 13 of the stipulation of facts, are members of the House of Representatives.
The facts stipulated by the parties proved conclusively that said eight persons are actual members of the House of
Representatives. We may even add that the conclusiveness about said eight representatives is even greater than in the case of
Senators Vera, Diokno, and Romero, because no resolution of suspension has ever been adopted by the House of
Representatives against said eight members, who are being deprived of the exercise of some of their official functions and
privileges by the unipersonal, groundless, dictatorial act of the Speaker.
That illegal deprivation, whose counterpart can only be found in countries where the insolence of totalitarian rulers have replaced
all constitutional guarantees and all concepts of decent government, raises again a constitutional question: whether it is
permissible for the Speaker of the House of Representatives to exercise the arbitrary power of depriving representatives duly
elected by the people of their constitutional functions, privileges, and prerogatives. To allow the existence of such an arbitrary
power and to permit its exercise unchecked is to make of democracy a mockery.
The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty itself of the people, an onslaught
which may cause the people sooner or later to take justice in their own hands. No system of representative government may
subsist if those elected by the people may so easily be silenced or obliterated from the exercise of their constitutional functions.
From the stipulation of facts, there should not be any question that at the last national election, 98 representatives were elected
and at the time the resolution Exhibit B was adopted on September 18, 1946, 96 of them were actual members of the House, as
two (Representatives Zulueta and Ramos) has resigned.
Applying the three-fourth rule, if there were 24 senators at the time the resolution was adopted; three-fourths of them should at
least be 18 and not the 16 who only voted in favor of the resolution, and if there were 96 representatives, three-fourths of them
should certainly be more than the 68 who voted for the resolution. The necessary consequence is that, since not three-fourths of
the senators and representatives voting separately have voted in favor of the resolution as required by Article XV of the
Constitution, there can be no question that the resolution has not been validly adopted.
We cannot but regret that our brethren, those who have signed or are in agreement with the majority opinion, have skipped the
questions as to the actual membership of the Senate and House of Representatives, notwithstanding the fact that they are
among the first important ones squarely raised by the pleadings of both parties. If they had taken them into consideration, it
would seem clear that their sense of fairness will bring them to the same conclusion we now arrived at, at least, with respect to
the actual membership of the House of Representatives.
Upon our conclusions as to the membership of the Senate and House of Representatives, it appears evident that the remedy
sought for in the petition should be granted.
JURISDICTION OF THE SUPREME COURT
Without judging respondents' own estimate as to the strength of their own position concerning the questions of the actual
membership of the Senate and House of Representatives, it seems that during the oral and in the written arguments they have
retreated to the theory of conclusiveness of the certification of authenticity made by the presiding officers and secretaries of both
House of Congress as their last redoubt.
The resolution in question begins as follows: "Resolved by the Senate and House of Representatives of the Philippines in joint
session assembled, by a vote of not less than three-fourths of all the members of each House voting separately, . . .."
Just because the adoption of the resolution, with the above statement, appears to be certified over the signatures of the
President of the Senate and the House of Representatives and the Secretaries of both Houses, respondents want us to accept
blindly as a fact what is not. They want us to accept unconditionally as a dogma, as absolute as a creed of faith, what, as we
have shown, appears to be a brazen official falsehood.
Our reason revolts against such an unethical proposition.
An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples, in the administration of
justice, could accept as true what we know is not and then perform our official functions upon that voluntary self-delusion, is too
shocking and absurb to be entertained even for a moment. Anyone who keeps the minimum sense of justice will not fail to feel
aghast at the perversion or miscarriage of justice which necessarily will result from the suggestion.
But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the false certification made by the
presiding officers and the secretaries of the two Houses of Congress.
Respondents rely on the theory of, in the words of the majority opinion, "the conclusiveness on the courts of an enrolled bill or
resolution."
To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as Appendices A, B, and C, 1 the
memoranda presented by both petitioners and respondents, where their attorneys appear to have amply and ably discussed the
question. The perusal of the memoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we
generally agree with their arguments.
In what follows we will try to analyze the positions taken in the majority opinion.
POLITICAL QUESTIONS

The majority enunciates the proposition that "political questions are not within the province of the judiciary," except "by express
constitutional or statutory provision" to the contrary. Then argues that "a duly certified law or resolution also binds the judges
under the 'enrolled bill rule' out of respect to the political departments."
The doctrine is predicated "on the principle of the separation of powers."
This question of separation of powers is the subject of discussion in the case of Vera vs. Avelino, supra. We deem unnecessary
to repeat what we have already said in our opinion in said case, where we have elaborated on the question.
Although the majority maintains that what they call the doctrine that political questions are not within the province of the judiciary
is "too well-established to need citation of authorities," they recognize the difficulty "in determining what matters fall under the
meaning of political questions."
This alleged doctrine should not be accepted at its face value. We do not accept it even as a good doctrine. It is a general
proposition made without a full comprehension of its scope and consequences. No judicial discernment lies behind it.
The confession that the "difficulty lies in determining what matters fall within the meaning of political question" shows conclusively
that the so-called doctrine has recklessly been advanced.
This allegedly "well-established" doctrine is no doctrine at all in view of the confessed difficulty in determining what matters fall
within the designation of political question. The majority itself admits that the term "is not susceptible of exact definition, and
precedents and authorities are not always in full harmony as to the scope of the restrictions, on this ground, on the courts to
meddle with the acts of the political department of the government."
Doctrine is that "what is taught; what is held; put forth as true, and supported by a teacher, a school, or a sect; a principle or
position, or the body of principles, in any branch of knowledge; tenet; dogma; principle of faith. "It is a synonym of principle,
position, opinion, article, maxim, rule, and axiom. in its general sense, doctrine applies to any speculative truth or working
principle, especially as taught to others or recommended to their acceptance. Therefore, to be true, it should be expressed on
simple and self-evident terms. A doctrine in which one of the elemental or nuclear terms is the subject of an endless debate is a
misnomer and paradox.
A doctrine is advanced and accepted as an established truth, as a starting point for developing new propositions, as a guiding
principle in the solution of many problems. It is a groundwork for the building of an intellectual system. It is the basis of a more or
less complex legal structure. If not the cornerstone, it should at least be one of the main columns of an architectonic construction.
If that groundwork, cornerstone or column is supported by a thing whose existence still remains in dispute, it is liable to fall.
We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based on the unsettled meaning of political
question. The general proposition that "political questions are not within the province of the judiciary" is just one of the many
numerous general pronouncements made as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to
decide hard or ticklish legal issues submitted to them.
It belongs to the category of that much-vaunted principle of separation of powers, the handful of sand with which judicial
ostriches blind themselves, as if self-inflicted blindness may solve a problem or may act as a conjuration to drive away a danger
or an evil.
We agree with the majority that the proposal to amend the Constitution and the process to make it effective, as provided in Article
XV of the Constitution, are matters of political nature, but we cannot agree with their conclusion that a litigation as to whether
said article has been complied with a violated is beyond the jurisdiction of the tribunals, because to arrive at this conclusion we
must accept as a major premise the pseudo-doctrine which we have precisely exposed as erroneous and false.
Is there anything more political in nature than the Constitution? Shall all questions relating to it, therefore, betaken away from the
courts? Then, what about the constitutional provision conferring the Supreme Court with the power to decide "all cases involving
the constitutionality of a treaty or a law?"
COLEMAN versus MILLER
The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R., 625) is invoked as the mainstay of the
majority position.
No less than eight pages of the majority opinion are occupied by the exposition and analysis of the decision of the Supreme
Court.
The case is invoked as authority for the conclusion that "the efficacy of ratification by the State legislature of a proposed
amendment to the federal Constitution" and that "the decision by Congress, in its control of the Secretary of State of the
questions of whether an amendment has been adopted within a reasonable time from the date of submission to the State
legislature," are political questions and not justiciable.
At the outset it must be noted that the two above mentioned questions have no similarity or analogy with the constitutional
questions herein discussed. The questions as to the efficacy of the ratification by the Senate of Kansas of the Child Labor
amendment proposed by the United States Congress in June, 1924, and upon the decision of said Congress, "in its control of the
Secretary of State," whether the amendment has been adopted "within a reasonable time from the date of submission to the
State legislature," either one of them does not raise a controversy of violation of specific provisions of the Constitution as the
ones raised in the present case.
No specific constitutional provision has been mentioned to have been violated because in January, 1925, the Legislature of
Kansas rejected the amendment, a copy of the rejection having been sent to the Secretary of State of the United States, and in
January, 1927, a new resolution ratifying the amendment was adopted by the Senate of Kansas on a 21-20 division, the
Lieutenant Governor casting the deciding vote. Neither was there such mention of constitutional violation as to the effect of the
previous rejection and of the lapse of time after submission of the amendment to the State legislature.
No constitutional provision has been pointed out to have been violated because the Lieutenant Governor had cast his vote or
because by the lapse of time from June, 1924 to March, 1927, the proposed amendment had allegedly lost its vitality.
It is only natural that, in the absence of a constitutional provision upon the efficacy of ratification by a State legislature of a
proposed amendment, it was within the ultimate power of the United States Congress to decide the question, in its decision
rendered in the exercise of its constitutional power, to control the action of the Secretary of State, and the promulgation of the

adoption of amendment could not be controlled by the courts.

Evidently, the invoked authority has no bearing at all with the matters in controversy in the present case.
We note, as observed in the majority opinion, that the four opinions in Coleman vs. Miller, according to the American Law
Reports, show "interestingly divergent but confusing positions of the justices," and are the subject of an amusing article in 48
Yale Law Journal, 1455, entitled "Sawing a Justice in Half," asking how it happened that the nine-member United States
Supreme Court could not reach a decision on the question of the right of the Lieutenant Governor of Kansas to cast his vote,
because the odd number of justices was "equally divided."
How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller could be an authority is beyond our
comprehension.
GREEN versus WELLER
One of the authorities upon which the majority relies is the decision of the Mississippi Supreme Court in Green vs.Miller (32
Miss., 650), quoting one paragraph thereof.
Here again we have a case of inapplicable authority, unless taken in its reversed effect.
The Mississippi Supreme Court maintains that there is nothing in the nature of the submission to the people of a proposal to
amend the Constitution which should cause the free exercise of it to be obstructed or that could render it dangerous to the
stability of the government, but in making this pronouncement, it assumes that the submission is made "in a established form,"
adding that the means provided for the exercise by the people of their sovereign right of changing the fundamental law should
receive such a construction as not to trample upon the exercise of their right, and that the best security against tumult and
revolution is the free and unobstructed privilege to the people of the state to change their Constitution "in the mode prescribed by
the instrument."
So the authority, if clearly interpreted, will lead us to the conclusion that the majority position is wrong because the Mississippi
Supreme Court, in making the pronouncement, upon the assumption that the submission to the people is made "in a established
form" and "in the mode prescribed" by the Constitution, namely, in accordance with the provisions of the instrument, the
pronouncements would be the opposite if, as in the present case, the submission of the proposal of amendment to the people is
made through a process flagrantly violative of the Constitution, aggravated by wanton falsification of public records and tyrannical
trampling of the constitutional prerogatives of duly elected representatives of the people.
MR. JUSTICE BLACK
The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr. Justice Frankfurter and Mr. Justice Douglas, in
the "confusing" and "amusing" decision in Coleman vs. Miller, is also invoked by the majority, but this other authority seems
equally reluctant to offer its helping hand to a helpless, desperate position.
The major premise of the concurring opinion is as follows: "The Constitution granted Congress exclusive power to control
submission of constitutional amendments."
Everybody ought to know that no such an unlimited, unchecked, omnipotent power is granted by our fundamental law to the
Congress of the Philippines. Our Congress may propose amendments or call a convention to make the proposal, but that is all.
Nowhere in the Constitution can be found any word, any grammatical sign, not even the faintest hint that in submitting the
proposed amendments to the people, Congress shall have "exclusive power to control the submission." That submission must be
provided by law, and no law may be enacted and come into effect by the exclusive power of Congress. It needs the concurring
action of the President of the Philippines. And if the law happens to violate the fundamental law, courts of justice may step in to
nullify its effectiveness. After the law is enacted, its execution devolves upon the Executive Department. As a matter of fact, it is
the Executive Department which actually submits to the people the proposed amendment. Congress fixes the date of
submission, but the President of the Philippines may refuse to submit it in the day fixed by law if war, rebellion, or insurrection
prevents a plebiscite from proceeding.
After showing that Mr. Justice Black started his argument from a major premise not obtainable in the Philippines, his conclusions
cannot help the majority in anyway.
MR. JUSTICE FRANKFURTER
The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing" case of Coleman vs. Miller is the next
authority invoked by the majority, but the opinion does not offered much help. The justice maintains that the proceedings for
voting in legislative assemblies "are matters that concern not merely political actions but are also of the very essence of political
action," and then advances the following argument: "To open the law-courts to such controversies is to have courts sit in
judgment on the manifold disputes engendered by procedures for voting in legislative assemblies."
The argument has no weight at all. The argument merely displays an attitude, one of simple distaste for the idea, but fails to give
any sensible reason for the attitude. Ina totalitarian regime, where decisions are rendered not in answer to the promptings of a
sense of justice, but as expressions of moods, caprices and whims of arbitrary rulers, Mr. Justice Frankfurter's attitude could be
taken as the law, but then it would be necessary to elevate him first to the category of a fuehrer.
In our jurisdiction personal attitudes are not the law. Here, justice must be founded on reason, but never on passing unreasoned
moods, judicial or otherwise.
We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's views, which in their judgment are in accord
"with sound principles of political jurisprudence and represent liberal and advanced thought on the workings of constitutional and
popular government. "Our regret is not for ourselves alone but for those who happen to accept as authority the unreasoned and
unexplained mental attitude of a judicial officer of a foreign country, praising it even with the much-abused label as "liberal,"
notwithstanding the fact that it represents the whimsical rule of personal attitudes and not the rule of well-matured reason.
THE ENROLLED BILL THEORY
This theory is amply discussed in the memoranda of the parties attached hereto as Appendices A, B, and C. Although we
consider it unnecessary to enlarge the discussion, we deem it convenient to make a little analysis of what is stated in the majority
opinion. Respondents contend, with the full approval of the majority, that a duly authenticated bill or resolution imports absolute
verity and is binding on the courts.

The present case is a conclusive evidence of the absurdity of the theory. How can we accept the absolute verity of the presiding
officers' certification that the resolution in question has been adopted by three-fourths of all the members of the Senate and of the
House of Representatives, when as a matter of undisputable fact the certification is false? How can we accept a theory which
elevates a false-hood to the category of truth?
The majority alleges that the rule is the one prevailing in England. Because the English have committed the nonsense of
accepting the theory, is that reason for Filipinos to follow suit? Why, in the administration of justice, should our tribunals not think
independently? Our temple of justice is not presided by simians trained in the art of imitation but by human beings, and human
beings must act according to reason, never just to imitate what is wrong, although such mistakes may happen to be consecrated
as a judicial precedent. It would be inconceivable for our courts to commit such a blunder.
Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the majority states that in the United States the
jurisdictions are divided almost equally pro and con on the theory, although in petitioners' memorandum Appendix A there
appears more up-to-date evidence to the effect that there is a great majority for the rejection. But to our mind, mere numbers as
to pro and con seem to us immaterial in the decision as to whether the theory is or is not correct. Numbers do not make reason
nor justice.
The majority contends that the theory conforms to the express policy of our law-making body, invoking to said effect the now
obsolete section 313 of the old Code of Civil Procedure, as amended by Act No. 2210.
Even if we should follow the anachronistic practice of deciding issues upon the authority of laws which have been repealed or
abolished, still the evidence pointed out by the majority does not support their contention. Section 313 alluded to enumerates the
evidence that may prove the procedures of the defunct Philippine Commission or of any legislative body that may be provided for
in the Philippines, with the proviso that the existence of a copy of acts of said commission or the Philippine Legislature, signed by
the presiding officers and secretaries of said bodies, is a conclusive proof "of the provisions of such acts and of the due
enactment thereof."
This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5 and 41 of Rule 123 show conclusively that
this Supreme Court, in making the rules effective since July 1, 1940, rejected the proviso as unreasonable and unjust. Section 5
provides that we may take judicial notice of the official acts of Congress and section 41 provides what evidence can be used to
prove said official acts, but nowhere in the rules can a provision be found that would make conclusive a certification by the
presiding officers and secretaries of both House of Congress even if we know by conclusive evidence that the certification is
false.
The allegation that the theory in question conforms to the express policy of our lawmaking body, upon the very evidence used in
support thereof, after a little analysis, has to banish as a mid-summer night's dream.
50 AMERICAN JURISDICTION, SECTION 150
In support of the theory of conclusiveness of the enrollment, the authority of 50 American Jurisprudence, 150 is invoked as
reasons for the theory.
We will analyze the reasons adduced:
1. Respect due to a coequal and independent department of the government. This must be the strongest one, when it is first
mentioned. It is so flimsy to require much discussion. Shall we sacrifice truth and justice for the sake of a social courtesy, the
mutual respect that must be shown between different departments of the government? Has our sense of evaluation of spiritual
values become so perverted that we can make such a blunder in our choice? Since when have the social or official amenities
become of paramount value to the extent of overshadowing the principles of truth and justice?
2. Because without the theory, courts would have to make "a n inquisition into the conduct of the members of the legislature, a
very delicate power." This second reason is premised not on a democratic attitude, but rather on a Fascistic one. It is premised
on the false belief that the members of the majority are a king of emperos of Japan, to be worshipped but never to be discussed.
The ideology depicted by the second reason should be relegated to where it belongs: the archeological museum.
3. "The rule is also one of convenience." This reason again shows a perverted evaluation of human values. Is justice to be
sacrificed for the sake of convenience?
4. "Otherwise after relying on the prima facie evidence of the enrolled bills authenticated as executed by the Constitution, for
years, it might be ascertained from the journals that an act heretofore enforced had never become a law." This last reason
personifies unreasonableness to the nth degree. So we leave it as it is, as a perpetual evidence of the extent to which legal
stupidity may reach.
WIGMORE ON EVIDENCE
Now let us examine the arguments of the next authority invoked by the majority, Wigmore on Evidence. We will also analyzed the
arguments relied upon.
1. That to go beyond the enrolled bill "would unsettle the entire statute law of the State." This argument, as it appears quoted in
the majority decision, is premised on the unreliability of legislative journals, and it seems to depict a mind poisoned by prejudice,
as shown by the following: "We are to remember the danger, under the prevalence of such a doctrine, to be apprehended from
the intentional corruption of evidences of this character. It is scarcely too much to say that the legal existence of almost every
legislative action would be at the mercy of all persons having access to these journals. . . ."
The argument should be taken into consideration in connection with American experience, which seems not to be too flattering to
our former metropolis.
Our own personal experience of more than a decade in legislative processes convinces us that Wigmore's assumption does not
obtain in the Philippines. It is true that in the pre-constitution legislative enactments we have seen few instances in which there
had been disagreement between what has actually been passed, as shown by the journal, and the authenticated enrolled bill.
But the instances were so few to justify entertaining here the same fears entertained by Wigmore in America. Although those
instances were few, we fought to correct the evil in the Constitutional Convention, where we were able to introduce the following
revolutionary provision in the Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior to its passage, except when the President shall have
certified to the necessity of its immediate enactment. Upon the last reading of a bill no amendment thereof shall be allowed, and
the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered in the journal." (Section 21
[2], Article VI of the Constitution.)

This provision is an effective guarantee against the situation depicted by Wigmore's fears.
2. To the argument that if the authenticated roll is conclusive upon the courts, then less than a quorum of each House may by the
aid of presiding officers impose laws upon the State in defiance of the inhibition of the Constitution, Wigmore answers: "This
perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit that the judiciary should claim for
itself a purity beyond all others; nor has it been able at all times with truth to say that its high places have not been disgraced."
The answer is unconvincing. Because there can be and there have been blundering, disgraceful, or corrupt judicial officers is no
reason why arbitrary presiding officers and members of the legislature should be allowed to have their way unchecked. Precisely
the system of checks and balances established by the Constitution presupposes the possibility of error and corruption in any
department of government and the system is established to put a check on them.
When the question of an unconstitutional, arbitrary or corrupt action by the legislature is placed at the bar of justice, the judiciary
must not shrink from its duty. If there is corruption in the judiciary, our laws provide the proper remedy. Even we, the members of
the highest tribunal, cannot with impunity commit "culpable violation of the Constitution, treason, bribery, or other high crimes"
without being liable to be removed from office on impeachment, and we hope, if there is such a case, that the House of
Representatives and the Senate will do their duty in accordance with Article IX of the Constitution, and not follow the
uncourageous example which is given under the intellectual tutelage of Wigmore.
THE CONSTITUTIONAL NUMERICAL RULES
The three-fourth rule has been provided in Article XV of the Constitution as a guarantee against the adoption of amendments to
the fundamental law by mere majorities.
The Constitution must be accorded more stability than ordinary laws and if any change is to be introduced in it, it must be in
answer to a pressing public need so powerful as to sway the will of three-fourths of all the members of the Senate and of the
House of Representatives. Said three-fourth rule has been adopted by the Constitutional Convention, as all the other numerical
rules, with the purpose of avoiding any doubt that it must be complied with mathematical precision, with the same certainty of all
numbers and fractions expressed or expressible in arithmetical figures.
Where the Constitution says three-fourths of all the members of the Senate and of the House of Representatives voting
separately, it means an exact number, not susceptible of any more or less. All the members means that no single member should
be excluded in the counting. It means not excluding three Senators and eight Representatives as respondents want us to do in
order not to cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who had the boldness
of certifying that the three-fourth rule had been complied within the adoption of the resolution in question, when such a
certification is as false as any falsehood can be.
The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise it would be the death knell of
constitutionalism in our country. If a constitutional provision can be so trifled with, as has happened in the adoption of the
resolution in question, it would mean breaking faith with the vitality of a government of laws, to enthrone in its stead a whimsical
government of men.
The Constitution contains several numerical provisions. It requires that the Senate shall be composed of 24 Senators (section 2,
Article VI); that Congress shall by law make an apportionment within three years after the return of every enumeration, and not
otherwise (section 5, Article VI); that each House may expel a member with the concurrence of two-third of all the members
(section 10 [3], Article VI); that electoral tribunals shall each be composed of nine members, three Justices of the Supreme Court
and six legislature members (section 11, Article VI); that to overrun the veto of the President, the concurrence of two-thirds of all
the members of each House is necessary (section 20 [1], Article VI), and in certain cases the concurrence of three-fourths of all
the members of each House is necessary (section 20 [2], Article VI); that Congress shall, with the concurrence of two-thirds of all
the members of each House, have the sole power to declare war (section 25, Article VI); that no treaty or law may be declared
unconstitutional without the concurrence of two-thirds of all the members of the Supreme Court (section 10, Article VIII); that the
House of Representatives shall have the sole power of impeachment by a vote of two-thirds of all its members (section 2, Article
IX); and that the Senate shall have the sole power to try all impeachments, but no person shall be convicted without the
concurrence of three-fourths of all the members of the Senate (section 3, Article IX).
So it can be seen that the numerical rules inserted in the Constitution affect matters not of momentary but of momentous
importance. Each and every one of them should be given effect with religious scruple, not only because our loyalty to the
sovereign people so requires, but also because by inserting them the Constitutional Convention had abided by the wise
teachings of experience.
By denying the petition and allowing those responsible for the unconstitutional adoption of the resolution in question to have their
way is to set up a precedent that eventually may lead to the supremacy of an empire of lawlessness. It will be tantamount to
opening Pandora's box of evils and disasters.
The power to declare was can only be exercised by Congress with the concurrence of two-thirds of all the members of each
House. From now on, by the simple expediency of certification by the presiding officers and secretaries of both Houses that twothirds had voted where a bare majority had voted in fact, said majority may plunge our people into a maelstrome of war.
The Constitution provides that the power of impeachment needs the vote of two-thirds of all the members of the House of
Representatives. From now on, a mere plurality of one will be enough to put impeachable high officials, including the President,
on the carpet.
To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all the members of the Senate.
From now on, that three-fourth rule may be dispensed with or circumvented by not counting three actual Senators, as has been
done in the resolution in question, and thereby oust the President of the Philippines if he happens not to be in the good graces of
a senatorial majority.
Without entering into the merits of the proposed constitutional amendment, to submit which to the people high-handed means
have been resorted to, there can be no question that it is of vital importance to the people and it will affect future generations to
unimaginable extent. The Constitutional Convention had thought it wise that before such a momentous proposal could be
submitted to the people the three-fourth rule should be adhered to by Congress.
QUOTATION FROM THE JALANDONI CASE
Months ago we stated: "It is high time to sound the clarion call that will summon all the forces of liberalism to wage a crusade for
human freedom. They should put on the armor of righteousness and rally behind the banner for the vindication of the principles
and guarantees embodied in the Constitution and the high purposes of the Chapter of the United Nations." This, we said in our
dissenting opinion in People vs. Jalandoni, L-777. Concerning the judgment that the future may pass upon the actuations of the

Supreme Court, in that same opinion we ventured that the historian army, under the heading of "Epoch of Great Reaction," write
as follows:
At no epoch of its history has the Supreme Court shown to be most reactionary and retrogressive. When the
victims of a constitutional violation, perpetrated by a group of the highest officials of the government, came to if
for redress, it adopted a hands-off policy, showing lack of the necessary vitality to grapple with the situation and
finding refuge in a comfortable retreat, completely disappointing those who have pinned their faith and hope in it
as the first pillar of the Constitution and the inexpugnable bulwark of human fundamental rights. The issue of
human freedom was disposed of by them most discouragingly by nullifying the right of an accused to be free on
bail on appeal, in flagrant violation of a constitutional guarantee and of one of the fundamental purposes and
principles of the Charter of the United Nations.
Upon touching the decision of this Court in the instant case, the same historian may record that the highest tribunal of the new
Republic of the Philippines has struck the hardest blow to the Philippine constitutional system, by refusing to do its duty in giving
redress in a clear case of violation of the fundamental law, to the great disappointment, despair and apallment of millions of souls
all over the world who are pinning their hopes on constitutionalism for the survival of humanity.
The ideal of one world oftenly enunciated by progressive leaders in the deliberations of the several organs of the United Nations
is predicated in the adoption of a single standard of laws, compulsory within all jurisdictions of our planet. The ethology of all
mankind must be shaped under the pattern of that single legal standard. But the whole system is liable to crash if it is not
founded on the rock bed of the elemental principle that the majesty of the law must always be held supreme.
To keep inviolate this primary principle it is necessary that some of the existing social organs, moral attitudes and habits of
thinking should undergo reforms and overhauling, and many fixed traditional ideas should be discarded to be replaced with more
progressive ones and inconsonance with truth and reason. Among these ideas are the wrong ones which are used as premises
for the majority opinion in this case.
The role of innovators and reformers is hard and often thankless, but innovation and reform should continuously be undertaken if
death by stagnation is to be avoided. New truths must be discovered and new ideas created. New formulas must be devised and
invented, and those outworn discarded. Good and useful traditions must be preserved, but those hampering the progressive
evolution of cultured should be stored in the museum of memory. The past and the present are just stepping stones for the
fulfilment of the promises of the future.
Since the last decade of the nineteenth century, physical science had progressed by leaps and bounds. Polonium and radium
were discovered by Madam Curie, Rontgen discovered the X-ray, and Rutherford the alpha, beta and gamma particles. Atom
ceased to be the smallest unit of matter to become an under-microscopic planetarian system of neutrons, protons, and electrons.
Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain water, without any soil, but
only with anions and cations. Sawdust has ceased to be a waste matter, and from it is produced wood sugar, weighing one-half
of the sawdust processed. Inter-stellar space vacuum, almost absolute, is being achieved to serve ends that contribute to human
welfare. Bacteria and other microbes are harnessed to serve useful human purposes. The aspergillus niger is made to
manufacture the acetic to produce vinegar for the asking. Thepenicillum notatum and the bacillus brevis are made to produce
penicillin and tyrothricin, two wonder drugs that are saving many lives from formerly lethal infections. DDT decimates harmful
insects, thus checking effectively malaria, an illness that used to claim more than one million victims a year in the world. The
creation of synthetics had enriched the material treasures offered to man by nature. Means of transportation are developed to
achieve supersonic speeds. Many scientific dreams are fast becoming marvelous realities. Thus, science marches on. There is
no reason why the administration of justice should not progress onward, synchronized with the rhythm of general human
advancement towards a better future.
The fact that the majorities of the two chambers of Congress have without any qualm violated Article XV of the Constitution and
the majority of this Court, instead of granting the proper relief provided by law, preferred to adopt the comfortable attitude of
indifferent by-standers, creates a situation that seems to be ogling for more violations of the fundamental law. The final results no
one is in a position to foresee.
Our vote is for the granting of the petition.

BRIONES, M., con quien esta conforme FERIA, M., disidente:

Por segunda vez en menos de un ao nos Ilaman a decidiry arbitrar sobre una violacion de la Constitucion elcodigo
fundamental de nuestro pais. A media dos del ao pasado se trataba del recurso interpuesto ante esta misma Corte Suprema
por tres Senadores1 que se quejaban dehaber sido privados injusta y arbitrariamente de su derecho a sentarse en el Senado de
Filipinas y a particular y votar en sus deliberaciones, con grave infraccion y detrimento de la Constitucion que ampara tal
derecho. Ahora esos mismos Senadores acuden de nuevo a esta Corte para quejarse de otra violacion de la Constitucion, pero
estavez no vienen solos: les acompaan otros cinco miembros del Senado, diecisiete miembros de la Camarra de
Representantes y tres jefes de aagrupaciones o partidos politicos Democratic Alliance, Popular Front y Philippine Youth Party.
Jose O. Vera es recurrente en su doble capacidad de miembro del Senado y Presidente del Partido Nacionalista. De modo que
los recurrentes suman veintiocho: 8Senadores, 17 Representantes y 3 particulares.2 Tienenun comun denominador, a saber:
que son todos ciudadanos de Filipinas, y, ademas, contribuyentes y electores.
Los recurridos son el Presidente y miembros de la Comision de Elecciones, el Tesorero de Filipinas, el Auditor General y el
Director del Buro de Imprenta.3
El objeto del recurso es recabar de esta Corte un mandamiento de prohibicion dirigigo a los recurridos para que estos, sus
agentes, empleados, subordinados y otras personas que actuen bajo su superintendencia o en su nombre "se abstengan y
desistan de dar los pasos tendentes haciala celebracion de un plebiscito e eleccion general el 11 de Marzo, 1947, y de imprimir
la resolucion (sobre reformade los articulos 13. y 14. de la Constitucion), las balotas y otros papeles necesarios en relacion con
dicho plebiscito,y de desembolsar o de autorizar el expendio de fondos publicos para dicho proposito."
Para la mejor comprension del asunto estimo necesariopublicar integro a continuacion el texto de la Resolucion conjunta que
contiene la propuesta reforma a la Constitucion, resolucion que constituye la materia u objeto de la consulta popular en el
referido plebiscito de 11 de Marzo, y es la misma que en el lexico corriente de la prensa y del publico se conoce por resolucion
sobre paridad o igualdad de derecdhos constitucionales a favor de los americanos, esdecir, que concede a estos iguales
derechos que a los filipinosen la propiedad y cultivo de terrenos publicos, en la explotacion de nuestros recursos naturales como
bosques,minas, pesca y fuerza hidraulica, y en la propiedad y operacion de utilidades publicas. He aqui su texto:
RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT

TO THE CONSTITUTION OF THE PHILIPPINES

TO BE APPENDED AS AN ORDINANCE THERETO.
Resolved by the Senate and House of Representatives of the Philippines in joint session assembled, by a vote of
not less than three-fourths of all the Members of each House voting separately, to propose, as they do hereby
propose, the following amendment to the Constitution of the Philippines to be appended as an Ordinance thereto;
ORDINANCE APPENDED TO THE CONSTITUTION
Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article Fourteen, of the
foregoing Constitution, during the effectivity of the Executive Agreement entered into by the President of the
Philippines with the President of the United States on the Fourth of July, nineteen hundred and forth-six, pursuant
to the provisions of Commonwealth Act Numbered Seven hundred and thirty-three, but in no case to extend
beyond the third of July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces and sources of potential energy, and other natural resources of the Philippines, and
the operation of public utilities, shall, if open to any person, be open to citizens of the United States and to all
forms of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in the
same manner as to, and under the same conditions imposed upon, citizens of the Philippines or corporation or
associations owned or controlled by citizens of the Philippines.
This amendment shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election at which it is submitted to the people for their ratification pursuant to Article XV of the Constitution.
Adopted,

(Sgd.) JOSE AVELINO

President of the Senate

(Sgd.) EUGENIO PEREZ

Speaker of the House of Representatives

We hereby certify that the foregoing Resolution was adopted by both Houses in joint session assembled in the
Hall of the House of Representatives on September 18, 1946.

(Sgd.) ANTONIO ZACARIAS

Secretary of the Senate

(Sgd.) NARCISO PIMENTEL

Secretary of the House of Representatives

Para comprobar la voluntad popular sobre la reforma constitucional propuesta el Congreso de Filipinas ha aprobadola Ley No.
73 de la Republica que dispone y ordena la celebracion de un plebiscito para el 11 de Marzo de esteano, provee a la forma de
celebrarlo y consigna el presupuesto necesario para sufragar los gastos del mismo. Siuna mayoria de los electores votare
afirmativamente, la reformaquedara ratificada y estara en vigor por un periodo de 28 aos; en caso contrario, quedara
rechazada.
Los recurrentes alegan y sostiened que la resolucion conjuntade que se trate es ilegal y nula por no haberse aprobadocon los
votos de las tres cuartas-partes (3/4) del Congreso, conforme a lo provisto en el Articulo XV de la Constitucion, a saber:
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the
Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or
call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by
a majority of the votes cast at an election at which the amendments are submitted to the people for their
ratification.
Se alega que cuando se considero y aprobo la citada Resolucion conjunta el Senado se componia actualmente de 24 miembros,
es decir, el numero exacto fijado en la Constitucion, y la Camara de Representantes de 96 miembros, es decir, dos menos que
el numero sealado en la Constitucion, pues does dimitieron despues de las elecciones, uno para aceptar un cargo en el ramo
ejecutivo del gobierno y otro para aceptar un nombramiento en el servicio diplomatico. Sin embargo, segun la demanda de los
recurrentes, en el Senado solo se permitio votar a 21 miembros, excluyen dose de las deliberaciones y votacionfina l de la
Resolucion a tres miembros, a saber; los Senadores Vera, Diokno y Romero. De los referidos 21 miembros, votaron a favor de
la Resolucion 16 y en contra 5; asi que arguyen los recurrentes la Resolucion no quedo aprobada, por parte del Senado,
con el numero constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia ser 18.
En la Camara de Representantes, segun los recurrentes, solo se permitio votar a 88 miembros, excluyen dose de las
deliberaciones y votacion final de la resolucion a 8 miembros, a saber: Representantes Alejo Santos y Jesus B. Lava, de
Bulacan; Reps. Jose Cando y Constancio P. Padilla, de Nueva Ecija; Reps. Amado M. Yuson y Luis Taruc, de Pampanga; Rep.
Alejandro Simpauco, de Tarlac; y Rep. Vicente F. Gustilo, de Negros Occidental. De los referidos 88 miembros votaron a favor
de la Resolucion solo 68; asi que arguyen los recurrentas la Resolucion tampoco quedo aprobada, por parte de la Camara,
con el numero constitucional de tres cuartas-partes (3/4) partes de sus miembros, el cual debia ser 72, por lo menos, y no 68,
aun dando por descontados los dos miembros que despues de las elecciones aceptaron cargos en otros ramosdel gobierno.
Siendo inconstitucional y nula la Resolucion basica deque se trata, consiguientemente los recurrentes tachantambien de
inconstitucional e invalida la referida Ley de la Republica No. 73 que convoca una eleccion general o plebiscito para el 11 de
Marzo de 1947 a fin de someter alpueblo para su ratificacion o repudio la enmienda constitucional propuesta, y que consigna la
suma de P1,000,000 para los gastos en que se hubiere de incurrir con motivo dela celebracion de dicho plebiscito, entre
habilitacion deprecintos electorales, pago de dietas de los inspectores y costo de la a impresion, publicacion, fijacion y

distribucion gratuita de copias de la propuesta enmienda en ingles, espaol y otros dialectos del pais.
Los recurridos, despues de admitir ciertas alegacioneses enciales de la demanda y negar otras, plantean las siguientes
defensas especiales:
Primera defensa especial: que una ley o resolucion impresa (enrolled Act or Resolution) de ambas Camaras del Congreso,
adverada o autenticada con las firmas de los Presidentes de dichas Camaras, es prueba concluyente deque la misma fue
aprobada por el Congreso; que, en virtud del respeto que se debe a un ramo igual y coordinado del gobierno, no es permisible
una investigacion judicial desi la misma a fue o no aprobada debida y propiamente por el Congreso; y que, por tanto, esta Corte
Suprema carecede jurisdiccion para conocer y enjuiciar los puntos suscitados por los recurrentes en relacion con la validez y
constitucionalidad de la resolucion en cuestion.
Empero si la primera defensa especial no fuese sostenida, los recurridos alegan, por via de segunda defensa especial, que la
resolucion controvertida fue aprobada a conlos votos de tres cuartas-partes (3/4) de todos los miembros cualificados del Senado
y de la Camara de Representantes votando separadamente, en consonancia con el Articulo XV, apartado 1, de la Constitucion, y
que consiguientementela ley de la Republica No. 73 que ordena suplanteamiento ante el pueblo para su ratificacion o
desaprobacion, senala una fecha para la celebracion de estaconsulta plebiscitaria y consigna fondos publicos para talfin, es
valida y constitucional.
Consta en autos una estipulacion de hechos concertadaentre las partes, pero no se extracta aqui para no alargar
innecesariamente esta disidencia, pero se hara particular referencia a ella mas adelante a medida que las exigenciasde la
argumentacion lo demanden.
Es preciso hacer constar que los abogados de ambas parteshan hecho cumplida justicia a la tremenda importancia del asunto
haciendo extensos estudios y pacientes investigaciones de la jurisprudencia pertinente, en particular la americana, teniendo en
cuenta la influencia profunda y decisiva de aquel pais en nuestras ideas politicas y constitucionales en virtud de la historica y
estrecha convivenciade casi medio siglo.
Es que la cosa no era para menos. Puede decirse, sinexageracion, que excepto en cuatro momentos culminantes de su historia
el primer grito de rebelion contra Espaa en Agosto de 1896, la ruptura de hostilidades contra Americaen Febrero de 1899, la
aceptacion de la Ley de Independencia en el plebiscito nacional de 1935, y la guerra contra el Japon en 1941 en ningun
momento, en los ultimos 60 aos, ha sido Ilamado el pueblo filipino a rendiruna decision tan importante, de trascendencia e
implicacionestan graves, tan tremendas, como la que tiene que hacer en el plebiscito de 11 de Marzo proximo con motivode la
Resolucion congresional discutida en el presente asunto.
Es una de esas decisiones que hacen historia; que parabien o para mal sacuden los cimientos de un pais tal quesi fuese un
fenomeno cosmico; que determinan el curso desu existencia y deytinos nacionales; que deciden, en una palabra, de la suerte de
generaciones ya existentes y degeneraciones que no han nacido todaviaa. Es una de esas decisiones que para hacerla los
pueblos deben hincarse humildemente de rodillas, de cara al cielo, pidiendo al Dios de los pueblos y naciones la gracia de una
salvadora inspiracion de Su infinita sabiduria . . ..
II
Para los efector de una amplia perspectiva historica quepermita destacar en toda su plenitud los contornos de losformidables
"issues" o puntos constitucionales debatidos en el presente asunto, parece conveniente que repasemos, siquiera brevemente
(en las notas marginales lo que no cabeen el mismo texto de esta disidencia), 4los preceptos basicos de la Constitucion que se
trate de reformar conla Resolucion congresional de que tantas veces se ha hechomerito. Helos aqui:
ARTICLE XIII. CONSERVATION AND UTILIZATION OF NATURAL RESOURCES.
SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the
State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government
established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-five
years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the grant.
ARTICLE XIV. GENERAL PROVISIONS
xxx

xxx

xxx

SEC. 8. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the
Philippines, sixty per centum of the capital of which is owned by citizens of the Philippines, nor shall such
franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. No franchise
or right shall be granted to any individual, firm, or corporation, except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the public interest so requires.
Como queda dicho, la reofrma propuesta es en el sentidode que, no obstante lo dispuesto en los preceptos arribatranscritos,
"durante la efectividad del Convencio Ejecutivo perfeccionado entre el Presidente de Filipinas y el Presidente de los Estados
Unidos el 4 de Julio de 1946, al tenorde las disposiciones de la Ley del Commonwealth No. 733, pero que en ningun case se
extendera mas alla del 3 de Julio de 1974, la disposicion, explotacion, desar rollo y utilizacionde todos los terrenos agricolas,
forestales y minerales de dominio publico, de aguas, minerales, carbon, petroleo y otros minerales petroliferos, de todas las
fuerzasy fuentes de energia potencial, asi como de otros recursos de Filipinas, y la operacion de utilidades publicas, si abiertos
para cualguier persona, quedan abiertos para los ciudadanos de los Estados Unidos y para todas las formas de negocio y
empresa de la propiedad o controladas, directao indirectamente, por ciudad aos de los Estados Unidos, de la misma manera y
bajo las mismas condiciones impuestasa los ciudadanos de Filipinas o a las corporaciones o asociaciones de la propiedad o
controladas por ciudadanos de Filipinas (Resolucion conjunta del Congreso filipino, supra).
Podemos tomar conocimiento judicial pues, sobre ser historia contemporanea, se trata de las labores y procesos
deliberativos de la misma Asamblea Constituyente de quelos preceptos capitales arriba transcritos constituyen la expresion
acabada de toda la madurez de juicio, de toda laprudencia y sabiduria de que eran capaces no solo los autores de la
Constitucion y los Delegados que la aprobaron, sino el pueblo filipino que la ratifico en el correspondiente plebiscito nacional
convocado al efecto. En pocas resoluciones ha habido tanta firmeza y tan fuerte unanimidadentre nuestros partidos politicos y

sus caudillos como enesa recia y constructiva afirmacion de nacionalismo. Nadamejor, creo yo, que las siguientes palabras para
definir elespiritu, la filosofia que informa esas provisiones:
This provision of the Constitution has been criticized as establishing the outworn Regalian doctrine which, it is
suggested, may serve to retard the economic development of the Philippines. The best encomium on this
provision is probably the very criticism launched against it. It is inconceivable that the Filipinos would liberalize the
acquisition, disposition and exploitation of our natural resources to the extent of permitting their alienation or of
depriving the people of this country of their heritage. The life of any nation depends upon its patrimony and
economic resources. Real freedom, if it is to be lasting, must go hand in hand with economic security, if not
economic prosperity. We are at most usufructuaries of ourdomains and natural resources and have no power to
alienate them even if we should want to do so. They belong to the generations yet unborn and it would be the
height of folly to even think of opening the door for their untrammelled disposition, exploitation, development or
utilization to the detriment of the Filipinos people. With our natural resources in the hands of foreigners what
would be there left except the idealism of living in a country supposedly free, but where freedom is, after all, an
empty dream? We would be living in a sumptuous palace that it not ours! We would be beggars in our own
homes, strangers in our own land!
Friendship and amity towards all nations are compatible with the protection of the legitimate interests of the
Filipino people. There is no antagonism or hostility towards foreigners but sane nationalism and self-protection
which every country of the world is practising today in the interest of self-preservation. (The Three Powers of
Government, by Laurel, pp. 117-118.)
Los criticos de la enmienda constitucional propuesta pueden discutir libremente, como cumple a los ciudadanos de un pais
democratico, los meritos y demeritos de lamisma. Pueden combatirla con toda clase de razones morales, politicas,
economicas, financieras, internacionales, y hasta de decencia y naturalmente defenderla tambiensus partidarios desde todos
los angulos. Podrian los opositoreshacer una minuciosa diseccion de su fraseologia yacaso hallar en sus repliegues peligrosas
implicaciones, posibles riesgos, como en ese par de adverbios "directa o indirectamente", a cuyo socaire podrian acogerse
corporacioneso asociaciones extranjeras controladas solo indirectamente por ciudadanos americanos para concurrir en la
explotacion de nuestros terrenos publicos y recursos naturales, y en la operacion de utilidades publicas. Todo estolo pueden
hacer, y algo mas. Pero es obvio, elemental quesemejante discusion no compete a esta Corte Suprema, sinoen todo caso a
otros poderes constituidos.
Nosotros no estamos para determinar y enjuiciar labondad o maldad de la enmienda propuesta. Lo unico quenos incumbe
hacer, ya que la cuestion se halla propiamente planteada ante nosotros, es resolver si la enmienda ha sido aprobada por el
Congreso de acuerdo con el mandato expreso de la Constitucion en materia de enmiendas; si losrequisitos que la Constitucion
seala para poder enmendarla requisitos que son mandatorios, categorica menteimperativos y obligatorios se han
cumplido o se han violado. Como se dijo bien en el asunto de Gray vs.Childs ([1934], 156 So., 274, 279), ". . . No podemos decir
queel estricto requerimiento relativo a las enmiendas se puede renunciar a favor de una buena enmienda e invocar encontra de
otra mala. . . . No compete a los tribunales el determinar cuando una enmienda propuesta es sabia y cuando no lo es. Los
tribunales nada tienen que ver conla sabiduria de la politica. Pero es deber de los tribunales, cuando se les pide que lo hagan, el
determinar si o no el procedimiento adoptado para la aprobacion de la enmiendaes el sealado por los terminos de la ley
organica.
Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de nuestra Constitucion en materia de recursos naturales y
utilidades publicas, se ha dicho no como expresion de un criterio propio, sino tan solo para subrayar todala gravedad, toda la
densidad del asunto, y prevenir entodo caso los peligros de una rutinaria y complacienteliviandad. Como tambien se dijo en el
citado asunto deGray vs. Childs, "la enmienda de la ley organica del Estado o nacion no es una cosa para ser tomada
ligeramente, ni para ser hecha de lance o al azar.Es una cosa seria. Cuando la enmienda es aprobada, viene a ser parte de
laley fundamental del pais y puedesignificar el bienestar omaldicion de las generaciones de la nacion donde se haceparte del
codigo fundamental."
Este pronunciamiento adquiere todo el valor y toda la resonancia de una consigna en el presente caso en que lareforma
propuesta afecta vitalisimamente al patrimonionacional del pueblo filipino. No son los recursos naturalesy las utilidades
publicas el tesoro de una nacion, labase que sustenta su existencia, la espina dorsal de sueconomia? Por tanto, jamas se podra
exagerar el celo, la vigilancia que el pueblo y sus organos naturales ejercenpara que las salvaguardias impuestas por la misma
Constitucionen relacion con el proceso y tramitacion de todaenmienda constitucional se cumplan y observen con el maximo
rigor.
Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la doctrina de la separacion de poderes quela mayoria
de esta Corte invoca para justificar su inaccion, su pasividad, su politica de "manos fuera", alegando que el presente asunto es
coto vedado para nos otros, algo quecae fuera de nuestra jurisdiccion, eso que en derecho politico y constitucional se
llama materia politica no-justiciable.
III
La mayoria rehusa asumir jurisdiccion sobre el presente caso porque dice que versa sobre una cuestion politica, ylas cuestiones
politicas caen fuera de la competencia de los tribunales de justicia. Creo que esto es un error, dicho seacon todos los respetos
debidos a mis ilustres compaeros que sostienen tal opinion. Hay acaso algun documento mas politico que la Constitucion? Si
la opinion de lamayoria fuese valida y acertada, practicamente ninguna violacion de la Constitucion podria ser enjuiciada por los
tribunales, pues cual mas, cual menos, casi todas las transgresionesconstitucionales, sobre todo las que comete elpoder
legislativo o el poder ejecutivo, tienen caracter politico. Bajo esa opinion la Constitucion seria una letramuerta, un simple pedazo
de papel: los poderes constituidos, los individuos que los componen, podrian infringirim punemente la Constitucion sin que
ningun arbitro constitucional pudiera intervenir ordenadamente para restaurarla suprema majestad de la ley fundamental violada.
Esclaro que esto podria conducir facilmente al caos, a la anarquia, a la revolucion, dependiendo solo el resultado de lamayor o
menor docilidad del pueblo, del grado de elasticidad politica de las masas. Y es claro que ninguno puedequerer este triste
destino para nuestro pais.
Creo sinceramente que una mejor y mas correcta evaluacion de nuestro sistema de gobierno que esta esencial mentecalcado
en el americano, es que bajo la teoria relativa de las eparacion de poderes, ningun poder es superior al pueblo cuya voluntad
esta encarnada en la Constitucion. Los poderes no son mas que agentes, mandatarios, servidores: el pueblo es el amo, el
mandante, el soberano. Y el pueblo ordena y manda por medio de la Constitucion esta es suvoz el verbo hecho carne politica
y social, el soplo vital quetraduce y transmuts su espiritu en postulados esenciales deregulacion y gobierno.
Todo eso esta bien, no puede haber seria objecion a ello,dicen los sostenedores absolutistas de la teoria de la sedparacion de
poderes. Pero se pregunta: quien seala lavoluntad del pueblo tal como esta plasmada en la Constitucion? ?Quien es el
profeta que desciende del Sinai para revelar las tablas de la ley? Quien ha de arbitrar en los conflictos constitucionales, o quien
ha de decidir los litigios propiamente planteados en que se ventilan una infraccion de la Constitucion? Hay un peligroso vacio
en nuestro mecanismo constitucional, o por el contrario, los resorteestan todos bien situados, capaces de operar y funcionarade

cuada y eficientemente? Esto es precisamente el busilis, la cuestion batallona.

