1

B. Proposal The main facts are not disputed. On March 16, 1967, the Senate and the House of
a) By constitutional provision Representatives passed the following resolutions:

G.R. No. L-28196 November 9, 1967 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to increase the membership of the
RAMON A. GONZALES, petitioner, House of Representatives from a maximum of 120, as provided in the present
vs. Constitution, to a maximum of 180, to be apportioned among the several provinces as
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR nearly as may be according to the number of their respective inhabitants, although each
GENERAL, respondents. province shall have, at least, one (1) member;

G.R. No. L-28224 November 9, 1967 2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the
convention to be composed of two (2) elective delegates from each representative district,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, to be "elected in the general elections to be held on the second Tuesday of November,
vs. 1971;" and
COMMISSION ON ELECTIONS, respondent.
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be
No. 28196: amended so as to authorize Senators and members of the House of Representatives to
Ramon A. Gonzales for and in his own behalf as petitioner. become delegates to the aforementioned constitutional convention, without forfeiting
Juan T. David as amicus curiae their respective seats in Congress.
Office of the Solicitor General for respondents.
Subsequently, Congress passed a bill, which, upon approval by the President, on June 17,
No. 28224: 1967, became Republic Act No. 4913, providing that the amendments to the Constitution
Salvador Araneta for petitioner. proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by
Office of the Solicitor General for respondent. the people, at the general elections which shall be held on November 14, 1967.

CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or
from performing any act that will result in the holding of the plebiscite for the ratification
of the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two
Houses of Congress of the Philippines, approved on March 16, 1967; (b) the Director of
Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor
General from passing in audit any disbursement from the appropriation of funds made in
said Republic Act No. 4913; and
The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October
28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T.
David and counsel for the Philippine Constitution Association — hereinafter referred to as
the PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA,
Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after
a substantially identical case brought by said organization before the Commission on
Elections,1 which was expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for final
determination, for a joint decision on the identical issues raised in both cases. In fact, on
October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224,
for review by certiorari of the resolution of the Commission on Elections2 dismissing the
petition therein. The two (2) cases were deemed submitted for decision on November 8,
1967, upon the filing of the answer of respondent, the memorandum of the petitioner
and the reply memorandum of respondent in L-28224.

2) declaring said Act unconstitutional and void.

 2
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer,
and a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of
all citizens, taxpayers, and voters similarly situated. Although respondents and the
Solicitor General have filed an answer denying the truth of this allegation, upon the
ground that they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case
L-28196, the Solicitor General expressed himself in favor of a judicial determination of the
merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and
existing under the laws of the Philippines, and a civic, non-profit and non-partisan
organization the objective of which is to uphold the rule of law in the Philippines and to
defend its Constitution against erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General
maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the
ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator
Arturo M. Tolentino, who appeared before the Commission on Elections and filed an
opposition to the PHILCONSA petition therein, was allowed to appear before this Court
and objected to said petition upon the ground: a) that the Court has no jurisdiction either
to grant the relief sought in the petition, or to pass upon the legality of the composition of
the House of Representatives; b) that the petition, if granted, would, in effect, render in
operational the legislative department; and c) that "the failure of Congress to enact a
valid reapportionment law . . . does not have the legal effect of rendering illegal the
House of Representatives elected thereafter, nor of rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the
leading members of the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units
thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or not a
given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the
three-fourths vote requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs.
Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9In the first, we
held that the officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine the number of Senators necessary for
a quorum in the Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber, purporting to act on behalf
of the party having the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the, Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to
apportion the representative districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be possible according to the number
of inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases, that the issues therein raised were political questions the determination of which is
beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not
included in the general grant of legislative powers to Congress. 10 It is part of the inherent
powers of the people — as the repository of sovereignty in a republican state, such as
ours11 — to make, and, hence, to amend their own Fundamental Law. Congress may
propose amendments to the Constitution merely because the same explicitly grants such
power.12 Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members of Congress, but as component elements
of a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same
function,13 for their authority does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the Constitution, the
members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, 14 the power to declare a treaty
unconstitutional,15 despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a constituent
assembly — violates the Constitution essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
THE MERITS
 3
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the people for their ratification.