No puede haber duda en la contestacion a tales preguntas. Bajo nuestro sistema de gobierno el poder judiciales el llamado a
sealar, a interpretar la ley; y en los conflictoso transgresiones constitucionales esta Corte Suprematiene la ultima palabra, le
compete el arbitraje supremoy final. Bajo nuestra mecanica constitucional, igual quebajo la americana, se da la aparente
paradoja de que la superior facultad, el supremo negocio de interpretar la voluntad del pueblo tal como esta expresada mas o
menos permanentemente en la Constitucion, no corresponde propiamentea ninguno d e los poderes electivos, los que se
renuevanperiodicamente, sino al poder que si bien es denombramiento en su origen, tiene, sin embargo, sentido deperpetuidad,
quiero decir, es vitalicio en la complexion y funcion de los individuos que los componen el poder judicial. La sabiduria peculiar,
la originalidad del sistemaconsiste precisamente en eso: en haber alojado el supremo arbitraje con relacion a los conflictos y
transgresiones constitucionales en un poder del Estado al cual deliberadamentese le ha dotado de un clima psicologico y moral
el maspropicio posible a la objetividad y desasimiento de lasdisputas politicas y discordias civiles, situandosele por encimade los
vaivenes de la politica al uso y las veleida desde la suerte electora. "Esto es lo que va implicto en la expresion supremacia
judicial, que propiamente es la facultad de revision judicial bajo la Constitucion" (Angara contra Comision Electoral, 63 Jur. Fil.,
171).
The very essence of the American conception of the separation of powers is its insistence upon the inherent
distinction between law-making and law-interpreting, and its assignment of the latter to the judiciary, a notion
which, when brought to bear upon the Constitution, yields judicial review." (Corwin, The Twilight of the Supreme
Court, p. 146.)
En el famoso asunto de Marbury vs. Madison, supra, el Tribunal Supremo de los Estados Unidos, por boca de sugran Chief
Justice John Marshall, en terminos inequivocos definio y explico las facultades de la judicatura para poneren vigor la
Constitucion como la suprema ley del pais, y declaro que es terminantemente de la competencia y deberdel departamento
judicial el decidir cual es la ley querige.
The reasoning of Webster and Kent is substantially the same. Webster says: "The Constitution being the
supreme law, it follows of course, that every act of the Legislature contrary to the law must be void. But who shall
decide this question? Shall the legislature itself decide it? If so, then the Constitution ceases to be legal and
becomes only a moral restraint for the legislature. If they, and they only, are to judge whether their acts be
conformable to the Constitution, then the Constitution is advisory and accessory only, not legally binding;
because, if the construction of it rest wholly with them, their discretion, in particular cases, may be in favor of very
erroneous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the
validity of particular acts." Webster, Works, Vol. III, 30. (Willoughby on the Constitution of the United States, Vol.
1, 2d edition, pp. 4, 5.)
En el citado asunto de Angara contra Comision Electoral dijimos tambien lo siguiente:
. . . Y la judicatura, a su vez, con el Tribunal Supremo por artbitro final, frena a con efectividad a los demas
departament of en elejercicio de su facultad de determinar la ley, y de aqui que pueda declarar nulos los actos
ejecutivos y legislativos que contravengan la Constitucion.
Esta doctrina reafirmo en el asunto de Planas contra Gil (67 Phil., 62), a saaber:
. . . As far as the judiciary is concerned, which it holds' neither the sword nor the purse' it is by constitutional
placement the organ called upon to allocate constitutional boundaries, and to the Supreme Court is entrusted
expressly or by necessary implication the obligation of determining in appropriate cases the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation. (Section 2 [1], Art. VIII, Constitution of the
Philippines.) In this sense and to this extent, the judiciary restrains the other departments of the government and
this result is one of the necessary corollaries of the "system of checks and balances" of the government
established.
No es que con esto el poder judicial assume un complejode superioridad sobre los otros poderes del Estado, no. Setrate
simplemente de que, dentro de las limitaciones de todacreacion humana, alguien tiene que arbitrar y dirimir losconflictos y las
transgresiones a gue puede dar lugar la Constitucion, y se estima que el poder judicial, pro la razonde su ser y de sus funciones,
es el mas llamado a ser esearbitro. Se trate de una propia y graciosa inhibicion delos otros poderes en virtud de una necesidad
impuesta porunas teorias y practicas de gobiernio que han resistido la prueba del tiempo y el choque con la realidad y la
experiencia. En mi disidencia en el asunto de Vera contra Avelino (77 Phil., 192), hablando sobre este particular dijelo siguiente
y lo reitero ahora, a saber:
En parte, el argumento expuesto es correcto y acertado. No sepuede discutir que los tres poderes del Estado
son iguales e independientesentre si; que ninguno de ellos es superior al otro, mucho menos el poder judicial
que entre los tres es el menos fuerte y elmas precario en medios e implementos materiales. Tampoco se puede
discutir que bajo la Constitucion cada poder tiene una zona, una esferade accion propia y privativa, y dentro de
esa esfera un cumulode facultades que le pertenecen exclusivamente; quedentro de esaesfera y en el uso de
esas facultades cada poder tiene absoluta discreciony ningun otro poder puede controlar o revisar sus actos so
pretexto de que alguien los cuestiona o tacha de arbitrarios, injustos, imprudentes o insensatos. Pero la
insularidad, la separacion llegasolo hasta aqui. Desde Montesquieu que lo proclamo cientificamente hasta
nuestros dias, el principio de la separacion de poderes hasufrido tremendos modificaciones y limitaciones. El
consenso doctrinal hoy es que la teoria es solo relativa y que la separacionde poderes queda condicionada por
una mecanica constitucional lamecanica de los frenos y cortapisas. (Willoughby, On the Constitution of the
United States, tomo 3, pags. 1619, 1620, 2. edicion.) Como queda dicho, cada poder es absoluto dentro de la
esfera quele asigna la Constitucion; alli el juego de sus facultades y funcionesno se puede coartar. Pero cuando
se sale y extravasa de esa esferainvadiendo otras esferas constitucionales, ejerciendo facultades queno le
pertenecen, la teoria de la separacion ya no le ampara, la Constitucion que es superior a el le sale al encuentro,
le restringe uy leachica dentro de sus fronteras, impidiendo sus incursiones anti-constitucionales. La cuestion
ahora a determinar es si bajo nuestrosistema de gobierno hay un mecanismo que permite restablecer eljuego
normal de la Constitucion cuando surgen estos desbarajustes, estos conflictos que podriamos llamar de fronteras
constitucionales; tambien es cuestion a determinar si cuando surgen esos conflictos, un ciudadano sale
perjudicado en sus derechos, el mismo tiene algun remedio expedito y adecuado bajo la Constitucion y las leyes,
y quien puede concederle ese remedio. Y con esto llegamos a la cuestion basica, cardinal en este asunto.
Nuestra opinion es que ese mecanismo y ese remedio existen son los tribunales de justicia.
La mayoria no define en su decision lo que llama cuestion politica no-justiciable ni las maaterials o casos que caen dentro de su
significado. "The difficulty lies" dice la ponencia "in determining what matters fall within the meaning of political question.
The term is not susceptible of exact definition, and precedents and authorities are not always in full harmony as to the scope of
the restrictions, on this ground, on the courts to meddle with the actions of the political departments of the government." Pero
razonando por analogia cita un precedente, una autoridad el caso de Coleman vs. Miller decidido no hace muchos aos por

la Corte Suprema Federal de los Estados Unidos. La mayoria cree que este es el caso mas semejante al que nos ocupa. Creo
que la mayoria padece error: el caso de Coleman contra Miller es precisamente un buen argumento en favor del recurso.
Compendiado el caso es como sigue: En Junio, 1924, el Congreso de los Estados Unidos propuso una reforma ala Constitucion,
conocida por "Child Labor Amendment" (enmienda sobre el trabajo infantil). En Enero, 1925, la Legislatura del Estado de
Kansas adopto una resolucion rechazandola enmienda y una copia certificada de la resolucionse envio al Secretario de Estado
de los Estados Unidos. En Enero, 1937, o sea 12 aos despues, una resolucion conocida como "Resolucion Concurrente del
Senado No. 3" se presento en el Senado del Estado de Kansas pararatificar la propuesta enmienda. Habia 40 Senadores.
Alconsiderarse la resolucion 20 Senadores votaron en favor y 20 Senadores en contra. El Teniente Gobernador, que era
entonces el Presidente del Senado en virtud de la Constitucion estatal, emitio su voto en favor de la resolucion, rompiendo asi el
empate. La resolucion fue posteriormente adoptada por la Camara de Representantes de Kandas mediante una mayoria de los
votos de sus miembros.
Fued entonces cuando se interpuso ante la Corte Suprema de Kansas un recurso de mandamus por los 20 Senadores adversos
a la resolucion y por otros 3 miembros de la Camarade Representantes. El objeto del recurso era (a) compeler al Secretario del
Senado a borrar el endoso favorable de la resolucion y poner en su lugar las palabras "no ha sido aprobada"; (b) recabar la
expedicion de un interdicto contra los oficiales del Senado y Camara de Representantes prohibiendo les que firmaran la
resolucion y contra el Secretario de Estado de Kansad prohibiendole que autentic aradicha resolucion y la entregara la
Gobernador. La solicitud cuestionaba el derecho del Teniente Gobernadora emitir su voto decisivo en el Senado. Tambien se
planteabaen la solicitud el hecho de que la resolucion habiasido rechazada originariamente y se alegaba, ademas, quedurante
el periodo de tiempo comprendido entre Junio,1924, y Mayo, 1927, la enmienda habia sido rechazada porambas Camaras de
las Legislaturas de 26 Estados y solose habia ratificado en 5 Estados, y que por razon de dicho rechazamiento y por no haberse
ratificado dentro de untiempo razonable la enmienda habia perdido su validez y vitalidad.
La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre los hechos, asumio competencia sobre el casoy sostuvo
que el Teniente Gobernador tenia derecho a emitirvoto decisivo, que la proyectada enmienda conservabasu vitalidad original a
pesar del tiempo transcurrido, y quela resolucion, "habiendo sido aprobada por la Camara de Representantes y por el Senado,
el acto de ratificacion dela propuesta enmienda por la Legislatura de Kansas erafinal y complete." Consiguientemente el recurso
de mandamus fue denegado.
Elevado el asunto en casacion para ante la Corte Suprema Federal, esta asumio jurisdiccion sobre el caso, conla concurrencia y
disidencia de algunos Magistrados que opinaban que el recurso debia rechazarse de plano, sin masceremonias, por la razon,
segun los disidentes, de que los recurrentes no tenian personalidad ni derecho de accion para pedir la revision de la sentencia
de la Corte Supremade Kansas, y porque ademas se trataba de una cuestion puramente politica, por tanto no-justiciable. Bajo la
ponenciade su Presidente el Sr. Hughes, la Corte Suprema Federal conocio del caso a fondo, discutiendo y resolviendo las
cuestiones planteadas. He aqui sus palabras: "Our authority to issue the writ of certiorari is challenged upon the ground that
the petitioners have no standing to seek to have the judgment of the state court reviewed and hence itis urged that the writ
of certiorarishould be dismissed.We are unable to accept that view." Esto viene a ser comouna replica a las siguientes palabras
de los disidentes: "It is the view of Mr. Justice Roberts, Mr. Justice Black, Mr. Justice Douglas and myself (Mr. Justice
Frankfurter) that the petitioners have no standing in the Court." Delo dicho resulta evidente que la Corte Federal no adoptola
actitud de "manos fuera" (hands off), sino que actuo positivamente sobre el caso, encarandolo.
La decision consta de tres partes. La primera parte, que es bastante extensa, esta consagrada enteramente adiscutir la cuestion
de la jurisdiccion de la Corte. Ya hemosvisto que esta cuestion se ha resuelto enteramente enfavor de la jurisdiction, en virtud de
las razones luminosas que alli se explanan y que no reproduzco por no ser necesario y para no alargar indebidamente esta
disidencia. La segunda parte es bien breve, apenas consta de dos parrafos. Se refiere a la cuestion de si el voto del Teniente
Gobernador, que rompio el empate, era o no valido. La Corte nolo resuelve, por que dice que sus miembros se dividieron
porigual sobre si era una cuestion politica y, por tanto, nojusticiable. La tercera parte, tan extensa como la primera, esta
dedicada a estudiar y discutir las siguientes proposiciones :(a) Si habiendo sido rechazada originariamentela enmienda, una
ratificacion posterior podia validamente dejar sin efecto dicho rechazamiento y tomarse como unaratificacion legal al tenor de la
Constitucion; (b) si ellargo tiempo transcurrido entre el rechazamiento y la ratificacion unos 13 aos no habia tenido el
efecto de darcaracter final a la repudiacion de la enmienda, causando estado juridico definitivo.
El analisis que hace el ilustrado ponente de las cuestiones planteadas es muy interesante y desde luego acabado. Se estudian y
comentan luminos amente los precedentes. Sobre la cuestion de si el rechazamiento de unaenmienda propuesta impide que la
misma sea ratificada posteriormente, se puntualiza lo siguiente: que el articulo V de la Constitucion Federal sobre enmienda
esta fraseadoen terminos positivos, es decir, habla de ratificacion y node rechazamiento, y que por tanto "el poder para ratificarlo
confiera al Estado la Constitucion, y que, como poder ratificante, continua y persiste, a pesar de un previo rechazamiento.
"Luego la Corte dice, examinando los precedentes, que el Congreso, en el ejercicio de su control sobrela promulgacion de las
enmiendas a la Constitucion, ha resuelto esta cuestion repetidas veces en el sentido indicado, esto es, considerando inefectivo
el previo rechazamientofrente a una positiva ratificacion; y la Corte concluye que esta accion del Congreso es valida,
constitucional; por consiguiente, los tribunales no estan autorizados para revisarla. Es en este sentido, creo yo, como la Corte
dice que se trate de una cuestion politica no-justiciable, es decir una cuestion que cae dentro de la zona constitucional exclusion
del Congreso; por tanto, se trate deuna accion valida, constitucional. Pero no hay nada enesa decision que diga, o permita
inferir, que cuando el Congreso viola un mandato expreso de la Constitucion, como en el caso que nos ocupa, los tribunales no
pueden intervenir, bajo el principio de la supremacia judicial entratandose de interpretar la Constitucion, para resolver el conflicto
o enjuiciar la transgresion, y conceder el remedio propiamente pedido. En otras palabras, en el caso de Coleman contraMiller la
Corte Suprema Federal hallo que el Congreso, al declarar valida la ratificacion de la enmienda constitucional sobre trabajo
infantil (Child labor), no habia infringibo el articulo V de la Constitucion, sobre enmiendas, y la Corte lo razona diciendo, con la
vista delos precedentes, que el referido articulo V habla de ratificacion y no de rechazamiento, y que, por tanto, "el poderpara
ratificar continua y persiste a pesar de un previo rechazamiento." De suerte que, en realidad de verdad, no escierto que la Corte
Suprema Federal declaro injusticiablela materia, pues que mejor prueba de justiciabilidad que ese dictum categorico, positivo y
terminante?
Sobre la proposicion de si el largo tiempo transcurrido entre el rechazamiento y la ratificacion unos 136 aos no habia
tenido el efecto de dar caracter final a la repudiacion de la enmienda, causando estado juridico definitivo, la Corte Suprema
Federal fallo que no, es decir, declarovalida la ratificacion no obstante dicho lapso de tiempo, aduciendo razones muy atinadas,
entre ellas la de que las condiciones de caracter moral, medico, social y economico que aconsejaban la prohibicion del trabajo
infantil en las fabricas eran tan validas y existentes, si no mas, cuandose sometio la enmienda por primera vez para su
ratificacion como 13 aos despues. Y luego la Corte cita autoridades y precedentes en apoyo de su conclusion, entre ellosel
caso tipico y decisivo de Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41 Sup.Ct., 510). En este caso la Cortedeclaro que el
Congreso, al proponer una enmienda a la Constitucion, pueded fijar un tiempo razonable para su ratificacion, y sostuvo la accion
del Congreso al disponer enla proyectada 18. Enmienda que la misma seria ineficaza menos que se ratificase dentro de siete
aos.
Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario: el Congreso no habia fijado ningun plazopara la
ratificacion. En vista de esto, los recurrentes pretendian que la Corte supliera la omision del Congreso declarandolo que era
tiempo razonable, teniendo en cuentalos precedentes judiciales y el precedente congresional de 7 aos ya sostenido en el caso
citado de Dillon contra Glass; y que desde luego el periodo de 13 aos era demasiado largo para ser razonable. La Corte
Suprema dijo que no, queno eran los tribunales los que debian fijar ese tiempo razonable; que en esta cuestion entraban

muchos factores denaturaleza varia y compleja politicos, economicos y sociales que solo el Congreso estaba en
condiciones de determinar ya mediante la correspondiente legislacion como enel caso de la 18. Enmienda, ya en cada caso
concreto deratificacion al ejercer su control sobre la promulgacion de las enmiendas. Ahora bien, pregunto: no es esto
un dictum judicial? no es esto justiciar? no esta aqui la Corte Suprema Federal sentandose en estrados y emitiendo
judicialmente su opinion sobre una materia juridica y constitucional sometida a su consideracion? En realidad, puede decirse
que la unica cuestion que la Corte ha dejado de resolver es la validez o nulidad del voto decisivo del Teniente Gobernador, por la
razon de que sobre este punto, segun se dice en la misma decision, la opinion del Tribunal estaba igualmente dividida. Todas las
demas cuestiones han sido enjuiciadas, resueltes, y esta accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y las
materias en el discutidas, es lo que ha motivado la disidencia de 4 Magistrados los Sres. Black, Roberts, Frankfurter y Douglas.
En efecto, estos disidentes no disimulansu desagrado al ver que la Corte asume en el caso, siquier implicitamente, el poder de
interpretacion judicial, y aunvan mas alla expresan un notorio desencanto al ver que la Corte "trata el proceso enmendatorio
provisto por la Constitucion, como sujeto a interpretacion judicial en algunos respectos, y en otros sujeto a la autoridad final del
Congreso", y al ver tambien que en la decision "no hay desaprobacion de la conclusion establecida en el asunto de
Dillon contra Glass, de que la Constitucion requiere tacitamente que una enmienda propiamente sometida debe darsepor
muerta, a menos que se ratifique dentro de un tiempo razonable." Es decir, los Magistrados disidentes esperaban que la Corte
revocase y abrogase lo hecho por ella en elcitado asunto de Dillo contra Glass en donde la Corte, envez de abstenerse de
conocer del caso por tratarse en el, segun los disidentes, de materia politica no-justiciable, ejercio plena jurisdiccion sobre el
mismo asumiendo supoder tradicional de interpretar la Constitucion y declarando valida la lay del Congreso que fijaba un plazo
de7 aos para la ratificacion de la 18. Enmienda. No puedo resistir a la tentacion de reproducir las mismas palabrasde la
disidencia: ellas, mejor que todo lo que yo pueda decir, demuestran de modo inconcuso las irreconciliables diferencias de criterio
entre la mayoria, representada porel ilustre ponente Sr. Hughes, y los disidentes, pues mientraspor un lado el
ponente justicia decididamente el caso considerando, discutiendo y resolviendo todas las cuestionesplanteadas, menos la
cuestion del voto del Teniente Gobernador, citando profusamente autoridades y precedentes, los disidentes, en su opinion,
preconizan una actitudde absoluta abstencion, de "manos fuera" (hands off), portratarse, segun ellos, de una materia politica nojusticiable que cae exclusivamente bajo el control del Congreso. He aqui las palabras de los disidentes:
. . . To the extent that the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and ratification of
amendments, we are unable to agree.
The State court below assumed jurisdiction to determine whether the proper procedure is being followed between
submission and final adoption. However, it is apparent that judicial review of or pronouncements upon a
supposed limitation of a "reasonable time" within which Congress may accept ratification; as to whether duly
authorized State officials have proceeded properly in ratifying or voting for ratification; or whether a State may
reverse its action once taken upon a proposed amendment; and kindred questions,are all consistent only with an
ultimate control over the amending process in the courts. And this must inevitably embarrass the course of
amendment by subjecting to judicial interference matters that we believe were intrusted by the Constitution solely
to the political branch of government.
The Court here treats the amending process of the Constitution in some respects as subject to judicial
construction, in others as subject to the final authority of the Congress. There is no disapproval of the conclusion
arrived at in Dillon vs. Glass, that the Constitution impliedly requires that a property submitted amendment must
die unless ratified within a "reasonable time." Nor does the Court now disapprove its prior assumption of power to
make such a pronouncement. And it is not made clear that only Congress has constitutional power to determine if
there is any such implication in article 5 of the Constitution. On the other hand, the Court's opinion declares that
Congress has the exclusive power to decide the political questions of whether a State whose legislature has once
acted upon a proposed amendment may subsequently reverse its position, and whether in the circumstances of
such a case as this, an amendment is dead because an "unreasonable" time has elapsed. No such division
between the political and judicial branches of the government is made by article 5 which grants power over the
amending of the Constitution to Congress alone. Undivided control of that process has been given by the article
exclusively and completely to Congress. The process itself is "political" in its entirety, from submission until an
amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any
point.
Since Congress has sole and complete control over the amending process, subject to no judicial review, the
views of any court upon this process cannot be binding upon Congress, and in so far as Dillon vs. Glass attempts
judicially to imposed a limitation upon the right of Congress to determine final adoption of an amendment, it
should be disapproved. . . . (Coleman vs. Miller, 122 A.L.R., 695, 708, 709.)
La distribucion de los votos con relacion a las cuestiones planteadas en el referido asundo de Coleman vs. Miller esalgun tanto
confusa, como han podido notar los mismos comentaristas; asi que necesita de alguna explicacion. Escierto que no suscriben la
ponencia mas que 3 Magistrados, a saber: el ponente Sr. Hughes y los Sres. Stone y Reed, pero en cuanto a la jurisdiccion
plena que la Corte asumio sobre el caso y la materia hay que aadir los votos de los Sres. McReynolds y Butler. Estos dos
ultimos no soloconcurrian implicitamente en la accion de la Corte al enjuiciarel caso, sino que inclusive opinaban que debia
concederse el recurso, esto es, que debia anularse la ratificacion tardia de la Enmienda sobre Trabajo Infantil (Child Labor)
hecha por la Legislatura de Kansas. De modo queen cuanto al "issue" de la jurisdiccion, la justiciabilidad del caso, la votacion
era de 5 contra 4 por la jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los Magistrados Sres. Stone, Reed,
McReynolds y Butler; por la actitud de absoluta abstencion, de "manos fuera" (hands off), los Magistrados Sres. Black,
Frankfurter, Roberts y Douglas.
Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser una autoridad a favor de los recurridos, juntamente con
el caso de Dillon vs. Glass constituyen precedentes decisivos en la jurisprudencia federal americana a favor de los recurrentes.
V
Pero si la jurisprudencia federal milita en favor de latesis de que tenemos jurisdiccion para enjuiciar y decidirel presente caso, en
el ejercicio de nuestras supremas funciones como interprete de la Constitucion bajo el principio firmemente establecido de la
supremacia judicial en asuntos propiamente planteados sobre conflictos y transgresiones constitucionales, la jurisprudencia de
los Estados estodavia mas indubitable e inequivoca, mas terminante y decisiva. La importancia de esto sube de punto si se
tieneen cuenta que, mas que con el gobierno federal, nuestra analogia, nuestros puntos de contacto en lo politico, constitucional
y juridico es mas bien con los diferentes Estados de la Union americana. Nuestro sistema de gobierna es unitario. Aqui nuestras
provincias no son Estados autonomos y semi-independientes como lo son los Estados americanos. Asi que la cedula, la unidad
politica mas semejante a la nuestra no es la federal, sino la estatal. Por eso si bienes cierto que las constituciones de los
Estados, como lanuestra, todas estan fundamentalmente calcadas en el patron de la Constitucion federal, se vera que en
ciertosrasgos caracteristicos del sistema unitario nuestra Constitucionse aproxima evidentemente mas a las de los Estados que
a la federal. Esa semejanza es sobre todo notabilisimaen la parte que se refiere al proceso enmendatorio de la Constitucion. Es
que, en realidad, los Estados de la Union americana, para todos los efectos de la vida interior, domestica, son practicamente
naciones independientes; asi que nuestra evolucion, nuestro transitode la condicion de Commonwealth a la de Republicas
oberana e independiente si bien nos distingue de ellos enel derecho internacional, ninguna diferencia, sin embargo, ha operado
en el campo constitucional, ora en la parte dogmatica de la Constitucion, ora en la parte organica. Y la mejor prueba de esto es

que con la independencia nohemos tenido necesidad de cambiar de Constitucion: lamisma que nos servia cuando eramos
simple Commonwealth, es decir, cuando estabamos sujetos a la soberania americana, es la misma que nos sirve hoy cuando ya
somos Republic; y no cabe duda de que nos serviria perfectamente bien si no la tuvieramos asendereada y malparada en
nuestras pecaadoras manos con repetidas violaciones, confrecuentes asaltos contra su integridad . . ..
Ahora bien; sin petulancia se puede retar a cualquieraa que seale un caso, un solo caso en la jurisprudencia de los Estados de
la Union americana en que los tribunales de justicia se hayan negado a conocer y enjuiciaruna violacion constitucional
semejante a la que nos ocupapor la razon de que se trataba de una cuestion politica no-justiciable. No hay absolutamente
ninguno; por esoque los recurridos, a pesar de las pacientes y laboriosas investigaciones que denota su habil y concienzudo
alegato, no han podido citar ni un solo caso.
En cambio, los tomos de jurisprudencia de various Estados dan cuenta de casos indenticosd al que nos ocupa y entodos ellos
se ha declarado invariablemente que la violacion de la Constitucion en lo que se refiere al precepto que regula el proceso de la
enmiendas a la Ley organica esuna cuestion judicial, y ninguna Corte Suprema de Estados e ha lavado jamas las manos bajo la
teoria de la separacion de poderes. Es mas: creo que in siquiera seha planteado seriamente la objecion fundada en el
argumentod e la injusticiabilidad.
Para no alargar demasiado esta disidencia no voy a citarmas que algunos casos los mas conocidos y representativos, tomados
de la jurisprudencia de algunos Estados, a saber: Florida, Minnesota, Georgia e Indiana. De la Corte Suprema de Florida
tenemos dos casos: el de Crawford vs .Gilchrist y el de Gray vs. Childs.
En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann. Cas., 1914B, 916), se trataba de una accionde prohibicion
interpuesta por el Gobernador del Estado, Albert W. Gilchrist, contra el Secretario de Estado, H. Clay Crawford, para impedir que
cierta propuesta enmiendaa la Constitucion se publicara y se sometiera al electorado en un plebiscito para su ratificacion o
rechazamiento. Esdecir, lo mismo de que se trate en el case que tenemos antenosotros. La enmienda habia sido aprobada por
la Camarade Representantes de Florida con el voto necesario y constitucional de tres quintas (3/5), y fue enviada al Senado
para su concurrencia. El Senado tambien la aprobo conel voto de tres quintos, pero esta votacion fue reconsiderada
posteriormente. Asi estaba el asunto, pendiente de reconsideracion cuando se clausuro la Legislatura. Despues, sin embargo,
diose por aprobada la propuesta enmienday el Secretario de Estado trato de dar los pasos parasu publicacion y ratificacion
plebiscitaria. De ahi la accionde interdicto prohibitorio, fundada en la alegacion de quela enmienda no habia sido aprobada
debidamente por la Legislatura de acuerdo con los metodos prescritos en la Constitucion de Florida. Igual que en el presente
casetambien hubo alli una batalla forense colosal, con untremendo despliegue de habilidad y talento por cada lado. El ponente
no se recata en alabar el esfuerzo de las partesy dice: ". . . we think the parties to this litigationare to be commended, both for
taking the proceedings that have brought these unsual questions before the court for determination and for the great ability with
which their counsel have presented them to this court."
Se lavo las manos la Corte Suprema de Florida declarandose incompetente para conocer del asunto por la razonde que se
trataba de una cuestion politica y, por tanto, nojusticiable? De ninguna manera. La Corte asumio resueltamente su
responsabilidad y poder tradicional de interpretarla Constitucion y fallo el asunto en su fondo, declarando que la cuestion era
propiamente judicial y que laenmienda constitucional propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la enmiendas. Por tanto, se denego la peticion
de supersedeas interpuestapor el recurrido para enervar el recurso; es decir, al recurrentegano su inusitado e historico pleito. Y
las esferas politicas de Florida no se desorbitaron por esta decisivaderrota de la teoria de la separacion de poderes. Vale la pena
reproducir algunar de las doctrinas sentadas en elasunto, a saber:
Constitutional Law Power of Courts to Determine Validity of Action by Legislature in Proposing Constitutional
Amendment.
A determination of whether an amendment to the constitution has been validly proposed and agreed to by the
Legislature is to be had in a judicial forum where the constitution provides no other means for such determination.
Injunction Subject of Relief Act of Secretary of State in Certifying Proposed Amendments.
The act of the secretary of state in publishing and certifying to the country commissioners proposed amendments
to the constitution is in its nature ministerial, involving the exercise of no discretion, and if the act is illegal it may
be enjoined in appropriate proceedings by proper parties, there being no other adequate remedy afforded by law.
Injunction Governor as Complainant, Secretary of State as Defendant.
The governor of the state, suing as such, and also as a citizen, taxpayer, and elector, is a proper complainant in
proceedings brought to enjoin the secretary of state from publishing at public expense and certifying proposed
amendments to the constitution upon the ground that such proposed amendments are invalid because they have
not been duly "agreed to by three-fifths of all the members elected to each house" of the legislature.
Amendments to Constitution Effect of Ignoring Mandatory Provisions of Constitution.
If essential mandatory provisions of the organic law are ignored in amending the constitution, it violates the right
of all the people of the state to government regulated by law.
Duty of Court to Enforce Constitution.
It is the duty of the courts in authorized proceedings to give effect to the existing constitution.
Mandatory Provisions of Constitutions as to Manner of Amending Constitution.
The provision of the organic law requiring proposed amendments of the constitution to "be agreed to by threefifths of all the members elected to each house" of the legislature is mandatory, and it clearly contemplates that
such amendments shall be agreed to by the deliberate, final, affirmative vote of the requisite number of the
numbers of each house at a regular session.
Construction of Constitution to Give Intended Effect Mandatory Character of Provisions.
Every word of a state constitution should be given its intended meaning and effect, and essential provisions of a
constitution are to be regarded as being mandatory. (Crawford vs. Gilchrist, Ann. Cas., 1914 B, pp. 916, 917.)
El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro asunto constitucional importante, el de

Gray contra Childs, se decidio en virtud de la autoridad y sentencia dictada en dicho asunto de Crawford.
En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.), tambien se trataba de una demanda de prohibicion para
impedir la publicacion de una propuesta enmienda constitucional que iba a ser sometida al electorado de Florida para su
ratificacion o rechazamiento en una eleccion general o plebiscito fijado para Noviembre, 1934. La enmienda habia sido
aprobada por la Camara de Representantes con el voto de tres quintos (3/5), pero en el Senado hubo cierta confusion acerca
del texto finalmente aprobado. La Legislatura, antes de clausurarse aprobo unafs resolucion conjunta autotizando a ciertos
oficiales de las Camaras para que despues de la clausura hiciesen ciertas correciones enlas actas y en el diario de sesiones a
fin de formar la verdaderahistoria de los procedimientos y compulsar el textode la enmienda tal como habia sido aprobada. Se
alegabaen la demanda que esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso de prohibicion. Elevado el
asunto en apelacion para ante la Corte Suprema del Estado, la misma confirmo la sentencia apelada concediendo el interdicto
prohibitorio. Hed aqui los pronunciamientos de la Corte que parecen estereotipados para el caso que nos ocupa, a saber:
(4,5) Section 1 of article 17 of our Constitution provides the method by which the Constitution may be amended. It
requires that a proposed amendment shall be entered upon the respective Journals of the House of
Representatives and of the Senate with the yeas and nays showing a three-fifths vote in favor of such
amendment by each House. The proposed amendment here under consideration nowhere appears upon the
Journals of the Senate, and therefore it is unnecessary for us to consider any other questions presented or any
authorities cited.
The amendment of the organic law of the state or nation is not a thing to be lightly undertaken not to be
accomplished in a haphazard manner. It is a serious thing. When an amendment is adopted, it becomes a part of
the fundamental law of the land, and it may mean the weal or woe of the future generations of the state wherein it
becomes a part of the fundamental law. We cannot say that the strict requirements pertaining to amendments
may be waived in favor of a good amendment and invoked as against a bad amendment. If the Constitution may
be amended in one respect without the amendment being spread upon the Journals of one of the respective
House of the Legislature, then it may be ameqnded in any other respect in the same manner. It is not for the
courts to determine what is a wise proposed amendment or what is an unwise one. With the wisdom of the policy
the courts have nothing to do. But it is the duty of the courts, when called upon so to do, to determine whether or
not the procedure attempted to be adopted is that which is required by the terms of the organic law.
Finding that the organic law has not been complied with, as above pointed out, the decree appealed from should
be, and the same is hereby, affirmed on authority of the opinion and judgment in the case of
Crawford vs. Gilchrist, 64 Fla., 41; 59 So., 953; Ann. Cas., 1914B, 9156. (Gray vs. Childs, 156 Southern Reporter,
pp. 274, 279.)
Note se que la clausula sobre enmiendas en la Constitucion de Florida es semejante a la nuestra, a saber: (1) la propuesta
enmienda tiene que ser aprobada por la Legislatura, en Florida con el voto de tres quintos (3/5) de los miembros, en Filipinas
con el voto de tres cuartos (3/4); (2) los sies y los nos tienen que hacersesd constar en el diario de sesiones (Articulo VI, seccion
10, inciso 4; seccion 20, inciso 1, Constitucion de Filipinas); (3) despues de aprobada la enmienda por la Legislatura se somete
al electorado en una eleccion o plebiscito, para su ratificacion orechazamiento.
El procedimiento sobre enmiendas prescrito en la Constitucion federal americana es diferente, a saber: el Congreso puede
proponer la enmienda bien (1) mediante la aprobacion de dos tercios (2/3) de sus miembros; bien (2) mediante una convencion
que se convocara al efecto apeticion de las Legislaturas de dos tercios (2/3) de los diferentes Estados. En cualquiera de ambos
casos la enmiendasera valida para todos los efectos y fines comoparte de la Constitucion siempre que fuera ratificada porlas
Legislaturas de tres cuartos (3/4) de los Estados, o porconvenciones de tres cuartas-partes de los mismos, segun que uno u otro
modo de ratificacion hubiera sido propuestopor el Congreso.
Esta diferencia de procedimientos es la que, segun digomas arriba, me inclina a sostener que la jurisprudencia constitucional
propiamente aplicable a Filipinas es la jurisprudencia de los Estados, puesto que es con estos con los cuales tenemos analogia
o paridad constitucional en lo que toca a la forma y manera como se puede reformar la Constitucion.
Seguire ahora citando mas casos.
Tenemos un caso de Minnesota, identico a los ya citados de Florida. En el asunto de In re McConaughy (106 Minn., 392; 119
N.W., 408), tambin se suscito la cuestion de si una propuesta enmienda constitucional habia sido aprobada de acuerdo con los
requisitos sealados en la Constitucion de Minnesota. Alli como aqui tambien hubo disputa sobre si esto era una cuestion
judicial o una cuestion politica no justiciable. La Corte Suprema deaquel Estado declaro sin ambajes que era una cuestion
judicial. He aqui sus palabras que no tienen desperdicio:
The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly
adopted according to the requirements of an existing constitution is a judicial question. There can be little doubt
that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine
whether the constitution has been amended in the manner required by the constitution, unless a special tribunal
has been created to determine the question; and even then many of the courts hold that the tribunal cannot be
permitted to illegally amend the organic law. There is some authority for the view that when the constitution itself
creates a special tribunal, and confides to it the exclusive power to canvass votes and declare the results, and
makes the amendment a part of the constitution as a result of such declaration by proclamation or otherwise, the
action of such tribunal is final and conclusive. It may be conceded that this is true when it clearly appears that
such was the intention of the people when they adopted the constitution. The right to provide a special tribunal is
not open to question; but it is very certain that the people of Minnesota have not done so, and this fact alone
eliminates such cases as Worman vs.Hagan, 78 Md., 152; 27 Atl., 616; 21 L. R. A., 716, and Miles vs. Badford,
22 Md., 170; 85 Am. Dec., 643, as authorities against the jurisdiction of the courts. (In re McConaughy, 106 Minn.,
392; 119 N. W., 408.)
Tambien tenemos un caso de Georgia. En el asunto de Hammond vs. Clark (136 Ga., 313; 71 S.E., 479; 38 L.R.A.[N.S.], 77), se
suscito igualmente una disputa sobre siuna enmienda habia sido aprobada de acuerdo con los requisitos de la Constitucion era
una cuestion judicial o no. La Corte Suprema de aquel Estado declaro afirmativamente. He aqui su inequivoca pronunciamiento:
Counsel for plaintiff in error contended that the proclamation of the governor declaring that the amendment was
adopted was conclusive, and that the courts could not inquire into the question. To this contention we cannot
assent. The constitution is the supreme state law. It provides how it may be amended. It makes no provision for
exclusive determination by the governor as to whether an amendment has been made in the constitutional
method, and for the issuance by him of a binding proclamation to that effect. Such a proclamation may be both
useful and proper, in order to inform the people whether or not a change has been made in the fundamental law;
but the constitution did not make it conclusive on that subject. When the constitution was submitted for ratification
as a whole, a provision was made for a proclamation of the result by the governor. Const. art. 13, section 2, par. 2
(Civ. Code 1910, section 6613). But in reference to amendment there is no such provision. Const. article 13,

section 1, par. 1 (Civ. Code 1910, section 6610). In the absence of some other exclusive method of determination
provided by the constitution, the weight of authority is to the effect that whether an amendment has been properly
adopted according to the requirements of the existing constitution is a judicial question. (Hammond vs. Clark, 136
Ga., 313; 71 S.E., 479;38 L.R.A. [N.S.], 77.)
Tambien tenemos el siguiente case de Indiana:
(1) In the beginning we are confronted with the contention on the part of appellees that this court has no
jurisdiction to determine the questions in issue here. In the case of Ellingham vs. Dye, 178 Ind., 336, 391; 99
N.E., 1, 21 (Ann. Cas. 1915C, 200), this court, after reviewing many decisions as to the power of the courts to
determine similar questions, sums up the whole matter as follows:
"Whether legislative action is void for want of power in that body, or because the constitutional forms of conditions
have not been followed or have been violated (emphasis supplied) may become a judicial question, and upon the
courts the inevasible duty to determine it falls. And so the power resides in the courts, and they have, with
practical uniformity, exercised the authority to determine the validity of the proposal, submission, or ratification of
change in the organic law. Such is the rule in this state" citing more than 40 decisions of this and other states.
(2) Appellees further contend that appellant has not made out a case entitling him to equitable relief. The trial
court found that the officers of the state, who were instructed with the execution of the law, were about to expend
more than $500,000 under the law, in carrying out its provisions; indeed, it was suggested, in the course of the
oral argument, that the necessary expenditures would amount to more than $2,000,000. This court, in the case of
Ellingham vs. Dye, supra, involving the submission to the people of the Constitution prepared by the Legislature,
answered this same question contrary to the contention of appellees. Seepages 413 and 414 of that opinion. (186
Ind., 533; Bennett vs. Jackson, North Eastern Reporter, Vol. 116, pp. 921, 922.)
Creo que la posicion de la jurisprudencia americana tanto federal como de Estado sobre este punto, esto es, cuandoes judicial
la cuestion y cuando no lo es, se halla bien definida en el tomo 12 del Corpus Juris, en la parte que llevael encabezamiento
de "Constitutional Law" y bajo el subepigrafe que dice: "Adoption of Constitution and Amendments" (12 Corpus Juris, 880, 881).
Es un compendiocuidados amente elaborado en que se da un extracto de la doctrina con las citas sobre autoridades al pie.
Reproducire el compendio, pero omitiendo las citas para no alargar demasiado esta disidencia: el que desee comprobarlas no
tienemas que consultar el tomo. En realidad, leyendo este extracto se ve que parece un resumen del extenso analisis que llevo
hecho sobre la doctrina tanto federal como estatal. Su meollo es, a saber: la cuestion de si o no una nueva constitucion se ha
adoptado la tienen que decidir los departamentos politicos del gobierno; pero la cuestion de si una enmienda a una constitucion
existente ha sido debidamente propuesta, adoptada y ratificada de acuerdo con los requisitos provistos por la Constitucion, para
que vengaa ser parte de la misma, es una cuestion que los tribunales de justicia tienen que determinar y resolver, excepto
cuandola materia ha sido referida por la Constitucion a un tribunale special con poder para llegar una conclusion final. He aqui el
sinopsis:
SEC. 382. b. Adoption of Constitution and Amendments. Whether or not a new constitution has been adopted
is a question to be decided by the political departments of the government. But whether an amendment to the
existing constitution has been duly proposed, adopted, and ratified in the manner required by the constitution, as
as to become part thereof, is a question for the courts to determine, except where the matter has been committed
by the constitution to a special tribunal with power to make a conclusive determination, as where the governor is
vested with the sole right and duty of ascertaining and declaring the result, in which case the courts have no
jurisdiction to revise his decision. But it must be made clearly to appear that the constitution has been violated
before the court is warranted in interfering. In any event, whether an entire constitution is involved, or merely an
amendment, the federal courts will not attempt to pass on the legality of such constitution or amendment where
its validity has been recognized by the political departments of the state government, and acquiesced in by the
state judiciary. (12 C.J., pp. 880, 881.)
VI
Otra razon que aduce la mayoria para desestimar el recusro es que la copia impresa de la resolucion en cuestionaparece
certificada por los presidentes de ambas Camaras del Congreso; que en esa certificacion consta que dicha resolucion fue
debidamente aprobada por el Congreso conlos votos de las tres quintas-partes (3/5) de sus miembros; que, por tanto, la debida
aprobacion de dicha resolucion nose puede cuestionar, es una prueba concluyente para todoel mundo y para los tribunales de
justicia particularmente. Este argumento se funda en la doctrina inglesa llamada "enrolled act doctrine," cuya traduccion mas
aproximada al espaol es "doctrina de la ley impresa." Esto, por unlado.
Por otro lado, la representacion de los recurrentes arguye que lo que rige y prevaleced en esta jurisdiccion noes la doctrina
inglesa o "enrolled act doctrine," sino ladoctrina americana que se conoce con el nombre de "journalentry doctrine," en virtud de
la cual la prueba de siuna ley o una resolucion ha sido debidamente aprobadapor el Congreso debe buscarse en el diario de
sesiones mismo del Congreso. Lo que diga el diario de sesiones esconcluyente y final.
Los recurrentes tienen la razon de su parte. Este punto legal ya se resolvio por esta Corte en la causa de los Estados
Unidos contra Pons (34 Jur. Fil., 772), que ambaspartes discuten en sus respectivos informes. Una de las defensas del acusado
era que la Ley No. 2381 de la Legislatura Filipina en virtud de la cual habia sido condenado era nula e ilegal porque so aprobo
despues ya del cierrede las sesiones especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la noche; es decir, que, en
realidad de verdad, la aprobacion se efectuo el 1. de Marzo, puesla sesion sine die del dia anterior se prolongo mediante una
ficcion haciendose parar las manecillas del reloj a las 12 en punto de la noche. Esta Corte, sin necesidad deninguna otra
prueba, examino el diario de sesiones correspondientea la referida fecha 28 de Febrero, y habiendo hallado que alli constaba
inequivocamente haberse aprobadola mencionada ley en tal fecha, fallo que esta pruebaera final y concluyente para las partes,
para los tribunales y para todo el mundo. La Corte desatendio por completoel "enrolled act," la copia impresa de la ley, pues dijo,
asaber: "Pasando por alto la cuestion relativa as si la Ley Impresa (Ley No. 2381), que fue aprobada por autorizacion legal,
constituye prueba concluyente sobre la fecha desu aprobacion, investigaremos si los Tribunales pueden consultar otras fuestes
de informacion, ademas de los diarios de las sesiones legislativas, para determinar la fecha enque se cerraron las sesiones de
la Legislatura, cuando talesdiarios son claros y explicitos." Y la Corte dijo que nohabia necesidad de consultar otras fuestes, que
el diario de sesiones era terminante, definitivo; y asi fallo la causaen contra del apelante.
Y no era extrao que asi ocurriese: habia en la Corte una mayoria americana, familiarizada y compenetrada naturalmente con la
jurisprudencia pertinente de su pais Quede extrano habia, por tanto, que aplicasen la doctrina americana, la doctrina del
"journal entry," que es mas democratica, mas republicana, en vez de la doctrina inglesa, el "enrolled act doctrine," que despues
de todo tiene ciertotinte monarquico, producto del caracter peculiar e influencia tradicionalista de las instituciones inglesas?
(Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.) Firman, como se sabe, la decision el ponente Sr. Trent, y los Magistrados Sres.
Torres, Johnson, Moreland y Araullo, sin mingun disidente.Y notese que cuando se promulgo esta sentencia todavia estaba en
vigor el articulo 313 del Codigo de Procedimiento Civil, tal como estaba reformado por la Ley No. 2210. que entre otras cosas
proveia lo siguiente: ". . . Entendiendose, que en el caso de las Leyes de la Comisionde Filipinas o de la Legislatura Filipina,
cuando existeuna copia firmada por los Presidentes y los secretarios de dichos cuerpos, sera prueba concluyente de las

dispociones de la ley en cuestion y de la debida aprobacion delas mismas." Que mejor prueba de la voluntad expresa,
categorica, de hacer prevalecer la doctrina americana sobrela doctrina inglesa? Lo mas comodo para esta Cortehubiera sido
aplicar el citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso por alto sobreel mismo, yendo directamente al
diario de sesiones dela Legislatura, tomando conocimiento judicial del mismo. Si aqui hay algun respeto a la regla del stare
decisis, estaes una magnifica ocasion para demostrarlo. Una regla bien establecida no ha de abrogarse asi como asi; sobretodo
cuando de por medio anda la Constitucion como enel presente caso en que se ha formulado ante nosotros la queja de que la ley
fundamental ha sido violada en unrespecto muy importante como es el capitulo sobre enmiendas, y la queja no solo no es
temeraria sino que se hallaapoyada en buenas y solidas razones.
Mas todavia: cuando se establecio la doctrina en lacitada causa de los Estados Unidos contra Pons (1916, Agosto 12)
adoptando en esta jurisdiccion la doctrina americana del "journal entry" en lugar de la inglesa del "enrolled act," en nuestra Ley
Organica que, por cierto, no era aun la Ley Jones sino la Ley del Congreso de 1902, no habia ninguna disposicion que
proveyera mandatoriamente que en el diario de sesiones de la Legislatura sehiciesen constar los sies y los nos en la votacion de
cualquier proyecto de ley o resolucion, consignando especifica mentelos nombres de los miembros que hayan votado enpro y en
contra, ni tampoco habia ninguna disposicione statutoria a dicho efecto. De modo que en aquella epoca el diario de sesiones de
la Legislatura carecia aun de las fuertes garantias de veracidad que ahora posee en virtud de esa disposicion que hace
obligatoria la constancia oconsignacion de los sies y nos, disposicion incorporada enla Constitucion del Commonwealth, ahora
de la Republica. (Vease Constitucion de Filipinas, Articulo VI, seccion 10, inciso 4; seccion 20, incico 1; seccion 21, inciso 2.)
Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil no puede haber duda. Ese articulo, que equivale a una
regla de prueba, no se ha incorporado enel Reglamento de los Tribunales. No tratandose de una regla fundada en un principio
general y unanimemente establecido, sino de algo peculiar aislado, acerca del cuallas autoridades estan divididas, con una
mayoria de los Estados de la Union americana decididamente en contra, suno inclusion en el Reglamento de los Tribunales
tiene queconsiderarse necesariamente como una derogacion. Indudablemente esta Corte, al no incluir dicho articulo en el
Reglamento de los Tribunales, ha querido derogarlo en vistade los resuelto en la citada causa de Estados Unidos contraPons y
de la novisima disposicion insertada en la Constitucion del Commonwealth, ahora de la Republica, que exige la consignacion en
el diario de sesiones de los sies y nos en cada votacion final de proyecto de ley o resolucion conjunta, con especificacion de los
nombres de los que hasvotado.
Resulta evidente de lo expuesto que ahora existen masrazones para reafirmar en esta jurisdiccion la doctrina americana del
"journal entry" o "constancia en el diario desesiones" (1) porque el citado seccion 313 del Codigo de Procedimiento Civil ya no
rige con la vigencia del Reglamento de los Tribunales; (2) porque esa disposicion denuestra Constitucion que hace obligatoria la
consignacion de los sies y nos en la votacion de cada bill o resolucion, con especificacion de los nombres de los que hayan
votado enfavor y en contra, hace del diario de sesiones la mejor prueba sobre autenticidad de los actos legislativos y es,
porconsiguiente, la ley sobre la materia en este pais, con entera exclusion de la doctrina inglesa o "enrolled act doctrine."Las
autoridades americanas son contestes en que siempreque en un Estado de la Union Federal la Constitucioncontiene una
disposicion semejante a la nuestra sobre sies y nos la regla de prueba no es la copia impresa de la leyo "enrolled act," sino el
"journal entry" o constancia enel diario de sesiones. (Vease Rash vs. Allen, supra.)
Aqui se podria dar por terminada toda discusion sobre este punto si no fuera porque los abogados de los recurridos arguyen
fuertemente en favor de la doctrina de la copia impresa o "enrolled act doctrine," y la mayoria de esta Corte acepta sus
argumentos. Se cita, sobre todo, el asunto federal de Field vs. Clark en apoyo de la doctrina.
He examinado la jurisprudencia americana sobre este particular con toda la diligencia de que he sido capaz y he llegado a la
conclusion de que nuestros predecesores enesta Corte merecen todo encomio por su indubitable aciertoal adoptar en esta
jurisdiccion, en la causa de los Estados Unidos contra Pons, supra, la doctrina americana del "journal entry" o constancia en el
diario de sesiones legislativas. No cabe duda de que esta doctrina es mas democratica, mas liberal, y tambien mas humana y
mas concorde con la realidad. La doctrina inglesa del "enrolled act" ocopia impresa de la ley esta basada en el derecho comun y
se adopto en Inglaterra donde, como se sabe, no hay constitucion escrita y la forma de gobierno es monarquica,y se adopto en
un tiempo en que el poder del Parlamento que era tambien el mas alto tribunal de justicia, era absoluto y transcendente y las
restricciones sobre el mismo eran muy ligeras. Por eso un tribunal americano ha dicho: "Because such a rule obtains as to the
Parliament of Great Britain, under a monarchial form of government, that cannot be regarded as a very potent reason for its
application in this state, where the will of the sovereign power hasbeen declared in the organic act."
(Vease Rash vs. Allen, supra, pag. 379; cito con frecuencia este asunto famoso de Delaware porque es en el mismo donde he
hallado una discusion mas acabada y comprensiva sobre ambas doctrinas: la americana del "journal entry" y la inglesa del
"enrolled act.")
Es indudable que el sesgo de la jurisprudencia americana hoy en dia es a favor de la doctrina del "journal entry." Lo resuelto en
el asunto federal de Field contra Clark, enque tanto enfasis ponen los recurridos, no ha hecho mas que fortalecer ese giro, pues
en dicho asunto va en vuelta lainferencia de que cuando la Constitucion establece ciertos requisitos para la aprobacion de una
ley o resolucion, conla consignacion de los sies y nos y los nombres de los que han votado afirmativa y negativamente, el diario
de sesioneses el que rige y prevalece como modo e instrumento de autenticacion. Por eso que en el asunto tipico y
representativode Union Bank vs.Commissioners of Oxford (199 N.C., 214; 25 S.E., 966; 34 L.R.A., 487), la Corte Supremade
North Carolina ha declarado lo siguiente.
According to the law it is well settled in nearly 100 well-adjudicated cases in the courts of last resort in 30 states,
and also by the Supreme Court of the United States, that when a state Constitution prescribes such formalities in
the enactment of laws as require a record of the yeas and nays on the legislative journals,these journals are
conclusive as against not only a printed statute, published by authority of law, but alsoagainst a duly enrolled
act. The following is a list of the authorities, in number 93, sustaining this view either directly or by very close
analogy. . . . It is believed that no federal or state authority can be found in conflict with them.
Decisions can be found, as, for instance, Carr. vs. Coke (116 N.C., 223; 22 S.E. 16; 28 L.R.A., 737; 47 Am. St.
Rep., 801, supra, to the effect that, where the Constitution contains no provision requiring entries on the journal of
particular matters such, for example, as calles of the yeas and nays on a measure in question the enrolled
act cannot, in such case, be impeached by the journals. That, however, is very different proposition from the one
involved here, and the distinction is adverted to in Field vs. Clark, 143 U.S., 671 (12 Sup. Ct., 495; 36 Law. ed.,
294. (Rash vs. Allen, 76 Atl. Rep., p. 377.)
Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados Unidos ha dicho lo siguiente:
But the Supreme Court of the United States, in the case of South Ottawa vs. Perkins, 94 U.S., 260; 24 Law., ed.,
154, on appeal from the United States court for the Northern district of Illinois (Mr. Justice Bradley delivering the
opinion), said: "When once it became the settled construction of the Constitution of Illinois that no act can be
deemed a valid law, unless by the journals of the Legislature it appears to have been regularly passed by both
houses, it became the duty of the courts to take judicial notice of the journal entries in that regard. The courts of
Illinois may decline to take that trouble, unless parties bring the matter to their attention, but on general principles
the question as to the existence of a law is a judicial one and must be so regarded by the courts of the United

States." (Rash vs. Allen, 76 Atl. Rep., p. 387.)

Se dice que el interest publico exige que el "enrolled act" o copia impresa de la ley firmada por los Presidentes deambas
Camaras del Congreso de declare concluyente y final, porque de otra manera habria caos, confusion: cualquierase creeria con
derecho a atacar la validez de una ley o resolucion, impugnando la autenticidad de su aprobacion ode su texto. Pero esto pone
en orden las siguientes preguntas que se contestan por si mismas: ?no es el diariode sesiones un documento constitucional,
exigido por la Constitucion que se lleve por las dos camaras del Congreso, controlado y supervisado por dichas camaras y por
los oficiales de las mismas? que mejor garantia de autenticidad, contra la falsificacion, que ese requerimiento constitucional de
consignar obligatoriamente en el diario, en la votacionde todo bill o resolucion, los sies y los nos, y haciendoconstar los nombres
tanto afirmativos como negativos? se ha producido por ventura caos y confusion en los Estados americanos que han adoptado
esta regla y que, segun admiten los mismos recurridos, forman una decisiva mayoria? se acaso posible concebir que el sentido
americano, tan practico, tan utilitario, tan, realista, optase poruna regla que fuese origen de caos y confusion? Prescindiendo ya
de la jurisprudencia que, ya hemos visto, estadecididamente inclinada a favor de la doctrina americana del "journal entry" ?que
dicen los tratadistas mas autorizados, los de nombradia bien establecida, y sobre todolos especialistas en derecho
constitucional?
El Juez Cooley, en su celebrada obra sobre Constitutional Limitations, 7th ed., 193, dice lo siguiente a favor del "journal entry
rule":
Judge Cooley in his work on Constitutional Limitations (7th Ed., 193), says: "Each house keeps a journal of its
proceedings which is a public record, and of which the courts are at liberty to take judicial notice. If it would
appear from these journals that any act did not receive the requisite majority, or that in respect to it the
Legislature did not follow any requirement of the Constitution or that in any other respect the act was not
constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is
acting in apparent performance of legal functions, every reasonable presumption is to be made in favor of the
action of a legislative body. It will not be presumed in any case, from the mere silence of the journals, that either
house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts,
unless when the Constitution has expressly required the journals to show the action taken, as, for instance, where
it requires the yeas and nays to be entered."
Sutherland, en su tambien celebrada obra sobre Statutory Construction, seccion 46 y siguientes, tambien sedeclara a favofr del
"journal entry rule" con el siguiente pronunciamiento:
The presumption is that an act properly authenticated was regularly passed, unless there is evidence of which the
courts take judicial notice showing the contrary. The journals are records, and, in all respects touching
proceedings under the mandatory provisions of the Constitution, will be effected to impeach and avoid the acts
recorded as laws and duly authenticated, if the journals affirmatively show that these provisions have been
disregarded. . . . The journals by being required by the Constitution or laws, are record . . ..
When required, as is extensively the case in this country, by a paramount law, for the obvious purpose of showing
how the mandatory provisions of that law have been followed in the methods and forms of legislation, they are
thus made records in dignity, and are of great importance. The legislative acts regularly authenticated are also
records. The acts passed, duly authenticated, and such journals are parallel records; but the latter are superior,
when explicit and conflicting with the other, for the acts authenticated speak decisively only when the journals are
silent, and not even then as to particulars required to be entered therein. (Rash vs. Allen, 76 Atl. Rep., p. 378.)
Desde luego la opinion de Wigmore, en que se apoya la mayoria, merece toda clase de respetos. Pero creo no seme tachara de
parcial ni ligero si digo que sobre el punto constitucional que estamos discutiendo, me inclino mas y doy mayor peso a la opinion
del Juez Cooley y de Sutherland, por razones obvias. Wigmore nunca pretendio serespecialista en derecho constitucional. Con
mucho tino elponente en el tantas veces citado asunto de Rash contra Allen dice lo siguiente de la opinion del celebrado
constitucionalista:
We have quoted Judge Cooley's language because of the great respect that his opinions always command, and
also because of the fact that it is upon the authority of his opinion that many of the decisions in support of
the American rule have been based. (Rash vs. Allen, 76 Atl. Rep., p. 378.)
Un detenido y minucioso examen de la jurisprudencia y de los tratados sobre el particular lleva a uno al convencimiento de que
la tendencia actual en America es a tomar la substancia, el fondo mismo de las cosas en vez de la simpleforma, el caparazon, a
prescindir del artificio, de la ficcion legal, para ir a la realidad misma. Y no cabe duda deque el "enrolled act" se presta a veces a
tener mas apoyo en el artificio y ficcion legal, mientras que el diario desesiones, con las fuertes garantias de autenticidad como
las que se proveen en nuestra Constitucion y en Constituciones similares americanas, reproduce y refleja la realidad de los
hechos relativamente con mas exactitud y fidelidad. Tomemos como ejemplo el presente caso. La copia impresade la resolucion
cuestionada, firmada por los Presidentes de ambas Camaras del Congreso, reza que la misma fueaprobada debidamente con
los votos de las tres cuartas-partes (3/4) del Congreso, pero esto no es mas que unaopinion, una conclusion legal de los
presidentes, pues noconsta en dicha copia impresa el numero concreto de votos emitidos, ni el numero concreto de la totalidad
de miembros actuales de cada camara. Tampoco constan en dichacopia impresa, tal como manda la Constitucion, los sies y nos
de la votacion, con los nombres de los que votaron afirmativa y negativamente. Asi que, con solo esa copiaimpresa a la vista, no
podemos resolver la importantisima cuestion constitucional que plantean los recurrentes, a saber: que la votacion fue
anticonstitucional; que arbitrariamente fueron excluidos de la votacion 11 miembros debidamente cualificados del Congreso 3
Senadores y 8 Representantes; que, por virtud de la exclusion ilegal y arbitraria de estos 11 miembros, el numero de votos
emitidosen cada camara a favor de la resolucion no llegani constituye las tres cuartas-partes (3/4) que requiere la Constitucion;
y que, por tanto, la resolucion es ilegal, anti-constitucional y nula. Para resolver estas cuestiones, todastremendas, todas
transcedentales, no hay mas remedio queir al fondo, a las entraas de la realidad, y todo ello no sepuede hallar en el "enrolled
act," en la copia impresa dela ley, que es incolora, muda sobre el particular, sino enel diario de sesiones donde con profusion se
dan tales detalles. No es verdad que todo esto demuestra graficamentela evidente, abrumadora superioridad del "journalentry"
sobre el "enrolled act," como medio de prueba?
Mi conclusion, pues, sobre este punto es que el giro dela legislacion jurisprudencia en los diferentes Estados de la Union es
decididamente en favor de la doctrina americana del "journal entry"; que en Filipinas desde 1916 en que se promulgo la
sentencia en la causa de Estados Unidos contra Pons la regla es el "journal entry rule"; que esta regla se adopto por este
Supremo Tribunal enun tiempo en que estaba vigente el articulo 313 del Codigo de Procedimiento Civil y cuando el diario de
sesiones de la Legislatura no gozaba de los prestigios de que goza hoy, en virtud de las rigidas y fuertes garantias sobre
autenticidad de las votaciones legislativas provistas en nuestra Constitucion; que ahora que el referido articulo 313 del Codigo
de Procedimiento Civil ya ha sido derogado porel Reglamento de los Tribunales y se hallan vigentes esasgarantias
constitucionales que son mandatorias, la reglaindiscutible y exclusiva sobre la materia es el "journal entry rule"' que la regla
americana es mas liberal y mas democratica que la regla inglesa, la cual tiene un evidente sabormonarquico; que el puebo
filipino jamas tolerara un sistemamonarquico o algo semejante; que el cambiar de regla ahora es un paso muy desafortunado,
un injustificado retroceso, un apoyo a la reaccion y puede dar lugar a la impresionde que las instituciones de la Republica filipina
tienden a ser totalitarias; que la doctrina inglesa del "enrolled act" es un instrumento harto inadecuado, ineficaz, para resolver

conflictos constitucionales que se iran planteando ante los tribunales, e inclusive puede fomentargroseros asaltos contra la
Constitucion; que, por el contrario, la doctrina americana del "journal entry" es amplia, eficaz, y permite que con toda libertad y
desembarazose puedan resolver los conflictos y transgresiones constitucionales, sin evasivas ni debilidades; y, por ultimo, que
nuestro deber, el deber de esta Corte, es optar por la doctrina que mejor asegure y fomente los procesos ordenadosde la ley y
de la Constitucion y evitef situaciones en que el ciudadano se sienta como desamparado de la ley y dela Constitucion y busque
la justicia por sus propias manos.
VII
La mayoria, habiendo adoptado en este asunto una posicion inhibitoria, estima innecesario discutir la cuestion de si los 3
Senadores y 8 Representantes que fueron excluidos de la votacion son o no miembros del Congreso. Es decir, lo que debiera
ser cuestion fundamental el leitmotiff, la verdadera ratio decidendi en este caso se relegaa termino secundario, se deja sin
discutir y sin resolver. No puedo seguir a la mayoria en esta evasion: tengo que discutir este punto tan plenamente como los
otros puntos, si no mas, porque es precisamente lo principal el meollo del caso.
Comencemos por el Senado. Los 3 Senadores excluido seran miembros actuales del Senado cuando se voto la resolucion
cuestionada, por las siguientes razones:
(a) Segun la estipulacion de hechos entre las partes y los ejemplares del diario de sesiones que obran en autoscomo anexos,
dichos Senadores fueron proclamados por la Comision de Elecciones como electos juntamente con sus 21 compaeros.
Despues de la proclamacion participaron en la organizacion del Senado, votando en la eleccion del Presidente de dicho cuerpo.
De hecho el Senador Vera recibio 8 votos para Presidentecontra el Senador Avelino que recibio 10. Tambien participaron en
algunos debates relativos a la organizacion.
(b) Tambien consta en la estipulacion de hechos y enel diario de sesiones que prestaron su juramento de cargo ante Notarios
particulares debidamente autorizados y calificados para administrarlo, habiendose depositado dicho juramento en la secretaria
del Senado. Se dice, sin embargo, que ese juramento no era valido porque no se presto colectivamente, en union con los otros
Senadores. Esto es unerror. La Ley sobre la materia es el articulo 26 del Codigo Administrativo Revisado, a saber:
By whom oath of office may be administered. The oath of office may be administered by any officer generally
qualified to administer oath; but the oath of office of the members and officers ofeither house of the legislature
may also be administered by persons designated for such purpose by the respective houses.
Este articulo es demasiado claro para necesitar mas comentarios. Es evidente que el Senador y Representante puede
calificarse prestando el juramento de su cargo antecualquier funcionario autorizado para administrarlo; y la disposicion de que
tambien pueden administrar ese juramento personas designadas por cada camara es solo decaracter permisivo, opcional. Y la
mejor prueba de estoes que antes del advenimiento de la Republica el Senadodhabia reconocido la validez del juramento de
cargo prestadoante un Notario Publico por otros Senadores de la minoria los Sres. Mabanag, Garcia, Confesor y Cabili. Amenos
que estas cosas se tomen a broma, o la arbitrariedadse erija en ley la ley de la selva, del mas fuerte no esconcebible que
el juramento ante Notario se declare validoen un caso y en otro se declared invalido, concurriendo lasmismas circunstancias;
(c) Tambien consta, en virtud de la estipulacion de hechos y de los ejemplares del diario de sesiones que obran en autos como
anexos, que los Senadores Vera, Diokno y Romero han estado cobrando todos sus sueldos y emolumentos como tales
Senadores desde la inauguracion del Senado hasta ahora, incluso naturalmente el tiempo en quese aprobo la resolucion
cuestionada. Es violentar demasiadola argucia el sostener que un miembro de una camara legislativa puede cobrar todos sus
haberes y emolumentos y, sin embargo, no ser legalmente miembro de la misma. El vulgo, maestro en la ironia y en el
sarcasmo, tiene unamanera cruda para pintar esta situacion absurda: "Tiene, pero no hay". Como es posible que las camaras
autoricen el desembolso de sus fondos a favor de unos hombres que, segun se sostiene seriamente, no estan legalmente
cualificados para merecer y recibir tales fondos?
(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero no son miembros del Senado porque, envirtud de la
Resolucion Pendatun, se les suspendio el juramento y el derecho a sus asientos. Respecto del juramento, ya hemos visto que
era valido, segun la ley. Respecto dela suspension del derecho al asiento, he discutido extensamente este punto en mi
disidencia en el asunto de Vera contra Avelino, supra, calificando de anticonstitucional ynula la suspension. Pero aun
suponiendo que la mismafuera valida, los recurrentes alegan y arguyen que no poreso han dejado de ser miembros los
suspendidos. La alegaciones acertada. La suspension no abate ni anula lacalidad de miembro; solo la muerte, dimision o
expulsion produce ese efecto (veaseAlejandrino contra Quezon, 46 Jur. Fil., 100, 101; vease tambien United
States vs. Dietrich,126 Fed. Rep., 676). En el asunto de Alejandrino contra Quezon hemos declarado lo siguiente:
Es cosa digna de observar que el Congreso de los Estados Unidos en toda su larga historia no ha suspendido a
ninguno de sus miembros.Y la razon es obvia. El castigo mediante reprension o multavindica la dignidad
ofendida de la Camara sin privar a los representados de su representante; la expulsion cuando es
permisiblevindica del mismo modo el honor del Cuerpo Legislativo dando asi oportunidad a los representados de
elegir a otro nuevo; pero la suspension priva al distrito electoral de una representacion sin quese le de a ese
distrito un medio para llenar la vacante. Mediante la suspension el cargo continua ocupado, pero al que lo ocupa
se le ha impuesto silencio. (Alejandrino contra Quezon, 46 Jur. Fil.,100, 101.)
La posicion juridica y constitucional de los 8 Representantes excluidos de la votacion es todavia mas firme.Consta igualmente,
en virtud de la estipulacion de hechos y de los ejemplares del diario de sesiones obrantes en autos, que dichos 8
Representantes tambien se calificaron, alinaugurarse el Congreso, prestando el juramento de sucargo ante Notarios Publicos
debidamente autorizados; quesu juramento se deposito en la Secretaria de la Camara; que han estado cobrando desde la
inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto dos los Representantes Taruc y Lava que han dejado de
cobrar desde hacealgun tiempo; que tambien han participado en algunas deliberaciones, las relativas al proyecto de resolucion
parasuspenderlos.
Pero entre su caso y el de los Senadores existe estadiferencia fundamental: mientras con respecto a estos ultimosla Resolucion
Pendatun sobre suspension llego aaprobarse adquiriendo estado parlamentario, en la Camarade Representantes no ha habido
tal cosa, pues la resolucionde suspension se endoso a un comite especial para su estudioe investigacion, y hasta ahora la
Camara no ha tomadosobre ella ninguna accion, no favorable ni adversa. Demodo que en el caso de los Representantes hasta
ahora nohay suspension, porque de tal no puede calificarse la acciondel Speaker y del macero privandoles del derecho detomar
parte en las deliberaciones y votaciones. Para queuna suspension produzca efectos legales y, sobre todo, constitucionales, tiene
que decret arla la Camara misma, pormedio de una resolucion debidamente aprobada, de acuerdocon los requisitos provistos
en la Constitucion. Nada deesto se ha hecho en la Camara.
El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El Congreso, en sesion conjunta, por el voto detres cuartas
partes de todos los miembros del Senado y dela Camara de Representantes votando separadamente, puede proponer
enmiendas a esta Constitucion o convocar unaconvencion para dicho efecto." Donde la ley no distingueno debemos distinguir.
La frase todos los miembros debeinterpretarse como que incluye todos los miembros elegidos, no importa que esten ausentes o
esten suspendidos; mas naturalmente cuando no estan suspendidos como en el casode los ya citados 8 Representantes. El

Juez Cooley, ensu ya citada obraConstitutional Limitations, hace sobreeste particular los siguientes comentarios que son
terminantes para la resolucion de este punto constitucional, a saber:
For the votre required in the passage of any particular law the reader is referred to the Constitution of his State. A
simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the
Constitution, a two-thirds of three-fourths vote is made essential to the passage of any particular class of bills,
two-thids or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this
proportion of all the members, or of all those elected, is intended. (A constitutional requirement that the assent of
two-thirds of the members elected to each house of the legislature shall be requisite to every bill appropriating the
public money or property for localor private purposes, is mandatory, and cannot be evaded by calling a bill a "joint
resolution".)
(Footnote: "Such a requirement is too clear and too valuable to be thus frittered away." Allen vs. Board of State
Auditors, 122 Mich., 324; 47 L.R.A., 117.)
(Footnote: "By most of the constitutions either all the laws, or laws on some particular subjects, are required to be
adopted by a majority voted, or some other proportion of "all the members elected," or of "the whole
representation." These and similar phrases require all the members to be taken into account whether present or
not. Where a majority of all the members elected is required in the passage of a law, an ineligible person is not on
that account to be excluded in the count. (Satterloo vs. San Francisco, 23 Cal.,314.)" (Cooley on Constitutional
Limitations, Vol. 1, p. 291.)
VIII
Los recurridos no cuestionan la personalidad o derecho de accion de los recurrentes para plantear el presente litigio. Sin
embargo, en nuestras deliberaciones algunos Magistrados han expresado dudas sbore si los recurrentestien en interes legal
suficiente y adecuado para demandar y, por tanto, para invocar nuestra jurisdiccion en el presentecaso. La duda es si el interes
que alegan los recurrentesno es mas bien el general y abstracto que tiene cualquier otro ciudadano para defender la integridad
de la Constitucion, en cuyo caso seria insuficiente para demandarante los tribunales, los cuales, segun el consenso de las
autoridades, no estan establecidos para considerar y resolver controversias academicas y doctrinales, sino conflictos positivos,
reales, en que hay algun dano y perjuicioo amago de dano y perjuicio.
Creo que la personalidad o derecho de accion de losrecurrentes es incuestionable. En primer lugar, 11 de ellosson miembros del
Congreso, y alegan que se les privo delderecho de votar al considerarse la resolucion cuestionaday que si se les hubiese
permitido votar dicha resolucion no hubiese obtenido la sancion de las tres cuartas-partes (3/4) que requiere la Constitucion.
Que mayor interes legalque este? Ellos dicen que sus votos hubieran sido decisivos, que con su intervencion parlamentaria
hubies en salvado alpaid de lo que consideran amago de una tremenda calamidad publica la concesion de iguales derechos
a los americanos para explotar nuestros recursos naturales y utilidades publicas. No es este amago de dano, para ellos
individualmente y para el pais colectivamentem, adecuado y suficiente para crear un interes legal? En el asunto de
Coleman vs. Miller,supra, se suscito esta misma cuestion y se resolvio a favor de los recurrentes. Como ya hemos visto, estos
eran 20 Senadores del Estado de Kansas que alegaban que en la propuesta ratificacion de la 18. Enmienda a la Constitucion
Federal sus votos que daron abatidos por elvoto decisivo del Teniente Gobernador. La Corte Federal declaro que esto constituia
interes legal suficiente y adecuado.
En segundo lugar, los recurrentes alegan ser ciudadanos, electores y contribuyentes de Filipinas. Naturalmente, como tales
tienen derecho a participar en la explotacion de nuestros recursos naturales y operacion de utilidades publicas, con exclusion de
los americanos y otros extranjeros. De ello se sigue logicamente que cualguier actolegislativo que anule y abrogue esa
exclusividad afectarapersonalmente a sus derechos, amagandolos de un probable perjuicio. Esto, a mi juicio, crea un interes
legalade cuado u suficiente para litigar. Esto no es un interesmeramente academico, abstracto. (Vease Hawke vs.Smith, 253
U.S., 221, 227; 64 Law. ed., 871, 875; 40 Sup.Ct., 495; 10 A. L. R., 1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130, 137;
66 Law. ed., 505, 571; 42 Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)
En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser "ciudadano y elector del Estado de Ohio, y comoelector y
contribuyente del Condado de Hamilton, en sunombre y en el de otros similarmente situados, presento una solicitud de
prohibicion ante el tribunal del Estado para que se prohibiera al Secretario de Estado a que gastara fondos publicos en la
preparacion e impresion de balotaspara la sumision al electorado de la 18. Enmienda a la Constitucion Federal para su
ratificacion. La Corte Suprema Federal fallo que el demandante tenia intereslegal y, por tanto, personalidad y derecho de accion
para demandar.
En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser electores cualificados de Maryland y solicitaban la
exclusion de ciertas mujeres del censo electoralpor el fundamento de que la Constitucion de Maryland limitaba el sufragio a los
varones y la 19. Enmiendaa la Constitucion Federal no habia sido validamente ratificadaa. Lo Corte Suprema Federal fallo
tambien que los demandantes tenian interes legal suficiente y adecuado.
IX
Cuando se celebraron las audiencias en este asunto sele pregunto a uno de los abogados de los recurridos, creo que el mismo
Secretario de Justicia, cual seria el remedio legal para los recurrentes, ya que se sostiene que en elpresente caso se trate de
una materia no judicial, injusticiable, y, que, por tanto, los tribunales nada tienen que hacer. El Secretario de Justicia contesto:
ninguno. Lounico que los recurrentes pueden hacer es esperar las elecciones y plantear el caso directamente ante el pueblo,
unico juez en las controversias de caracter politico. Esto mismose dijo en el caso de Vera contra Aveino, supra, y reiterolo que
alli he dicho sobre este argumento, a saber:
Solo nos queda por considerar el argumento deprimente, desalentadorde que el caso que nos ocupa no tiene
remedio ni bajo la Constitucion ni bajo las leyes ordinarias. A los recurrentes se lesdice que no tienen mas que
un recurso: esperar laas elecciones y plantear directamente la cuestion ante el pueblo elector. Si los recurrentes
tienen razon, el pueblo les reivindicara eligiendoles o elevandoa su partido al poder, repudiando, en cambio, a los
recurridoso a su partido. Algunas cosas se podrian decir acerca de este argumento. Se podria decir, por ejemplo,
que el remedio no es expeditoni adecuado porque la mayoria de los recurridos han sido elegidos para un periodo
de seis anos, asi que no se les podra exigir ninguna responsabilidad por tan largo tiempo. Se podria decir
tambien que en una eleccion politica entran muchos factores, y es posible quela cuestion que se discute hoy, con
ser tan fervida y tan palpitante, quede, cuando llegue el caso, obscurecida por otros "issues" maspresionantes y
decisivos. Tambien se podria decir que, independientemente de la justicia de su cuasa, un partido minoritario
siemprelucha con desventaja contra el partido mayoritario.
Pero, a nuestro juicio, la mejor contestacion al argumento esque no cabe concebir que los redactores de la
Constitucion filipina hayan dejado en medio de nuestro sistema de gobierno un peligros ovacio en donde quedan
paralizados los resortes de la Constituciony de la ley, y el ciudadano queda inerme, impotente frente a lo que el
considera flagrante transgresion de sus derechos. Los redactoresde la Constitucion conocian muy bien nuestro

sistema de gobierno sistema presidencial. Sabian muy bien que este no tiene la flexibilidaddel tipo ingles el
parlamentario. En Inglaterra y en lospaises que siguen su sistema hay una magnifica valvula de seguridad
politica; cuando surge una grave crisis, de esas que sacudenlos cimientos de la nacion, el parlamento se
disuelve y se convocanelleciones generales para que el pueblo decida los grandes "issues" del dia. Asi se
consuman verdaderas revoluciones, sin sangre, sin violencia. El sistema presidential no tiene esa valvula. El
periodo que media de eleccion a eleccion es inflexible. Entre nosotros, porejemplo, el periodo es de seis aos
para el Senado, y de cuatro aos para la Camara de Representantes y los gobiernos provinciales y municipales.
Solamente se celebran elecciones especiales para cubrir vacantes que ocurran entre unas elecciones
generalesy otras. Se comprendera facilmente que bajo un sistema asi esharto peligroso, es jugar con fuego el
posibilitar situaciones dondeel individuo y el pueblo no puedan buscar el amparo de la Constitucion y de las
leyes, bajo procesos ordenados y expeditos, paraprotegar sus derechos. (Vera contra Avelino, pags. 363, 364.)
Fued Jefferson quien dijo que como medida de higiene politicaera conveniente que el pueblo americano tuviera una revolucion
cada veinte aos. Parece que el gran democratadijo esto no por el simple prurito de jugar con laparadoja, con la frase, sino
convencido de que la revoluciones el mejor antidoto para la tirania o los amagos de tirania.
Grande como es el respeto que merecen las opiniones delinmortal autor de la Decaraction de Independencia, creoque la
revolucion es siempre revolucion, la violencia es siempre violencia: caos, confusion, desquiciamiento de los resortes politicos y
sociales, derramamiento de sangre, perdidade vidas y haciendas, etcetera, etcetera. Asi que normalmente ninguno puede
desear para su pais la violencia, aun en nombre de la vitalidad, de la salud publica.
Estoy convencido de que el mejor ideal politico es la revolucionsin sangre, esa que no pocas veces se ha consumado v. gr. en la
historia contemporanea de Inglaterra, yaun de America misma. Y ese ideal es perfectamente realizable permitiendo el amplio
juego de la Constitucion y delas leyes, evitando pretextos a la violencia, y no posibilitando situaciones de desamparo y
desesperacion.
Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial es la que en todo tiempo encauza y fomentalos
procesos ordenados de la Constitucion y de la ley.

Footnotes
PERFECTO, J., dissenting:
1

Omitted.

BRIONES, M., con quien esta conforme FERIA, M., dissidente:

1

Jose O. Vera, Ramon Diokno y Jose E. Romero.

Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio Rodriguez, Tomas Confesor, Tomas Cabili, Jose O. Vera,
Ramon Diokno, y Jose E. Romero.
2

Representantes: Juvenal Almendras, Paulino Alonzo, Apolinario Cabigon, Floro Crisologo, Gabriel Dunuan,
Cosme B. Garcia, Agustin Y. Kintanar, Vicente Logarta, Francisco A. Perfecto, Cipriano P. Primicias, Nicolas
Rafols, Jose V. Rodriguez, Juan de G. Rodriguez, Felixberto M. Serrano, Conrado Singson, George K. Tait, y
Leandro A. Tojong.
Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio Javier y Sofronio Quimson, Nacionalista Party,
Democratic Alliance, Popular Front y Philippine Youth Party, respectivamente.
3

Comision de Elecciones: Jose Lopez Vito, Francisco Enage y Vicente de Vera, respectivamente.

Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero, Auditor y Director de Imprenta, respectivamente.
La politica de nacionalizacion de la recursos naturales yutilidades publicas incorporada en nuestra Constitucion
no es unapolitica nueva, sino que trae su origen de nuestro pasado remoto, dela historia colonial misma de
Espaa en Filipinas. Los primeros conflictos de los filipinos con los conquistado es tenian por causala propiedad
de la tierra; los filipinos se esforzaban por reivindicarel dominio del suelo que creian detentado por los
colonizadores. Estos conflictos fueron agravandose con el tiempo condensan dose enla formidable cuestion
agraria que en las postrimerias del siglo diecinueve fue enm gran parte la causa de la revolucion contra Espaa.
Lass campanas de Rizal y de los laborantes, y el Katipunan de Bonifacio tomaron gran parte de su fuerza, de su
valor combativo, delos agravios provocados por la cuestion agraria. La Liga Filipinade Rizal estaba
fundamentalmente basada en un ideario economico nacionalista, de control y dominio sobre la riqueza y
recursos delpais.
4

"Cuando America establecio aqui su soberania su mayor acierto consistio en echar los cimientos de su politica
fundamental de 'Filipinas para los filipinos.' Primero el Presidente McKinley, y despues los Presidentes Taft y
Wilson, consolidaron esta politica. El congresoaprobo leyes tendentes a la conservacion de terrenos publicos
yrecursos naturales, entre ellas la Ley de 1. de Julio de 1902 conocida por Ley Cooper. En estas leyes se
limitaba y restringia la adquisiciony uso de bienes de dominio publico por particulares.
"Una pruebaf palmaria del celo del Congreso americano por mantener rigidamente la politica de conservacion del
patrimonio delos filipinos fue la investigacion congresional provocada por el Congresista Martin, de Colorado, en
relacion con la venta de terrenos delos frailes en Mindoro, a una compaia americana en exceso de las 1,024
hectareas fijadas en las leyes de terrenos publicos. Esto diolugar a uno de los episodios mas famosos en la
carrera del Comisionado Residente Quezon. Este relata su campaa en su autobiografia 'The Good Fight,' a
saber:
"'My next address to Congress took place when a congressional investigation was being urged by Congressman
Martin of Colorado to determine how the Government of the Philippines was carrying out the policy laid down by
Congress, that limited to 1024 acres the maximum area of government land that could be sold to corporations or
individuals. This law had been enacted soon after the United States has taken the Philippines to prevent the
exploitation of the Filipino people by capitalists, whether foreigners or natives. American capital interested in the
sugar industry has acquired two very large tracts of land which the Philippine Government had bought from the
friars with the funds bonds issued under the security of the Philippine Government. The avowed purpose in
buying these extensive properties from the Spanish religious orders was to resell them in small lots to Filipino

farmers, and thus to do away with absentee landlordism which had been the most serious cause of the Philippine
rebellion against Spain. The reason given for the sale of these lands to American capital by the American official
in charge of the execution of the congressional policy were two-fold: First, that the act of Congress referred only
to lands of the public domain not to lands acquired by the Government in some other way. And second, that the
sale of these lands was made in order to establish the sugar industry in the Philippines on a truly grand scale
under modern methods, as had been done in Cuba. It was further alleged that such a method would bring great
prosperity to the Philippines.
"'I spoke in support of the proposed investigation, contending that the establishment of the sugar industry under
those conditions would mean the debasement of the Filipinos into mere peons. 'Moreover,' I argued, 'large
investments of American capital in the Philippines will inevitably result in the permanent retention of the
Philippines by the United States.' At the climax of ny speech I roared: If the preordained fate of my country is
either to be a subject people but rich, or free but poor, I am unqualifiedly for the latter.'
"'The investigation was ordered by the House of Representatives, and although the sales already made were not
annulled, no further sales were made in defiance of the Congressional Act. (The Good Fight, by President
Quezon, pp. 117-119.)'
"Para implementar la politica de nacionalizacion el gobierno filipino bajo la Ley Jones y la Ley del Commonwealth
fundo con una gruesa capitalizacion las corporaciones economicas del Estado comoel Philippine National Bank,
National Development Company, National Cement Company, National Power Corporation, y otras.
"Para reglamentar y supervisar las utilidades y servicios publicos se creo la Comision de Servicios Publicos."

The Lawphil Project - Arellano Law Foundation

Mabanag vs. Vito Case Digest (Consti-1)

Mabanag vs. Vito
[GR L-1123, 5 March 1947]
En Banc, Tuason (J): 3 concur, 1 concur in separate opinion, 2 dissent in separate opinions, 1 filed separate opinion
Facts: Three senators and eight representatives had been proclaimed by a majority vote of the Commission on Elections as having been elected senators and
representatives in the elections held on 23 April 1946. The three senators were suspended by the Senate shortly after the opening of the first session of Congress following
the elections, on account of alleged irregularities in their election. The eight representatives since their election had not been allowed to sit in the lower House, except to take
part in the election of the Speaker, for the same reason, although they had not been formally suspended. A resolution for their suspension had been introduced in the House
of Representatives, but that resolution had not been acted upon definitely by the House when the petition for prohibition was filed. As a consequence these three senators and
eight representatives did not take part in the passage of the congressional resolution, designated "Resolution of both houses proposing an amendment to the Constitution of
the Philippines to be appended as an ordinance thereto," nor was their membership reckoned within the computation of the necessary three-fourths vote which is required in
proposing an amendment to the Constitution. If these members of Congress had been counted, the affirmative votes in favor of the proposed amendment would have been
short of the necessary three-fourths vote in either branch of Congress. The petition for prohibition sought to prevent the enforcement of said congressional resolution, as it is
allegedly contrary to the Constitution. The members of the Commission on Elections, the Treasurer of the Philippines, the Auditor General, and the Director of the Bureau of
Printing are made defendants. Eight senators, 17 representatives, and the presidents of the Democratic Alliance, the Popular Front and the Philippine Youth Party.
Issue: Whether the Court may inquire upon the irregularities in the approval of the resolution proposing an amendment to the Constitution.
Held: It is a doctrine too well established to need citation of authorities that political questions are not within the province of the judiciary, except to the extent that power to
deal with such questions has been conferred upon the courts by express constitutional or statutory provision. This doctrine is predicated on the principle of the separation of
powers, a principle also too well known to require elucidation or citation of authorities. The difficulty lies in determining what matters fall within the meaning of political
question. The term is not susceptible of exact definition, and precedents and authorities are not always in full harmony as to the scope of the restrictions, on this ground, on
the courts to meddle with the actions of the political departments of the government. If a political question conclusively binds the judges out of respect to the political
departments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect. If ratification of an amendment is a political question, a
proposal which leads to ratification has to be a political question. The two steps complement each other in a scheme intended to achieve a single objective. It is to be noted
that the amendatory process as provided in section I of Article XV of the Philippine Constitution "consists of (only) two distinct parts: proposal and ratification." There is no
logic in attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is a highly political function performed by the
Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. The exercise of this power is even in dependent of any intervention by the
Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the
validity of a proposal then into that of ratification.

Today is Tuesday, August 18, 2015

search

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-27833

April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and
FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Taada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of
prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office,

is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom
of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of
belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that
occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of
the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that
the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to
paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in
these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the
responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged
infringement of liberty, when our competence is appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory
Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but
treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners
challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was approved
and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or
partisan political activity. 3

The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880
"refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the
acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the election shall not be considered as
part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person from
expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he
supports." 4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista
Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the
other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that
"the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their
freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine
Constitution," and that therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of
two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify
its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic
Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech,
freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further allegation
that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience
which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding or agreement
and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to
the state, would render the constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on
Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of
law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court
dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the
hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and
Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to submit,
simultaneously,, their respective memorandum in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio
Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the
constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of
section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be

declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court
[resolved] to defer final voting on the issue until after the return of the Justices now on official leave."