Pursuant to this provision, amendments to the Constitution may be proposed, either by
Congress, or by a convention called by Congress for that purpose. In either case, the vote
of "three-fourths of all the members of the Senate and of the House of Representatives
voting separately" is necessary. And, "such amendments shall be valid as part of" the
"Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a
vote of three-fourths of all the members of the Senate and of the House of
Representatives voting separately. This, notwithstanding, it is urged that said resolutions
are null and void because:
1. The Members of Congress, which approved the proposed amendments, as well as the
resolution calling a convention to propose amendments, are, at best, de
facto Congressmen;
2. Congress may adopt either one of two alternatives propose — amendments or call a
convention therefore but may not avail of both — that is to say, propose
amendment and call a convention — at the same time;
3. The election, in which proposals for amendment to the Constitution shall be submitted
for ratification, must be a special election, not a general election, in which officers of the
national and local governments — such as the elections scheduled to be held on
November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which proposals for
amendment shall be submitted to the people for ratification, must be held under such
conditions — which, allegedly, do not exist — as to give the people a reasonable
opportunity to have a fair grasp of the nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution, which provides:
The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants, but each province shall have
at least one Member. The Congress shall by law make an apportionment within three
years after the return of every enumeration, and not otherwise. Until such apportionment
shall have been made, the House of Representatives shall have the same number of
Members as that fixed by law for the National Assembly, who shall be elected by the
qualified electors from the present Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that, no apportionment
having been made within three (3) years thereafter, the Congress of the Philippines
and/or the election of its Members became illegal; that Congress and its Members,
likewise, became a de facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the Constitution, as
well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within three years
after the enumeration or census made in 1960. It did actually pass a bill, which became
Republic Act No. 3040,17 purporting to make said apportionment. This Act was, however,
declared unconstitutional, upon the ground that the apportionment therein undertaken
had not been made according to the number of inhabitants of the different provinces of
the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the failure of Congress
to make a valid apportionment within the period stated in the Constitution, Congress
became an "unconstitutional Congress" and that, in consequence thereof, the Members
of its House of Representatives are de facto officers. The major premise of this process of
reasoning is that the constitutional provision on "apportionment within three years after
the return of every enumeration, and not otherwise," is mandatory. The fact that
Congress is under legal obligation to make said apportionment does not justify, however,
the conclusion that failure to comply with such obligation rendered Congress illegal or
unconstitutional, or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935, Congress has not made
a valid apportionment as required in said fundamental law. The effect of this omission has
been envisioned in the Constitution, pursuant to which:
 4
. . . Until such apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National Assembly, who
shall be elected by the qualified electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the period to make
the apportionment, a Congress which fails to make it is dissolved or becomes illegal. On
the contrary, it implies necessarily that Congress shall continue to function with the
representative districts existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held in 1935. This
theory assumes that an apportionment had to be made necessarily before the first
elections to be held after the inauguration of the Commonwealth of the Philippines, or in
1938.19 The assumption, is, however, unwarranted, for there had been no enumeration in
1935, and nobody could foretell when it would be made. Those who drafted and adopted
the Constitution in 1935 could be certain, therefore, that the three-year period, after the
earliest possible enumeration, would expire after the elections in 1938.
What is more, considering that several provisions of the Constitution, particularly those
on the legislative department, were amended in 1940, by establishing a bicameral
Congress, those who drafted and adopted said amendment, incorporating therein the
provision of the original Constitution regarding the apportionment of the districts for
representatives, must have known that the three-year period therefor would expire after
the elections scheduled to be held and actually held in 1941.
Thus, the events contemporaneous with the framing and ratification of the original
Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that the
provision concerning said apportionment and the effect of the failure to make it were
expected to be applied to conditions obtaining after the elections in 1935 and 1938, and
even after subsequent elections.
Then again, since the report of the Director of the Census on the last enumeration was
submitted to the President on November 30, 1960, it follows that the three-year period to
make the apportionment did not expire until 1963, or after the Presidential elections in
1961. There can be no question, therefore, that the Senate and the House of
Representatives organized or constituted on December 30, 1961, were de jure bodies, and
that the Members thereof were de jure officers. Pursuant to the theory of petitioners
herein, upon expiration of said period of three years, or late in 1963, Congress became
illegal and its Members, or at least, those of the House of Representatives, became illegal
holder of their respective offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period without a
reapportionment, had the effect of abrogating or repealing the legal provision creating
Congress, or, at least, the House of Representatives, and are not aware of any rule or
principle of law that would warrant such conclusion. Neither do they allege that the term
of office of the members of said House automatically expired or that they ipso
facto forfeited their seats in Congress, upon the lapse of said period for reapportionment.