The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of
Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn
against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the
First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.

Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of
the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No.
4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did
justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for
national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in
politics with the loss not only of efficiency in government but of lives as well.

The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs
above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici
curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and
the U.P. Women Lawyers' Circle were included, among them. They did file their respective memoranda with this Court and aided it in the
consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that
respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized
as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it.
Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as a petition for
prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore, the
importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the
paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six months away, reinforce our
stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an
alleged unconstitutional statute. We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who
impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the
clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the case,
however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an
action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power
of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if
unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on the part of the candidates,
precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as
the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association.
Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us
again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that
border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these
liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which
determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates
against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not
been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the
state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any

one's constitutional liberty." 11 Another leading State decision is much more emphatic: "Broad as the power of the legislature is with
respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the legislature may
not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give evidence against himself.
If it destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may
prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional
system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free
speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship
or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 15
prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual selffulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining
the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast
scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of
public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus means something
more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in
the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as
well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an
age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers
of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for
attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging
toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is
tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may
be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal
interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it
should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before
the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage of
establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public
established."

The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if
the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to
prevent.

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to
the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and
indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was
likewise an implicit acceptance of the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil
apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion
the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced
silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so

stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He
would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought
merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in
such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree." 29

This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to
prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a
causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It
used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It
likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case
of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech.
Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos
opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion." To
paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that the
rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights while not identical are inseparable. They are cognate rights and the
assurance afforded by the clause of this section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the
leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of freedom
of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a
constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which
are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first
amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted the
view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of man, next
to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them.
The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can attack it
without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren
existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more
common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those
exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then
the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will
simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a
thing of the past.

Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the
electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this
freedom of association.

It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that
the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own
program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and
academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights
protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in
journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political,
spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this country."
36

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form
associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be
interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could
be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.37 As
was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern
to government until and unless he moves into action. That article of faith marks indeed the main difference between the Free Society
which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in mind, we now consider the
validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period
of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of
assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced
as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded
so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass
unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment
was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence,
and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the situation. Nor can
we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts concerning the election
shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated shall be understood to
prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for
public office whom he supports." Such limitations qualify the entire provision restricting the period of an election campaign or partisan
political activity.

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 officio 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." 40

The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the
curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not
unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in
validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic
Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not
a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one
hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding
an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office,
regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate elected or not or
promote the candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other
conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of
press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court
cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect
on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.41 Where the
statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of
vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to
mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason
difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may
deter their exercise almost as potently as the actual application of sanctions." 44

7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of
free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand.

On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the
circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for
refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice
would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court,
though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not
unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of
expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The
clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions
but also that they be limited in scope.

There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election
campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press,
freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration
of the acts deemed included in the terms "election campaign" or "partisan political activity."

They are: "(a) Forming organizations, associations, clubs, committees or other groups 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 a candidate or party;(c) making speeches, announcements or commentaries or holding interviews for or against the election
or any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting
votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving contributions for election
campaign purposes, either directly or indirectly." 45 As thus limited the objection that may be raised as to vagueness has been minimized,
if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as
the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against
giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or
other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate
or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough
consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor
compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well
be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition
to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right
of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the Court. Originally
only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the
curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present
danger of a substantive evil, the debasement of the electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or
indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election
for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the
corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the
too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects
on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it
is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities.
Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified.

Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of
suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that
without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and
nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court. This is not to say
that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid
of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or
against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature
or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda
for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute prohibits what
under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger
doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the
challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the
constitutional requirements as to a valid limitation under the clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of
its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that
makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally
infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to
control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means
that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on
their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of
the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the
challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression
vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the
practices sought to be restrained would seriously pose.

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Taada, appearing before us as
amicus curiae. He did clearly explain 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 invariably 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.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable
legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided:
"That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and
that nothing in the Act] shall be understood to prevent any person from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the
barrier to free, expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be
ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of
association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in
Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional
application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process.
There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to
what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press,
of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual
rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the
popular will as manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the
Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it
is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the
legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and
this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid specific
provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no
occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.

Separate Opinions

SANCHEZ, J., concurring and dissenting:

Petitioners in the present case aim at striking down as violative of constitutional guarantees Republic Act 4880, the principal features of
which are contained in its Sections 1, inserting Sections 50-A and 50-B between Sections, 50 and 51 of the Revised Election Code,
reproduced herein as follows:1

SECTION 1. Republic Act Numbered One hundred and eighty, as amended, is hereby further amended by inserting new sections to be
known as Sections 50-A and 50-B, between Sections 50 and 51 thereof, which shall read as follows:

SEC. 50-A. Prohibition of too early nomination of Candidates. It shall be unlawful for any political party, Political Committee, or Political
group to nominate candidates for any elective public office voted for a 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.

SEC 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. It is unlawful for any person whether or not a
voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election for
any public office.

The term "Candidate" refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has
already filed his certificate of candidacy or has been nominated by any political party as its candidate.

The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other groups 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;

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for
public office;

(d) Publishing or distribution campaign literature or materials;

(e) Directly or indirectly soliciting vote and/or undertaking any campaign or propaganda for or against any candidate or party;

(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly: Provided, That simple
expressions or 2 opinion and thoughts concerning the election shall not be considered as part of an election campaign: Provided, further,
That nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office whom he supports.

Appropriately to be stated right at the start is that violation of the above provisions is considered a serious election offense. The penalty is
"imprisonment of not less than one (1) year and one (1) day but not more than five (5) years" with accompanying "disqualification to hold
a public office and deprivation of the right of suffrage for not less than one (1) year but more than nine (9) years" and payment of costs. 3

1. The issue of constitutionality of R.A. 4880 again brings to the fore the eternally-warring concepts of individual liberty and state authority.

Invalidity is pressed on the ground that the statute violates the rights of free speech and press, of peaceable assembly, and of association.
4 This Court is asked to rule that in the context of the ill-effects to be cured, the legislative remedy adopted, vis-a-vis the rights affected,
does not meet what petitioners claim to be the rational basis test; that, on the contrary, the relief prescribed would more likely produce
the very evils sought to be prevented. This necessitates a circumspect discussion of the issue.

In proceeding the working assumption is that individual liberty is not absolute. Neither is state authority, inspite of its sweep, limitable.
Fixed formulas and ready-made rules that seek to balance these two concepts could well redeem one from the unnerving task of deciding
which ought to prevail.

It is at this point that we call to mind the principle that the relation between remedy and evil should be of such proximity that unless
prohibited, conduct affecting these rights would create a "clear and present danger that will bring about substantive evils that Congress
has a right to prevent."5

Withal doctrines which conceal behind the cloak of authoritative origin a tendency to muffle the demands of society, must pass the glaring
light of contemporaneity. For, in the consideration of questions on constitutionality, one should remain receptive to the implication of John
Marshall's resonant words that "it is a constitution we are expounding."6

Such authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is growing into a way
of life, that political campaigns are becoming longer and more bitter. It is a result of legislative Appraisal that protracted election campaign
is the root of undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give deserving but poor
candidates slim chances of winning. They constitute an inducement to graft to winning candidates already in office in order to recoup
campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state are
neglected by incumbent officials desiring to run for reelection. The life and health of candidates and their followers are endangered.
People's energies are dissipated in political bickerings and long drawn-out campaigns. 7 Indeed, a drawn-out political campaign taxes the
reservoir of patience and undermines respect of the electorate for democratic processes. Sustained and bilious political contests eat away
even the veneer of civility among candidates and their followers and transplant brute force into the arena.

Such legislative appraisal, such ill-effects, then must constitute a principal lever by which one concept could win mastery over the other.

R.A. 4880 is a police power legislation. It was enacted by virtue of the inherent power of Congress to legislate on matters affecting public
interest and welfare, 8 as well as in pursuance of the constitutional policy of insuring a free, honest and orderly election. 9 Basically, the
undefined scope of that power extends as far as the frontiers of public interest would advance. Fittingly, legislative determination of the
breadth of public interest should Command respect. For, Congress is the constitutional body vested with the power to enact laws. Its
representative composition induces judgment culled from the diverse regions of the country. Normally, this should assure that a piece of
police legislation is a reflection of what public interest contemporaneously encompasses.

2. It is, however, postulated that the right of peaceable assembly is violated by the prohibition on holding political assemblies for a period
lasting more than one year; that the right to form associations is contravened by forbidding, for the same period, the formation of political
groups; that, finally, freedom of speech and of the press is unduly restricted by a legislative fiat against speeches, announcements,
commentaries or interviews favorable or unfavorable to the election of any party or candidate, publishing or distributing campaign
literature or materials, and directly or indirectly soliciting votes and/or under-taking any campaign or propaganda for or against any
candidate or party, except during a number of days immediately preceding the election.

What has repeatedly been urged is the view that the underlying historic importance of the foregoing specified rights in democratic
societies requires that the posture of defense against their invasion be firmer and more uncompromising than what may be exhibited
under the general due process protection. 10 The absolute terms by which these specific rights are recognized in the Constitution justifies
this conclusion. 11

And yet, sight should not be lost of the fact that Congress has made a determination that certain specific evils are traceable directly to
protracted election, activities. Congress has found a solution to minimize, if not prevent, those evils by limiting the period of engaging in
such activities. The proponents of validity would rely upon experience to deduce the connection between the cited evils and prolonged
political campaign. By limiting the period of campaign, so they say, it is expected that the undesirable effects will be wiped out, at least,
relieved to a substantial degree.

This, of course, is largely an assumption. Congress we must stress, has put up an untried measure to solve the problematic situation.
Deduction then is the only avenue open: for Congress, to determine the necessity for the law; for the Court, its validity. The possibility of
its inefficaciousness is not remote. But so long as a remedy adopted by Congress, as far as can logically be assumed, measures up to the
standard of validity, it stands.

We give our imprimatur to Section 50-A. We may not tag as unconstitutional 50-B, and its subsections (a), (b) and (f). We fear no serious
evil with their enforcement. They do not offend the constitutionally protected speech and press freedoms, and rights of peaceable
assembly and association. The latter must yield. The proscriptions set forth in all of them are clear-cut, not open to reasonable doubt, nor
easily susceptible to unreasonable interpretation. Public interest and welfare authorize their incorporation into the statute books.

3. To this writer, however, the center of controversy is to be found in subsections (c), (d) and (e) of Section 50-B.

Those who espouse validity assert that no undue restriction results because, by jurisprudence, solicitation and campaign are outside the
ambit of protected speech. 12 But this rule, it would seem to us, has relevance only to commercial solicitation and campaign. There is no
point here in delving into the desirability of equating, in social importance, political campaign with advertisements of gadgets and other
commercial propaganda or solicitation. 13 For, the statute under consideration goes well beyond matters commonly regarded as
solicitation and campaign. Suffice it to say that jurisprudence tends to incline liberally towards freedom of expression in any form when
placed in juxtaposition with the regulatory power of the State. 14

Legislative history of the statute now before us indicates that what Congress intends to regulate are partisan activities and active
campaigning.

Campaigning, as defined by the sponsor of Senate Bill 209 in the Senate, is a "series of operations." This, evidently, must have been
adopted from the dictionary meaning of campaign: a connected series of operations to bring about some desired result.

The term "partisan political activity" has somehow acquired a more or less definite signification. It is not a new feature in Philippine
political law. It has been regulated to stem dangers to specific state interests. The Constitution itself contains an injunction against civil
service officers and employees from engaging directly or indirectly in partisan political activity or taking part in any election except to
vote. 15 The civil service law 16 and the Revised Election Code, 17 echo this absolute prohibition which is obviously aimed at the possible
neglect of public service and its prostitution with partisan interests. The following are cited in the Civil Service Rules as examples of
partisan political activity: candidacy for elective office; being a delegate to any political convention or member of any political committee
or officer of any political club or other similar political organization; making speeches, canvassing or soliciting votes or political support in
the interest of any party or candidate; soliciting or receiving contributions for political purposes either directly or indirectly; and becoming
prominently identified with the success or failure of any candidate or candidates for election to public office. 18

In the context in which the terms "partisan political activity" and "election campaign" are taken together with the statutory purpose, the
following from Justice Holmes would be particularly instructive: "Wherever the law draws a line there will be cases very near each other on
opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks,
and if he does so it is familiar to the criminal law to make him take the risk." 19

4. Perhaps if the phrases "election campaign" or "partisan political activity" were left to be explained by the general terms of the law as
solely referring "to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office", it
would be difficult to say that such prohibition is offensive to speech or press freedoms. But then the law itself sought to expand its
meaning to include an area of prohibited acts relating to candidates and political parties, wider than an ordinary person would otherwise
define them.

Specifically, discussion oral or printed is included among the prohibited conduct when done in the following manner (Section 50- B)

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for
public office:

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party.

Defined only as lawful discussion is the following:

Provided. That simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign:
Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candidates for public office whom he supports.

The conduct involved in the discussion as to make it illegal is not clearly defined at all. The implication then is that what is prohibited is
discussion which in the view of another may mean political campaign or partisan political activity. The speaker or writer becomes captive
under the vigilant but whimsical senses of each listener or reader. His words acquire varying shades of forcefullness, persuasion and
meaning to suit the convenience of those interpreting them. A position becomes solicitation. As admonition becomes a campaign or
propaganda.

As worded in R.A. 4880, prohibited discussion could cover the entire spectrum of expression relating to can candidates and political
parties. No discussion is safe. Every political discussion becomes suspect. No one can draw an indisputable dividing line between lawful
and unlawful discussion. More so that statutory restraint falls upon any person whether or not a voter or candidate.

Candidacy is not enjoined during the proscriptive period. A person may thus make public his intention to run for public office. So may an
incumbent official profess his desire to run for reelection. The law therefore leaves open, especially to the electorate, the occasion if the
temptation for making statements relating to a candidacy .The natural course is to comment upon or to discuss the merits of a candidate,
his disqualifications, his opponents for public office, his accomplishments, his official or private conduct. For, it can hardly be denied that
candidacy for public office is a matter of great public concern and interest.

Yet, this normal reaction to discuss or comment is muzzled by an unqualified prohibition on announcements or commentaries or interviews
for or against the election of any party or candidate, on publishing campaign literature, and on indirect solicitation and campaign or
propaganda for or against any party or candidate. Even incumbent officials are stopped. Every appearance before the public, every
solicitous act for the public welfare may easily become tainted.

5. Nor does the proviso offer any corresponding protection against uncertainty. "Simple expressions of opinion and thoughts concerning
the election" and expression of "views on current political problems or issues" leave the reader to conjecture, to guesswork, upon the
extent of protection offered, be it as to the nature of the utterance it simple expressions of opinion and thoughts") or the subject of the
utterance ("current political problems or issues"). The line drawn to distinguish unauthorized "political activity" or "election campaign"
specifically, a speech designed to promote the candidacy of a person from a simple expression of opinion on current political problems is
so tenuous as to be indistinguishable. 20 If we are to paraphrase Mr. Justice Holmes, then the thought should run something like this: The
only difference between expression of an opinion and the endorsement of a candidate is "the speaker's enthusiasm for the result." 21

Only one area is certain. A person may only mention the candidate whom he supports. Beyond mentioning the name, it is no longer safe.
But is it not unduly constricting the from of rational-minded-persons to back up their statements of support with reasons?

The peculiarity of discussion, be it oral or printed, is that it carries with it varying degrees of "enthusiasm and inclination to persuade", 22
depending upon the listener or reader. It falls short of a partisan political activity when it is devoid of partisan interest in the sense that it
is not made in the interest of a candidate or party. This is the only criterion for validity. But who is to decide this? And how? The law does
not even require that there be an operation or a series of operations in order to measure up to an election campaign as it is commonly
understood. In this way, the law may well become an instrument of harassment. Worse, it could lull the potential had defendant into a
false sense of security. It then becomes a dragnet that may trap anyone who attempts to express a simple opinion on political issues.

6. More than this, the threat of punishment will continually hound a speaker who expounds his views on political issues. Because of its
punitive provisions, the statute surely tends to restrict what one might, say his utterance be misunderstood as "designed to promote the
candidacy of a person." A person would be kept guessing at the precise limits of the permissible "simple expression". To play safe, he
would be compelled to put reins on his words for fear that they may stray beyond the protected area of "simple expression". The offshoot
could only be a continuous and pervasive restraint on all forms of discussion which might time within the purview of the statute. This
thought is not new. It is underscibed in NAACP vs. Button, 371 U.S. 415, 9 L. ed, 405, in language expressive, thus.

The objectionable quality of vagueness and over breadth does not depend upon absence of fair notice to a criminally accused or upon
unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of first amendment freedoms, the existence of
a penal statute susceptible of sweeping and improper application.... These freedoms are delicate and vulnerable as well as supremely
precious in our society. The threat of sanctions way deter their exercise almost as the actual application of the sanctions. Because the first
amendment freedoms need breathing space to survive, government may regulate in the area only With narrow specificity.23

It is thus in the self-imposed restraint that works in the minds of ordinary, law-abiding citizens that a vague statute becomes unjust.

Because of the indefiniteness created in subsections (c), (d) and (e) of Section 50-B, they readily lend themselves to harsh application.
Vagueness of the law enforcers. Arbitrary enforcement of the letter of the law by an expansive definition of election campaign or partisan
political activity, should not be branded as improbable. For, political rivalries spawn persecution. The law then becomes an unwitting tool.
Discussion may be given a prima facie label as against the harassed. This is not altogether remote. To be sure, harassment and
persecution are not unknown to the unscrupulous.

7. Those who favor validity find comfort in the theory that it is better for the meantime to leave the statute well enough alone. They say
that it is preferable that courts of justice be allowed to hammer out the contours of the statute case by case. This may not, however, be
entirely acceptable. To forego the question of constitutionality for now and take risks may not be the wiser move. As well advocated
elsewhere. 24 a series of court prosecutions will a statute, still leaving uncertain other portion thereof. And then, in deciding whether or
statute can be salvaged, one must not hedge and assume that when it is enforced in the be resolved in favor of upholding free speech and
press.

More important, there is the heavy penalty prescribed. A candidate, or any person for that matter, can unreasonably be saddled by court
suits. Even if the accused were later to be declared innocent, thoroughly unnecessary is the burden of lawyers' fees, bail bonds and other
expenses, not to say of energy to be consumed, effort to be expended, time to be spent, and the anxieties attendant in litigation.

It cannot really be said that the courage to speak out, barring all risks, is an ordinary human trait. Timorous men should not grow in
number. And yet, it would appear that this is the effect of the enforcement of the law. The constant guide should be the warning of Justice
Brandeis "that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that
hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies." 25

As we analyze the import of the law, we come to the conclusion that subsections (c), (d) and (e) of Section 50-B inserted into the Revised
Election Code by Republic Act 4880, heretofore transcribed, run smack against the constitutional guarantees of freedom of speech and of
the press. Hence, this concurrence and dissent.

CASTRO, J., dissenting:

Presented for consideration and decision is the constitutionality of Section 50-A and 50-B of the Revised Election Code, which were
inserted as amendatory provisions by Republic Act 4880. 1 These sections read in full as follows:

SEC. 50-A. Prohibition of too early nomination of Candidates. 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.

SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. It is unlawful for any person whether or not a
voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office.

The term "Candidate" refers to any person aspiring for or seeking an elective public officer, regardless of whether or not said has already
filed his certificate of candidacy or has been nominated by any political candidate.

The term "Election Campaign" or Partisan Political Activity refers to the acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other groups 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 against a candidate or party;

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for
public office;

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;

(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly. Provided, That simple
expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign; Provided, further.
That nothing herein stated shall understood to prevent any person from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office who he supports.

Violation of these two section are classified as "serious election offenses" under Section 183 of the Revised Election Code, as amended R.A
4880, punishable with "imprisonment of not less than one year and one day but not more than five years" and "disqualification to hold a
public office and deprivation of the right of suffrage for not less than one year but not more than nine years." 2

The basic purpose of R.A. 4880 is easily discenible. Congress felt the need of curtailing excessive and extravagant partisan political
activities, especially during an election year, and, to this end, sought to impose limitations upon the times during which such activities
may be lawfully pursued. The legislative concern over excessive political activities was expressed in the following terms in the explanatory
note of Senate Bill 209, which finally came R.A. 4880:

There is nothing basically wrong in engaging in an election campaign. Election campaign is indispensable part of election just as election is
one of the most important fundamental requirements of popular government.

It is also during election campaign that the stands of prospective political parties on vital national and local issues are made known to the
public, thereby guiding the enfranchised citizenry in the proper and appropriate expression of its sovereign will.

Past experience, however, has brought to light some very disturbing consequences of protracted election campaigns. Because of
prolonged exposure of both candidates and the people to political tension, what starts out at first as gentlemanly competition ends up into
bitter rivalries precipitating violence and even deaths. Prolonged election campaigns necessarily entail huge expenditures of funds on the
part of the candidates. Now, no matter how deserving and worthy he is, a poor man has a very slim chance of winning an election.
Prolonged election campaigns indeed carry with it not only the specter of violence and death, not only the objectionable dominion of the
rich in the political arena, but also the corruption of our electorate. We must adapt our democratic processes to the needs of the times.

The prohibitions introduced by R.A. 4880 purport to reach two types of activities, namely, (a) early nomination of candidates for elective
public offices (Sec. 50-A), and (b) early election campaigns or partisan political activities (Sec. 50-B). The first prohibition is specifically
directed against political parties, committees, and groups; the second prohibition is much more comprehensive in its intended reach, for it
operates upon "any person whether or not a voter or a candidate" and "any group or association of persons whether or not a political party
or political committee."

Section 50-B brings within the ambit of its proscription a wide range of activities. The catalogue of activity ties covered by the prohibition
against early election campaigning embraces two distinguishable types of acts; (a) giving, soliciting or receiving contributions for election
campaign purposes, either directly or indirectly; and (b) directly or indirectly soliciting votes or under-taking any campaign or propaganda
for or against any candidate or party, whether by means of speech, publication, formation of organizations, or by holding conventions,
caucuses, meetings or other similar assemblies. The term "candidate" is itself broadly defined to include "any person aspiring for or
seeking an elective public office," whether or not such person has been formally nominated.

The sweeping character of the prohibitions in Section 50-B is sought to be mitigated and delimited by the provisos exempting from their
operation (a) "simple expressions of opinion and thoughts concerning the election," (b) expression of "views on current political problems
or issues," and (c) "mentioning the names of the candidates for public office" whom one supports.

Before assaying the constitutional quality of Sections 50-A and 50-B, it is relevant to point out that these two section are not wholly
consistent with each other, and that considerable practical difficulties may be expected by those who would comply with the requirements
of both. Under Section 50-A, political parties are allowed to nominate their official candidates for offices voted for at large within 150 days
immediately preceding the election. At the very least, this section would seem to permit a political party to hold a nominating convention
within the 150 days period. Section 50-B, however, makes it unlawful to promote or oppose the candidacy of any person seeking such

office, whether or not such person "has been nominated by any political party," and to engage in an election campaign "for and against a
candidate or party," except within the period of 120 days immediately preceding the election. I find it difficult to see how a political party
can stage a nominating convention 150 days before an election if, at such time, neither any person nor group within such party may seek
a nomination by campaigning among the delegates to the convention. By its very, nature, a nominating convention is intrinsically a forum
for intensely partisan political activity. It is at the nominating convention that contending candidates obtain the formal endorsement and
active support of their party the ultimate purpose of victory at the polls. A nominating convention, at which activity promoting or opposing
the candidacies of particular persons seeking nominations is forbidden, is a practical impossibility. Thus, the very broadness of prohibitions
contained in Section 50-B has the effect of reducing, as a practical matter, the time period specified in Section 50-A for nomination of
candidates for national offices from 150 to 120 days before an election.

II

We turn to the central issue of constitutionality. That the legislature has, in broad principle, competence to enact laws relative to the
conduct of elections is conceded. Congress may not only regulate and control the place, time and manner in which elections shall be held,
but may also provide for the manner by which candidates shall be chosen. In the exercise of the police power, Congress regulate the
conduct of election campaigns and activities by political parties and candidates, and prescribe measures reasonably appropriate to insure
the integrity and purity of the electoral process. Thus, it has not been seriously contested that Congress may establish restraints on
expenditures of money in political campaigns, 3 prohibit solicitation of votes for a consideration, 4 and penalize unlawful expenditures
relative to the nominations of dates. 5 Laws of this kind lie fairly within the area of permissible regulation, and I think, that, in shaping
specific regulations, Congressional discretion may be exercised within a wide range without remonstrance from the courts.

If no more were at stake in Sections 50-A and 50-B than the political or personal convenience of a candidates faction or political group, we
could with the least hesitation resolve the issue of constitutionality in favor of the legislative intendment. But infinitely more is at stake, for
in enacting this prohibitions of Sections 50-A and 50-B, Congress has place undeniable burdens upon the exercise of fundamental political
and personal freedoms encased in the Bill of Rights from legislative intrusion. There is firstly, a manifest restriction on the free exercise of
the rights of speech and of the press in the provisions of Section 50-B imposing a limitation of time on the following activities.

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate or party;

(d) Publishing or distributing, campaign. literature or materials

(e) Directly or indirectly soliciting votes and or undertaking any campaign or propaganda for or against any candidate or party;

Likewise, the regulation of the time within which nominations of candidates by political parties may take place, under Section 50-A, and
fixing a time limit for holding "political conventions, caucuses, conference meetings, rallies, parades, or other similar assemblies" for
campaign purposes under paragraph (b) of Section 50-B, curtails the freedom of peaceful assembly. And finally, the right to form
associations for purposes not contrary to law is impinged upon by the provision of paragraph (a) of Section 50-B regulating the forming of
"Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate."

It is fairly accurate to say that legislations imposing restrictions upon the right of free expression, and upon the right of assembly and of
political association indispensable to the full exercise of free expression, have commonly been subjected to more searching and exacting
judicial scrutiny than statutes directed at other personal activities. As aptly said by the United States Supreme Court in Schneider v.
Irvington:6

In every case, ... where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged
legislation. Mere legislative preference or beliefs respecting matters of public convenience may well support regulation directed at other
personal activities but be in sufficient to justify such as diminishes are exercise of rights so vital to the maintenance of democratic
institutions.

Thomas v. Collins7exemplifies the same approach: "The rational connection between the remedy provided and the evil to be curbed, which
in other contexts might support legislation against attack on other grounds, will not suffice. These rights [of expression and assembly] rest
on firmed foundations."

The belief that more exacting constitutional tests are appropriately applied upon statutes having an actual or potential inhibiting effect on
the right of speech, and the cognate rights of assembly and association, flows from recognition of the nature and function of these rights
in a free democratic society. Historically the guarantees of free expression were intended to provide some assurance that government
would remain responsive to the will of the people, in line with the constitutional principle that sovereignty resides in the people and all
government authority emanates from them. 8 The viability of a truly representative government depends upon the effective protection
and exercise of the rights of the people to freely think, to freely discuss and to freely assemble for redress of their grievances; for these
underlie the mechanisms of peaceful change in a democratic polity. There is ample authority in history for the belief that those who value

freedom, but are frustrated in its exercise, will tend to resort to force and violent opposition to obtain release from their repression. So
essential are these freedoms to the preservation and vitality of democratic institutions that courts have on numerous occasions
categorized them as occupying a "preferred position" in the hierarchy of civil liberties. 9 "That priority," intoned the court in Thomas v.
Collins, supra, "gives these liberties a sanctity and a sanction not per permitting dubious instrusions."

This is not to say that the rights of free expression and of peaceful assembly may not be constitutionally restricted by legislative action. No
one has seriously doubted that these rights do not accord immunity to every possible use of language or to every form of assembly.
Circumstances may arise in which the safety, perhaps the very survival of our society, would demand deterrence and compel punishment
of whomsoever would abuse these freedoms as well as whomsoever would exercise them to subvert the very public order upon the
stability of which these freedoms depend.

... It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does
not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or unrestricted or unbridled license that
gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.10

The right to freedom of speech, and to peaceful assembly and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing
out of the nature of well ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not
be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to
regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of people.11

But in every case where there arises a clash between an assertion of State authority and the exercise of free speech and assembly, it is
ultimate the high function and duty of this court to locate the point of accomodation and equilibrium and draw the line between
permissible regulation and forbidden restraint.

It is now conventional wisdom that this function of delimitation and adjustment cannot meaningfully be carried out through the iteration of
abstract generalizations. The restriction that is assailed as unconstitutional must be judged in the context of which it is part, taking into
account the nature and substantiality of the community interest sought to be protected or promoted by the legislation under assay, in
relation to the nature and importance of the freedom restricted and the character and extent of the restriction sought to be imposed.

III

Various standards have been evolved for the testing of the validity of a rule or regulation curtailing the rights of free speech, free press,
and peaceful assembly. At the earlier stages in the development of jurisprudence on the matter, it was said that the State has the power
to proscribe and punish speech which the State has the right to prevent." 12 The "dangerous tendency" rule, as this formulation has been
called, found favor in many decisions of this Court. 13

In the United States, the "dangerous tendency" doctrine was early abandoned, and superseded by the "clear and present danger" rule. By
the year 1919, the majority of the members of the United States Supreme Court got around to accepting Justice Holmes' view that "the
question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent." 14 To sustain legislation imposing limitations
upon freedom of speech or of assembly, a court must find that the evil sought to be avoided by the legislative restriction is both serious
and imminent in high degree. As stated in Bridges v. California: 15

... the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of the speech or the
press. The evil itself must be "substantial" ...; it must be "serious" ....

What clearly emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious
and the degree of imminence extremely high before utterances can be punished ...

The "clear and present danger" rule has been cited with approval, in at least two decisions of this Court. 16

The "dangerous tendency" and "clear and present danger" doctrines, it should not escape notice, were fashioned in the course of testing
legislation of a particular type legislation limiting speech expected to have deleterious consequences on the security and public order of
the community. The essential difference between the two doctrines related to the degree of proximity of the apprehended danger which
justified the restriction upon speech. The "dangerous tendency" doctrine permitted the application of restrictions once a rational
connection between the speech restrained and the danger apprehended the "tendency" of one to create the other was shown. The
"clear and present danger" rule, in contrast, required the Government to defer application of restrictions until the apprehended danger

was much more visible until its realization was imminent and nigh at hand. The latter rule was thus considerably more permissive of
speech than the former, in contexts for the testing of which they were originally designed.

In other types of contexts, however, where the "substantive evil" which Congress seeks to avoid or mitigate does not relate to the
maintenance of public order in society, the adequacy or perhaps even the relevancy of these doctrines cannot be casually assumed. It
would appear to me that one of these contexts would be that where the legislation under constitutional attack interferes with the freedom
of speech and assembly in a more generalized way and where the effect of speech and assembly in terms of the probability of realization
of a specific danger is not susceptible even of impressionistic calculation. I believe that Sections 50-A and 50-B come within such context.
Congress enacted these provisions not because it feared that speeches and assemblies in the course of election campaigns would,
probably or imminently, result in a direct breach of public order or threaten national security. Sections 50-A and 50-B explicitly recognize
that such speech and assembly are lawful while seeking to limit them in point of time.

However useful the "clear and present danger" formulation was in the appraisal of a specific type of situation, there is fairly extensive
recognition that it is not a rule of universal applicability and validity, not an automatic mechanism that relieves a court of the need for
careful scrutiny of the features of a given station and evaluation of the competing interests involved.

In American Communications Ass'n v. Douds. 17 the United States Supreme Court unequivocally said that "in suggesting that the
substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms
of danger to the Nation." Rejecting the criterion of "clear and present danger" as applicable to a statute requiring labor union officers to
subscribe to a non-communist affidavit before the union may avail of the benefits of the Labor Management Relations Act of 1947, the
Court, speaking through Chief Justice Vinson, said:

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under
the particular circumstances presented.... We must, therefore undertake the delicate and difficult task ... to weigh the circumstances and
to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights.... 18

In enunciating a standard premised on a judicial balancing of the conflicting social values and individual interests competing for
ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the "balancing-of-interests"
test which has found application in more recent decisions of the U.S. Supreme Court. 19 Briefly stated, the "balancing" test requires a
court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation. 20

In the actual application of the "balancing-of-interests" test, the crucial question is: how much deference should be given to the legislative
judgment? It does not seem to me enough to say that this Court should not concern itself with the wisdom of a particular legislative
measure but with the question of constitutional power. I believe that we cannot avoid addressing ourselves to the question whether the
point of viable equilibrium represented by the legislative judgment embodied in R.A. 4880 is an appropriate and reasonable one, in the
light of both the historic purpose of the constitutional safeguards of speech and press and assembly and the general conditions obtaining
in the community.

Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's freedom, and the
social importance and value of the freedom so restricted, "are to be judged in the concrete, not on the basis of abstractions," 21 a wide
range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social values and
importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e.,
whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest
sought to be secured by the legislation the reference here is to the nature and gravity of the evil which Congress seeks to prevent;(d)
whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest;
and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the
protected freedom. 22

In my view, the "balancing-of-interests" approach is more appropriately used in determining the constitutionality of Sections 50-A and 50B. Both the "dangerous tendency" and "clear and present danger" criteria have minimum relevancy to our task of appraising these
provisions. Under these two tests, the statute is to be assayed by considering the degree of probability and imminence with which
"prolonged election campaigns" would increase the incidence of "violence and deaths," "dominion of the rich in the political arena" and
"corruption of the electorate." This kind of constitutional testing would involve both speculation and prophecy of a sort for which this
Court, I am afraid, has neither the inclination nor any special competence.

IV

Applying the "balancing-of-interests" test or approach outlined above, I am persuaded that Congress did not exceed constitutional limits in
enacting Section 50-A. This Section, it will be recalled, makes it unlawful for any political party or group to nominate a candidate for an
elective public office earlier than the period of 150 or 90 days, as the case may be, immediately preceding the election. No political party
or group can claim a constitutional right to nominate a candidate for public office at any time that such party or group pleases. The party

nomination process is a convenient method devised by political parties and groups, as a means of securing unity of political action. 23 As
a device designed for expediency of candidates and of political parties, the process of nomination or at least the time aspect thereof
must yield to the requirements of reasonable regulations imposed by the State. It may be well to note that in many jurisdictions in the
United States, the nomination of candidates for public office is regulated and controlled in many aspects by statutes. 24 While the act of
nominating a candidate has speech and assembly aspects, the restrictive effect of Section 50-A would appear negligible. The reach of the
statute is itself limited: it applies only to political parties, political committees or political groups, leaving everyone else free from restraint.
The thrust of Section 50-A is also limited: it does not prohibit political parties from holding nominating conventions or from doing any
lawful thing during such conventions; what it controls is the scheduling of the nominating conventions; While control of the scheduling of
conventions of course involves delimitation of the time period which the formally revealed candidates have to convince the electorate of
their respective merits, those periods 150 days and 90 days do not appear unreasonably short, at least not in this age of
instantaneous and mass media.

On the other hand, the legitimacy and importance of the public interest sought to be promoted by Section 50-A must be conceded.
Congress has determined that inordinately early nominations by political parties or groups have the tendency of dissipating the energies
of the people by exposing them prematurely to the absorbing excitement of election campaigns as we know them, and detracting from the
attention that ought to be given to the pursuit of the main task of a developing society like ours, which is the achievement of increasing
levels of economic development and social welfare.

The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its restriction on the rights
of speech and assembly, and the embracing public interest which Congress has found in the moderation of partisan political activity, lead
us to the conclusion that the statute may stand consistently with and does not offend against the Constitution. The interest of the
community in limiting the period of election campaigns, on balance, far outweighs the social value of the kind of speech and assembly
that is involved in the formal nomination of candidates for public office.

I reach a different conclusion with respect to Section 50-B. Here, the restraint on the freedoms of expression, assembly and association is
direct. Except within the "open seen" of 120 and 90 days preceding the election, the statute prevents and punishes by heavy criminal
sanction speeches, writings, assemblies and associations intended to promote or oppose the candidacy of any person aspiring for an
elective public office, or which may be deemed a direct or an indirect "campaign" or as "propaganda" for or against a political party. The
prohibition reaches not only "a relative handful of persons;" 25 applies to any person "whether or not a voter or candidate," and to any
group of persons "whether or not a political party or political committee." The effect of the law, therefore, is to impose a comprehensive
and prolonged prohibition of speech of a particular content, except during the 120 or 80 days, respectively, immediately preceding an
election.

Thus, the moment any person announces his intention of seeking an elective public office, "regardless of whether or not said person has
already filed his certificate of candidacy or has been nominated by any political party as its candidate," Section 50-B would become
immediately operative. Should the aspirant make known his intention, say, one year before the election, the law forthwith steps in to
impose a "blackout," as it were, of all manner of discussion in support of or in opposition to his candidacy. The lips of the candidate himself
are by the threat of penal sanction sealed, and he may not make a speech, announcement, commentary, or hold an interview to explain
his claim to public office or his credentials for leadership until the commencement of the period allowed for an "election campaign."
Neither may any person, before that period, speak out in open support or criticism of his candidacy, for that would constitute a prohibited
commentary "for or against the election of [a] candidate [albeit not a formally nominated candidate] for public office," within the purview
of paragraph (c) of Section 50-B. In practical effect, Section 50-B would stifle comment or criticism, no matter how fair-minded, in respect
of a given political party (whether in our out of power) and prospective candidates for office (whether avowed or merely intending), and
would abide all the citizens to hold their tongues in the meantime.

What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the most basic political right
of the citizens in a republican system, which is the right actively to participate in the establishment or administration of government. This
right finds expression in multiple forms but it certainly embraces that right to influence the shape of policy and law directly by the use of
ballot. It has been said so many times it scarcely needs to be said again, that the realization of the democratic ideal of self-government
depends upon an informed and committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the
public discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion speech, press, assembly,
organization must be kept always open. It is in the context of the election process that these fundamental rigths secured by the
Constitution assume the highest social importance. 26

As to the formation of "organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or candidate," 27 this is a right which, like freedom of expression and
peaceable assembly, lies at the foundation of a libertarian and democratic society. 28 As Professor Kauper has explained, with
characteristic lucidity:

When we speak of freedom of association we may, have reference to it in a variety of contexts. Probably the highest form of freedom of
association, at least as many would see it, is the freedom to associate for political purposes by means of organization of a political party
and participation in its activities. The effective functioning of a democratic society depends on the formation of political parties and the
use of parties as vehicles for the formulation and expression of opinions and policies. The minority party or parties become vehicles for

registering opposition and dissent. The political party is the indispensable agency both for effective participation in political affairs by the
individual citizen and for registering the diversity of views in a pluralistic society. Indeed, under some other constitutional systems political
parties are viewed as organs of government and have a high constitutional status.29

We turn to the other end of the scales. As I have herein before observed, the interest of the state in regulating partisan political activity,
which is sought to, be secured by Section 50-B no less than by Section 50-A, is a legitimate one and its protection a proper aim for
reasonable exercise of the public power. I think, however, that that interest, important as it is, does not offset the restrictions which
Section 50-B imposes with indiscriminate sweep upon the even more fundamental community interests embodied in the constitutional
guarantees of speech, assembly and association. I have adverted to Mills v. Alabama where the United States Supreme Court struck down
the Alabama Corrupt Practices Act to the extent that it prohibited, under penal sanctions, comments and criticism by the press on election
day. The statutory provision there in question 11, not unlike Section 50-B here, was sought to be sustained in the interest of preserving the
purity and integrity of the electoral process. The restriction which the Alabama statute imposed upon freedom of speech and assembly
would seem an inconsequential one a restriction, imposed for one day, only one day, election day; nevertheless, the United States
Supreme Court regarded such restriction as sufficient to outweigh the concededly legitimate purpose of the statute. We can do no less in
respect of restrictious of such reach, scope and magnitude as to make the limitation of the Alabama statute appear, in comparison, as an
altogether trifling inconvenience.

Indeed, if a choice is to be made between licentious election campaigns, which Section 50-B seeks to curtail, and the muzzling, as it were,
of public discussion of political issues and candidates, which the provision would effectuate, I have no hesitancy in opting for the former. It
is the only choice consistent with the democratic process. Fortunately, there is no need to choose between one and the other; the
dichotomy need not be a real one. I am not to be understood as holding that Congress may not, in appropriate instances, forbid the
abusive exercise of speech in election campaigns. There is no constitutional immunity for a defamatory attack on a public candidate.
Neither is there protection for slander of public officials. 30 It has been held to be within the power of the legislature to penalize
specifically the making, in bad faith, of false charges of wrongdoing against a candidate for nomination or election to public office, 31 and
to prohibit the publication or circulation of charges against such candidate without serving him a copy of such charges several days before
the election. 32 Statutes of this kind have been sustained against broad claims of impairment of freedom of speech and of the press. 33
"But it is an entirely different matter when the State, instead of prosecuting [offenders] for such offenses, seizes upon mere participation
in a peaceable assembly and a lawful public discussion as a basis for criminal charge. 34

That remedies less destructive of the basic rights enshrined in the Constitution are not available, has not been shown. The applicable
principle here has been formulated in the following terms:

... even though the governmental purposes be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the
light of less drastic means for achieving the same purpose.35

Section 50-B, as it would casually lump together the activities of citizens exercising their constitutional rights and those of politicians
seeking the privilege of an elective office, is to broadly drawn to satisfy the constitutional test. The more pernicious aspects of our national
preoccupation with "politics" do not arise from the exercise, even the abuse, by the electorate of the freedoms of speech and of the press;
I find it difficult to suppose that these can be met by curtailing expression, assembly and association. The great majority of our people are
too preoccupied with demands upon their time imposed by our generally marginal or submarginal standards of living. "Politics," as I see
the contemporary scene, is a dominant pre-occupation of only a handful of persons the politicians, the professional partymen. If the
people at large become involved in the heat and clamor of an election campaign, it is ordinarily because they are unduly provoked or
frenetically induced to such involvement by the politicians themselves. As it is, the great masses of our people do not speak loud enough
and, when they do, only infrequently about our government. The effect of the ban on speech would serve only to further chill
constitutionally protected conduct on their part which, instead of being suppressed, should on the contrary be encouraged.

It is not amiss to observe here that the making of politically oriented speeches and the dissemination of similar literature, while they may
divert the energies of those who make or write them and their audiences, would appear to me to be among the less pernicious aspects of
our national preoccupation with "politics." The more dangerous aspects of our national preoccupation probably occur in privacy or secrecy
and may be beyond the reach of measures like Section 50-B.

It is argued in defense of the statute, nonetheless, that under the two provisos of Section 50-B, "simple expressions of opinion and
thoughts concerning the election" and expression of "views on current political problems or sues," including mentioning the names of
candidates for public offices whom one supports, are not prohibited; hence, freedom of expression is not unconstitutionally abridged by
Section 50-B.

This argument is gravely flawed by the assumption that "simple expressions of opinion" and "views on current political problems" cover
the whole reach of the relevant constitutional guarantees. What about the rights of assembly and lawful association? As to freedom of
expression that cannot be confined to the realm of abstract political discussions. It comprehends expression which advocates action, no
less than that which merely presents an academic viewpoint. Indeed, the value of speech in a democratic society lies, in large measure, in
its role as an instrument of persuasion, of consensual action, and for this reason it must seek to move to action by advocacy, no less than
by mere exposition of views. It is not mere coincidence that the farmers of our Constitution, in protecting freedom of speech and of the
press against legislative abridgment, coupled that freedom with a guarantee of the right of the people to peaceably assemble and petition
the government for the redress of grievances. The right of peaceful assembly for the redress of grievances would be meaningless and

hollow if it authorized merely the public expression of political views, but not the advocacy of political reforms even changes in the
composition of the elective officialdom of the administration.

There is another, equally basic, difficulty that vitiates the avowed constitutional utility of the provisos appended to Section 50-B. Under the
first proviso, it "simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election
campaign." From the precise use of the word "simple" may be rationally drawn an inference that "non-simple" expressions fall within the
proscription of election campaigns. But the law conspicuously fails to lay dawn a standard by which permissible electioneering. How simple
is "simple"? In the absence of such a standard, every speaker or writer wishing to make publicly known his views concerning the election
and his preferences among the candidates, must speak at his own peril. He could carefully choose his word's with the intention of
remaining within the area of speech left permissible by Section 50-B. But, in the nature of things, what and who can provide him assurance
that his words, "simple expressions of opinion and thoughts concerning the election" as they may be, will not be understood by his
audience or at least by some of them, or by the prosecuting officers of the Government, or by the courts even, as a "speech" or
"commentary" "for or against the election of ... a candidate for public office," or at least an indirect solicitation of votes?

It is pertinent to advert to the Texas statute involved in Thomas v. Collins, supra, as illustrative of the vice of vagueness that we find in
Section 50-B. The Texas statute required all labor union organizers to first obtain organizer's cards from the Secretary of State "before
soliciting any members for his organization," and authorized the courts to compel compliance by the issuance of court processes. Thomas,
the president of a nationwide labor union, came to Houston to address a mass meeting of employees of an oil plant which was undergoing
unionization; but six hours before he was scheduled to speak, he was served with a court order restraining him from soliciting members for
the local union which was affiliated with his organization, without first obtaining an organizer's card. For disobeying the restraining order,
he was found in contempt of court. The U.S. Supreme Court, reversing his conviction, found the registration requirement an invalid
restraint upon free speech and free assembly, thus:

That there was restriction upon Thomas' right to speak and the rights of the workers to hear what he had to say, there can be no doubt.
The threat of the restraining order, backed by the power of contempt, and of arrest for crime, hung over every word. A speaker in such
circumstance could avoid the words "solicit," "invite," "join". It would be impossible to avoid the idea. The statute requires no specific
formula. It is not contended that only the use of the word "solicit" would violate the prohibition. Without such a limitation, the statute
forbids any language which conveys, or reasonably could be found to convey, the meaning of invitation. That Thomas chose to meet, the
issue squarely, not to hide in ambiguous phrasing, does not counteract this fact. General words create different and often particular
impressions on different minds. No speaker, however careful, can convey exactly his meaning, or the same meaning, to the different
members of an audience. How one might "land unionism," as the State and the State Supreme Court concedes Thomas was free to do, yet
in these circumstances not imply an invitation, is hard to conceive. This is the nub of the case, which the State fails to meet because it
cannot do so, Workingmen to do lack capacity for making rational connections. They would understand, or some would, that the president
of U.A.W. and vice president of C.I.O. addressing an organization meeting, was not urging merely, a philosophy attachment to abstract
principles of unionism, disconnected from the business immediately at hand. The feat would be incredible for a national leader, addressing
such a meeting, lauding unions and their principles, urging adherence to union philosophy, not also and thereby to suggest attachment to
the union by becoming a member.

Furthermore, whether words intended and designed to fall short of invitation would miss that mark is a question, of intent and of effect. No
speaker, in such circumstance safely could assume that anything lie might say upon the general subject would not be understood by as an
invitation. In short, the supposedly clear-cut distinction between discussion and laudation, general advocacy, and solicitation puts the
speaker in these circumstance wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference
may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels
the speaker to hedge and trim. He must take care in every word to create no impression that he means, in advocating unionism's most
central principle, namely, that workingmen should unite for collective bargaining, to urge those present to do so. The vice is not merely
that invitation, in the circumstances shown here, is speech. It is also that its prohibition forbids or restrains discussion which is not or may
not be invitation. The sharp line cannot be drawn surely or securely. The effort to observe it could not be free speech, free press, or free
assembly, in any sense of free advocacy of principle or cause. The restriction's effect, as applied, in a very practical sense was to prohibit
Thomas not only to solicit members and memberships but also to speak in advocacy of the cause or trade unionism in Texas, without
having first procured the card. Thomas knew this and faced the alternatives it presented. When served with the order he had three
choices: (1) to stand on his right and speak freely; (2) to quit, refusing entirety to speak; (3) to trim, and even thus to risk the penalty. He
chose the first alternative. We think he was within his lights in doing so.36

The realism of the approach and reasoning employed in Thomas v. Collins commends itself; I think this kind of realism should be applied to
the task of appraising Section 50-B. Section 50-B forbids "directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party," including any language "for or against the election of any party or candidate for public
office," except within the specified periods preceding the election.

If a minority political party were to hold a mass rally at Plaza Miranda within the prohibited period of an election year, for the purpose of
publicly expressing their criticism of the party in power, it is unthinkable that the public speeches delivered during the occasion will not
understood, by many if not by all, as a direct or an indirect campaign or propaganda against a political party, as well as a direct or an
indirect solicitation of votes. The audience will certainly understand the occasion, not as a forum for indulging in criticism for criticism's
sake, nor as a "simple" discussion of political, philosophy, but as an invitation to unseat the party in power at the next election. If, upon
the other hand, the minority party should control one or both Houses of Congress and, for selfish partisan motives, oppose all or a major

portion of the significant measures sponsored by the Administration, regardless of their merits, for the purpose of obtaining political
partisan advantage, the Chief executive would, during the restricted period, find himself hampered in vigorously placing blame squarely on
such minority party. The Administration (and this includes the Chief Executive himself) would be hard put to appeal to public opinion to
exert pressure on the legislature to gain support for what it may honestly believe to be constructive measures sorely needed to promote
the country's progress. The right of any party or politician to appeal to public opinion cannot be assailed; yet, when would such an appeal,
in which the opposition may have to be several criticized not constitute a violation of Section 50-B? Actual, pre-war and postwar
experience has shown that in a number of instances, the Chief Executive and leaders of his administration had to mobilize public opinion
(largely expressed through the press) to frustrate what they regarded as a calculated scheme the opposition party of unreasonably
interposing obstacles to a major part of essential legislation. It would indeed be most difficult to determine with exactitude what
utterances of the Administration leaders, including the Chief Executive himself, would or would not constitute propaganda "for or against a
political party."

Under these circumstances, I find the contraposition in Section 50-B between "expressions of opinion," on the one hand, and "solicitation"
and "campaign or propaganda," on the other, as too uncertain and shifting a line of distinction to be of any practical utility either to the
citizen or official who must speak at his own peril or to the prosecutors and the courts who must enforce and apply the distinction.

Paragraph (f) of Section 50-B is tautological and question-begging. It defines "election campaign" as "giving, soliciting, or receiving
contributions for election campaign purposes, either directly or indirectly." Insofar, therefore, as the phrase "election campaign purposes"
in paragraph (f) depends for its meaning on the preceding paragraphs (a), (b), (c), (d) and(e), paragraph (f) likewise suffers from
constitutional infirmity. Upon the other hand, if the meaning of paragraph (f) be that the act of soliciting, giving or receiving contributions
for the purpose of advancing the candidacy of a person or party is "campaigning," then it is just as must a curtailment of the freedom of
thought that the Constitution vouchsafes to every citizen.

The foregoing disquisition could be compressed into the compelling perspective of this simple admonition: that "speech concerning public
affairs is more than self-expression; it is the essence of self-government." 37

In sum and substance, it is my considered view that Section 50-B of the Revised Election Code constitutes an unconstitutional abridgment
of the freedoms of speech, of the press, of peaceful assembly, and of lawful association.

I vote for its total excision from the statute books.

Dizon, Zaldivar and Capistrano, JJ., concur.

BARREDO, J., concurring and dissenting:

I concur in the resulting dismissal of this case, but I candidate give my assent to so much of the opinion, brilliantly written for the Court by
Mr. Justice Fernando, as would give the imprimatur of constitutionality to any portion of Section 50-B of the statute before Us. Hereunder
are my humble but sincere observations.

I am of the firms conviction that this case should be dismissed. In fact, it is not clear to me why the petition herein was ever given due
course at all No matter how I scan its allegations, I cannot find anything in them more than a petition for relief which is definitely outside
the original jurisdiction of this Court. Petitioners themselves have expressly brought it as a petition for relief; it is the majority that has
decided to pull the chestnuts out of the fire by holding that it should be "treated by this Court as one of prohibition in view of the
seriousness and the urgency of the constitutional issue raised." Frankly I consider this relaxation rather uncalled for; it could border on
over eagerness on the part of the Supreme Court, which is not only taboo in constitutional cases but also certainly not befitting the role of
this Tribunal in the tripartite scheme of government We have in this Republic of ours. I am afraid the majority is unnecessarily opening
wide the gate for a flood of cases hardly worthy of our attention, because the parties concerned in many cases that will come to Us may
not see as clearly as We do the real reasons of public interest which will move Us when We choose in the future to either entertain or
refuse to take cognizance, of cases of constitutionality. Withal, We cannot entirely escape the suspicion that We discriminate.

Since after all, the majority admits that "When We act in these matters, We do not do so on the assumption that to Us is granted the
requisite knowledge to set matters right, but by virtue of the responsibility We cannot escape under the Constitution, one that history
authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked",
(underscoring mine) and, further, no one can deny that it is now firmly established that among the indispensable requirements before this
Court can take up constitutional question is that We can do it only when it, involves a real and genuine situation causing direct substantial
injury to specific persons, as contradistinguished from mere speculative fears of possible general hardship or mere inconvenience, I feel it
would be much safer for Us, and our position would be more in word with the rule of law, if We adhered strictly to the above requirement
and threw out cases of the nature of the present one, if only out of the traditional respect this Tribunal owes the two other coordinate and
co-equal departments of our government. In the petition at bar, there are no allegations of specific acts of the respondent Commission on
Elections or even only threatened to be committed by it, pursuant to the challenged legislation, which they claim impairs, impedes, or
negates any rights of theirs considered to be constitutionally protected against such impairment, impeding or negation. It is very clear to
me that in this case, our jurisdiction has not been properly invoked. Considering how multifaceted the law in question is, one is completely

at a loss as to how petitioner request for a blanket prohibition and injunction can be considered, in the light of existing principles that
strictly limit our power to take cognizance of constitutional cases only to those that can pass the test I have mentioned above.

What is more, I regret to have to say that what the majority is doing by taking further cognizance of and deciding this case is to brush
aside the stark reality that the interest in this case of petitioners Cabigao and Gonzales, the first, as candidate, and the second, as his
leader, related only to the elections of 1967 wherein, in fact, Cabigao was elected Vice-Mayor of Manila. Accordingly, this case has already
become entirely academic even as a prohibition, because neither Cabigao nor his leader, Gonzales, can conceivably have any further
imaginable interest in these proceedings. How can we proceed then, when petitioners' interest no longer exists and whatever decision We
may make will no longer affect any situation involving said petitioners. Clearly to me, what the majority has done is to motu proprio
convert the action of petitioners into a taxpayer's suit, which may not be proper because there no specific expenditure of public funds
involved here. Besides, if petitioners have not come with a supplemental petition still complaining, why are We going to assume that they
are still complaining or, for that matter, that there are other persons who are minded to complain, such that We have to give or deny to
them here and now the reason to do so?

Again, I say, the Court seems to be trying to bite more than it can chew, since cases of this nature 1 will surely come in great numbers and
We will have to accommodate them all, otherwise the exercise of our discretion in rejecting any of them can be questioned and may at
times be really questionable. My basic principle is that the rule of law avoids creating areas of discretionary powers, and the fact that it is
the Supreme Court that exercises the discretion does not make it tolerable in any degree, for such an eventuality can be worse because no
other authority can check Us and the people would be helpless, since We cannot be changed, unlike the President and the Members of
Congress who can, in effect, be recalled in the elections. Of course, I have faith in the individual and collective wisdom and integrity of
each and every one of my fellow members of this Court, but I still prefer that We exercise discretion only when it is clearly granted to Us,
rather than for Us to create by our own fiat the basis for its exercise.

The other question assailing my mind now, is this: Is there any precedent, whether here or in any other jurisdiction where the Supreme
Court has the power to declare legislative or executive acts unconstitutional, wherein any supreme court had insisted on deciding grave
constitutional questions after the case had become completely moot and academic because the interest of the actors alleged in their
pleading had ceased to exist? I don't believe there has been any, which is as it should be, because if this Court and even inferior court
dismiss ordinary cases which have become moot and academic, with much more reason should such action be taken, in cases wherein the
unconstitutionality of a law or executive order is raised, precisely for the reasons of principle already stated and fully discussed in other
constitutional cases so well known that they need not be cited here anymore.

It is for these considerations that I join the majority in dismissing this case. And I want to acknowledge that I am heartened in any stand by
the fact that in the deliberations, at least, Mr. Justice Makalintal expressed similar views as mine, so much so that, in his particular case, he
did not even care to discuss the constitutional questions herein invoIved precisely because they are not appropriately before this Court. 1a
On the other hand, if the majority's position is correct that this Court may properly consider this case as one of prohibition and that it
should be decided despite its having become clearly academic, I would definitely cast my vote with Mr. Justice Castro to declare
unconstitutional Section 50-B of the legislative enactment in question, Republic Act 4880, more popularly known as the Taada-Singson
Law. Unlike him, however, I shall not indulge in a complete discussion of my stand on the constitutional questions herein involved, since
the opportunity to voice fully my views will come anyway when the proper case is filed with Us. It is only because some members of the
Court feel that we should make known what are, more or less, our personal opinions, so that the parties concerned may somehow be
guided in what they propose to do or are doing in relation to the coming election, that I shall state somehow my fundamental
observations, without prejudice to their needed enlargement if and when the appropriate opportunity comes. Indeed, in my humble view,
what the Court is rendering here is in the nature of an advisory opinion and I am sure all the members of the Court will agree with me that
in doing this we are departing from the invariable posture this Court has always taken heretofore. In other words, we are just advancing
now, individually and collectively, what our votes and judgment will be should an appropriate case come, unless, of course, as some of our
colleagues have wisely observed in other cases where I have made similar observations, We change our mind after hearing the real parties
in interest.

Coming now to the constitutional problems posed by the pleadings, I have these to say, for the time being:

1. The first specific act defined by the statute in question as "election campaign" or "partisan political activity" proscribed by it within the
stipulated limited period of one hundred twenty days prior to an election at large and ninety days in the case of any other election is to
"form(ing) organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate." No law more effective, if less disguised, could have been conceived to
render practically impossible the organization of new political parties in this country. If for this reason alone, I consider this provision to be
deserving of the severest condemnation as an unparalleled assault on the most sacred and fundamental political rights of our citizenry. In
the light of the recent political experience of the strong of heart and idealists amongst us, this measure appears to me as a perfect or, at
least, a near-perfect scheme for the perpetuation of the status quo and the entrenchment of the presently existing political parties,
particularly, the two major ones, whether or not we share the cynical reference to them by the discerning as nothing but twin peas in the
same pod. This is not to say that such was what motivated its authors, particularly Senator Tanada, for whom I have always had the
highest regard for his never-questioned sincerity of purpose, patriotism and libertarian principles, which opinion of mine is undoubtedly
shared by all the member of this Court. I must insist, however, that such is what appears to me to be unmistakably the evident effect of
the prohibition under discussion it is most probable that in its passion to remedy as early as possible the evils it feels exist, Congress has
overlooked unwittingly some of the possible implications of this particular measure.

It is one thing to prohibit a political party from actively campaigning outside a certain period of time and it is entirely another thing to
prohibit citizens who are not contented with the existing political parties to organize, outside the same period, any new political party
which they feel will better serve the public weal. 1b Before it is contended that this provision does allow the organization of new political
parties within the abovementioned periods of one hundred twenty and ninety days preceding each respective election referred to, I hasten
to add that the said periods are so obviously insufficient that to some it would appear as if the reference to such brief periods of free
organization in the provision was just inserted into it to camouflage its real but unmentionable intentions and/or to blunt any challenge of
unconstitutionality.

All our people have been witnesses to events of contemporary history which have clearly demonstrated the futility of organizing a new
political party or even just a front or alliance within such a short time. To name the gallant national figures who have met frustration in
such endeavor even with much more time at their disposal is to prove that the task is simply next to impossible, no matter if it were
undertaken by men of the best reputation in integrity and nobility of ideals. It is surely of common knowledge that the work of organization
alone of a party, not to speak of the actual participation and influence such party is intended to effectuate in the ensuing election, can
hardly be accomplished, within the four months provided by the statute, with sufficient success to be of any consequence, specially, on a
national level, which is what is needed most, because while local issues seem to arouse more interest among the electors, national issues
have a profound effect on the lives and liberties of all the people. It must be borne in mind, in this connection, that our country is made up
of more than 7,000 islands scattered throughout the length and breadth of the archipelago. Those who have taken part in one way or
another in an electoral campaign of national dimension know only too well that one can hardly cover a majority of these islands, not to
speak of all of them, within such an abbreviated period.

Moreover, in the light of contemporary trends of political thinking and action, very much more than the present condition of things about
which there is, to be sure, so much hypocritical hue and cry, particularly, among those whom the present-day Robin Hoods, in and out of
the government have not attended to, to engender a general feeling of dissatisfaction and need for change in such widespread
proportions as to readily galvanize enough elements to rise in peaceful revolution against the existing political parties and bring about the
formation within the short span of four months of a new political party of adequate or at least appreciable strength and effectiveness in
the national arena. Even the obviously sincere efforts of the undaunted who keep on trying their luck, pitted against the marked
complacency and indifference of the present and passing generations, if not their incomprehensible inability to overcome the inertia that
seems to be holding them from pushing the scattered protests here and there, more or less valid and urgent, to their logical conclusion,
generate but very little hope that the expected reaction can materialize during our time.

Needless to say, no matter if one looks at the current scenes thru the most rosy spectacles, a ban against the formation of new political
parties is definitely out of the question. A total expressed ban is, of Course, repugnant to any decent sense of freedom. Indeed, a disguised
even if only partial, is even more intolerable in this country that does not pretend to have but does truly have democratic bearings deeply
rooted in the history of centuries of heroic uprisings which logically culminated in the first successful revolution of a small nation against
despotism and colonialism in this part of the world.

It is to be conceded that the adequacy or inadequacy of the means adopted by Congress in the pursuit of a legislative recognized
objective is generally irrelevant to the courts in the determination of the constitutionality of a congressional action. I must be quick to add,
however, that this rule can be salutary only if the adequacy is controversial, but when the inadequacy of the means adopted is palpable
and can reasonably be assumed to be known or ought to be known generally by the people, such that it is a foregone conclusion that what
is left licit by the law can be nothing more than futile gestures of empty uselessness, I have no doubt that the judicial can rightfully expose
the legislative act for what it is an odious infraction of the charter of our liberties. Other the principle of respect for coordinate and coequal authority can be a tyranny forbidding the courts from striking down what is not constitutionally permissible. I am ready to agree that
the judiciary should give allowances for errors of appreciation and evaluation of the circumstances causing the passage of a law, but if it is
true, as it is indeed true, that the Supreme Court is the guardian next only to the people themselves of the integrity of the Constitution
and the rights and liberties it embodies and sanctifies, I would consider it an unpardonable abdication of our peculiar constitutionallydestined role, if We closed Our eyes and folded Our arms when a more or less complete ban against the organization of new political
parties in this countries is being attempted to be passed before Us as a legitimate exercise of police power.

At this point, it is best to make it clear that the particular constitutional precept with which the statutory provision in question is
inconsistent and to which therefore, it must yield is Paragraph 6, Section 1, Article III of the Bill of Rights of the Constitution which ordains:

The right to form associations or societies for purposes not contrary to law shall not be abridged.

Incidentally, the indigenous cast of this provision is seemingly emphasized by Mr. Justice Fernando by his reference to its origin in the
Malolos Constitution of 1896. 2 Indeed, there it was provided:

Article 19

No Filipino in the full enjoyment of his civil and political rights shall be hindered in the free exercise thereof.

Article 20

Neither shall any Filipino, be deprived of:

1. ...

2. The right of joining any associations for all objects of human life which may not be contrary to public moral; ...

It is to be observed that in the light of its text and origin, the statutory provision under scrutiny forbids the abridgement of the right of
inhabitants of this country to form associations and societies of all kinds, including and most of all, for the citizens, political parties, the
sole exception being when the association or society is formed for purposes contrary to law. It is unquestionable that the formation of an
ordinary political party cannot be for purposes contrary to law. On the contrary, the organization of political parties not dedicated to the
violent overthrow of the government is an indispensable concomitant of any truly democratic government. Partyless governments are
travesties of the genuine concept of democracy. The immediate repulsion that fated straws in the wind thrown in favor of such an
anachronistic proposal here in the Philippines is still fresh in the memory of many of our countrymen. Our people are firmly set on the
inseparability of political parties from a democratic way of life. To ban political parties here is to kill democracy itself.

And now comes this legislation banning the formation of political parties except within certain limited periods of time, so short, as I have
already demonstrated, that in effect, the ban is a total one. Can them be a more flagrant violation of the constitutional guarantee of
freedom of association? Besides, since it is undeniable that the evils Congress seeks to remedy cannot be said to have all been brought
about by the formation of new political parties, but rather by the anomalous, irregular, corrupt and illegal practices of the existing political
parties, why does the legislature have to direct its wrath against new political parties, which, for all we know, can yet be the ones that will
produce the much needed innovation in the political thinking and actions of our electorate which will precisely do away with the defects of
the present political system? As I see it, therefore, the remedy embodied in the disputed provision is so clearly misdirected that it cannot,
under any concept of constitutional law, be tolerated and considered constitutionally flawless, on the theory that it is just a case of error in
the choice of means, on the part of Congress, to attain the objective it has in mind, hence beyond the pale of judicial review.

To be sure, the phrase "for purposes not contrary to law" in the constitutional provision above quoted did not pass unnoticed during the
debates in the constitutional convention. To some delegates, it appeared that said phrase renders nugatory the freedom it guarantees, for
the simple reason that with said phrase the lawmakers are practically given the attribute to determine what specific associations may be
allowed or not allowed, by the simple expedient of outlawing their purposes prophetic vision, indeed! No less than Delegate Jose P.
Laurel, who later became an honored member of this Court, had to explain that "the phrase was inserted just to show that the right of
association guaranteed in the Constitution was subject to the dominating police power of the state." (Aruego, id.)

To my mind, this explanation of Delegate Laurel renders the prohibition in the law in question more vulnerable to the charge of
unconstitutionality. It is to me simply inconceivable that the state can ever forbid the formation of political parties in the assertion of its
"dominating police power". I reiterate that political parties are an absolute necessity in a democracy like ours. As a matter of fact, I dare
say police power would be inexistent unless the political parties that give life to the government which exercises police power are allowed
to exist. That is not to say that political parties are above the state. All that I mean is that without political parties, a democratic state
cannot exist; what we will have instead is a police state.

No more than momentary reflection is needed to realize that much as our Constitution projects, it would appear, the desirability of the
two-party system of government. there is nothing in it that even remotely suggests that the present political parties are the ones precisely
that should be perpetuated to the prejudice of any other. Less reflection is needed for one to be thoroughly convinced that to prohibit the
organization of any new political party is but a short step away from implanting here the totalitarian practice of a one-ticket election which
We all abhor. Absolute freedom of choice of the parties and men by whom we shall be governed, even if only among varying evils, is of the
very essence in the concept of democracy consecrated in the fundamental law of our land.

So much, for the time being, for the prohibition against new political parties. Let us go now to the other freedoms unconstitutionally
impinged by the legislation at bar.

2. If I vehemently decry the attempt in this law to curtail our freedom to organize political parties whenever it may please us to do so for
being not only violative of the letter of the constitution but contrary also to the democratic traditions of our people and likewise a patent
disregard of the very essence of a democratic form of government, I cannot have less repugnance and abhorence for the further attempt
in this law to do away with the freedoms of speech and the press and peaceful assembly. Lest I be misunderstood, however, as being an
ultra-activist, it should be clear at the outset that in holding that the above prohibitions contained in the statute in question are violative of
the Constitution, my stand is limited to my fundamental conviction that the freedoms of speech, of the press and of peaceful assembly
and redress of grievances are absolute when they are being exercised in relation to our right to choose the men and women by whom we
shall be governed. I hold neither candle nor brief for licentious speech and press, but I recognize no power that can pre-censor much less
forbid any speech or writing, and peaceful assembly and petition for the redress of grievances, the purpose of which is no more than to
express one's belief regarding the qualification or lack of them, the merits and the demerits of persons who are candidates for public office
or of political parties vying for power, as well as the principles and programs of government and public service they advocate, to the end
that when voting time comes the right of suffrage may be intelligently and knowingly, even if not always wisely, exercised. If, in the
process, there should be in any manner any baseless attacks on the character and private life of any candidate or party or some form of

inciting to public disorder or sedition, the offender can be rightfully haled to court for libel or the violation of the penal provisions on public
order and national security, as the facts may warrant, but never can anyone, much less the state, have the power to priorly forbid him to
say his piece.

Paragraphs (b), (c), (d) and (e) of Section 1 of the challenged legislation cover practically a common subject matter. They all define as
"election campaign" or is "partisan political activity" forbidden to be exercised within the aforementioned periods the following liberties:

The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office which shall include:

(a) ...

(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purposes of
soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;

(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for
public office;

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking propaganda for or against any candidate or party;

Naturally, it is my uncompromising view, that by these provisions the act directly violates the plain injunction provision of the Constitution
to the effect that:

No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances. (Par. [8], Sec. 1, Art. III of the Constitution)

My colleagues are impressed by the objectives of the legislative measure before Us. Mr. Justice Fernando voices the feeling of some of
them in the opening paragraph of the Court's opinion thus: "A statute designed to maintain the purity and integrity of the electoral process
by Congress calling a halt to the undesirable practice of prolonged political campaigns, bringing in their wake serious evils not the least of
which is the ever-increasing cost of seeking public office, is challenged on constitutional grounds." Mr. Justice Castro proclaims said
objectives as practically self-evident and heartily endorses, by quoting in toto, the purposes avowed in the explanatory note of Senate Bill
209 which finally became the subject statute. Mr. Justice Sanchez is a little more factual as he opines:

State authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is growing into a way
of life, that political campaigns are becoming longer and more bitter. It is a result of a legislative appraisal that protracted election
campaign is the root of undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give deserving
but poor candidates slim chances of winning. They constitute an inducement to graft to winning candidates already in office in order to
recoup campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state
are neglected by incumbent officials desiring to run for reelection. The life and health of candidates and their followers are endangered.
People's energies are dissipated in political bickerings and long drawn-out campaigns. (2nd par., p. 4, concurring & dissenting opinion of
Mr. Justice Sanchez) .

I hope I will be forgiven for having to view things differently. Indeed, I would like to ask the optimists in and out of Congress to silence the
trumpets they have sounded to herald the approval of this law. I agree that generally no court and no member of this Tribunal has the right
to quarrel with Congress in its choice of means to combat the evils in a legislatively recognized situation, but are We, as the Supreme
Court, to seal our lips even when we can plainly see that a congressional measure purported allegedly to do away with certain evils does,
on the contrary, promote those very same evils it is supposed to remedy, on top of impinging on our sacred constitutional freedoms, and
at that, with the aggravating element of giving undue advantage to the incumbents in office and to the existing political parties?

A closer look at the way the prohibitions contained in the section of the law in dispute will work will reveal how detrimental they are to the
basic public interest, nay, to the right of suffrage itself. I like to reiterate over and over, for it seems this is the fundamental point others
miss, that genuine democracy thrives only where the power and right of the people to elect the men to whom they would entrust the
privilege to run the affairs of the state exist. In the language of the declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government authority emanates from them." (Section 1, Article II) Translating
this declaration into actuality, the Philippines is a republic because and solely because the people in it can be governed only by officials
whom they themselves have placed in office by their votes. And it is on this cornerstone that I hold it to be self-evident that when the

freedoms of speech, press and peaceful assembly and redress of grievances are being exercised in relation to suffrage or as a means to
enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power in our government must be ready to undergo exposure any moment of the
day or night, from January to December every year, as it is only in this way that he can rightfully gain the confidence of the people. I have
no patience for those who would regard public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be properly enjoyed. It stands to reason therefore, that suffrage itself
would be next to useless if the liberties cannot be untrammelled whether as to degree or time.

It must be noted that the proscription contained in this law is against the use altogether of the freedom of speech, press and peaceful
assembly in relation to the candidacy of a person for public office, not against the use of such freedoms in order to damage the character
of any particular person or to endanger the security of the state. No matter how I view, it I cannot see how using said freedoms in the
interest of someone's candidacy beyond the prescribed abbreviated period can do any harm to the common weal. I regret I came too late
to this Court to be able to hear what I have been made to understand was Senator Taadas very informative arguments. With all due
respect to what might have been showing by the distinguished Senator, I personally feel the present measure premature and misdirected.
The incidence and reincidence of bloody occurences directly or indirectly caused by electoral rivalries cannot be denied, but unless shown
convincing and reliable statistical data, I have a strong feeling that those who entertain these apprehensions are influenced by
unwarranted generalizations of isolated cases. Not even the residents of such allegedly troublous areas as Ilocos Sur, the Lanao provinces,
Cavite, Cebu and Nueva Vizcaya will admit that the situation in those places is so beyond control as to necessitate, at any time, the
complete suppression of expression of views, oral and in writing for or against person handling public affairs or; aspiring to do so.

As the above-quoted provisions stand, every imaginable form of political activity, whether done individually or suprisingly by a person, or
collectively, by a number of persons, is covered by their prohibitions. Under the said provisions, during twenty months in every two years,
there are only three things Filipinos can do in relation to the conduct of public affairs by those they have voted into power and the relative
capacity or incapacity of others to take their places, namely: (1) simple expressions of opinion and thought concerning the election; (2)
expression of views on current political problems and issues; and (3) mention the candidates whom one supports.

If these exceptions in the statute are not absurd, little comfort can be found beneath their umbrage. As to the first exception, Mr. Justice
Castro very aptly asks, how simple is simple? I would like to add to the impeccable structures of my esteemed colleague, if I may be
permitted, the humble observation that the phrase "concerning the election" is to me too equivocal, if it is not incomprehensible, to be
part of a penal statute such as this law is, with the heavy penalty of imprisonment from one year to five years, disqualification to hold
public office for not less than one year nor more than nine years and deprivation of the right to vote for a like period that it imposes. To
express an opinion as regards elections in general is something that is indubitably outside the area of any possible legislative proscription
and to do so in relation to a forthcoming specific election without any discernible hue of an appeal for support for one protagonist or
another is to say nothing worthwile, that is, if it is possible to conceive of anyone referring to an actual impending election with complete
impartiality. On the other hand, to express one's views regarding an actual election with mention of the qualifications or disqualifications of
the candidates and the political parties involved, cannot escape the coverage of the prohibition in question.

As to the second exception, what views on current political problems and issues can be expressed without necessarily carrying with them
undercurrents of conformity or non-conformity with the present state of things and, directly or indirectly, with the ways of the incumbents
in office? And as to the last exception, who can be these candidates whose names would possibly be mentioned by any sympathizer, when
candidates are not allowed by this law to be nominated earlier than practically the same period as the prohibitions against campaigns? .

I can well understand the predicament of Congress. It has attempted to define the indefinable. Any intent to circumscribe the areas of
basic liberties cannot end but in absurdity. To insist on drawing artificial boundaries for their enjoyment must necessarily result in
confusion and consequent protracted controversy and debate which can only give occasion for the inordinate exercise of power for
power's sake. A definition that comprehends substantially what should not be included is no definition at all. The right of our people to
speak and write freely at all times about our government and those who govern us, only because we have elected them, cannot be
subjected to any degree of limitation without virtual loss of the right itself. The moment it become impossible for the inhabitants of this
country to express approval or disapproval of the acts of the government and its officials without imperilling their personal liberty, their
right to hold office and to vote, and such appears to be the natural consequence of the injunctions of this law, we cannot be far away from
the day when our Constitution will be hardly worth the paper on which it is written.

I find it difficult to dissociate the prohibition in this law from the obvious advantages they give to those presently holding office by election
and to the existing political parties.

Under the definition of the terms "candidate" and "election campaign or "partisan political activity" contained in the section we are
assaying it is clear that what the statute contemplates are candidates for public offices. Accordingly, candidates for nomination by their
respective political parties do not appear to be comprehended within the prohibition; so, as long as a person campaigns, even publicly,
only for nomination by his party, he is free to expose himself in any way and to correspondingly criticize and denounce all his rivals. The
fact that the law permits in Section 50-A the holding of political conventions and the nominations of official candidates one month before
the start of the period of the prohibitions in Section 50-B, lends strength to this conclusion. 3 .

Such being the case, the undue advantage of the aspirants for nomination within the existing political parties over independent candidates
becomes evident. The legal period fixed by the law will start in July, and yet, we have long been witnesses already to all sorts of
campaigns, complete to the last detail - what with the newspaper and radio and television campaign matters being published and
broadcast as widely as possible, the campaigners armed or endowed with either experience, money or pulchritude or what may pass for it,
welcoming wave after wave of party delegates arriving at the airports and the piers, the billeting of these delegates in luxurious and costly
hotels, at the cost of the candidates and with pocket money to boot, the sumptuous banquets and parties, etc., etc. And to top it all, a well
publicized marathon "consensus" which has reportedly cost the candidates millions of pesos! In other words, in the actual operation of this
law, it is only the independent candidate, the candidate who does not belong to the existing political parties and who is prohibited to
organize a new one, who must keep his ambitions and aspirations all to himself and say nary a word, lest he jeopardize his liberty and his
rights to hold office and to vote, while those who belong to the said parties merrily go about freely gaining as much exposure as possible
before the public. I need not refer to the tremendous advantages that accrue to the party in power and to all incumbents, irrespective of
political party color, from the operation of this law. They should be obvious to any observer of current events.

Under these circumstances, can it be successfully maintained that such disparity of opportunities for those who legitimately want to offer
their services to the people by getting elected to public office, resulting from a congressional act approved by those who would benefit
from it, is constitutionally flawless? When it is considered that this law impinges on the freedoms of speech, press, assembly and redress
of grievances and that its only justification is that it is intended to remedy existing evil practices and undesirable conditions and
occurrences related to the frequency of elections and the extended campaigns in connection therewith, and it is further considered that,
as demonstrated above, this law, in its actual operation impairs and defeats its avowed purposes because, in effect, it deprives the
independent candidates or those who do not belong to the established political parties of equal opportunity to expose themselves to the
public and make their personal qualifications, principles and programs of public service known to the electorate, to the decided advantage
of the incumbents or, at least, those who are members of the existing political parties, it can be easily seen that the curtailment of
freedom involved in this measure cannot be permitted in the name of police power. I am certain none can agree that resort to police
power may be sanctioned when under the guise of regulating allegedly existing evils, a law is passed that will result in graver evil than
that purported to be avoided. As far as I can understand the commitment of our people to the principle of democracy and republicanism,
we would rather have the bloodshed, corruption and other alleged irregularities that come with protracted electoral campaigns and
partisan political activity, than suffer the continued mockery of their right to vote by limiting, as this legislation does, their right of choice
only to those whom the existing political parties might care to present as official candidates before them. If this would be all that the right
of suffrage would amount to, the death of Hitler and Mussolini might just as well be considered as the most lamentable tragedies in the
history of freemen and we should welcome with open arms the importation into this country of the kind of elections held in Russia and Red
China.

A few considerations more should make those who believe in the efficacy and constitutionality of this law take a second hard look at it.
Then, they will realize how mistaken they must be. I have said earlier that this act defeats its own avowed purposes. Well, all that have to
be considered for anyone to see my point is that in the matter of reducing the cost of elections by limiting the period of campaigns,
current events have clearly proven that instead of lessening their expenditures, candidates have spent more than they would have done
without such limitation. Because of the shortness of the period provided for the calling of conventions for the nomination of official
candidates by political parties and the more abbreviated period that the candidate who would be ultimately nominated and the parties
themselves will have to campaign to win in the election, these parties have resorted to other means of having, at least, even a semiofficial candidate, without calling him so. And this, as everybody knows means money, money and money.

The truth known to all who have political experience is that no candidate for a position voted at large nationally can entertain any hopes of
winning after a campaign of only four months. It took at least a year for Presidents Magsaysay, Macapagal and Marcos to win the
presidency. None of the senators we have and have had can boast of having campaigned only for four months. In view of the abbreviated
period of campaign fixed in this law, necessarily the candidates have to redouble their efforts, try to cover more area in less time, see
more people every moment, distribute more propaganda, etc., etc., and all these mean money, more money and more money. In this set
up, so neatly produced by this law, it is regretably evident that the poor candidates have no chance. How can a poor candidate cover the
more than 7,000 islands of our archipelago in four months? If it was impossible to do so when there was no limitation of the period for
campaigns, what chance can such a poor candidate have now? Thus, it can be seen that this law has not only made candidates spend
more than they used to do before, it has effectively reduced the chances and practically killed the hopes of poor candidates. Under this
law, it may truthfully be said that the right to be elected to a public office is denied by reason of poverty.

My brethren view the problem before Us as one calling for the reconciliation of two values in our chosen way of life - individual freedom, on
the one hand, and public welfare, on the other. I do not see it that way. To my mind, if the freedoms of speech, press, peaceful assembly
and redress of grievances in regard to the right to vote can be impinged, if not stifled, by standards and limitations fixed by those who are
temporarily in power, I would regard those freedoms as no freedoms at all, but more concessions of the establishment which can be
reduced or enlarged as its convenience may dictate. Of what use can such kind of freedom be? .

Taking all circumstances into account, it is entirely beyond my comprehension, how anyone could have conceived the idea of limiting the
period of electoral campaigns in this country, when what we need precisely is more intelligent voting by the greater portion of our people.
I do not believe our mass media have reached the degree of efficiency in the dissemination of information needed to enable the voters to
make their choices conscientiously and with adequate knowledge of the bases of their decisions. I am not convinced that at this stage of
our national life we are already prepared to enjoy the luxury of abbreviated electoral campaigns, unless we are inclined to forever have
with us the areas of political bossism, apparent statistical improbabilities and politico-economic blocs and even politico-religious control
which we have; in varying degrees these days and which will naturally continue as long as our people are not better informed about the
individual worth of the candidates for or against whom they vote. I dare say that there is enough reason to hold that if mistakes have been
committed by our people in the selection of their elective officials, it is because the information needed to serve as basis for intelligent
voting have not fully reached all segments of the population. Inadequacy of reliable information among the voters, regarding the

qualification of the candidates and the relevant circumstances of the election they are taking part in can be the greatest bane of popular
suffrage.

Modesty aside, it is quite well known that it has been my lot to have handled, alone or with others, some of the most important political
cases in the country since the end of the second world war. To be able to do so, I had to study our election laws assiduously perhaps as
any other Filipino has. From what I have thus learned, I can safely say that the present laws are reasonably adequate to prevent lavish and
excessive expenditures for electoral purposes. The real cause for regret is the lack of proper implementation of these laws. I dare say that
even the courts, not excluding this Supreme Court, and specially the Electoral Tribunals of the Senate and the House of Representatives
have been rather liberal in interpreting them, so much so, that the unscrupulous have succeeded in practically openly violating them with
a cynical sense of impunity. The recent case of the ouster of Senators Manglapus, Kalaw and Antonino was a singular one, wherein the
spirit of the law triumphed, even as it brought to the fore the necessity of making more realistic the ceilings of allowable expenditures at
the time when the cost of everything has multiplied several times compared to that when the existing limitations were established.
Indeed, these unrealistic limitations, as to the amounts of expenditures candidates may make, has somehow compelled the corresponding
authorities to overlook or even condone violations of these laws, and somehow also, this attitude has given courage to practically
everybody to pay little heed to the statutory limitations, thus giving cause to the excessive overspending the authors of the law now in
question are seeking to stop or, at least, minimize. I say again, Congress does not have to sacrifice or even just risk the loss or diminution
only of any of our sacred liberties to accomplish such a laudable objective. All that has to be done, in my considered opinion, is to have
more sincerity, mental honesty and firm determination in the implementation of the limitations fixed in the Election Law, after they have
been made more realistic, and real devotion and integrity in the official's charged with said implementation. If few may agree with me, I
still entertain the trustful feeling that it is not entirely hoping against hope to expect our national leaders to regain their moral bearings
and, in a bold effort to sweep away the darkening clouds of despair that envelope a great many of our countrymen, with well recognized
intellectuals and non-politicians among them, to take active measures to exert their moral leadership, to the end that our nation may
regenerate by revising our people's sense of political values and thus, as much as possible, put exactly where they belong the vote-buyers
the political terrorist, the opportunists and the unprincipled who have sprung in this era of moral decadence that seem to have come
naturally in the wake of the havoc and devastation resulting from the extension of the area of the last world war to our shores. If even this
hope cannot linger in our hearts, I dread to imagine how the Filipinos who will come after us will enjoy their lives, when in the exercise of
their right of suffrage they would be able to use their freedoms of speech, press, peaceful assembly and redress of grievances only in
measured doses to be administered to them by those in power in the legislature.

Frankly, I am not aware of any similar legislation in other democracies of the world. The defenders of the law in question have not cited
any. If perhaps the cases of some countries I hear may be mentioned, I loathe to follow their example because I hold it is illogical for us to
legislate for our people, who have been reared in the principles of democracy, in the light of what is being done by people who from time
immemorial have been disciplined under more or less dictatorial and totalitarian governments.

Before I close, I like to add, in the interest of truth, that even stripped of the ornaments of foreign wisdom expressed in embellished
language that adorn the opinions of our learned colleagues, Justice Sanchez, Castro and Fernando, their own views so exquisitely
articulated by them in their respective singular styles which have been the object of admiration and respect by all, are in themselves not
only gems of forensic literatures but are also indubitable evidence of judicial sagacity and learning. I am making it a point to separate their
own personal views from their quotations of alien authorities, because as a matter of national pride and dignity, I would like it known that
when it comes to constitutional matters particularly, civil liberties and the other individual freedoms, the members of this Tribunal are not
without their own native geniuses and individual modes of expression that can stand on their own worth without any reinforcement from
imported wisdom and language.

May I say in closing that, if my above analysis and perspectives, if these views and conclusions of mine regarding the constitutional
questions herein involved are not exactly factual and valid, I would still reiterate them, if only to serve as a feeble voice of alarm that
somehow our basic liberties may be in jeopardy and it is best that we revolve early to man the outposts and steady our guard, least we
awaken one dawn with nothing left to us but repentance, for having failed to act when we could, amidst the ashes of the freedoms we did
not know how to defend and protect. That eternal, incessant and unyielding vigilance is the price of liberty is still and will ever be true at
all times and in all lands.

Footnotes

1West Education State Board of Education v. Barnette, 319 US 624, 640 (1943).

2Sec. 50-A, Revised Election Code.

3Sec. 50-B, Revised Election Code.

4Sec. 2 of Act 4880 further amends Sec. 133 of the Revised Election Code to include the two new above sections among the serious
election offenses.

5Poindexter v. Greenhow, 114 US 217 (1885) and Terminiello v. City of Chicago, 337 US 1 (1951).

6Chief Justice Concepcion and Justices Reyes, Makalintal, Teehankee and Barredo.

765 Phil. 56, 94 (1937) Cf. Yu Congress Eng v. Trinidad, 47 Phil. 385 (1926), 271 US 500; 70 Law ed., 1059.

8People v. Vera, 65 Phil. 56 (1937). Manila Race Horse Trainers Asso. v. De la Fuente, 88 Phil. 60 (1951); Bautista v. Mun. Council, 98 Phil.
409 (1956).

9Philconsa v. Mathay, L-25554, Oct. 4, 1966, citing Philconsa v. Gimenez, L-23326, Dec. 18, 1965; Pascual v. Sec. of Public Works, L-10405,
Dec. 29, 1960; Pelaez v. Auditor General, L-23825, Dec. 24, 1965; Iloilo Palay & Corn Planters Asso. v. Feliciano, L-24022, March 3, 1965.
See also Lidasan v. Commission on Elections, L-28089, Oct. 25, 1967.

10Thomas v. Collins, 323 US 516, 529-530 (1945).

11Ex parte Hawthorne, 96 ALR 572, 580 (1934).

12La Follette v. Kohler, 69 ALR 348, 371. Cf . Nixon v. Herndon, 273 US 536 (1927); Nixon v. Condon, 286, US 73 (1932); Smith v. Allwright,
321 US 649 (1944).

13 Art. III, Sec. 1(8) Constitution of the Philippines.

14Cf . Thornhill v. Alabama, 310 US 98 (1940). Justice Malcolm identified freedom of expression with the right to "a full discussion of public
affairs." (U.S. v. Bustos 37 Phil. 731, 740 [1918]). Justice Laurel was partial to the ringing words of John Milton "the liberty to know, to utter,
and to argue freely according to conscience, above all liberties." (Planas v. Gil, 67 Phil. 61, 81 [1939]). Justice Johnson spoke of freedom of
expression in terms of "a full and free discussion of all affairs of public interest." For him then, free speech includes complete liberty to
"comment upon the administration of Government as well as the conduct of public men." (U.S. v. Perfecto, 43 Phil. 58, 62 [1922]). When it
is remembered further that "time has upset many fighting faiths" there is likely to be a more widespread acceptance for the view of Justice
Holmes "that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the to get
itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out."
(Abrams v. United States, 250 US 616, 630 [1919]).

15U.S. v. Bustos, 37 Phil. 731 (1918); Quisumbing v. Lopez, 96 Phil. 510 (1955).

16U.S. v. Perfecto, 43 Phil. 58 (1922).

17Yap v. Boltron, 100 Phil. 324 (1956).

18People v. Alarcon, 69 Phil. M (1939); Teehankee v. Director of Prisons, 76 Phil. 756 (1946); In re Sotto, 82 Phil. 595 (1949); Cabansag v.
Fernandez, 102 Phil. 152 (1957); People v. Castelo H. Abaya, L-11816, April 23, 1962; Bridges v. California, 314 US 252 (1941); Pennekamp
v. Florida, 328 US 381 (1946); Craig v. Harney, 331 US 367 (1947) ; Woods v. Georgia, 370 US 375 (1962).

19Emerson, Toward a General Theory of the First Amendment (1966).

20New York Times Co. v. Sullivan, 376 US 254, 270 (1964).

21Terminiello v. City of Chicago, 337 US 1, 4 (1949).

22U.S. v. Schwimmer, 279 US 644; 655 (1929).

23Emerson, op. cit., 14.

24102 Phil. 152, 161 (1957).

2580 Phil. 71 (1948).

26Whitney v. California, 274 US 357, 377 (1927).

27Bridges v. California, 314 US 252 (1941).

28Cardozo, Mr. Justice Holmes, 44 Harv. Law Rev. 682, 688 (1931). Also: "Neither has the fundamental case of the clear and-presentdanger rule that is, the traditional distinction between thought and action been successfully challenged." Shapiro Freedom of Speech,
71 (1966).

29Schenck v. United States, 249 US 47, 52 (1919) this is not to say that the clear and present danger test has always elicited unqualified
approval. Prof. Freund entertains what for him are well-founded doubts. Thus: "Even where it is appropriate the clear-and-present-danger
test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in
comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those the state
has imposed; and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase
'clear and present danger,' or how closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to
convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must
disentangle." The Supreme Court of the United States, p. 44 (1961).

3037 Phil. 731 (1918).

31323 US 516 (1945).

3292 US 542 (1876).

33Article 3, Section 1, Paragraph 6, Constitution.

34Douglas, The Right of Association, 63 Col. Law Rev. 1362 (1963).

35Ibid, 1363.

36Ibid, pp. 1374-1375.

37Cf. Thomas v. Collins, 323 US 516 (1945).

38Douglas, op. cit., p. 1376.