In fact, neither our political law, nor our law on public officers, in particular, supports the
view that failure to discharge a mandatory duty, whatever it may be, would automatically
result in the forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law relative to the
election of Members of Congress in 1965 were not repealed in consequence of the failure
of said body to make an apportionment within three (3) years after the census of 1960.
Inasmuch as the general elections in 1965 were presumably held in conformity with said
Election Law, and the legal provisions creating Congress — with a House of
Representatives composed of members elected by qualified voters of representative
districts as they existed at the time of said elections — remained in force, we can not see
how said Members of the House of Representatives can be regarded as de facto officers
owing to the failure of their predecessors in office to make a reapportionment within the
period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the President, the
Vice-President, the Justices of the Supreme Court and the Auditor General for, inter alia,
culpable violation of the Constitution,20 the enforcement of which is, not only their
mandatory duty, but also, their main function. This provision indicates that, despite the
violation of such mandatory duty, the title to their respective offices remains unimpaired,
until dismissal or ouster pursuant to a judgment of conviction rendered in accordance
with Article IX of the Constitution. In short, the loss of office or the extinction of title
thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are merely de
facto officers, it would not follow that the contested resolutions and Republic Act No.
4913 are null and void. In fact, the main reasons for the existence of the de facto doctrine
is that public interest demands that acts of persons holding, under color of title, an office
created by a valid statute be, likewise, deemed valid insofar as the public — as
distinguished from the officer in question — is concerned.21 Indeed, otherwise, those
dealing with officers and employees of the Government would be entitled to demand
from them satisfactory proof of their title to the positions they hold, before dealing with
them, or before recognizing their authority or obeying their commands, even if they
should act within the limits of the authority vested in their respective offices, positions or
 5
employments.22 One can imagine this great inconvenience, hardships and evils that would
result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may
not be contested except directly, by quo warranto proceedings. Neither may the validity
of his acts be questioned upon the ground that he is merely a de facto officer.24 And the
reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2)
the acts of a de facto officer, if within the competence of his office, are valid, insofar as
the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the acts
therein involved have not been completed and petitioners herein are not third parties.
This pretense is untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one
of the parties to a suit being heard before Judge Capistrano objected to his continuing to
hear the case, for the reason that, meanwhile, he had reached the age of retirement. This
Court held that the objection could not be entertained, because the Judge was at least,
a de facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko
was not a third party insofar as the Judge was concerned. Tayko was one of the parties in
the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the
case, much less rendered decision therein. No rights had vested in favor of the parties, in
consequence of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to
say, insofar as Congress is concerned, its acts, as regards the Resolutions herein contested
and Republic Act No. 4913, are complete. Congress has nothing else to do in connection
therewith.
The Court is, also, unanimous in holding that the objection under consideration is
untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose
amendments to the Constitution or call a convention for that purpose, but it can not
do both, at the same time. This theory is based upon the fact that the two (2) alternatives
are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak
one, in the absence of other circumstances — and none has brought to our attention —
supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has,
oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law
warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the
constitutional provision on Congress, to be submitted to the people for ratification
on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to consider
proposals for amendment to the Constitution, in general. In other words, the
subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover,
the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification
several years before those that may be proposed by the constitutional convention called
in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date,
they were taken up and put to a vote separately, or one after the other. In other words,
they were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history thereof anything
that would negate the authority of different Congresses to approve the contested
Resolutions, or of the same Congress to pass the same in, different sessions or different
days of the same congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose
amendments, why not let the whole thing be submitted to said convention, instead of,
likewise, proposing some specific amendments, to be submitted for ratification before
said convention is held? The force of this argument must be conceded. but the same
impugns the wisdom of the action taken by Congress, not its authority to take it. One
seeming purpose thereof to permit Members of Congress to run for election as delegates
to the constitutional convention and participate in the proceedings therein, without
forfeiting their seats in Congress. Whether or not this should be done is a political
question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members
of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a contention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the people for their ratification.