39Near v. Minnesota, 283 US 697 (1931); Lovell v. Griffin, 303 US 444 (1938); Thornhill v. Alabama, 310 us 89 (1940); Murdock v.
Pennsylvania, 319 US 105 (1943); Saia v. New York, 334 US 558 (1948); Kunz v. New York, 340 US 290 (1951); Staub v. Boxley 355 US 313
(1958); Smith v. California, 361 US 147 (1959); Talley v. California, 362 US 60 (1960); Cramp v. Board of Public Instruction, 368 US 0278
(1961); Baggett v. Bullitt, 377 US 360 (1964); Aptheker v. Secretary of State, 378 US 500 (1964).

40Section 50-A, Republic Act No. 4880.

41Smith v. California, 361 US 147, 151 (1959).

42Cf. Cramp v. Board of Public Instruction, 368 US 278 (1961).

43United States v. Cardiff, 344 US 174, 176 (1952).

44NAACP v. Button, 371 US 415, 433 (1963).

45Section 50-B, Republic Act No. 4880..

46Justices Dizon, Zaldivar, Castro, Capistrano, and Barredo are not inconfirmity, Section 50-B for them being in its entirety
unconstitutional. Justice Makalintal, who would dismiss the petition on the procedural ground previously set forth did not express an
opinion.

47Paragraph (a), Section 50-B.

48Paragraph (f), Section 50-B.

49Paragraph (b), Section 50-B.

50The votes of the five-named Justices are reinforced by that of Justices Sanchez and Fernando.

51Paragraph (e), Section 50-B. Such conduct if through organizations, associations, clubs, or communities or through political conventions,
caucuses, conferences, meetings, rallies or parades, is provided for earlier in paragraphs (a) and (b).

52Paragraph (c), Section 50-B.

53Paragraph (d), Section 50-B.

54Interstate Circuit, Inc. v. Dallas, 20 L ed 2d 225 (1968).

55Whitehill v. Elkins 19 L ed 2d 228 (1967).

56NAACP v. Alabama, 377 US 288 (1964). Cited in Zwickler v. Koota 19 L ed 2d 444, 451 (1967), which refers to Schneider v. State, 308 US
147 (1939); Cantwell v. Connecticut, 310 US 296 (1940); Martin v. City of Struthers, 319 US 141 (1943); Schware v. Board of Bar
Examiners, 353 US 232 (1957); Shelton v. Tucker, 364 US 479 (1960); Louisiana v. NAACP 366 US 293 (1961); NAACP v. Button, 371 US
415 (1963); Aptheker v. Secretary of State, 378 US 500 (1964).

57Shelton v. Tucker, 364 US 479, 488. Cited in Keyishian v. Board of Regents, 385 US 589 (1966).

58NAACP v. Button, 371 US 415 (1963).

59Cf. United States v. Robell 19 L ed 2d 508 (1967).

60Paragraph (f), Section 50-B.

61Zandueta v. De la Costa, 66 Phil. 615, 625-626 (1938). Laurel, J., concurring. To the same effect, this excerpt from a recent opinion of
Warren, C.J.: "We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the
Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been
committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which
imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a less drastic
impact on the continued vitality of First Amendment freedoms... The Constitution and the basic position of First Amendment rights in our
democratic fabric demand nothing less." United States v. Robel, 19 L ed 2d 508, 515-516 (1967).

SANCHEZ, J., concurring and dissenting:

1As published in 63 O.G. No. 44, pp. 9886-9888.

2Should be "of". The bills and the congressional debates attest to this.

3Section 185, Revised Election Code.

4"No law shag be passed abridging tire freedom of speech, or of the press, or the right of the people peaceably to assemble and petition
the Government for redress of grievances." Sec. 8, Art. III, Philippine Constitution.

"The right to form associations or societies for purposes not contrary to law shall not be abridged." Sec. 6, Art. III, Philippine Constitution.

5The earliest enunciation of this doctrine is in Schenk vs. United States (1919), 249 U.S. 47, 52, 63 L. ed. 470, 473-474, and adopted in
subsequent cases: Whitney vs. California (1927), 274 U.S. 357, 373, 71 L. ed. 1095, 1105; Bridges vs. California (1941), 314 U.S. 252, 262,
86 L. ed. 192, 202-203; West Virginia State Board of Education vs. Barnette (1943), 319 U.S. 624, 639; Thomas vs. Collins (1944), 323 U.S.
516, 530; Dennis vs. United States (1950), 341 U.S. 494, 610, 95 L. ed. 1137, 1153; Terminiello vs. Chicago (1957), 337 U.S. 1, 5; Edwards
vs. So. Carolina (1963), 372 U.S. 229, 237, 9 L. ed. 2d. 697, 703. See: American Bible Society vs. City of Manila, 101 Phil. 386, 398. Sec.
also: Primicias vs. Fugoso, 80 Phil. 71, 87-88, which quoted with approval the Whitney case.

6McCulloch vs. Maryland (1819), 17 U.S. 316, 407, 4 L. ed. 579, 602.

"The pole-star for constitutional adjudications is John Marshall's greatest judicial utterance that 'it is a constitution we are expounding.'
McCulIoch v. Maryland (US), 4 Wheat 316, 407, 4 L ed 579, 602. That requires both a spacious view in applying an instrument of
government 'made for an undefined and expanding future', Hurtado v. California, 110 US 516, 530, 28 L ed 232, 237, 4 S Ct 111, 292, and
as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which
the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid
putting fetters upon the future by needless pronouncements today." Concurring Opinion of Mr. Justice Frankfurter in Youngstown Sheet &
Tube Co. vs. Sawyer (1951), 343 U.S. 579, 596-597, 96 L. ed. 1153, 1172.

7Explanatory Notes to Senate Bill 209 and House Bill 2475, which eventually became Republic Act 4880.

8Ichong vs. Hernandez (1957), 101 Phil. 1155, 1163-1164.

9Sec. 2, Art. X, Philippine Constitution.

10West Virginia Bd. of Education vs. Barnette (1943), 319 U.S. 624, 639,87 L. ed. 1638. Thomas vs. Collins (1944), 329 U.S. 516, 530, 89 L.
ed. 430, 440; Sala vs. New York (1948), 334 U.S. 558, 561, 92 L. ed. 1574, 1577.

11"The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's
power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is
balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First
Amendment. Cf. Schneider v. Irvington, 308 US 147, 84 L. ed. 155, 60 S. Ct. 146; Cantwell v. Connecticut 310 US 296, 84 L. ed. 1213, 60 S.
Ct. 900, 128 A.L.R. 1352; Prince v. Massachusetts, 321 US 158, 88 L ed 645, 64 S. Ct. 438. That priority gives these liberties a sanctity and
a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard
governs the choice. Compare United Sates v. Carolene Products Co., 304 US 144, 152, 153, 82 L. ed. 1234, 1241, 58 S. Ct. 778. [But see
concurring opinion of Mr. Justice Frankfurter in Kovacs v. Cooper (1949), 336 U.S. 77, 90, 93 L. ed. 513, 524, that the preferred position of
freedom of speech does not imply that "any law touching communication is infected with presumptive invalidity."].

"For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely,
but by clear and present danger. The rational connection between the remedy provided and the evil to curbed, which in other contexts
might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public
danger, actual or impending." Opinion of Mr. Justice Rutledge in Thomas vs. Collins, supra, at 529-530.

12Respondent's Memorandum, pp. 10-11, citing authorities.

13See: New York Times Co. vs. Sullivan, 376 U.S. 254, 265, 11 L ed 2d. 686, 698 (1964).

14De Jonge vs. Oregon (1936), 299 U.S. 353, 365, 81 L. ed. 27s, 284. Also NAACP vs. Button (1963), 371 U.S. 415, 429, 9 L. ed. 2d. 405,
415-416: "We meet at the outset the contention that 'solicitation' is wholly outside the area of freedoms protected by the First
Amendment. To this contention there are two answers. The first is that a State cannot foreclose the exercise of constitutional rights by
mere labels. The second is that abstract discussion is not the only species of communication which the Constitution protects; the First
Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas vs. Collins, 323 US 516,
537, 89 L ed 430, 444, 65 S. Ct. 315; Herndon vs. Lowry 301 US 242. 259264, 81 L. ed. 1066, 1075-1078, 57 S. Ct. 732. Cf. Cantwell vs.
Connecticut 310 US 296, 84 L. ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1352; Stromberg vs. California, 283 US 359, 369, 75 L ed 1117, 1123, 51
S. Ct. 532, 73 A.L.R. 1484; Terminiello vs. Chicago, 337 US 1, 4, 93 L ed 1131, 1134, 69 S. Ct. 894."

15Sec. 2, Article XII, Philippine Constitution.

16Section 29. R.A. 2260, Civil Service Act of 1959.

17Section 54. Revised Election Code.

18Sec. 8. Rule 13, Rules and Regulations of the Civil Service Commission.

19United States vs. Wurzbach (1930), 280 U.S. 396, 399, 74 L. ed. 508, 510, in referring to the term "any political purpose whatever."

20During the deliberations of Senate Bill No. 209, Senator Gerardo M. Roxas, referring to the terms "mere expression of opinion" and
"solicitation of votes", remarked that "it is difficult to distinguish one from the other." (Session of February 20, 1967)

21See: Dissenting opinion of Justice Holmes in Gitlow v. New York (1925), 69 L. ed. 1138, 1149; emphasis supplied.

22See: Thomas vs. Collins, supra.

23Emphasis supplied. See also: Dombrowski vs. Pfister, infra.

24Dombrowski vs, Pfister (1965), 380 U.S. 479, 490-491, 14 L. ed. 2d., 22, 30.

25Concurring in Whitney vs. California (1927), 274 U.S. 357, 375, 71 L. ed. 1095, 1106.

CASTRO, J., dissenting:

1"An Act to Amend Republic Act Numbered One Hundred and Eighty. Otherwise Known as "The Revised Election Code," by Limiting the
Period of Election Campaign, Inserting for this Purpose New Sections Therein to be Known as Sections 50-A and 50-B and Amending
Section One Hundred Eighty-Three of the Same Code." Approved June 17, 1967.

2Sec. 185, Revised Election Code.

3Sec. 48, Rev. Election Code; see State of Wisconsin v. Kohler, 228 N.W. 895, 69 A.L.R. 348.

4Sec. 49, Id.; see 26 Am. Jur. 2d 189.

5Sec. 49, Id.

6308 U.S. 147, 84 L. Ed. 155 165.

7323 U.S. 516, 89 L. Ed. 436, 440.

8Sec. 1, Art. II, Constitution.

9Murdock v. Pennsylvania, 319 US 105, 87 L ed. 1292; Prince v. Massachussetts, 321 US 159, 88 L ed. 645, 651; Follett v. McCormick, 321
US 573, 88 L ed. 938, 940; Marsh v. Alabama, 326 US 501, 90 L ed. 430. 440.

10People v. Nabong 57 Phil. 455; 460-61. See also People v. Feleo, 57 Phil. 451, 454; People v. Feleo, 58 Phil. 573, 575.

11Primicias v. Fugoso, 80 Phil. 71, 75-76; Gallego v. People, L-18247, Aug. 31, 1963. 12 Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138.

13See, e.g., People v. Evangelista, 57 Phil. 354; People v. Nabong, supra; People v. Feleo, supra; Espuelas v. People, L-2990, Dec. 17, 1951;
Cabansag v. Fernandez, 102 Phil. 152.

14Schenck v. United States, 249 U.S. 47, 63 L. Ed. 470, 473-74.

15314 U.S. 252, 86 L. Ed. 192, 203.

16See Primicias v. Fugoso, supra; Cabansag v. Fernandez, supra. The latter decision contains an extensive discussion of the constitutional
development of both the "dangerous tendency" and "clear and present danger" doctrines.

17339 U.S. 383, 94 L. Ed. 925, 943.

18At 94 L. Ed. 944.

19See, e.g., NAACP v. Alabama, 357 U.S. 449; Barenblatt v. U.S., 360 U.S. 169, 3 L. Ed. 2d 116; Konigsberg v. State Bar, 360 U.S. 36.

20Kauper, Civil Liberties and the Constitution, p. 113 (Ann Arbor, 1966)provides a useful summary statement: "The theory of balance of
interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of
constitutional interpretation. It rests on the theory that it is the Court's function in the case before it when it finds public interests served
by legislation on the one hand, and First Amendment freedoms affected by it on the other, to balance the one against the other and to
arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public interest served by restrictive
legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment,
and that they may be abridged to some extent to serve appropriate and important public interests."

21Barenblatt v. U.S., supra, at L. Ed. 2d 1121.

22For a very thoughtful and searching study on the subject, marked by a heavy preference for freedom of expression and the social values
it imports, see Emerson, Towards a General Theory of the First Amendment 72 YALE LAW JOURNAL 877 (1963).

23Winston v. Moore, 244 Pa. 447, 91 A. 520.

24See Field v. Hall, 201 Ark. 77, 143 S.W. 2d 567; People v. Kramer. 328 Ill., 512, 160 N.E. 60; Dupre v. St. Jacques, 51 R.I. 189, 153 A. 240.

25American Communications Ass'n v. Douds, supra, at L Ed 947.

26A passage from Judge Cooley ably expresses the historic value of free political discussion, where he states that the purpose of the First
Amendment of the U.S. Constitution is rooted in the need "... to protect parties in the free publication of matters of public concern, to
secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the
government, and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the
authority which the people have conferred upon them." 2 Cooley, Constitutional Limitations (8th ed. 1927) 885. Similar statements are
found in Roth v. United States, 354 U.S. 476, 1 L Ed. 2d 1498; Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117.

The opinion of Mr. Justice Black, speaking for the U.S. Supreme Court in Mills v. Alabama, 384 U.S. 214, 16 L. ed. 2d. 484 at 488, is
apropos: "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a
major purpose of the Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of
candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters
relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, magazines, but
also humble leaflets and circulars, see Lovell v. Griffin, 303 US 444, 82 L. ed. 949, 58 S. Ct. 666, to play an important role in the discussion
of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials
and as a constitutionally chosen means for keeping official elected by the people responsible to all the people whom they were selected to
serve. Suppression of the right of the press to praise of criticize governmental agents and the clamor and contend for or against change,
which is all that this editorial did, muzzles one of the very agencies of the Farmers of our Constitution thoughtfully and deliberately
selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing
editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and
flagrant abridgment of the constitutionally guaranteed freedom of the press."

27Par (a), Section 50-B.

28Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231, 236.

29Emphasis supplied; Kauper Civil Liberties and the Constitution (Ann Arbor 1966) 99.

30See, e.g., U.S. v. Contreras, 23 Phil. 513.

31Hawley v. Wallace, 137 Minn. 183, 163 N.W. 127.

32Ex Parte Hawthrone, 156 So. 619.

33Anno: 96 A.L.R. 582-84.

34De Jonge v. Oregon, 299 U.S. 353, 812 Ed. 278, 284.

35Shelton v. Tucker, supra, at L. Ed. 2d 329 (emphasis supplied).

36At L. Ed. 442-43 (emphasis supplied).

37Gakrison v. Louisiana, 379 U.S. 64 (1964).

BARREDO, J., concurring and dissenting:

1Cases in the nature of petitions for declaratory relief or advisory opinion.

1aChief Justice Concepcion and Justices Reyes and Teehankee also support our view.

1bI disagree with the view that the organization of political parties is not included in the prohibition. Can there be an organization more
intended to "solicit votes" and to "undertake campaigns or propaganda for or against a party or candidate" than a political party? .

2According to Dr. Jose Aruego the semi-official chronicler of the Constitutional Convention of 1934, the provision was taken not only from
the Malolos Constitution but also from the Constitution of the Republic of Spain. (The Framing of the Philippine Constitution by Aruego, Vol.
1, p. 163.) .

3Incidentally, the political conventions, referred to is Par. (b) of Section 50-B must be campaign conventions and not conventions for the
nominations of official candidates.

The Lawphil Project - Arellano Law Foundation

21 SCRA 774 Political Law Amendment to the Constitution Political Question vs Justiciable Question

In June 1967, Republic Act 4913 was passed. This law provided for the COMELEC to hold a plebiscite for the proposed amendments to the
Constitution. It was provided in the said law that the plebiscite shall be held on the same day that the general national elections shall be
held (November 14, 1967). This was questioned by Ramon Gonzales and other concerned groups as they argued that this was unlawful as
there would be no proper submission of the proposals to the people who would be more interested in the issues involved in the general
election rather than in the issues involving the plebiscite.

Gonzales also questioned the validity of the procedure adopted by Congress when they came up with their proposals to amend the
Constitution (RA 4913). In this regard, the COMELEC and other respondents interposed the defense that said act of Congress cannot be
reviewed by the courts because it is a political question.

ISSUE:

I. Whether or not the act of Congress in proposing amendments is a political question.

II. Whether or not a plebiscite may be held simultaneously with a general election.

HELD:

I. No. The issue is a justiciable question. It must be noted that the power to amend as well as the power to propose amendments to the
Constitution is not included in the general grant of legislative powers to Congress. Such powers are not constitutionally granted to
Congress. On the contrary, such powers are inherent to the people as repository of sovereignty in a republican state. That being, when
Congress makes amendments or proposes amendments, it is not actually doing so as Congress; but rather, it is sitting as a constituent
assembly. Such act is not a legislative act. Since it is not a legislative act, it is reviewable by the Supreme Court. The Supreme Court has
the final say whether or not such act of the constituent assembly is within constitutional limitations.

II. Yes. There is no prohibition to the effect that a plebiscite must only be held on a special election. SC held that there is nothing in this
provision of the [1935] Constitution to indicate that the election therein referred to is a special, not a general election. The circumstance
that the previous amendment to the Constitution had been submitted to the people for ratification in special elections merely shows that
Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed
amendments for ratification in general elections.

Note: **Justice Sanchez and Justice JBL Reyes dissented. Plebiscite should be scheduled on a special date so as to facilitate Fair
submission, intelligent consent or rejection. They should be able to compare the original proposition with the amended proposition.

PUNO, J.:

The case at bar transcends the political fortunes of respondent Senator Gregorio B. Honasan. At issue is the right of the people to elect
their representatives on the basis and only on the basis of an informed judgment. The issue strikes at the heart of democracy and
representative government for without this right, the sovereignty of the people is a mere chimera and the rule of the majority will be no
more than mobocracy. To clarify and sharpen the issue, 1 shall first unfurl the facts.

I. Facts

The facts are undisputed. In February 2001, a Senate seat for a term expiring on June 30, 2004 was vacated with the appointment of then
Senator Teofisto Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying the existence of a
vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001, and the senatorial candidate garnering the thirteenth (13th) highest number of
votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. In the deliberations of the Senate on the resolution,
the body agreed that the procedure it adopted for determining the winner in the special election was for the guidance and implementation
of the COMELEC. The COMELEC had no discretion to alter the procedure.

Nobody filed a certificate of candidacy to fill the position of senator to serve the unexpired three-year term in the special election. All the
senatorial candidates filed the certificates of candidacy for the twelve regular Senate seats to be vacated on June 30, 2001 with a six-year
term expiring on June 30, 2007. COMELEC distributed nationwide official documents such as the Voter Information Sheet, List of
Candidates and Sample Ballot. The List of Candidates did not indicate a separate list of candidates for the special election. The Sample
Ballot and the official ballots did not provide two different categories of Senate seats to be voted, namely the twelve regular six-year term
seats and the single three-year term seat. Nor did the ballots provide a separate space for the candidate to be voted in the special election
and instead provided thirteen spaces for thirteen senatorial seats.

Without any COMELEC resolution or notice on the time, place and manner of conduct of the special election, the special election for
senator was held on the scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of senatorial candidates was
done. On June 5, 2001, respondent COMELEC promulgated COMELEC Resolution No. NBC01-005, the dispositive portion of which reads, viz:

NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the
Commission on Elections sitting En Banc as the National Board of Canvassers hereby proclaims the above-named thirteen (13) candidates
as the duly elected Senators of the Philippines in the May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the
first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three
(3) years of Senator Teofisto T. Guingona, Jr., who was appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the
Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act No. 6645. (emphasis supplied)

On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop respondent COMELEC from proclaiming any
senatorial candidate in the May 14, 2001 election as having been elected for the lone senate seat for a three-year term. Copies of the
petition were served on respondent COMELEC twice, first on June 20, 2001 by registered mail, and second on June 21, 2001, by personal
delivery of petitioner Mojica. On June 26, 2001 the Court issued a Resolution requiring respondent COMELEC to comment within ten days
from notice. Even before filing its comment, respondent COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the dispositive
portion of which reads, viz:

NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the
Commission on Elections sitting as the National Board of Canvassers hereby DECLARES official and final the above ranking of the
proclaimed 13 Senators of the Philippines in relation to NBC Resolution No. 01-005 promulgated June 5, 2001. Resolution No. NBC-01-006
indicates the following ranking of the 13 Senators with the corresponding votes they garnered as of June 20, 2001:

1. De Castro, Noli L. - 16,237,386

2. Flavier, Juan M. - 11,735,897
3. Osmea, Sergio II R. - 11,593,389
4. Drilon, Franklin M. - 11,301,700
5. Arroyo, Joker P. - 11,262,402
6. Magsaysay, Ramon Jr. B. - 11,250,677
7. Villar, Manuel Jr. B. - 11,187,375
8. Pangilinan, Francis N. - 10,971,896
9. Angara, Edgardo J. - 10,805,177
10. Lacson, Panfilo M. - 10,535,559
11. Ejercito-Estrada, Luisa P. - 10,524,130
12. Recto, Ralph - 10,498,940
13. Honasan, Gregorio - 10,454,527

On the day of its promulgation, respondent COMELEC forwarded Resolution No. NBC-01-006 to the President of the Senate. On July 23,
2001, the thirteen senators, inclusive of respondents Honasan and Recto, took their oaths of office before the Senate President.

With the turn of events after the filing of the petition on June 20, 2001, the Court ordered petitioners on March 5, 2002 and September 17,
2002 to amend their petition. In their amended petition, petitioners assailed the manner by which the special election was conducted
citing as precedents the 1951 and 1955 special senatorial elections for a two-year term which were held simultaneously with the regular
general elections for senators with six year terms, viz:

(a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as Vice-President in the 1949 elections. A special
election was held in November 1951 to elect his successor to the vacated Senate position for a term to expire on 30 December 1953. Said
special election was held simultaneously with the regular election of 1951. A separate space in the official ballot was provided for

Senatorial candidates for the two year term; moreover, the candidates for the single Senate term for two years filed certificates of
candidacy separate and distinct from those certificates of candidacy filed by the group of Senatorial candidates for the six year term.

(...the votes for the twenty (20) candidates who filed certificates of candidacy for the eight Senate seats with six year terms were tallied
and canvassed separately from the votes for the five candidates who filed certificates of candidacy for the single Senate seat with a two
year term...)

xxx xxx xxx

(b) Again, a vacancy was created in the Senate by the election of then Senator Carlos P. Garcia to the Vice Presidency in the 1953
presidential elections. A special election was held in November 1955 to elect his successor to the vacated Senatorial position for a two
year term expiring on 30 December 1957.

Said special election for one senator to fill the vacancy left by the Honorable Carlos Garcia was held in November 1955 simultaneously
with the regular election for eight Senate seats with a six year term. Here, separate spaces were provided for in the official ballot for the
single Senate seat for the two year term as differentiated from the eight Senate seats with six year terms. The results as recorded by
Senate official files show that votes for the candidates for the Senate seat with a two-year term were separately tallied from the votes for
the candidates for the eight Senate seats with six-year term...[1] (emphases supplied)

Petitioners thus pray that the Court declare the following:

(a) that no special election was conducted by respondent COMELEC for the single Senate seat with a three year term in the 14 May 2001
election.

(b) null and void respondent COMELECs Resolutions No. NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having been
promulgated without any legal authority at all insofar as said resolutions proclaim the Senatorial candidate who obtained the thirteenth
highest number of votes canvassed during the 14 May 2001 election as a duly elected Senator.[2]

Respondents filed their respective comments averring the following procedural flaws: (1) the Court has no jurisdiction over the petition for
quo warranto; (2) the petition is moot; and (3) the petitioners have no standing to litigate. On the merits, they all defend the validity of the
special election on the ground that the COMELEC had discretion to determine the manner by which the special election should be
conducted and that the electorate was aware of the method the COMELEC had adopted. Moreover, they dismiss the deviations from the
election laws with respect to the filing of certificates of candidacy for the special elections and the failure to provide in the official ballot a
space for the special election vote separate from the twelve spaces for the regular senatorial election votes as inconsequential. They claim
that these laws are merely directory after the election.

II. Issues

The issues for resolution are procedural and substantive. I shall limit my humble opinion to the substantive issue of whether a special
election for the single Senate seat with a three-year term was validly held simultaneous with the general elections on May 14, 2001.

III. Laws on the Calling of Special Elections

Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in the Senate and House of Representatives, viz:

Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the
manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired
term.

Congress passed R.A. No. 6645, An Act Prescribing the Manner of Filling a Vacancy in the Congress of the Philippines, to implement this
constitutional provision. The law provides, viz:

SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year
before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the
House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a

special election to fill such vacancy. If the Congress is in recess, an official communication on the existence of the vacancy and call for a
special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient
for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor
later than ninety (90) days from the date of such resolution or communication, stating among other things, the office or offices to be voted
for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held
simultaneously with such general election.

SECTION 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to
the Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at
least three copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and
public markets, and in the municipal buildings. (emphasis supplied)

R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section 4, viz:

SECTION 4. Postponement, Failure of Election and Special Election. - The postponement, declaration of failure of election and the calling of
special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a
majority vote of its members...

In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term,
the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days
after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with
the next succeeding regular election. (emphases supplied)

Today is Tuesday, August 18, 2015

search

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-44640

October 12, 1976

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

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

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

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

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

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

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

MARTIN, J,:

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

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16,
1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement,
the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present
powers.1

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

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

The questions ask, to wit:

(1)

Do you want martial law to be continued?

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

PROPOSED AMENDMENTS:

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

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

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

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

5.

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

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

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

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

8.

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

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

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

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare
without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as
Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the ReferendumPlebiscite scheduled on October 16, 1976.

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

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

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

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

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

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

Justiciability of question raised.

1.
As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a
stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement.
At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4
The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon
which the disputed Decrees are predicated may be inquired into.

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

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to
the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the

wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform
such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a
brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare
whether the procedure followed or the authority assumed was valid or not. 10

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

II

The amending process as laid out

in the new Constitution.

1.

Article XVI of the 1973 Constitution on Amendments ordains:

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

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

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

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

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

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

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

III

Concentration of Powers

in the President during

crisis government.

1.
In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated
in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a
corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been
regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive,
legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of
power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of
tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in
abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this
means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the
other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal
times restored.

2.
The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

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

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

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to
the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would
create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a
distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady
increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their
behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national
forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power
should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1.
As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition
period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the
exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in
the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by
the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call
the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President
has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally
constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in
operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose
amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending
process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby
impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional
conventions, like the President now, are mere agents of the people .26

2.
The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the
same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had
informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues
concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for
the exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of
martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments
to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the
subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the
people in the National Referendum-Plebiscite on October 16.

The People is Sovereign

1.
Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary
state, sovereignty "resides in the people and all government authority emanates from them .30 In its fourth meaning, Savigny would treat
people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is
the concept of popular sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the
people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional
prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment." 34 "The necessities of
orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future
generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35

2.
The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government.
In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the
option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular
body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

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

2.
It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is
simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is
derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen,
regardless of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the
constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the
election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of
the Constitution, more particularly, the ratification aspect.

VII

1.
There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks
of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no
State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of
that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and
assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is

not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters
soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the
valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil
Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1.
The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the
proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three
consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April
30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published
in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of
the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And
the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

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

IN RESUME

The three issues are

1.

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

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

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

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

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

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

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

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

SO ORDERED.

Aquino, J, in the result.

Separate Opinions
CASTRO, C.J.:, concurring:

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

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

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

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

First Issue

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

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

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

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

xxx

xxx

xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-violates the Constitution is essentially
justiciable, not political, and, hence, subject to judicial review, and, to the extent this view may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point."
(Gonzales vs. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when, in Javellana vs. Secretary, et al. (L36142, March 3l, 1973, 50 SCRA 30), six members of the Court concurred in the view that the question of whether the 1973 Constitution
was ratified in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially justiciable.

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

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

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

So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of proposing amendments to
the Constitution and of calling a referendum-plebiscite for the ratification of the proposals made. Evidently, the question does not concern
itself with the wisdom of the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a question purely of legality determinable thru interpretation and
construction of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional boundaries and
the allocation of constitutional powers.

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

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

II

Second Issue

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

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

Unfortunately, however, during the present transition period of our political development, no express provision is extant in the Constitution
regarding the agency or agent by whom and the procedure by which amendments thereto may be proposed and ratified fact overlooked
by those who challenge the validity of the presidential acts in the premises. This is so because there are at least two distinctly in the
transition from the old system of government under the 1935 Constitution to the new one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the National Assembly is
convened by the incumbent President and the interim President and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1].
The existence of this stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs. Commission on

Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was
in duty bound to convene the interim National Assembly soon after the Constitution took effect.

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

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

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

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

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

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

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

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

unequivocally contemplate amendments after the regular Government shall have become fully operative, referring as they do to the
National Assembly which will come into being only at that time.

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

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

During the first stage of the transition period in which the Government is at present - which is understandably the most critical - the need
for change may be most pressing and imperative, and to disavow the existence of the right to amend the Constitution would be sheer
political heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie the organic conception of the
Constitution by depriving it of its means of growth. Such a result obviously could not have been intended by the framers of the
fundamental law.

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

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

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

Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query that compels itself for
resolution is: By whom, then, may proposals for the amendment of the Constitution be made and in what manner may said proposals be
ratified by the people?

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

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

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

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

President the only political arm of the State at this time through which that decision could be implemented and the end in view attained as
their spokesman, proposed the amendments under challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people for their ratification in
the forthcoming referendum-plebiscite are factually not of the President; they are directly those of the people themselves speaking thru
their authorized instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded
in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of
our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with
constituent power as it does not appear necessary to do so in the premises the proposals here challenged, being acts of the sovereign
people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to
appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority has acted as a mere alter
ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments for ratification from the
standpoint of time. The thesis cannot be disputed that a fair submission presupposes an adequate time lapse to enable the people to be
sufficiently enlightened on the merits or demerits of the amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the proposal appear to have been formalized only upon the
promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that for so long
have preoccupied the minds of the people and their authorized representatives, from the very lowest level of the political hierarchy.
Hence, unlike proposals emanating from a legislative body, the same cannot but be said to have been mulled over, pondered upon,
debated, discussed and sufficiently understood by the great masses of the nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973 Constitution was submitted to
the people for ratification, an all-out campaign, in which all the delegates of the Constitutional Convention reportedly participated, was
launched to acquaint the people with the ramifications and working of the new system of government sought to be inaugurated
thereunder. It may thus well be assumed that the people in general have since acquired, in the least, a working knowledge of the entirety
of the Constitution. The changes now proposed the most substantial of which being merely the replacement of the interim National
assembly with another legislative arm for the Government during the transition period until the regular National Assembly shall have been
constituted do not appear to be of such complexity as to require considerable time to be brought home to the full understanding of the
people. And, in fact, the massive and wide-ranging informational and educational campaign to this end has been and still is in full swing,
with all the media the barangay, the civic and sectoral groups, and even the religious all over the land in acting and often enthusiastic if
not frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean an understanding of the proposals which
they reject; while an affirmative vote could equally be indicative Of such understanding and/or an abiding credence in the fidelity with
which the President has kept the trust they have confided to him as President and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is posed. Accordingly, I vote for the outright
dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections continuing with the epochal resolution
in Javellana v. Executive Secretary and followed successively in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on
Elections, and Aquino v Military Commission, 5 manifest to the same degree the delicate and awesome character of the function of judicial
review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered
circumstances and the urgencies of the times. It is inappropriate to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts, There
is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of
and a force in the society that it controls. No quality then can be more desirable in constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The judiciary must survey things as they are in the light of what they must

become It must inquire into the specific problem posed not only in terms of the teaching of the past but also of the emerging political and
legal theory, especially so under a leadership notable for its innovative approach to social problems and the vigor of its implementation.
This, on the one side. It must equally be borne in mind through that this Court must be conscious of the risk inherent in its being
considered as a mere subservient instrument of government policy however admittedly salutary or desirable. There is still the need to
demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To
my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with
regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in
Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is
concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that
the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter.

1.
With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in
Aquino v. Ponce Enrile leaves me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider
the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the
latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most
persuasive in character and rather few in number "due no doubt to the, absence in the American Constitution of any provision concerning
it." 7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and
Watson in 1910 paid attention, minimal by that, to the subject." It was next set forth that in the works on American constitutional law
published in this century specially after the leading cases of cases Sterling v. Constant in and Duncan v. Kahanamoku, "there was a fuller
treatment of the question of martial law While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note
that another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So called martial law, except in occupied territory
of an enemy is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or
without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere
with the exercise of one's ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of
the Police power, It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessarily to
meet the exigency, including the arrest, or in extreme cases the. killing of those who create the disorder or oppose the authorities. When
the exigency is over the members of the military forces are criminally and civilly habit for acts done beyond the scope of reasonable
necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made
liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of
habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial to the claims of
liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in
American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are,
indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of
the authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise
cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather
an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the
military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive
and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature
unchanged." 14

The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: 4'1 It is readily
evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil
liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes
even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present
state of American law: 'The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessities alone calls it
forth, necessity justifies its exercise; and necessities measures the extended degree to which it may be It is, the high Court has affirmed,
an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may, never be pushed beyond
what the exigency requires. If martial law rule survive the necessities on which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the
highest Court, went or on the theory that the executive had a free hand in taking martial law measures. Under them, it has been widely
supposed that in proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v.
Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin,
where martial law measures impinge upon personal or property rights-normally beyond the scope of military power, whose intervention is
lawful only because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of the necessity.'" 15

There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the
Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in
the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation
for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the suspension of
ordinary law and the temporary government of a country or parts of it be military tribunals, is unknown to the law of England. We have
nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the
civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the
permanent supremacy of the law under our constitution. There was this qualification: 'Martial law is sometimes employed as a name for

the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly
recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an
armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is
called a servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only
has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are
the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear
that all loyal subjects are bound to take their part in the suppression of riots." 16

Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the
1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis.
The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government. 17 If
there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in
regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not
been convened. 18 So I did view the matter.

2.
Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional
Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely
defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of
the people's elected government." 19 Since, for me at least, the Rossiter characterization of martial law has in it more of the common law
connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to attendant limitations in accordance with the fundamental postulate
of a charter's supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. lt
cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be
reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was
precisely based on the Constitution and that the validity of acts taken there under could be passed upon by the Supreme court. For me
that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the fundamental concept of our polity, which
puts a premium on freedom." 20

3.
Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the opinion of the Court in the
aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-inChief and enforcer or administrator of martial law, the incumbent President of the Philippines can reclamations, orders and decrees during
the period Martial Law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the
people and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as
to meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at
least, gives caused for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited
concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of
the view expressed in the last chapter of his work approving tile "concentration of governmental power in a democracy [as] a corrective to
the crisis inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late Professor Rossiter as an
objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a
constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an
enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago
outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who fought for freedom not because they were inefficient or
unsuccessful, but because they were dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be
taken only when the dangers to a free state will be greater if the dictatorial institution is not adopted." 23

4.
It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who would accord
recognition to the Rossiter concept of concentration of governmental power in the Executive during periods of crisis. This is not to lose
sight of the undeniable fact that in this country through the zeal, vigor, and energy lavished on projects conducive to the general welfare,
considerable progress has been achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the
delegates to the 1976 international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in so
brief a time. Since September 1972, when President Marcos established the crisis government, peace and order have been restored in a
country once avoided as one of the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of tenancy,
in the most vigorous and extensive implementation of agrarian reform." 24 Further, she said: "A dynamic economy has replaced a
stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive interaction with the
whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the Filipino has rediscovered the well-springs of his strength and resilience As Filipinos, we have found our true Identity. And having broken our crisis of
Identity, we are no longer apologetic and afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent,
state of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of the
modified parliamentary system under the present Constitution should not be further delayed. The full restoration of civilian rule can thus
be expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed either that the President has
referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority being more
Identified with the Idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a partisan of d strong
Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth
edition of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as
one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military
commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the
United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record
of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law
does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often
placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus on the other hand
be reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance,
the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly
because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into
military government and the other into the situation just described, in which the civil authority remains theoretically in control although
dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the
writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally
absent." 26

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial law.

5
There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of
the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of
martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of
respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in
deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority that the answer be in the
affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that
conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not
to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies
Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that
there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of
the Constitution conferring it on the by team National Assembly. 27 The learned advocacy reflected in the pleadings as well as the oral
discourse of Solicitor General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into
session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative
and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In their casebook published the
same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been
no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume
that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right 'to erect
the state, institute the form of its government,' which is considered a function inherent in the people. Congressional law- making authority
is limited to the power of approving the laws 'of civil conduct relating to the details and particulars of the government instituted,' the
government established by the people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not reach the
heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro,
support for the ruling that the President cannot be deemed as devoid of legislative power during this transition stage is supplied by
implications from explicit constitutional provisions. 13 That is not the case with the power to propose amendments. It is solely the interim
National Assembly that is mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts
rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there
may be indeed in this far-from-quiescent and static period a need for al. amendments. I do not feel confident therefore that a negative
vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to
the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee
and Munoz Palma in Aquino, as far as the legislative and appropriately powers are concerned, is the necessity that unless such authority
be recognized, there may be paralyzation of governmental activities, While not squarely applicable, such an approach has, to my mind, a
persuasive quality as far as the power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a dissent.

6.
The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to
accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the
field of human rights where a much greater vigilance is required, That is to make of the Constitution a pathway to rather than a barrier
against a desirable objective. -As shown by my concurring and dissenting opinion in Tolentino Commission on Elections '34 a pre-martial
law decision, the fundamental postulate that sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain
as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of
the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American
decisions There is reinforcement to such a conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona

v. Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of
prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said
writs should be issued when the right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19
an action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion
where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in
question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied." 40 With the
illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief
prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It
attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however,
there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if
not non- existent, if only because of the results in three previous referenda, there would be no constitutional agency other than the
Executive who could propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a
legislative body but also to provide. the machinery be which the termination of martial law could be hastened. That is a consummation
devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with
pernicious consequences. It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly affirmed
in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on
Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and my concurrence in Aquino v. Commission on Elections.
42 The destiny of the country lies in their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there be no mistake in its appraisal,
that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the
regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski, 43
Corwin, 44 Lerner, 45, Bryn-Jones, 46 and McIver.47

7.
There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives
rise to a justiciable rather than a political question. So, it has been since the leading case of Gonzales v. Commission on Election S. 48 It
has since then been followed in Tolentino v. Commission on Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The
Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine
announced in Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the United States as set forth in the leading case of
Coleman v. Miller , 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention., 51 That may
be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its
origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of
the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that there has invariably been a judicial
predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It
may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent
participated in the molding of policy, It has always recognized that in the large and undefined field of constitutional law, adjudication
partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the
perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other
directions. it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be
asked, to decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux
calls for dynamism in "he law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life.
This Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland of meaningless
abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may
be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored.
History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the
sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should
strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive
for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any
illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies
on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave
expression to byes not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of'
the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then
of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved
under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental
principle of popular sovereignty which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining
what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and
the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did
mention in my concurrence in Aquino v. Commission on Elections,56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema, Dissent, it
is fortunate to note, has been encouraged. It has not been Identified with disloyalty. That ought to be the case, and not solely due to
presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be
something worth hearing. That is to ensure a true ferment of Ideas, an interplay of knowledgeable minds. There are though well- defined
limits, One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.. What I mean to
stress is that except on a showing of clear and present danger, there must be respect for the traditional liberties that make a society truly
free.

TEEHANKEE, J., dissenting:

1.
On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to grant the petitions for the
following reasons and considerations: 1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the
incumbent President the constituent power to propose and approve amendments to the Constitution to be submitted to the people for
ratification in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-fourths vote of all its
members, to propose amendments or call a constitutional convention for the purpose The 1973 Constitution expressly vests the
constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling such convention to the electorate in
an election" (by a majority vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during the period of transition in the interim
National Assembly "upon special call be the Prime Minister (the incumbent President 3)... by a majority ore of all its members (to) propose
amendments."

Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the President's questioned decrease proposing and submitting constitutional amendments
directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis.

2.
The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In therein declaring null and void the acts
of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the general elections scheduled for November 8,
1971 for the purpose of submitting for the people's ratification an advance amendment reducing the voting age from 21 years to 18 years,
and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled
that --The Constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government, (land) are no less binding upon the people

As long as an amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is
not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court ; 8

The real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very Idea of
departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9
and

-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the proposed amendments and the manner
of its submission to the people for ratification or rejection" did not "conform with the mandate of the people themselves in such regard, as
expressed in the Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the Article on
Amendments.

3.
Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where the proposed amendments are
violative of the Constitutional mandate on the amending process not merely for being a "partial amendment" of a "temporary or
provisional character" (as in Tolentino) but more so for not being proposed and approved by the department vested by the Constitution
with the constituent power to do so, and hence transgressing the substantive provision that it is only the interim National Assembly, upon
special call of the interim Prime Minister, bu a majority vote of all its members that may propose the amendments, the Court must declare
the amendments proposals null and void.

4.
This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means" 11 but only by the particular
mode and manner prescribed therein by the people. As stressed by Cooley, "by the Constitution which they establish, (the people) not
only tie up the hands of their official agencies but their own hands as well; and neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular National Assembly) or the interim
National Assembly during the transition period) or in a constitutional convention called for the purpose is in accordance with universal
practice. "From the very necessity of the case" Cooley points out "amendments to an existing constitution, or entire revisions of it, must be
prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet,
prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be
obtained, except by asking it upon the single point of assent or disapproval." This body of representatives vested with the constituent power "submits the result of their deliberations" and "puts in proper form the questions of amendment upon which the people are to
pass"-for ratification or rejection. 13

5.
The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be desired" and in denying
reconsideration in paraphrase of the late Claro M. Recto declared that "let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental purportedly in order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the
Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of
their own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases 14 that
"we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a
new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that
approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some
future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the
law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that
there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government."

6.
It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the
required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being "not in conformity with
the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been
legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the
functions."15

In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking through now retired Chief Justice Roberto Concepcion, pointer
out that "Indeed, the power to Congress" 17 or to the National Assembly.18 Where it not for the express grant in the Transitory Provisions
of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general
grant of legislative power during the transition period.

The majority's ruling in the Referendum cases 19 that the Transitory Provision in section 3(2) recognized the existence of the authority to
legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent
power as expressly vested in the interim National Assembly in derogation of the allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional law, 20 the contituent power
has been lodged by the sovereign power of the people with the interim National Assembly during the transition period and there it must
remain as the sole constitutional agency until the Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral Commissioner 21, "(T)he Constitution sets
forth in no uncertain language and restrictions and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living
Constitution".

7.
Neither is the justification of "constitutional impasses" tenable. The sentiment of the people against the convening of the interim
National Assembly and to have no elections for "at least seven (7) years" Concededly could not ament the Constitution insofar as the
interim National Assembly is concerned (since it admittendly came into existence "immediately" upon the proclamation of ratification of
the 1973 Constitution), much less remove the constituent power from said interim National Assembly.

As stressed in the writer's separate opinion in the Referendum cases 22, "(W)hile it has been advanced that the decision to defer the initial
convocation of the interim National Assembly was supported by the results of the referendum in January, 1973 when the people voted
against the convening of the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect
in the light of the State's admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or
Provisions which call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to measures for
the orderly transition from the presidential to the parliamentary system' and the other urgent measures enumerated in section 5 thereof".

While the people reportedly expressed their mandate against the convening of the interim National Assembly to dischange its legislative
tasks during the period of transition under martial law, they certainly had no opportunity and did not express themselves against
convening the interim National Assembly to discharge the constituent power to propose amendments likewise vested in it by the people's
mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers reported that among the
seven questions proposed by the sanggunian and barangay national executive committies for the referendum was the convening of the
interim National Assembly. 23

It was further reported that the proposals which were termed tentative "will be discussed and studied by (the President), the members of
the cabinet, and the security council" and that the barangays felt, notwithstanding the previous referenda on the convening of the interim
National Assembly that "it is time to again ask the people's opinion of this matter " 24

8.
If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for submittal to the people,
strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This
means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the
constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the
incumbent President) with the assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley "Me voice of the people,
acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves
have prescribed and pointed out by the Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that the "Convention being a
legislative body of the highest order (and directly elected by the people to speak their voice) is sovereign, in as such, its acts impugned by
petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people. Hence, in continuing said section, We must read it as if the people said,
"The Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the
manner herein provided'". 27

This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution took care that the process
of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making
is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen
for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignity, ever
constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is
obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce
must be conceived and prepared with as much care and deliberation;" and that "written constitutions are supposed to be designed so as
to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard
to the process of their amendment." 28

9.
The convening of the interim National Assembly to exercise the constituent power to proposed amendments is the only way to fulfill
the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in of a Comelec resolution banning the use of
political taped jingles by candidates for Constitutional Convention delegates int he special 1970 elections, "the concept of the Constitution
as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the
lowest functionary, is a postulate of our system of government. That is to amnifst fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal heirarchy. The three departments of government in the discharge of the functions with which
it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions (which allows of no other
interpretation) that during the stage of transition the interim National Assembly alone exercises the constituent power to propose
amendments, upon special call therefor. This is reinforced by the fact that the cited section does not grant to the regular National
Assembly of calling a constitutional convention, thus expressing the will of the Convention (and presumably of the people upon
ratification) that if ever the need to propose amendments arose during the limited period of transition, the interim National Assembly
alone would discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24
million annually in salaries alone for its 400 members at P600,000.00 per annum per member, assuming that its deliberations could last
for one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on the costs of holding a
plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have
been spent or thrown to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even more is not too much

a price to pay for fealty and loyalty to the Constitution ... " 30 and that "while the financial costs of a separate plebiscite may be high, it
can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective"
and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution".11

10.
The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and economic crisis a crisis
greater than war") 32 cited by the majority opinion as justifying the concentration of powers in the President, and the recognition now of
his exercising the constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of the people" 33 has no
constitutional basis.

In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself
cannot and should not create power. In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the writer in his separate opinion in the
Referendum Cases,14 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of
martial law only 'in case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and hence
the use of the legislative power or more accurately 'military power' under martial rule is limited to such necessary measures as will
safeguard the Republic and suppress the rebellion (or invasion)". 35

11.
Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the Referendum Cases to be the
recognition or warrant for the exercise of legislative power by the President during the period of martial law is but a transitory provision.
Together with the martial law clause, they constitute but two provisions which are not to be considered in isolation from the Constitution
but as mere integral parts thereof which must be harmonized consistently with the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions
seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word
operative, rather than one which may make some words Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in
careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise where a court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable
construction the two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the Constitution as well as set up the machinery and
prescribe the procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole repository of the
Executive Power, presumably in view of the immense powers already vested in him by the Constitution but just as importantly, because by
the very nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative
assembly of representatives such as the interim National Assembly and hence may not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971 Constitutional Convention that the records of past
plebiscites show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional
Convention) really determined the amendments to the Constitution since the proposals were invariably ratified by the people 37 thus:
"although the people have the reserved power to ratify or reject the action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might otherwise think: that, despite the requisite ratification by the people, the
actual contents of our fundamental law will really be determined by the Convention; that, accordingly the people should exercise the
greatest possible degree of circumspection in the election of delegates thereto ... " 38

12.
Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers
among the Executive, Legislative and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise
is to preserve and to maintain the Republic against the dangers that threaten it. Such premise imposes constraints and limitations. For the
martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason of
such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law
is a failure; worse, martial law would have become the enemy of the Republic rather than its defender and preserver." 40

II.
On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission when Justice Jose P. Laurel echoed U.S.
Chief Justice Marshall's "climactic phrase" that "we must never forget that it is a Constitution we are expounding" and declared the Court's
"solemn and sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine Constitution as "a definition
of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers"
and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and
guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the
Constitutional and relevant laws to be conclusively determined by the "political", i.e. branches of government (namely, the Executive and
the Legislative) are outside the Court's jurisdiction. 41

Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required constitutional majority), the Court has since consistently
ruled that when proposing and approving amendments to the Constitution, the members of Congress. acting as a constituent assembly or
the members of the Constitutional Convention elected directly for the purpose by not have the final say on whether or not their acts are
within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that outs
is it government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political
character of treaty-making power". 44

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

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

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

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

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

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

III.
On the question of whether there is a sufficient and proper submittal of the proposed amendments to the people: Prescinding from
the writer's view of the nullity of the questioned decree of lack of authority on the President's part to excercise the constituent power, I
hold that the doctrine of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and subsequently
officially adopted by the required constitutional two-thirds majority of the Court in is controlling in the case at bar.

1.
There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in Tolentino where "the
proposed amendment in question is expressly saddled with reservations which naturally impair, in great measures, its very essence as a
proposed constitutional amendment" and where "the way the proposal is worded, read together with the reservations tacked to it by the
Convention thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the amendment would
really amount lo in the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of amendment is
allowed, the Philippines will appear before the world to be in the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force", there can be no proper submission.

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

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

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

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

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

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

3.
From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and
confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments.
Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated,
September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-year
and under 18-year- olds are enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator
Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed
that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question regarding charter
changes be modified instead of asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart from
lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or
amended". 52

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

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

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

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

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within 30 days from the election and selection
of the members (for which there is no fixed date) the incumbent President apparently becomes a regular President and Prime Minister (not
ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as the prohibition against the
holding of more than one office in the government including government-owned or -controlled corporations would appear to be eliminated,
if not prescribed by the President;

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

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

Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their functions, power and
composition may be altered by law. Referendums (which are not authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather than by the rigid and strict amending process provided presently in
Article XVI of the Constitution;

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

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

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

THE REFERENDUM ISSUES

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

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

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

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

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

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

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

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

. . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all
of us then pass away as a pace in the development of our country. but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in power
be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he may be, will dare to destroy
and wreck the foundation of such a Constitution.

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

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

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

The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and independence of the
judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of

insecurity of their tenure in office still spends litigants and their relatives and friends as well as a good sector of the public would be
hesitant to air views contrary to that of the.

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

BARREDO, J.,: concurring:

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

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

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

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out when the President express his desire to share his
powers with other people.

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

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

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

On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of the PKB with regards to
the convening of a new legislative body. The stand of the PKB is to create a legislative advisory council in place of the old assembly. Two
days after, August 8, the Kabataang Barangay held a symposium and made a stand which is the creation of a body with full legislative
powers.

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

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

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91 member National Executive Committee
of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at Session Hall, Quezon City. Invited also to participate
were 13 Regional Federation Presidents each coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has been more substantial and meaningful than
the above report imparts. Most importantly, aside from being probably the first person to publicly articulate the need for the creation of an
interim legislative body to take the place of. the interim National Assembly provided for in the Transitory Provisions of the Constitution, as
suggested in the above report, I might say that I was the one most vehement and persistent in publicly advocating and urging the
authorities concerned to directly submit to the people in a plebiscite whatever amendments of the Constitution might be considered
necessary for the establishment of such substitute interim legislature. In the aforementioned session of the Executive Committee of the
Katipunan, I discourse on the indispensability of a new interim legislative body as the initial step towards the early lifting of martial law
and on the fundamental considerations why in our present situation a constitutional convention would be superfluous in amending the
Constitution.

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

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

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

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

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

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

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

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

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

-I-

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

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

xxx

xxx

xxx

xxx

xxx

xxx

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

xxx

xxx

xxx

xxx

xxx

xxx

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

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

Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political
question doctrine, which in that jurisdiction is unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently
more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has been invoked and applied by this Court in varied forms and mode of projection in several
momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil.
612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil.
654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun,
Oct. 28, 1960.) and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also
referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and self- restraint
are both subjective attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by
what in the Court's considered opinion is what the Constitution envisions should be by in order to accomplish the objectives of government
and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional
approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence
of power is secondary, respect for the acts of a co-ordinate, co-equal and independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA,
pp. 379-383.)

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

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear and definite express
provision in the Charter applicable to the factual milieu herein involved. The primary issue is, to whom, under the circumstances, does the
authority to propose amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of the Charter, that
that faculty lies in the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it
could ' only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But
precisely, the fundamental issue We are called upon to decide is whether or not it is still constitutionally possible to convene that body.
And relative to that question, the inquiry centers on whether or not the political developments since the ratification of the Constitution
indicate that the people have in effect enjoined the convening of the interim National Assembly altogether. On this score, it is my
assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the great
majority of our people, for reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its more
than 400 members automatically voted into it by the Constitutional Convention together with its own members, are against its being
convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given effect without a formal amendment of the
Constitution is something that constitutional scholars may endlessly debate on. What cannot be disputed, however, is that the
government and the nation have acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the suspension of
its convocation, has not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973.

In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the constitutional relevance of
the interim National Assembly to any proposal to amend the Constitution at this time. It is my considered opinion that in resolving that
question, the Court must have to grapple with the problem of what to do with the will of the people, which although manifested in a
manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is
not proper for the Court to interpose its judicial authority against the evident decision of the people and should leave it to the political
department of the government to devise the ways and means of resolving the resulting problem of how to amend the Constitution, so long
as in choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as
required by the fundamental law.

-2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the projected amendment of the
Charter in the manner provided in Presidential Decree 1033, I hold that in the peculiar situation in which the government is today, it is not
incompatible with the Constitution for the President to propose the subject amendments for ratification by the people in a formal plebiscite
under the supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the
Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the Constitution. The
correctness of this conclusion should become even more patent, when one considers the political developments that the people have
brought about since the ratification of the Constitution on January 17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the celebration of Law Day on
September 18, 1975 before the members of the Philippine Constitution Association and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have mentioned earlier, the
martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter by the Constitutional Convention of 1971. It
was inevitable, therefore, that the delegates had to take into account not only the developments under it but, most of all, its declared
objectives and what the President, as its administrator, was doing to achieve them. In this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly voted down to signify the determination of the delegates to finish earliest their work,
thereby to accomplish the mission entrusted to them by the people to introduce meaningful reforms in our government and society.
Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were
formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even after the ratification
of the Constitution they were approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed to
provide all the needed cures and can, therefore, be immediately in full force and effect after ratification. Not so, with our 1973
Constitution, Yes, according to the Supreme Court, 'there is no more judicial obstacle to the new Constitution being considered in force and
effect', but in truth, it is not yet so in full. Let me explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main part thereof and its
transitory provisions. It is imperative to do so because the transitory provisions of our Constitution are extraordinary in the sense that
obviously they have been designed to provide not only for the transition of our government from the presidential form under the past
charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize, according to the President, the
reforms introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in
effect established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential nor
parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under the 1935 Constitution but enjoys as
well those of the President and the Prime Minister under the new Constitution. Most importantly, he can and does legislate alone. But to be
more accurate, I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally ordained by
the Constitution, for the simple reason that he has suspended the convening of said assembly by issuing Proclamation No. 1103
purportedly 'in deference to the sovereign will of the Filipino people' expressed in the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for approval or disapproval of the
people, and after the votes were counted and the affirmative majority known, we were told that the resulting ratification was subject to
the condition that the interim National Assembly evidently established in the Constitution as the distinctive and indispensable element of a
parliamentary form of government should nevertheless be not convened and that no elections should be held for about seven years, with
the consequence that we have now a parliamentary government without a parliament and a republic without any regular election of its
officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but of the direct mandate of the
sovereign people expressed in a referendum. In other words, in an unprecedented extra-constitutional way, we have established, wittingly
or unwittingly, a direct democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been
transformed into barangays, a system of government proclaimed by the President as 'a real achievement in participatory democracy.'
What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional authoritarianism means, in the final
analysis, that the fundamental source of authority of our existing government may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums conducted by the Commission on Elections in a manner well known to all of
us This, as I see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law - powers sanctioned directly by the people which may not even be read in the language of the Constitution.
in brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily be the Constitution but the outcome of
referendums called from time to time by the President. The sooner we imbibe this vital concept the more intelligent will our perspective be
in giving our support and loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers
of government are being exercised by the President, we - do not in reality have a dictatorship but an experimental type of direct
democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is important to note, relative to the
main issue now before Us, that it was originally planned to ask the people in that referendum whether or not they would like the interim
National Assembly to convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to
include any -such question anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as
the members of the old Congress concerned that that matter had already been finally resolved in the previous referenda of January and
July 1973 in the sense that. the Assembly should not be convened comparable to res adjudicata.

It is my position that as a result of the political developments since January 17, 1973 the transitory provisions envisioning the convening of
the interim National Assembly have been rendered legally inoperative. There is no doubt in my mind that for the President to convoke the
interim National Assembly as such would be to disregard the will of the people - something no head of a democratic republican state like

ours should do. And I find it simply logical that the reasons that motivated the people to enjoin the convening of the Assembly - the
unusually large and unmanageable number of its members and the controversial morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials under the Old Constitution who would agree to join it and the delegates
themselves to the Convention who had voted in favor of the Transitory Provisions - apply not only to the Assembly as an ordinary
legislature but perhaps more to its being a constituent body. And to be more realistic, it is but natural to conclude that since the people are
against politicians in the old order having anything to do with the formulation of national policies, there must be more reasons for them to
frown on said politicians taking part in amendment of the fundamental law, specially because the particular amendment herein involved
calls for the abolition of the interim National Assembly to which they belong and its substitution by the Batasang Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I disagree. It is inconsistent with the
plenary power of the people to give or withhold their assent to a proposed Constitution to maintain that they can do so only wholly. I
cannot imagine any sound principle that can be invoked to support the theory that the proposing authority can limit the power of
ratification of the people. As long as there are reliable means by which only partial approval can be manifested, no cogent reason exists
why the sovereign people may not do so. True it is that no proposed Constitution can be perfect and it may therefore be taken with the
good and the bad in it, but when there are feasible ways by which it can be determined which portions of it, the people disapprove. it
would be stretching technicality beyond its purported office to render the final authority - the people impotent to act according to what
they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of qualified ratification. Proclamation
1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561) members of all the Barangays voted
for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; but a majority of those who approved the new Constitution conditioned their votes on the demand that the interim
National Assembly provided in its Transitory Provisions should not be convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The above factual premises of Proclamation
1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being a political act of a coordinate department of the
government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention that a
referendum is only consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the
Constitution, must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel if the Act of
ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign people
have voted against the convening of the interim National Assembly, and faced with the problem of amending the Constitution in order
precisely to implement the people's rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how can any
such amendment be proposed for ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the constitutional convention to perform the
constituent function of formulating proposed amendments has been rendered inoperative by the people themselves, the people have
thereby foreclosed the possibility of amending the Constitution no matter how desirable or necessary this might be. In this connection, I
submit that by the very nature of the office of the Presidency in the prevailing scheme of government we have - it being the only political
department of the government in existence - it is consistent with basic principles of constitutionalism to acknowledge the President's
authority to perform the constituent function, there being no other entity or body lodged with the prerogative to exercise such function.

There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-convening of the interim
Assembly, the legislative authority has perforce fallen into the hands of the President, if only to avoid a complete paralysis of law-making
and resulting anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with
legislative power for the duration of the transition period. From these premises, it is safe to conclude that in effect the President has been
substituted by the people themselves in place of the interim Assembly. Such being the case, the President should be deemed as having
been granted also the cognate prerogative of proposing amendments to the Constitution. In other words, the force of necessity and the
cognate nature of the act justify that the department exercising the legislative faculty be the one to likewise perform the constituent
function that was attached to the body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the proposition
that the President may propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a
suggestion cannot be reconciled with the Ideal that a Constitution is the free act of the people.

It was suggested during the oral, argument that instead of extending his legislative powers by proposing the amendment to create a new
legislative body, the President should issue a decree providing for the necessary apportionment of the seats in the Regular National
Assembly and call for an election of the members thereof and thus effect the immediate normalization of the parliamentary government
envisaged in the Constitution. While indeed procedurally feasible, the suggestion overlooks the imperative need recognized by the
constitutional convention as may be inferred from the obvious purpose of the transitory provisions, for a period of preparation and
acquaintance by all concerned with the unfamiliar distinctive features and practices of the parliamentary system. Accustomed as we are to
the presidential system, the Convention has seen to it that there should be an interim parliament under the present leadership, which will
take the corresponding measures to effectuate the efficient and smooth transition from the present system to the new one. I do not
believe this pattern set by the convention should be abandoned.

The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is considered that whereas,
under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a Constitutional Convention or submit such a call for
approval of the people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of
calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a
convention during the transition, if only because such a procedure would be time consuming, cumbersome and expensive. And when it is
further noted that the requirement as to the number of votes needed for a proposal is only a majority, whereas it is three-fourths in
respect to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites
must be held "not later than three months after the approval" of the proposed amendment by the proposing authority, the adoption of the
most simple manner of amending the charter, as that provided for in the assailed Presidential Decree 1033 suggests itself as the one most
in accord with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of amending or changing the
same. To cite but one important precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present
Constitution of the United States was neither proposed nor ratified in the manner ordained by the original charter of that country, the
Articles of Confederation and Perpetual Union.

In brief. if the convening and operation of the interim National Assembly has been effectuated through a referendum-plebiscite in January,
1973, and ratified expressly and impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held
plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in the
whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and sanggunian
members. In other words, in submitting the amendments for ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval
of the people as a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto themselves the
functions relative to the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having in
mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides in the people and all
government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the Constitution, if only because the
specific provision it is supposed to infringe does not exist in legal contemplation since it was coevally made inoperative when the people
ratified the Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in said
decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms
admirably with the underlying tenet of our government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently comprehend the issues and
intelligently vote in the referendum and plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues
are right in holding that the period given to the people is adequate, I would leave it to the President to consider whether or not it would be
wiser to extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But whether such
postponement is ordered or not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date, would be of
no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their sovereign capacity, the
question is political as the term is defined in Tanada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the
reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al.
(L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag
et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important
Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method of making the proposal and the
period for submission become relevant.

The contrary view negates the very essence of a republican democracy - that the people are sovereign - and renders meaningless the
emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty
resides in the people and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The representatives
cannot dictate to the sovereign people. They may guide them; but they cannot supplant their judgment, Such an opposite view likewise
distrusts the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to intellectual
superiority. There are thousands upon thousands among the citizenry, who are not in the public service, who are more learned and better
skilled than many of their elected representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as
enforcer or administrator of martial rule during the period of martial law can legislate; and that he has the discretion as to when the
convene the interim National Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim National

Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore
remains the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the interim National
Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente Guzman (L-44684),
former delegate to the 1971 Constitutional Convention which drafted the 1973 Constitution. the President, during the period of martial
law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands to reason that the President can
likewise legally propose amendments to the fundamental law.

ANTONIO, J., concurring:

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

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

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

To decide whether a matter has in a measure been committed by the Constitution to another branch of government or retained be the
people to be decided by them in their sovereign capacity, or whether that branch exceeds whatever authority has been committed, is
indeed a delicate exercise in constitutional interpretation.

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

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

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

Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice Pedro
Tuason, ruled that the process of constitutional amendment, involving proposal and ratification, is a political question. In the Mabang case,
the petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity Amendment" to the Philippine
Constitution on the ground that it had not been approved by the three-fourths vote of all the members of each house as required be Article
XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the determination of the three- fourths %- ore In dismissing the petition on
the ground that the question of the validity of the proposal was political, the Court stated:

"If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The question to
steps complement each other in a scheme intended to achieve a single objective. It is to be noted that amendatory process as provided in
Section I of Article XV of the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no logic in
attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is a highly political
function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. ..." (At
pages 4-5, Italics supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of Congress, acting as a constituent
assembly - violates the Constitution is essentially justiciable, not political, and hence, subject to judicial review." What was involved in
Gonzales, however, was not a proposed What was involved in Gonzales, however, was not a proposed amendment to the Constitution but
an act of Congress, 9 submitting proposed amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what
was involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention
submitting the proposal for ratification. The question was whether piecemeal amendments to the Constitution could submitted to the
people for approval or rejection.

II

Here, the point has been stressed that the President is acting as agent for and in behalf of the people in proposing the amendment. there
can be no question that in the referendums of January, 1973 and in the subsequent referendums the people had clearly and categorically
rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and
the various sectoral groups had proposed the replacement of the interim National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the desires of the people are articulated and expressed. The Batasang Bayan
(Legislative Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one (91) members of
the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in their special session to submit
directly to the people in a plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the Pambansang
Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to abolish
the interim National Assembly, but to replace it with a more representative body acceptable to them in order to effect the desirable
constitutional changes necessary to hasten the political evolution of the government towards the parliamentary system, while at the same
time ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed
constitutional amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to propose those amendments pursuant to
Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v. Commission or Elections, 11 took judicial notice of the fact
that in the referendum of January, 1973, a majority of those who approved the new Constitution conditioned their votes on the demand
that the interim National Assembly provided in the Transitory Provisions should not be and the President "in deference to the sovereign will
of the Filipino people" declared that the convening of said body shall be suspended. 12 As this Court observed in the Aquino case:

His decision to defer the initial convocation of the byiitttit National Assembly was supported by the sovereign people at the by referendum
in January, 1973 when the people voted to postpone the convening of the interim National Assembly until after at least seven (7) years
from the approval of the new Constitution. And the reason why the same question was eliminated from the questions to be submitted at
the referendum on February 27, 1975, is that even some members of the Congress and delegates of the Constitutional Convention, who
are already byjso ofitto members of the intetini National Assembly are against such inclusion; because the issue was already bycciled in
the January, 1973 referendum by the sovereign people indicating thereby their disenchantment with any Assembly as the former Congress
failed to institutionalize the reforms they demanded and wasted public funds through endless debates without relieving the suffering of
the general mass of citizenry (p. 302.) The action of the President in suspending the convening of the interim National Assembly has met
the overwhelming approval of the people in subsequent referenda.

Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a necessary
consequence that their objection against the immediate convening of the interim National Assembly must be respected as a positive
mandate of the sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority emanates from them."13 The
term "People" as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely the
enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent present
but in the continuum of history. The assumption that the opinion of The People as voters can be treated as the expression of the interests
of the People as a historic community was, to the distinguished American journalist and public philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as the corporate nation, the voters have no title to consider
themselves the proprietors of the commonwealth and to claim that their interests are Identical to the public interest. A prevailing plurality
of the voters are not The People. The claim that they are is a bogus title invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by demagogue politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested with the authority of The People. That is why so many crimes are
committed in the People's name 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to amend the Constitution is part
of the inherent power of the people as the repository of sovereignty in a republican state. While Congress may propose amendments to
the Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both the power to propose and the
authority to approve, therefore, inhere in the people as the bearer of the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the authority to exercise
constituent powers, it follows from necessity that either the people should exercise that power themselves or through any other
instrumentality they may choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).

The question then is whether the President has authority to act for the people in submitting such proposals for ratification at the plebiscite
of October 16. The political character of the question is, therefore, particularly manifest, considering that ultimately it is the people who
will decide whether the President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign
capacity, hence, it is essentially political, not judicial.

While it is true that the constituent power is not to be confuse with legislative power in general because the prerogative to propose
amendments is not embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted for
ratification in the forthcoming referendum are, in the final analysis, actually not of the President but directly of the people themselves,
speaking through their authorized instrumentalities.

As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as
beingultravires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power - as it does not
appear necessary to do so in the premises - the proposals here challenged, being acts of the sovereign people no less, cannot be said to
be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less
vulnerable not only because the President, in exercising said authority, has acted as a mere ofiffet byf of the people who made the
proposals, but likewise because the said authority is legislative in nature rather than constituent.

This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of regulating their own government,
and of altering or abolishing their Constitution whenever it may be necessary to their safety or happiness. There appears to be no
justification, under the existing, circumstances, for a Court to create by implication a limitation on - the sovereign power of the people. As
has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot
box, and there can never be danger in submitting in an established form to a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their Sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of
free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed
privilege to the people of the State to change their constitution in the mode prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring popular control over the
constituent power. "If the people are to control the constituent power - the power to make and change the fundamental law of the State,"
observed Wheeler," "the process of Constitutional change must not be based too heavily upon existing agencies of government." Indeed,
the basic premise of republicanism is that the ordinary citizen, the common man. can be trusted to determine his political destiny.
Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall provide for their governance.
For in the ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I by ininess of the moqqqtai
will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my
conscience with no rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden byeing lightened
only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to
espouse and embrace a rightful cause however unpopular it may be.

1.
That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of
government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written Constitution,
each and every citizen, from the highest to the lowliest, has the sacred duty to respect and obey the Character they have so ordained.

By the Constitution which they establish, they not only tie up he hands of their official agencies, but their own hands as well; and neither
the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.
(Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on declarations of law of more than a century
ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. it is a principle with which I have been
familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will
prevail at all times to ensure the existence of a free, stable, and civilized society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution
whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised.
Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people's
ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural
bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not
to be denied, but we assert that absent a revolutionary state or condition in the country the change must be accomplished through the
ordinary, regular and legitimate processes provided for in the Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the
Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory
process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as
limiting the ultimate sovereign will of the people to decide on amendments to the Constitution .2 Such a view will seriously undermine the
very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and Cases" as relevant to my point:

. . . the amendatory provisions are called a 'constitution of sovereighty' because they define the constitutional meaning of 'sovereignty of
the people.' Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty. As one American writer
put it:

A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive function of such
written document to classify certain things as legal fundamentals; these fundamentals may not be changed except by the slow and
cumbersome process of amendment. The people themselves have decided, in constitutional convention assembled, to limit themselves
ana future generations in the exercise of the sovereign power which they would otherwise possess. And it is precisely such limitation that

enables those subject to governmental authority to appeal from the people drunk to the people sober in time of excitement and hysteria.
The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the .people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental law may be amended if, after all, the people
by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents'
theory in this regard is to render written Constitutions useless or mere "ropes of sand allowing for a government of men instead of one of
laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery
eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded
such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while
curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying
out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge
Cooley:

A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood,
but the sober second thought, which alone, if the government is to be sale can be allowed efficiency. .... Changes in government are to be
feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,) 3

Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel.
Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

It has been said that changes in the constitution may be introduced in disregard of its provisions; that if the majority of the people desire a
change the majority must be respected, no matter how the change may be effected; and that the change, if revolution, is peaceful
resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end which the majority of the people desire, have looked at but
one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of
the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to
be broken to accomplish it, would not of itself produce any serious results. But if it should be done by sanctioning the doctrine contended
for, a precedent would be set which would plague the state for all future time. A Banquo's ghost would arise at our incantation which
would not down at our bidding.

xxx

xxx

xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. ...

xxx

xxx

xxx

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is a portion of the bill of rights, and is as
follows: 'All political power is inherent in the people. Government is instituted for the protection, security, and benefit of of the people; and
they have the right at all times to alter or reform the same, whenever the public good may require.' Abstractly considered, there can bye
no doubt of the correctness of the propositions embraced in this suction. These principles are older than constitutions and older than
governments. The people did not derive the rights referred to by on the constitution. and, in their nature, thee are such that the people
cannot surrender them ... .

2.
Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among
other things, of amending certain provisions of the 1973 Constitution are null and void as they contravene the express provisions on the
amending process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more particularly the latter
which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National Assembly which may propose amendments to
the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the
manner of amending the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-convening of the
interim National Assembly - with another infirmity, that is, doing violence to the Charter.

All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse. (Am. Law
Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of
normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the
lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the
hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October
16 referendum-plebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured
to state that the simple solution to the simple solution to the present dilemma is the lifting of martial law and the implementation of the
constitutional provisions which will usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves have ratified.

If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended
unfavorable consequences thereof, the only y being to set in motion the constitutional machinery by which the supposed desired
amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed
strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique
Fernando in Mutuc vs. Commission on Elections

... The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding
from the highest official or the lowest funcitonary, is a postulate of our system of government. That is to manifest fealty to the rule of law,
with priority accorded to that which occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham
v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise
of power by the people for the general good by tistlercoitaitt restraints of law. 3 . The true question before Us is is one of power. Does the
incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting
opinion of Justice Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory that he is vested with legislative powers as
held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that
although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President
legislative powers, I qualified my statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President continues by exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the moment, and which at any rate I believe is not essential in resolving this
Petition for reasons to be given later. Nonetheless, I hold the view that the President is empowered to issue proclamations, orders, decrees,
etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935 or 1973 Constitution, and for the
orderly and efficient functioning of the government, its instrumentalities, and agencies. This grant of legislative power is necessary to fill
up a vacuum during the transition period when the interim National Assembly is not yet convened and functioning, for otherwise, there will
be a disruption of official functions resulting in a collapse of the government and of the existing social order. (62 SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless
so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee's
Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power
to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour or cure its defects "by
inflicting upon it a wound which nothing can heal commit one assault after the other "until all respect for the fundamental law is lost and
the powers of government are just what those in authority please to call them?'" 5 Or can we now ignore what this Court, speaking
through Justice Barredo, said in Tolentino vs. Comelec:

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

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

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

I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future, when we shall all be gone.
Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a
climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional
Convention which drafted the 1935 Philippine Constitution, once said: .

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

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

CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1.

The issue is not political and therefore justiciable.

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

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

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

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

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

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

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

Footnotes
1

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

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

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

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

Section 18.

Section 5.

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

8
Concurring and dissenting opinion of Justice Fernando in the Plebiscite Cases (Planas v. Comelec, 49 SCRA 105). See Martial Law and
the New Society in the Philippines, Supreme Court, 1976, at 152.

Orfield Amending the Federal Constitution, 111.

10
Separate Opinion of Justice Concepcion in the Ratification Casts v. the Executive Secretary 50 SCRA 30), Martial Law and the New
Society in the Philippines, 1976, Supreme Court, 210-224, quoting Tanada v. Cuenco, 103 Phil. 1051.

11

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

12

Idem, at 210.

13
The view of the Chief Justice was shared by Justices Makalintal (later Chief Justice), Zaldivar, Castro (present Chief Justice),
Fernando, and Teehankee. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been approval by the
people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the
Court should keep its hands-off out of respect to the people's will, but, in the negative, the Court may determine from both factual and

legal angles whether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra hold that
the issue is political and "beyond the ambit of judicial inquiry."

14

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

15

Idem, at 10791081.

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

17

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

18

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

19

Hollingsworth v. Virginia, 3 Dall 378.

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

21

Constitutional Dictatorship by Clinton Rossiter, 288-290.

22

Corwin, The President Office and Powers, at 371.

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

26

Orfield, Amending the Federal Constitution, at 55.

27

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

28

Sunday Express, September 23, 1976.

29

Daily Express, September 23, 1976.

30

Section 1, Article II, 1973 Constitution.

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

32

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

33

Orfield Amending the Federal Constitution, at 105.

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

35

Op Cit., at 221.

39
Separate opinion of Justice Palma in the Referendum Case (Aquino v. COMELEC), at 1135, Martial Law and the New Society in the
Philippines, 1976, Supreme Court.

40
Separate opinion of Justices Makalintal and Castro in the Ratification Case (Javellana v. The Executive Secretary, 50 SCRA 30), at
292-293, Martial Law and the New Society in the Philippines

41

Sec. 1, Article VI, 1973 Constitution.

42

Daily Express, September 29, 1976.

43

See Times Journal, September 30, 1976.

44

Times journal, October 2, 1976.

45

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

46

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

47

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

48

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

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

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

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

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

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

SCRA 183, 281-309.

Ibid, 301.

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

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

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

11

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

12

Ibid. 303.

13

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

14
Ibid. The excerpt is from Williams on Constitutional Law, 449 (1936). It is to be made clear that in our Constitution, it is only the
privilege of the writ, not the writ itself that is suspended.

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

16

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

17

327 US 304, 322.

18

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

19

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

20

Ibid. 306.

21

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

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

23

Ibid. 294.

24

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

25

Ibid.

26

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

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

28

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

29

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

30

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

31

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

32

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

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

34

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

35
According to Article 11, Section 1 of the present Constitution: The Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them."

36
Cf. Crammer v. Thorson 68 NE 202 (1896): Edwards v. Lesueur 83 SW 1130 (1896); People v. Mills, 70 P. 322 (1902); Treadgill v.
Cross, 109 P 558 (1910); Scott v. James, 76 SE 283 (1912); Weinland v. Fulton 121 NE 816 (1918); Gray v. Mass, 156 So. 262 (1934); Gray
v. Winthrop, 156 So. 270 (1934); State v. Burns, 172 SW 259 (1943), Hillman v. Stockett 39 A2 803 (1944).

37

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

38

Ibid, 17-18.

39

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

40

Ibid, 244.

41

50 SCRA 30, 310-333 (1973).

42

59 SCRA 275, 306-315 (1974).

43

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

44

Corwin, The Higher Law Background of American Constitutional Law, Selected Essays on Constitutional Law 3 (1938).

45

Lerner, Ideas are Weapons, 470 (1939).

46

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

47

McIver, The Web of Government 84 (1947).

48

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

49

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

50

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

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

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

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

54
Cf. Hatcher v. Meredith, 173 SW 2d 665 (1943); In re Application of Borg, 35 A2d 220 (1944); Renck v. Superior Court of Maricopa
County, 187 P2d 656 (1947); In re Opinion of Justices, 47 SO2d 643 (1950); Funk v. Fielder, 243 SW2d 474 (1951); Baum v. Newbry 267
P2d 220 (1954); Boe v. Foss, 77 NW2d 1 (1956); Goldner v, Adams, 167 SO2d 575 (1964); Hamilton v. City of Shreveport, 174 SO2d 529
(1965).

55

Laurel, S., ed., VII Proceedings of the Philippine Constitutional Convention (1934-1935), Appendix L, 800.

56

SCRA 275, 306-315.

Article XV, section 1.

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

Article XVII. section 3 (1).

Article XVII, section 15.

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

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

Resolution on motion for reconsideration in Tolentino vs. Comelec dated Nov. 4, 1971, at page 3.

Idem, at page 4.

Idem, at page 4

10

Idem, at page 4.

11

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

12

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

13

Idem, pp. 87-88.

14

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

15

Majority opinion at p.20.

16

21 SCRA 774(1967)

17

Citing Sec.1,Art.VI,1935 Constitution

18

See sec.1,Art. VIII,1973 Constitution

19

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

20

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

21

63 Phil. 134(1936).

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

Do you want martial law to be lifted?

Do you want to call the interim National Assembly?

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

Do you want such body to have full legislative powers?

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

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

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

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

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

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

24
"The other issue to be taken up in the public discussions is the question on whether the interim national assembly should be
convened or not.

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

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

25

Art. IX, see. 1, 1973 Constitution.

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

27

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

28

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

29

36 SCRA 228 234 (1970).

30

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

31

Idem, at page 16 fn. 6.

32

Majority opinion, at page 19.

33

Idem, at page 20.

33*

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

34

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

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

36

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

37
With the exception of the proposed amendments increasing the membership of the House of Representatives from 120 to 180 and
authorizing members of Congress to become Con-Con delegates, which were widely publicized as a result of the court proceedings and
decision in Gonzales vs. Comelec, 21 SCRA 774.

38
"Perspectives and Dimensions of Constitutional Reforms" delivered as keynote speech at the National Conference on Constitutional
Amendments, July 27,1970.

39

Articles VIII, IX and X, 1973 Constitution.

40

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

41

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

42

Supra, fn. 16.

43

Supra, fn. 28.

44

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

45

SCRA 30 (1973) and cases cited.

46

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

47

SCRA at p. 733.

48

21 SCRA at pages 816-817, emphasis copied.

49

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

50

21 SCRA at p. 817.

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

52

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

53

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

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

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

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

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

50 SCRA 30, 209 et seq.

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

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

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

16 C.J.s. 413.

369 U.S. 186, 217.

307 U.S. 433.

78 Phil, 1 (1947).

21 SCRA 774.

Republic Act No. 413.

10

41 SCRA 702,

11

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

12

Proclamation No. 1103, January 17,1973.

13

Section 1, Article II, Constitution.

14

Leibholz: Politics and Law, p. 24.

15

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

16

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

17

John P. wheeler, Jr., Changing the fundamental Law SALIENT ISSUES OF CONSTITUTIONAL REVISION; 1961 ed.

18

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

19

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

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

xxx

xxx

xxx

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

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

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

6
Resolution on Motion for Reconsideration, L-34150, November 4, 1971, per Barredo, J., pp 19-20, Supreme Court Decisions,
November 1971

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

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

The Lawyers' Journal, March 15, 1936,

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

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

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

Article XVII, Section 1, Constitution.

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

Idem, at page 4.

10

Idem, at page 4.

11

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

12

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

The Lawphil Project - Arellano Law Foundation

[G.R. No. L-66088. January 25, 1984.]

ALEX G. ALMARIO, ISAGANI M. JUNGCO, ESTANISLAO L. CESA, JR., DORINTINO FLORESTA, FIDELA Y. VARGAS, ET AL., Petitioners, v. HON. MANUEL ALBA and
THE COMMISSION ON ELECTIONS, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS BASED ON PRESENT CONSTITUTIONAL PROVISIONS. The present provisions of the Constitution are adequate to support any program of the government for the
grant of public lands to qualified and deserving citizens or for the implementation of urban land reform. Homesteads and free patents are "grants." We likewise see no
constitutional infirmity to a law passed by the Batasang Pambansa, under the present Constitution, that would grant alienable and disposable lands of the public domain not more
than twenty four (24) hectares to any qualified tenant, farmer, and other landless citizen in areas reserved by the President, acting pursuant to such law.
2. ID.; ID.; ID.; NECESSITY OF PROPOSED AMENDMENTS TO DETERMINED SOLELY BY THE PEOPLE. The necessity, expediency, and wisdom of the proposed amendments are
beyond the power of the courts to adjudicate. Precisely, whether or not "grant" of public land and "urban land reform" are unwise or improvident or whether or not the proposed
amendments are unnecessary is a matter which only the people can decide. The questions are presented for their determination.
3. ID.; ID.; ID.; PUBLICATION; REQUIREMENT FOR FAIR AND PROPER SUBMISSION ADEQUATELY MET. Batas Pambansa Blg. 643 directs the COMELEC to publish the
amendments. The respondents assure us that publication in all provinces and cities, except a few where there are no local newspapers, has been affected and that Barangays all
over the country have been enjoined to hold community gatherings for this purpose. The Integrated Bar of the Philippines and various civic organizations have taken a strong
stand for or against the last two proposed questions. Television and radio programs regularly broadcast the amendments. The petitioners have failed to explain why, inspite of all
the above, there is still fair and proper submission.
FERNANDO, C.J., concurring:

chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS ALREADY AUTHORIZED UNDER THE EXISTING CONSTITUTION. Resolution No. 105 deals with the grant or distribution of alienable and disposable lands of the
public domain to qualified tenants, farmers and other landless citizens. Resolution No. 113 deals with urban land reform and social housing program. They are, then, immediately
recognizable as logical and necessary extensions of the fundamental principle of social justice enshrined as far back as the 1935 Constitution and expanded in the present
Constitution. Our adoption of such principle antedated the Universal Declaration of Human Rights by thirteen years. To my mind, therefore, no question need arise under the
standard of proper submission.
PLANA, J., concurring:

chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
PROPOSALS ALREADY AUTHORIZED UNDER THE EXISTING CONSTITUTION. Reflecting on Section 11, Article XIV and Section 6, Article 11 of the 1973 Constitution, it seems
evident that what is sought to be adopted under Questions 3 and 4 of the forthcoming plebiscite based on Resolutions Nos. 105 and 113 of the Batasang Pambansa, is already
authorized under the existing Constitution. The proposed Constitutional amendments under Questions 3 and 4 would just be confirmatory of a legislative power already existing, it
stands to reason that a protracted discussion of the proposed Constitutional amendments under Questions 3 and 4 is neither necessary nor constitutionally required.
2. ID.; ID.; ID.; REQUIREMENT OF FAIR AND PROPER SUBMISSION COMPLIED WITH. There is compliance with Article XVI, Section 2 of the Constitution, under which a
proposed Constitutional amendment shall be submitted to a plebiscite "which shall be held not later than 3 months after the approval of such amendment." The proposed
amendments under Questions 3 and 4, as embodied in Resolutions 105 and 113 of the Batasang Pambansa, were adopted on November 21 and December 19, 1983, respectively.
From November 21, 1983, when Resolution No. 105 was adopted, up to January 27, 1984, there would be a spread of 67 days. On the other hand, from December 19, 1983,
when Resolution No. 113 was adopted, up to January 27, 1984, there would be a spread of 39 days.
3. ID.; ID.; ID.; NO COMPELLING REASON FOR A SEPARATE PLEBISCITE FOR THE APPROVAL OF QUESTIONED PROPOSALS. There is no compelling reason why so much of the
peoples money should be spent for holding a separate plebiscite when the purpose, by and large, of the second is merely to confirm an existing Constitutional power.
TEEHANKEE, J., dissenting:

chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; REQUIREMENT OF FAIR AND PROPER SUBMISSION. The doctrine of fair and proper
submission to the people of proposed constitutional amendments as enunciated by the Court in Tolentino v. Comelec (41 SCRA 702, 729) mandates that "in order that a plebiscite
for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time, but ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole." There must be fair submission and
intelligent consent or rejection. As the late Justice Conrado V. Sanchez stressed in his separate opinion in the earlier case of Gonzales v. Comelec, concurred in by the late Chief
Justice Fred Ruiz Castro and Justice Calixto Zaldivar, (21 SCRA 774, 817), the people must be "sufficiently informed of the amendments to be voted upon, to conscientiously
deliberate thereon, to express their will in a genuine manner."
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2. ID.; ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM; PEOPLE HAVE NOT BEEN GIVEN AMPLE TIME TO COMPREHEND THE
SIGNIFICANCE AND CONSEQUENCES THEREOF; RATIFICATION OF THE AMENDMENTS IN A PLEBISCITE SHOULD BE ENJOINED. There has not been ample time and
dissemination of information to comprehend the significance, implications and complications and consequences of the proposed amendments so as to comply with the fundamental
requirements of a fair and proper submission in order that the people may intelligently approve or reject the same. It is, therefore, but proper, in accordance with due process in
dealing with such a fundamental instrument as the Constitution which basically is a charter of limitation of the powers of government, that the precipitate submittal on January 27,
1984 of Questions Nos. 3 and 4 for the peoples ratification or rejection be enjoined. It is far better to avail of the maximum 90-day period after the approval of the proposed
amendments for their submittal in a plebiscite so that the people may at the proper time make their decision with the fullest possible comprehension. During this interval, the
separate and completely different second additional paragraphs proposed to be inserted in Article XIV, section 12 of the Constitution in conflicting Resolutions Nos. 105 and 113
(103) as pointed out on pages 2 and 5 hereof should be clarified. Otherwise, if the plebiscite is held on the 27th, the people would just have to go by the position taken by the
State at the hearing of January 24th that their remedy is to vote "No" against the proposed amendments which they do not understand (or are "unnecessary").
ABAD SANTOS, J., separate opinion:

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1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
SUBMISSION OF PROPOSALS IN A PLEBISCITE TO BE DEFERRED. Partial relief should be granted to petitioners as there is manifest basis for their claim that the citizenry has
not been adequately educated on the proposed amendments on grant of public lands and urban land reform. The petitioners cite the case of Tolentino v. Comelec and although the
instant case does not fall squarely under said decision, that case can serve as a guide in the resolution of this case. No question is raised with respect to Questions 1 and 2 which
have been thoroughly discussed in public and private fora for which reason there is no cause to delay their submission to the people. Preparations for the plebiscite on January 27,
1984, have reached the point of no return. questions 1 and 2 can and should be submitted to the people on plebiscite day but Questions 3 and 4 should be submitted at some
other appropriate date.

MELENCIO-HERRERA, J., separate opinion:

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1. CONSTITUTIONAL LAW; AMENDMENTS TO THE 1973 CONSTITUTION; PROCEDURE ADOPTED THEREFOR SUBJECT TO JUDICIAL INQUIRY. What may be noted in Article XVI is
that, besides the provision for the number of votes necessary for the Batasans proposal to amend or revise the Constitution, or to call a convention or propose to the people the
calling of a convention, the procedure for the revision or amendment of the Constitution has not been established. Hence, the procedure shall be as the Batasan shall adopt in the
exercise of sound judgment, in the understanding that when it does so, it acts only as a constituent assembly and not as a legislative body. If the Batasan, as a constituent
assembly, should provide for the revision or amendment of the Constitution in a manner not consonant with fundamentals of democracy and of good government, and its action is
challenged, this Court can assume jurisdiction to resolve the controversy.
2. ID.; ID.; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM; BATASANG PAMBANSA RESOLUTIONS PROPOSING THE SAME SUBJECT TO THE
PUBLICATION REQUIREMENT IN THE CIVIL CODE. Publication is a fundamental requirement for Resolution 105 and Resolution 113 and it has been sought to be done in BP 643,
a statutory law setting January 27, 1984 for the plebiscite. In the same way that the people are entitled to know what laws have been approved by the Batasan, through their
publication in the Official Gazette, the same requirement should be followed in respect of resolutions proposing constitutional amendments. Batas Pambansa Blg. 643, a statutory
law setting January 27, 1984 for the plebiscite, where the people can vote on the proposed constitutional amendments, it should be published in the Official Gazette pursuant to
the provisions of the Civil Code. The Code provides that "laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette, unless it
is otherwise provided." The important factor in the codal provision is the publication, and the date of effectivity of the law is of secondary importance. I do not subscribe to the
proposition that, when a statute provides for the date of its effectivity it no longer needs to be published. The provision should be interpreted such that when a statute provides for
the date of its effectivity, it shall not become effective after fifteen days of publication but it shall be effective after publication, on the date provided in the statute itself.
3. ID.; ID.; ID.; FAILURE OF EFFECTIVE PUBLICATION OF THE PROPOSED AMENDMENTS. A reading of the minimum standards set in Gonzalez v. COMELEC, 21 SCRA 774
(1967) will readily show that principles of good government require that, in a plebiscite for the revision of the Constitution, aside from other standards set, the ballots should set
out in full the proposed constitutional amendments so that there can be no question that when a citizen had voted "yes" or "no", he thoroughly knew what he had voted for or
against. Publication is for the general public. Individual notice should also be given to the voter and this can be done easily through the ballot that he will cast. Thus, in the case of
non-resident defendants, summons is published in a newspaper of general circulation but it is also required that summons be served to him individually through registered mail
sent to his last known address. In the ballots to be prepared for the January 27 plebiscite, as mentioned in BP 643, the citizen is not made aware of the exact amendments which
have been proposed by the Batasan. Said law merely makes mention of the amendments in substance. For example, anent Question No. 3, that the "grant" is limited to 24
hectares is not stated. Question No. 4 is not even indicated. Again, to my mind, there is failure of effective publication. It is not enough that the citizen is expected, or required, to
read the newspapers and posted copies in public places.
4. ID.; ID.; ID.; ID.; PLEBISCITE TO RATIFY AMENDMENTS TO BE HELD WITHIN 3 MONTHS FOLLOWING COMPLETION OF LAST PUBLICATION. If BP 643 is published in the
Official Gazette, and the ballots for the plebiscite should contain in full the proposed amendments to the Constitution, the plebiscite can be held on a stated date within 3 months
following the completion of the last publication. The number of days after completion of the last publication, whether it is ten days, one month, or three months, will be a question
which this Court will have no jurisdiction to resolve. It is very clear in Article XVI of the Constitution that the plebiscite shall be held in so many number of days after approval of
the amendment provided they do not exceed 3 months. The number of days is within the exclusive power of the Batasan to determine.
RELOVA, J., separate opinion:

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1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973 CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND URBAN LAND REFORM;
REQUIREMENT OF PROPER SUBMISSION NOT MET. It is safe to say that the people in the provinces are not, and by Friday (January 27) will not be sufficiently informed of the
meaning, nature and effects thereof. Undersigned takes judicial notice of the fact that they have not been afforded ample time to deliberate thereon conscientiously. As stated by
this Court in Tolentino v. Commission on Elections, 41 SCRA 702, 729, "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole." In the case at bar, it is sad to state that proposed Amendments 3 and 4 have not been fairly laid before the people for
their approval or rejection. In fact, said proposed Amendments have only been translated into Tagalog and Cebuano. There has been no translation thereof in the many other
dialects in which case it cannot be said that our people were afforded ample opportunity to understand and deliberate over them.

RESOLUTION

GUTIERREZ, JR., J.:

As provided for in Batas Pambansa Blg. 643, the Filipino electorate will go to the polls on January 27, 1984 to either approve or reject amendments to the Constitution proposed
by Resolution Nos. 104, 105, 110, 111, 112, and 113 of the Batasang Pambansa. The proposed amendments are embodied in four (4) separate questions to be answered by
simple YES or NO answers.
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Petitioners herein seek to enjoin the submission on January 27, 1984 of Question Nos. 3 and 4, which cover Resolution Nos. 105 and 113, to the people for ratification or rejection
on the ground that there has been no fair and proper submission following the doctrine laid down in Tolentino v. COMELEC (41 SCRA 707). The petitioners do not seek to prohibit
the holding of the plebiscite but only ask for more time for the people to study the meaning and implications of Resolution Nos. 105 and 113 until the nature and effect of the
proposals are fairly and properly submitted to the electorate.
The questions to be presented to the electorate at the plebiscite are:

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QUESTION NO. 3
Do you vote for the approval of amendments to the Constitution as proposed by the Batasang Pambansa in Resolution Numbered 105 which, in substance, provide that grant shall
be an additional mode for the acquisition of lands belonging to the public domain and that the agrarian reform program may include the grant or distribution of alienable lands of
the public domain to qualified tenants, farmers and other landless citizens.
QUESTION NO. 4
Do you vote for the approval of an amendment to the Constitution as proposed by the Batasang Pambansa in its Resolution Numbered 113, adding the following paragraph to
Section 12 of Article XIV of the Constitution:
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"The State shall moreover undertake an urban land reform and social housing program to provide deserving landless, homeless or inadequately sheltered low income resident
citizens reasonable opportunity to acquire land and decent housing consistent with Section 2 of Article IV of this Constitution."
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After a careful consideration of the issues raised in the petition for prohibition with preliminary injunction, the answer of the Solicitor General, and the arguments of the parties
during the hearing on January 24, 1984, the COURT Resolved to DISMISS the petition for lack of merit.
Section 2, Article XVI of the Constitution which states:

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SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three
months after the approval of such amendment or revision.
allows a period of not more than three months for the conduct of information campaigns. The sufficiency of the period during which amendments are submitted to the people
before they vote to either affirm or reject depends on the complexity and intricacy of the questions presented. The petitioners have failed to show that the addition of the one
word "grant" to Section 11, Article XIV to make the provision read:
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". . . nor may any citizen hold such (alienable) lands (of the public domain) by lease in excess of five hundred hectares or acquire by purchase, homestead, or GRANT in excess of
twenty four hectares. . ."
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or that the addition of two paragraphs including one on urban land reform to Section 12 of Article XIV to make it read:

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SEC. 12. The State shall formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil and achieving the goals enunciated
in this Constitution.
"SUCH PROGRAM MAY INCLUDE THE GRANT OR DISTRIBUTION OF ALIENABLE AND DISPOSABLE LANDS OF THE PUBLIC DOMAIN TO QUALIFIED TENANTS, FARMERS AND OTHER
LANDLESS CITIZENS IN AREAS WHICH THE PRESIDENT MAY BY OR PURSUANT TO LAW RESERVE FROM TIME TO TIME, NOT EXCEEDING THE LIMITATIONS FIXED IN
ACCORDANCE WITH THE IMMEDIATELY PRECEDING SECTION.
"THE STATE SHALL MOREOVER UNDERTAKE AN URBAN LAND REFORM AND SOCIAL HOUSING PROGRAM TO PROVIDE DESERVING LANDLESS, HOMELESS OR INADEQUATELY

SHELTERED LOW INCOME RESIDENT CITIZENS REASONABLE OPPORTUNITY TO ACQUIRE LAND AND DECENT HOUSING CONSISTENT WITH SECTION 2 OF ARTICLE IV OF THIS
CONSTITUTION."
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result in amendments of such nature that when the people go to the polls on January 27, 1984 they cannot arrive at an intelligent judgment on their acceptability or nonacceptability.
The present provisions of the Constitution are adequate to support any program of the government for the grant of pub]ic lands to qualified and deserving citizens or for the
implementation of urban land reform. Homesteads and free patents are "grants." We likewise see no constitutional infirmity to a law passed by the Batasang Pambansa, under the
present Constitution, that would grant alienable and disposable lands of the public domain not more than twenty four (24) hectares to any qualified tenant, farmer, and other
landless citizen in areas reserved by the President, acting pursuant to such law. Nor is it correct to say that after the agrarian land reform program now being implemented and
the agitation for a similar program in urban areas, the meaning of "urban land reform" is not yet understood. Questions No. 3 and No. 4, if ratified with an affirmative vote, will
serve at most a symbolic purpose. That much the Solicitor General conceded when he stated that the amendments under Question No. 3 serve to confirm existing practice
pursuant to long standing legislation. Any interpretation of "grant" will, therefore, carry the weight of applicable precedents which surround the associated words "homestead" and
"purchase" in the same clause of the Constitution. Similarly, any legislation laying down the rules on urban land reform will have to survive the constitutional tests of due process,
equal protection, police power, reasonable compensation, etc., now applied to agrarian land reform.
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More important, however, is that the necessity, expediency, and wisdom of the proposed amendments are beyond the power of the courts to adjudicate. Precisely, whether or not
"grant" of public land and "urban land reform" are unwise or improvident or whether or not the proposed amendments are unnecessary is a matter which only the people can
decide. The questions are presented for their determination. Assuming that a member or some members of this Court may find undesirable any additional mode of disposing of
public land or an urban land reform program, the remedy is to vote "NO" in the plebiscite but not to substitute his or their aversion to the proposed amendments by denying to
the millions of voters an opportunity to express their own likes or dislikes. The issue before us has nothing to do with the wisdom of the proposed amendments, their desirability,
or the danger of the power being abused. The issue is whether or not the voters are aware of the wisdom, the desirability, or the dangers of abuse. The petitioners have failed to
make out a case that the average voter does not know the meaning of "grant" of public land or of "urban land reform."
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As argued by the Solicitor-General:

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"Agrarian reform program", for example, has been in the consciousness of the Filipino people, to borrow a phrase from the petitioners, since 1972 with the passage of P.D. No.
27 (Oct. 21, 1972), emancipating our tenants and transferring to them ownership of the land they toil, without mentioning the fact that even prior to this, there were several laws
enacted attempting at land reform, notably Rep. Act No. 3844 (1964), ordaining the agricultural Land Reform Code and instituting land reforms in the country. More importantly
and more to the point, grant or land grant or distribution are subject matters that have been in the consciousness of the Filipino people since Commonwealth days, with the
enactment of Commonwealth Act No. 141, amending and compiling the previously scattered laws relative to the conservation and disposition of lands of the public domain.
x

"Similarly, the Filipino people have long been since familiar with the topics of urban land reform and social housing, beginning perhaps with the countrys first zoning laws and,
through all these years, with such laws as Rep. Act No. 267 (1948), authorizing cities to purchase or expropriate home sites and landed estates and subdivide them for resale at
cost, P.D. No. 814 (1975), providing a land tenure system for the Tondo Foreshore Dagat-Dagatan Urban Development Project, P.D. No. 933 (1976) creating the Human
Settlement Commission to bring about the optimum use of land, Rep. Act No. 1322 (1955) creating the Philippine Homesite and Housing Authority, and P.D. No. 1517,
proclaiming an urban land reform in the Philippines, to give but a few samples. . . ."
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Batas Pambansa Blg. 643 direct the COMELEC to publish the amendments. The respondents assure us that publication in all provinces and cities, except a few where there are no
local newspapers, has been affected and that Barangays all over the country have been enjoined to hold community gatherings for this purpose. The Integrated Bar of the
Philippines and various civic organizations have taken a strong stand for or against the last two proposed questions. Television and radio programs regularly broadcast the
amendments. The petitioners have failed to explain why, inspite of all the above, there is still fair and proper submission.
On the bid for additional time, the respondents point out that Resolution No. 105 will have been submitted for sixty seven (67) days to the people on Plebiscite Day while
Resolution No. 113 will have been submitted for forty two (42) days. The entire 1935 Constitution was submitted for ratification thirty six (36) days after approval of Act No. 4200.
The 1976 amendments which admittedly are much more complicated, difficult to understand, and novel and far-reaching in their implications were presented to the people for
only three (3) weeks. In Sanidad v. Commission on Elections (73 SCRA 333, 375), this was how this Court answered the issue of sufficient and proper submission:
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"Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion, Jr. and Martin are of the view that there is a sufficient and proper
submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however, that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court.
Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales v. COMELEC (21 SCRA 774). Associate Justices Teehankee, and
Muoz Palma hold that prescinding from the Presidents lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra
and Tolentino v. COMELEC (41 SCRA 702)."
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The undersigned ponente would like to add his personal views to this opinion of the Court. On January 27, 1984, the average voter who goes to the polling place and reads
Question No. 3 will know whether or not he or she is in favor of distributing alienable public lands through "grants" in addition to leases, homesteads and purchases. Upon reading
Question No. 4, the voter will know whether or not he or she is in favor of an urban land reform program. I personally find existing provisions of the Constitution more than
sufficient basis for legislation to achieve the objectives of the proposed amendments. To me, the second question on the Vice-President vis-a-vis the Executive Committee involves
more complex and difficult issues involving as it does a collegiate body as successor to the President. Yet, no one seems to question its fair and proper submission. However, my
personal feelings about the merits or demerits of the third and fourth questions are entirely distinct and separate from the issue of their fair and proper submission to the
electorate. Like any other voter, my remedy is to vote NO on any proposal I find unwise or ill-advised and YES on those I favor. I respect the views of those who may think
differently.
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WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
Fernando, C.J., Makasiar, Aquino, voting to dismiss for lack of a cause action; Concepcion, Jr., Guerrero, De Castro, Plana and Escolin, JJ., concur.
Separate Opinions
FERNANDO, C.J., concurring:

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While recognizing the force and eloquence with which the late Justice Sanchez in Gonzales and retired Justice Barredo in Tolentino expounded their views on the question of
proper submission, still for me and from the strict legal aspect as to the precise boundary which separates a question of wisdom, which belongs to the political branches, and
the question of power, which the court is duty bound to inquire into the opinion of Chief Justice Concepcion in Gonzales, with which I concurred then, in the one that should
prevail. There is, for me, this added reinforcement to the conclusion I have reached. Resolution No. 105 deals with the grant or distribution of alienable and disposable lands of the
public domain to qualified tenants, farmers and other landless citizens. Resolution No. 113 deals with urban land reform and social housing program. They are, then, immediately
recognizable as logical and necessary extensions of the fundamental principle of social justice enshrined as far back as the 1935 Constitution and expanded in the present
Constitution. Our adoption of such principle antedated the Universal Declaration of Human Rights by thirteen years. To my mind, therefore, no question need arise under the
standard of proper submission.
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PLANA, J., concurring:

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Petitioners ask that the plebiscite set on January 27, 1984 on Questions 3 and 4 be deferred, leaving that on Questions 1 and 2 to proceed as scheduled. Grant of the petition will
therefore have the effect of having two plebiscites.
Under the existing Constitution, plenary legislative power is vested in the Batasang Pambansa, including the power to enact laws authorizing the conveyance or grant of alienable
public lands to deserving citizens under prescribed terms and conditions. Indeed there are extant so many laws providing for such disposition of public land.
Section 11 of Article XIV of the Constitution clearly recognizes the existence of the power and, on that assumption, merely restricts the same by providing that no citizen may
"acquire by purchase or homestead (alienable lands of the public domain) in excess of 24 hectares."
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With respect to social justice measures which include urban land reform and social housing program, the present Constitution provides
"The State shall promote social justice to insure the dignity, welfare, and security of all the people. Towards this end, the State shall regulate the acquisition, ownership, use,
enjoyment, and disposition of private property, and equitably diffuse property ownership and profits." (Article II, Section 6.)
"The State shall formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil and achieving the goals enunciated in this
Constitution." (Article XIV, Section 12.)

Reflecting on the foregoing Constitutional provisions, it seems evident that what is sought to be adopted under Questions 3 and 4 of the forthcoming plebiscite based on
Resolutions Nos. 105 and 113 of the Batasang Pambansa, is already authorized under the existing Constitution.
If the foregoing be correct and the proposed Constitutional amendments under Questions 3 and 4 would just be confirmatory of a legislative power already existing, it stands to
reason that a protracted discussion of the proposed Constitutional amendments under Questions 3 and 4 is neither necessary nor constitutionally required.
At any rate, I find that there is compliance with Article XVI, Section 2 of the Constitution, under which a proposed Constitutional amendment shall be submitted to a plebiscite
"which shall be held not later than 3 months after the approval of such amendment." The proposed amendments under Questions 3 and 4, as embodied in Resolutions 105 and
113 of the Batasang Pambansa, were adopted on November 21 and December 19, 1983, respectively. From November 21, 1983, when Resolution No. 105 was adopted, up to
January 27, 1984, there would be a spread of 67 days. On the other hand, from December 19, 1983, when Resolution No. 113 was adopted, up to January 27, 1984, there would
be a spread of 39 days.
Finally, apart from legal considerations, I do not see any compelling reason why so much of the peoples money should be spent for holding a separate plebiscite when the
purpose, by and large, of the second is merely to confirm an existing Constitutional power.
I therefore vote to deny the petition.
TEEHANKEE, J., dissenting:

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I vote for the partial granting of the petition and for the elimination of Questions Nos. 3 and 4 at the Plebiscite set on January 27, 1984.
The Comelec has formulated four plebiscite questions for approval or rejection by the people of the latest proposed amendments to the Constitution, as follows:

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1. Election of the members of the Batasang Pambansa (National Assembly) by provinces and cities and in the case of Metropolitan Manila, by districts, instead of by regions;
2. Restoration of the office of Vice-President who shall succeed the President in case of the latters death or incapacity, instead of the 15-member Executive Committee designated
by him;
3. The insertion of the word "grant" in Article XIV, section 11 of the Constitution so as to provide for granting as an additional mode (besides purchase and homestead as presently
provided) for the disposition (although the word "acquisition" is used in the question) of lands belonging to the public domain; and
4. The insertion of a second paragraph in Article XIV, section 12 of the Constitution so that the same would be amended to read, as follows:

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"SEC.12. The State shall formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil and achieving the goals enunciated
in this Constitution.
"Such program may include the grant or distribution of alienable and disposable lands of the public domain to qualified tenants, farmers and other landless citizens in areas which
the President may by or pursuant to law reserve from time to time, not exceeding the limitations fixed in accordance with the immediately preceding Section."
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(The underlined paragraph constitutes the proposed amendment by insertion, under Resolution No. 105 of the Batasang Pambansa adopted on November 21, 1983, entitled
"Resolution Proposing Amendments to Sections 11 and 12 of Article XIV of the Philippine Constitution, as Amended." 1) Under Resolution No. 113 of the Batasang Pambansa
adopted on December 19, 1983, entitled "Resolution Proposing to Add a Last Paragraph to Section 12 of Article XIV of the Philippine Constitution in order to Provide for Urban
Land Reform and Social Housing Program," the proposed additional second paragraph carries an entirely different wording, as follows:
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"The State shall moreover undertake an urban land reform and social housing program to provide deserving landless, homeless or inadequately sheltered low income resident
citizens reasonable opportunity to acquire land and decent housing consistent with Section 2 of Article IV of this Constitution."
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(This additional second paragraph providing for the inclusion of an urban land reform and social housing program appears to be the one submitted for the peoples approval or
rejection in accordance with available literature and leaflets issued by the Comelec.)
The doctrine of fair and proper submission to the people of proposed constitutional amendments as enunciated by the Court in Tolentino v. Comelec (41 SCRA 702, 729) mandates
that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time, but ample basis for
an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole." There
must be fair submission and intelligent consent or rejection. 2
As the late Justice Conrado V. Sanchez stressed in his separate opinion in the earlier case of Gonzales v. Comelec, concurred in by the late Chief Justice Fred Ruiz Castro and
Justice Calixto Zaldivar, (21 SCRA 774, 817), the people must be "sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express
their will in a genuine manner."
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Questions Nos. 1 and 2 are not placed in issue by petitioners. As already indicated, they ask for the approval or rejection of the proposed amendments for restoration of the old
office of Vice President of the Republic and the old system of electing the members of the National Assembly by provinces or by cities instead of by regions. These two proposed
constitutional amendments apparently bear the endorsement of the Government and the party in power, the KBL, as well as by the opposition in general who have long clamored
for such restoration. Hence, there appears to be no question as to their being fully understood by the people in the same manner that they readily understood and approved the
first amendment to the 1935 Constitution of giving women the right to vote.
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Questions Nos. 3 and 4, however, do present a problem. They appear to be simple yet complex. Petitioners cite the separate joint concurring opinion of Justice J.B.L. Reyes,
Zaldivar, Ruiz Castro and Makasiar in the Tolentino case which stopped the scheduled plebiscite on November 8, 1971 to allow 18-year olds to vote, wherein the pungent remark
was made that while the proposed amendment "would seem to be uncomplicated and innocuous. But it is one of lifes verities that things which appear to be simple may turn out
not to be so simple after all."
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To start with, several members of this very Court who have turned down the petition have expressed the view that the amendments proposed by Questions Nos. 3 and 4 are
"unnecessary," while others like Justice Abad Santos have expressed their inability at this late date to comprehend the nature and significance of the proposed amendments and
their implications and complexities.
The Solicitor General himself at the hearing held on January 24, 1984 stated that in his personal (not official) perception, Question No. 3 adding the single word "grant" as a mode
of additional disposition of public lands was "unnecessary", because "this has been done already. There are so many lots which had been donated by the government granted for
that building and their constitutionality has never been questioned." And as to Question No. 4 which would insert a second additional paragraph to the present Article XIV, section
12 of the Constitution to provide that the State shall undertake an urban land reform and social housing program, the Solicitor General stated at the same hearing that its utility
would be to "eradicate completely" any doubts about the Governments expropriation program for the purpose.
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The Solicitor General in his answer to the petition further submits that the proposed amendments are "relatively simple and easy to comprehend", as follows:

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"It is to be noted also that Resolutions 105 and 103 3 are relatively simple and easy to comprehend, even as compared to the other four amendments proposed for ratification at
the same time and the submission of which are not questioned by the petitioners. Resolution No. 105 which proposes to amend Section 11, Art. XIV merely adds the word grant
and adds additional paragraph in Section 12 of the same Article. The additional paragraph is really nothing new for among the governments policies, it has always been the policy
to make lands of the public domain available to tenants, farmers and other landless citizens (see Sec. 13, Art XIV, Constitution). And as to Resolution No. 103 which adopts as a
State responsibility urban reform and housing program the policy is also not new and housing is, in point of fact, already among the declared objectives of government (Section
7, Article XI of the Constitution)." (Emphasis supplied)
Professor and former Dean Froilan M. Bacungan of the U.P. College of Law shares the same view that the proposed amendments submitted with Questions Nos. 3 and 4 are
unnecessary, as follows:
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"The proposed amendment to the agrarian reform program and urban land reform and social housing program may be considered by constitutional law experts as unnecessary.
"The 1973 Constitution now has, in addition to its specific provision on agrarian reform, a very categorical provision on social justice where the State is mandated to promote
social justice to ensure the dignity, welfare, and security of all the people and where it continues to say: Towards this end, the State shall regulate the acquisition, ownership,
use, enjoyment and disposition of private property, and equitably diffuse property ownership and profits.
"It should also be noted that the Supreme Court, interpreting constitutional law concepts such as police power and due process of law, has given very much greater emphasis on
the former and very much less emphasis on the latter, when it comes to the interpretation of laws implementing economic, social and cultural rights.
"But as emphasized by its proponents, these proposed amendments on agrarian and urban land reform are most useful for they reinforce the constitutional basis and mandate for
government activities in these fields."
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The Philippines Daily Express editorial of January 25, 1984 presents the following justifications for urging a "Yes" vote to the questioned amendments, as follows:

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"As for the proposal to empower the government to grant public lands to citizens, we believe that it is a move to enhance the development and productivity of public lands which
have been idle for a long time now. Many of our countrymen are still landless, and if they are enterprising and industrious enough to convert the great wilderness into a productive

land, they should be given all the chances to do so. The fear of some quarters that the proposal will only spawn graft and corruption emanates from negative thinking and
suspicious minds.
"On the fourth question about urban land reform, it must be noted that the proposal is nothing but a statement of national policy in the basic charter of the land. There is already
an existing law on urban land reform and it does not authorize the grabbing of urban lands from private owners for distribution to the landless. No government in its right senses
would do that.
The premises of the newspaper would seem to be contradicted by the figures given by Minister of Agrarian Reform Conrado Estrella in a newspaper of the same date to the effect
that only 3.26 million hectares of the Philippines total land area remain disposable, as follows:
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"Estrella said the country has a total land area of 30 million hectares. Of this, 13.371 million hectares are disposable, 11.07 million are timberland, and 5.55 million unclassified.
"Of the 13.37 million hectares alienable lands, 2.75 are judicially registered, 7.35 million covered by land applications, and 3.26 million remain disposable." 4
On the other hand, all the bar associations, including the compulsory Integrated Bar of the Philippines and the voluntary bar associations, have expressed grave doubts as to the
questioned amendments. To cite a few observations, Atty. Raul Roco, IBP President, "said the granting of such properties could be a cause of corruption among public officials. He
compared the proposed amendment to the Spanish era when vast lands were acquired by government supporters through royal grants." 5
Philippine Bar Association President Enrique P. Syquia "said the Constitution itself embodies the policy of conserving the patrimony of the nation for all Filipinos, including those yet
unborn. But Syquia said the amendment would allow these lands, including residential, commercial, industrial, educational, charitable, and resettlement lands, to be given away
freely to any Filipino chosen at pleasure." 6
The Philippine Lawyers Association stated that "the proposed amendment, which will allow these lands, including residential, commercial, industrial, and other classes of land to
be given away fully and freely on any Filipino chosen at pleasure, goes against the very preamble of the Constitution. These land grants may very well be the source of patronage,
graft, and corruption, it said." 7
All these go but to show that there has not been ample time and dissemination of information to comprehend the significance, implications and complications and consequences of
the proposed amendments so as to comply with the fundamental requirements of a fair and proper submission in order that the people may intelligently approve or reject the
same. It is, therefore, but proper, in accordance with due process in dealing with such a fundamental instrument as the Constitution which basically is a charter of limitation of the
powers of government, that the precipitate submittal on January 27, 1984 of Questions Nos. 3 and 4 for the peoples ratification or rejection be enjoined. It is far better to avail of
the maximum 90-day period after the approval of the proposed amendments for their submittal in a plebiscite so that the people may at the proper time make their decision with
the fullest possible comprehension. During this interval, the separate and completely different second additional paragraphs proposed to be inserted in Article XIV, section 12 of
the Constitution in conflicting Resolutions Nos. 105 and 113 (103) as pointed out on pages 2 and 5 hereof should be clarified. Otherwise, if the plebiscite is held on the 27th, the
people would just have to go by the position taken by the State at the hearing of January 24th that their remedy is to vote "No" against the proposed amendments which they do
not understand (or are "unnecessary").
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ABAD SANTOS, J.:

Once again the Filipino people are asked to approve or reject amendments to the 1973 Constitution.
The Batasan Pambansa, convened as a constituent assembly, approved six (6) resolutions, namely:

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1. Resolution No. 104 proposing to amend Sections Two and Four, Article VIII of the Constitution by providing that Members of the Batasang Pambansa shall be apportioned
among the provinces, cities and Metropolitan Manila or its districts.
2. Resolution No. 105 proposing amendments to Section 11 and 12 of Article XIV of the Philippine Constitution, as amended.
3. Resolution No. 110 proposing amendments to the Constitution to establish a different mode of presidential succession by creating the Office of Vice-President and abolishing the
Executive Committee.
4. Resolution No. 111 proposing to amend Section 1 of Article IX of the Constitution by providing that at least a majority of the Members of the Cabinet who are heads of
ministries shall come from the provincial, city or district representatives of the Batasang Pambansa.
5. Resolution No. 112 providing for an Ordinance to be appended to the Constitution apportioning the Members of the Batasang Pambansa to the different provinces with their
component cities, highly urbanized cities, and the districts of Metropolitan Manila.
6. Resolution No. 113 proposing to add a last paragraph to Section 12 of Article XIV of the Philippine Constitution in order to provide for urban land reform and social housing
program.
In the plebiscite scheduled to be held on January 27, 1984
Question No. 1 deals with Resolutions Numbered 104, 111 and 112;
Question No. 2 deals with Resolution Numbered 110;
Question No. 3 deals with Resolution Numbered 105; and
Question No. 4 deals with Resolution Numbered 113.
The petition in this case is confined to questions numbered 3 and 4. The petition recites:

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"5. Petitioners respectfully submit that of the six (6) proposed amendments, Proposal No. 5 (Resolution Nos. 105 adopted by the Batasang Pambansa on November 2, 1983),
which would empower the President of the Philippines to grant alienable lands of the public domain to individuals and landless citizens, and Proposal No. 6 (Resolution No. 113,
adopted by the Batasang Pambansa on December 19, 1983), which provides for urban land reform and social housing program, have not yet been properly and fairly submitted to
the understanding of the Filipino people.
"6. These two mentioned proposals bear far-reaching implications, and are bound to affect existing Constitutional and statutory provisions as well as Supreme Court holdings on
acquisition and/or disposition of public lands and on property rights particularly in urban areas, that said proposals ought first to be thoroughly explained to the people before they
are made to vote for their approval or disapproval. Such is the import of the doctrine of fair and proper submission (Tolentino v. COMELEC, 41 SCRA 707 [1971]).
"7. Petitioners are not aware of any campaign by the COMELEC, nor by any other governmental agency, endeavoring to register in the consciousness of the Filipino people the
rationale behind Resolution Nos. 105 and 113 and their implications.
"8. It appears to the petitioners, therefore, who stand to be adversely or favorably affected both as citizens and as taxpayers, together with the rest of the Filipino electorates
to be a deception if the Filipino people are hurried to approve or disapprove the abovestated proposed amendments to the constitution . . ."
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The petitioners pray that this Court stop the "respondents from holding the plebiscite on 27 January 1984 until the matters complained of in the body of this petition are properly
and fairly submitted for the understanding of the electorate."
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I vote to grant partial relief to the petitioners.

There is manifest basis for the claim of the petitioners that the citizenry has not been adequately educated on the proposed amendments on grant of public lands and urban land
reform. At this late date January 24, 1984 I am asked questions about the two proposals and although I try to do the best I can, I am not too sure about my answers.
The petitioners cite the case of Tolentino v. COMELEC. In that case the following question was posed for resolution:

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"Is it within the powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the proposed amendment reducing to
eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the Conventions Organic Resolution No. 1 in the manner and form
provided for in said resolution and the subsequent implementing acts and resolution of the Convention?" (At p. 721.)
This Court answered the question in the negative.
To be sure, the instant case does not fall squarely under the Tolentino decision but as the petitioners assert, that case can serve as a guide in the resolution of this case. In the
eloquent and ringing words of Mr. Justice Antonio P. Barredo:
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"We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only

sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to
form a harmonious whole." (At p. 729.)
The petitioners do not raise any question with respect to Questions 1 and 2 and indeed I can vouch that those questions have been thoroughly discussed in public and private fora
for which reason there is no cause to delay their submission to the people. Preparations for the plebiscite on January 27, 1984, have reached the point of no return. Questions 1
and 2 can and should be submitted to the people on plebiscite day but Questions 3 and 4 should be submitted at some other appropriate date.
MELENCIO-HERRERA, J.:

In this case, petitioners have asked that this Court promulgate a judgment "stopping . . . the plebiscite on 27 January 1984" until the constitutional amendments proposed in
Batasan Resolutions Nos. 105 (Resn. 105) and 113 (Resn. 113) "are properly and fairly submitted for the understanding of the electorate." I vote for the grant of that plea.
Article XVI of the Constitution provides:

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"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the Batasang Pambansa upon a vote of three-fourths of all its Members, or by a
constitutional convention.
(2) The Batasang Pambansa 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.
SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three
months after the approval of such amendment or revision."
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What may be noted in Article XVI is that, besides the provision for the number of votes necessary for the Batasans proposal to amend or revise the Constitution, or to call a
convention or propose to the people the calling of a convention, the procedure for the revision or amendment of the Constitution has not been established. Hence, the procedure
shall be as the Batasan shall adopt in the exercise of sound judgment, in the understanding that when it does so, it acts only as a constituent assembly and not as a legislative
body. If the Batasan, as a constituent assembly, should provide for the revision or amendment of the Constitution in a manner not consonant with fundamentals of democracy and
of good government, and its action is challenged, this Court can assume jurisdiction to resolve the controversy.
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What is involved herein are Resn. No. 105 adopted on November 21, 1983, Resn. No. 113 adopted on December 19, 1983, and BP Bilang 643, enacted on December 22, 1983.
Resn. 105 has proposed that Sections 11 and 12, Article XIV, of the Constitution be amended to read as follows:

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"SEC. 11. The Batasang Pambansa, taking into account conservation, ecological, and developmental requirements of the natural resources, shall determine by law the size of lands
of the public domain which may be developed, held or acquired by, or leased to, any qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by lease not to exceed one thousand hectares in area; nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in excess of twenty-four hectares. No private corporation or association may hold by lease,
concession; license, or permit, timber or forest lands and other timber of forest resources in excess of one hundred thousand hectares; however, such area may be increased by
the Batasang Pambansa upon recommendation of the National Economic and Development Authority."
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"SEC. 12. The State shall formulate and implement an agrarian reform program aimed at emancipating the tenant from the bondage of the soil and achieving the goals enunciated
in this Constitution.
"Such program may include the grant or distribution of alienable and disposable lands of the public domain to qualified tenants, farmers and other landless citizens in areas which
the President may by or pursuant to law reserve from time to time, not exceeding the limitations fixed in accordance with the immediately preceding Section."
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Resn. 113 has proposed that the following paragraph be added to Section 12, Article XIV, of the Constitution:

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"The State shall moreover undertake an urban land reform and social housing program to provide deserving landless, homeless or inadequately sheltered low income resident
citizens reasonable opportunity to acquire land and decent housing consistent with Section 2 of Article IV of this Constitution."
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BP 643, a statute, provides for the holding of the plebiscite on January 27, 1984 for submission to the vote of the citizenry the adoption or rejection of the amendments proposed
in Resn. 105 and Resn. 113.
That Resn. 105 and Resn. 113 have been approved by three-fourth (3/4) vote of all Batasan members is not in question. Publication, in my opinion, is a fundamental requirement
for those two resolutions, and it has been sought to be done in BP 643. In the same way that the people are entitled to know what laws have been approved by the Batasan,
through their publication in the Official Gazette, the same requirement should be followed in respect of resolutions proposing constitutional amendments.
Coming now to BP 643, a statutory law setting January 27, 1984 for the plebiscite, where the people can vote on the proposed constitutional amendments, it should be published
in the Official Gazette pursuant to the provisions of the Civil Code. The Code provides that "laws shall take effect after fifteen (15) days following the completion of their
publication in the Official Gazette, unless it is otherwise provided." The important factor in the codal provision is the publication, and the date of effectivity of the law is of
secondary importance. I do not subscribe to the proposition that, when a statute provides for the date of its effectivity it no longer needs to be published. The provision should be
interpreted such that when a statute provides for the date of its effectivity, it shall not become effective after fifteen days of publication but it shall be effective after publication,
on the date provided in the statute itself. As stated in People v. Que Po Lay, 94 Phil. 640, 642, "the general principle and theory that before the public is bound by its contents,
especially its penal provisions, a law, regulation, circular must first be published and the people officially and especially informed of said contents and its penalties." There is no
"penalty" for an individual in BP 643 but the entire statute, if not publicized, can penalize the great majority of the people.
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A reading of the minimum standards set in Gonzalez v. COMELEC, 21 SCRA 774 (1967) will readily show that principles of good government require that, in a plebiscite for the
revision of the Constitution, aside from other standards set, the ballots should set out in full the proposed constitutional amendments so that there can be no question that when a
citizen had voted "yes" or "no", he thoroughly knew what he had voted for or against. Publication is for the general public. Individual notice should also be given to the voter and
this can be done easily through the ballot that he will cast. Thus, in the case of non-resident defendants, summons is published in a newspaper of general circulation but it is also
required that summons be served to him individually through registered mail sent to his last known address. In the ballots to be prepared for the January 27 plebiscite, as
mentioned in BP 643, the citizen is not made aware of the exact amendments which have been proposed by the Batasan. Said law merely makes mention of the amendments in
substance. For example, anent Question No. 3, that the "grant" is limited to 24 hectares is not stated. Question No. 4 is not even indicated. Again, to my mind, there is failure of
effective publication. It is not enough that the citizen is expected, or required, to read the newspapers and posted copies in public places.
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If BP 643 is published in the Official Gazette, and the ballots for the plebiscite should contain in full the proposed amendments to the Constitution, the plebiscite can be held on a
stated date within 3 months following the completion of the last publication. The number of days after completion of the last publication, whether it is ten days, one month, or
three months, will be a question which this Court will have no jurisdiction to resolve. It is very clear in Article XVI of the Constitution that the plebiscite shall be held in so many
number of days after approval of the amendment provided they do not exceed 3 months. The number of days is within the exclusive power of the Batasan to determine.
RELOVA, J.:

Petition for prohibition to restrain respondents Commission on Elections and Minister of the Budget from holding the plebiscite on 27 January 1984. It is argued that the proposed
amendments: Resolution No. 105 which would empower the President of the Philippines to grant alienable lands of the public domain to individuals and landless citizens, and
Resolution No. 113 which provides for urban land reform and social housing program, have not been properly and fairly submitted to the understanding of the Filipino people.
Paragraph 6 of the petition states that
"These two mentioned proposals bear far-reaching implications, and are bound to affect existing Constitutional and statutory provisions as well as Supreme Court holdings on
acquisition and/or disposition of public lands and on property rights particularly in urban areas, that said proposals ought first to be thoroughly explained to the people before they
are made to vote for their approval or disapproval."
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Respondents deny the truth of the allegations of the petition with respect to the issue of proper submission to the electorate and claims "that Resolution No. 105 was approved on
November 21, 1983 and Resolution No. 113 was approved on December 19, 1983 or 67 and 42 days, respectively, before the plebiscite scheduled on January 27, 1984. Assuredly,
these periods afford adequate and sufficient time for debate. In fact, the amendments are now being discussed all over the country, in barangay meetings, in civic organization
discussions, as well as in radio and television. The Integrated Bar of the Philippines has been airing its views on the amendments." (pp. 23-24, Rollo)
On the questioned proposed amendments, it is safe to say that the people in the provinces are not, and by Friday (January 27) will not be sufficiently informed of the meaning,
nature and effects thereof. Undersigned takes judicial notice of the fact that they have not been afforded ample time to deliberate thereon conscientiously. As stated by this Court
in Tolentino v. Commission on Elections, 41 SCRA 702, 729, "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide
the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution
with which it has to form a harmonious whole." In the case at bar, it is sad to state that proposed Amendments 3 & 4 have not been fairly laid before the people for their approval
or rejection. In fact, said proposed Amendments have only been translated into Tagalog and Cebuano. There has been no translation thereof in the many other dialects in which
case it cannot be said that our people were afforded ample opportunity to understand and deliberate over them. Mr. Justice Conrado V. Sanchez, in Gonzales v. Commission on
Elections, 21 SCRA 774, expressed his view on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed

constitutional amendment. He said:

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". . . amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly insidiuous influences. We believe the word submitted can only mean that the government, within its maximum
capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By
this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached then there is no submission within the meaning of the word as
intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated,
one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. . . ."
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Undersigned is of the view that in the instant case the people have not been properly informed of proposed Amendments 3 & 4 to the Constitution and, accordingly, its submission
to them should be postponed. Respondents are hereby enjoined from submitting them to the people on Friday, January 27, 1984. However, the plebiscite should proceed with
respect to proposed Amendments 1 & 2.
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January 24, 1984.

Endnotes:

EN BANC

[G.R. No. 127325. March 19, 1997]

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

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

[2]

[3]

[4]

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections
(hereafter, COMELEC) a Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative
(hereafter, Delfin Petition) wherein Delfin asked the COMELEC for an order
[5]

1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for Initiative on the 1987 Constitution, in newspapers of general and
local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the
time and on the dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for Peoples Initiative, 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.
[6]

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, Section 4 of
Article VII, and Section 8 of Article X of the Constitution. Attached to the petition is a copy of a Petition for Initiative on the 1987
Constitution embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions
concerning term limits, and with the following proposition:
[7]

[8]

[9]

[10]

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 (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.
[11]

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the Peoples Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers; and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP),
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN).
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.
[12]

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their memoranda and/or
oppositions/memoranda within five days.
[13]

On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel
Ongpin -- filed this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to amend the Constitution can only be implemented by law to be passed by Congress. No
such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitutional Amendments by Peoples
Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered
before the Senate in 1994: There is not a single word in that law which can be considered as implementing [the provision on constitutional
initiative]. Such implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws
and not constitutional amendments because the latter take effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress
is authorized by the Constitution to pass the implementing law.
(5)The peoples initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes
a revision and is, therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor any other government department,
agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which
would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of
procedure and calling for the admission of a taxpayers and legislators suit. Besides, there is no other plain, speedy, and
adequate remedy in the ordinary course of law.
[14]

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of
ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen
Pedrosa from conducting a signature drive for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment on the petition. They argue therein that:
[15]

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF THE COMELEC GRANTS
THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC
IS DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION UPHELD BY THE HONORABLE

COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290
IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY
THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH
NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE
COMELEC THE POWER TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A 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 which starts off with an assertion that
the instant petition is a knee-jerk reaction to a draft Petition for Initiative on the 1987 Constitution ... which is not formally filed
yet. What he filed on 6 December 1996 was an Initiatory Pleading or Initiatory Petition, which was legally necessary to start the
signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
[16]

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution.
The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the
entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners estimate of P180 million as unreliable, for
only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for the exercise of
the sovereign power of the people.
In the Comment for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General
contends that:
[17]

(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system
of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rulemaking power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the
latters Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment
he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and

allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January
1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood
Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention,
which was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J., it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. A revision cannot be done
by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited toamendments.
[18]

[19]

(2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the
philosophy of governance, to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to
break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good; hence, to remove the term limits is to negate and nullify the noble vision of
the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a
premium for good performance.
[20]

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the peoples initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the
COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of funds for such peoples initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without
authority to legislate the procedure for a peoples initiative under Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. He avers that R.A. No. 6735 is the enabling law
that implements the peoples right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and
House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that
the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735,
and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing
of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a
constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELECs role in an initiative on the Constitution is limited to the determination of the sufficiency
of the initiative petition and the call and supervision of a plebiscite, if warranted.
[21]

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following
arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention.

[22]

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and
by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK
and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated
in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft Petition for Initiative on the 1987
Constitution, would constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time
and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing
signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty
days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of
action and that the Commissions failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House
Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of
Senator Roco, DIK and MABINI, and IBP. The parties thereafter filed, in due time, their separate memoranda.
[23]

[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. The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached
Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELECs failure to
act on Rocos motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under
Section 2 of Rule 65 of the Rules of Court, which provides:
[26]

[27]

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 partys standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the
importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental
importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, Joaquin Bernas, a member of the 1986 Constitutional Commission, stated:
[29]

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). That section reads as follows:
[30]

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article ____ Section ____ of the Constitution.

[31]

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

[32]

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this,
this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget appropriations which would
have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is
right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be
after five years. It is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how this is to be carried out - is it possible that, in effect, what will be
presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of
the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as
written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and
that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would
specifically cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately cover all the conceivable situations.
[33]

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND -- not to
REVISE -- the Constitution; thus:
MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision.
[34]

xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment
and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.

[35]

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the
Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:
xxx

MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the
sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in
substitution of the proposed Section 2 will now read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed
Committee Report No. 7, we accept the proposed amendment.
[36]

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the
initiative...?
MR. DAVIDE. It can.
xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature from asking another body to set the proposition in
proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to
legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?
MR. DAVIDE. Yes.

[37]

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to -- NOT
REVISION of -- the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."
[38]

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more
rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention
would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly
is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary
legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the
Article on the Legislative or on the National Assembly on plenary sessions.
[39]

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

[40]

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 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.
[41]

[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 shall provide for the implementation of the exercise of this right. This amendment was approved and is the text of
the present second paragraph of Section 2.
[43]

[44]

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 shall by law provide for the implementation of the exercise of this right.
[45]

with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of
the right. The rules means the details on how [the right] is to be carried out.
[46]

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz.,
(a) House Bill No. 497, 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, 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 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 and by the House of Representatives. This approved bill
is now R.A. No. 6735.
[47]

[48]

[49]

[50]

[51]

But is R.A. No. 6735 a full compliance with the power and duty of Congress to provide for the implementation of the exercise
of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and referendum to directly propose, enact, approve
or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane nor relevant to said
section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That
section is silent as toamendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to
proposals to AMEND. The people are not accorded the power to directly propose, enact, approve, or reject, in whole or in part,
the Constitution through the system of initiative. They can only do so with respect to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17,
which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases propose and
enact, approve or reject and in whole or in part.
[52]

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed,
as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every
page of the petition. (Underscoring supplied).
The use of the clause proposed laws sought to be enacted, approved or rejected, amended or repealed only strengthens the
conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735
to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly
propose amendments to the Constitution is far more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on
National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum)
and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character.It is national initiative, if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is local initiative if what is proposed to be adopted or enacted is a law,
ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of
the Act, which we quote for emphasis and clearer understanding:
SEC. 3. Definition of terms -xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law,
resolution or ordinance. (Underscoring supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the
Constitution.
[53]

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on
National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective
fifteen (15) days after certification and proclamation of the Commission. (Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments;
thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined by law, may file a petition for indirect initiative with the
House of Representatives, and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the
petition for initiative or referendum, which could be petitions for both national and local initiative and referendum.
[54]

Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local Initiative and Referendum is misplaced,
since the provision therein applies to both national and local initiative and referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of
initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do
so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for
the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.

[55]

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

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required
number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be
within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.

[56]

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word Constitution in Section 2; (b) defines initiative on the Constitution and includes it in the
enumeration of the three systems of initiative in Section 3; (c) speaks of plebiscite as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. R.A. No. 6735
thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip
service.
[57]

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal
and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be necessary to carry out
the purposes of [the] Act.
[58]

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non
delegari potest. The recognized exceptions to the rule are as follows:
[59]

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.

[60]

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is
a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a
showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard -- the limits of which are sufficiently determinate
and determinable -- to which the delegate must conform in the performance of his functions. A sufficient standard is one which
defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected.
[61]

[62]

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right
of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power

under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the
Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the completeness and the sufficient
standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the
Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required
number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to
obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory
pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the petition; (2) to issue through its Election Records
and Statistics Office a certificate on the total number of registered voters in each legislative district; (3) to assist, through its
election registrars, in the establishment of signature stations; 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.
[63]

[64]

[65]

[66]

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be
entertained or given cognizance of by the COMELEC. The latter knew that the petition does not fall under any of the actions or
proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the
petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing
more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12
December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective national
and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted
to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations
on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections,
but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

Today is Tuesday, August 18, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45459

March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court
of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the
Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the
Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq.,
member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's
attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as
follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were
actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to
be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits
that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to
restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement
are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether
excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board,
or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in
the present case, which act because alleged to be violative of the Constitution is a fortiorari "without or in excess of . . .
jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or
tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority.
Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the
strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez
[1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling
postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the
respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which
provides as follows:
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit,
or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such

priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of
adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the
history of mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the
estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of
separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris
between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the
constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we
enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom,
with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is
religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its
influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general
welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to
religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto;
Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other
religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec.
13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional
mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of
Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (see arts.
132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of
Act No. 4052 of the Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME
AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR
THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by
the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the
Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to
dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed
advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps
with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of
Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be
deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been
approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's
memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed
for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to
determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation,
use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case,
however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and
Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears
from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose
in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its
people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936; p.
3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing
a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an
inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic
Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the issuance and
sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the
opinion that the Government should not be embarassed in its activities simply because of incidental results, more or less
religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The
main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts,

175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of
church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the
scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is
done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending
circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052
grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume
that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the
petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a
gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional
inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

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