 6
There is in this provision nothing to indicate that the "election" therein referred to is a
"special," not a general, election. The circumstance that three previous amendments to
the Constitution had been submitted to the people for ratification in special elections
merely shows that Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed amendments for
ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the proposed
amendments, that the same be submitted to the people's approval independently of the
election of public officials. And there is no denying the fact that an adequate appraisal of
the merits and demerits proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in general elections,
particularly when provincial and municipal officials are to be chosen. But, then, these
considerations are addressed to the wisdom of holding a plebiscite simultaneously with
the election of public officer. They do not deny the authority of Congress to choose either
alternative, as implied in the term "election" used, without qualification, in the
abovequoted provision of the Constitution. Such authority becomes even more patent
when we consider: (1) that the term "election," normally refers to the choice or selection
of candidates to public office by popular vote; and (2) that the word used in Article V of
the Constitution, concerning the grant of suffrage to women is, not "election," but
"plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the
Constitution, should be construed as meaning a special election. Some members of the
Court even feel that said term ("election") refers to a "plebiscite," without any "election,"
general or special, of public officers. They opine that constitutional amendments are, in
general, if not always, of such important, if not transcendental and vital nature as to
demand that the attention of the people be focused exclusively on the subject-matter
thereof, so that their votes thereon may reflect no more than their intelligent, impartial
and considered view on the merits of the proposed amendments, unimpaired, or, at least,
undiluted by extraneous, if not insidious factors, let alone the partisan political
considerations that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be
promoted. The ideal conditions are, however, one thing. The question whether the
Constitution forbids the submission of proposals for amendment to the people except
under such conditions, is another thing. Much as the writer and those who concur in this
opinion admire the contrary view, they find themselves unable to subscribe thereto
without, in effect, reading into the Constitution what they believe is not written thereon
and can not fairly be deduced from the letter thereof, since the spirit of the law should
not be a matter of sheer speculation.
The majority view — although the votes in favor thereof are insufficient to declare
Republic Act No. 4913 unconstitutional — as ably set forth in the opinion penned by Mr.
Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People Violate the Spirit
of the Constitution?
It should be noted that the contested Resolutions were approved on March 16, 1967, so
that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be
informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913
provides:
(1) that "the amendments shall be published in three consecutive issues of the Official
Gazette, at least twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous
place in every municipality, city and provincial office building and in every polling place
not later than October 14, 1967," and that said copy "shall remain posted therein until
after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling place, to be
made available for examination by the qualified electors during election day;"
(4) that "when practicable, copies in the principal native languages, as may be determined
by the Commission on Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots
which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably inadequate to
comply with the constitutional requirement that proposals for amendment be "submitted
to the people for their ratification," and that said measures are manifestly insufficient,
from a constitutional viewpoint, to inform the people of the amendment sought to be
made.
 7
These were substantially the same means availed of to inform the people of the subject
submitted to them for ratification, from the original Constitution down to the Parity
Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200,
provides:
Said Constitution, with the Ordinance appended thereto, shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior
to said election, and a printed copy of said Constitution, with the Ordinance appended
thereto, shall be posted in a conspicuous place in each municipal and provincial
government office building and in each polling place not later than the twenty-second day
of April, nineteen hundred and thirty-five, and shall remain posted therein continually
until after the termination of the election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place
available for examination by the qualified electors during election day. Whenever
practicable, copies in the principal local dialects as may be determined by the Secretary of
the Interior shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34,
reading:
Said Article V of the Constitution shall be published in the Official Gazette, in English and
in Spanish, for three consecutive issues at least fifteen days prior to said election, and the
said Article V shall be posted in a conspicuous place in each municipal and provincial
office building and in each polling place not later than the twenty-second day of April,
nineteen and thirty-seven, and shall remain posted therein continually until after the
termination of the plebiscite. At least ten copies of said Article V of the Constitution, in
English and in Spanish, shall be kept at each polling place available for examination by the
qualified electors during the plebiscite. Whenever practicable, copies in the principal
native languages, as may be determined by the Secretary of the Interior, shall also be kept
in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of
the following tenor:
The said amendments shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later than May eighteen,
nineteen hundred and forty, and shall remain posted therein until after the election. At
least ten copies of said amendments shall be kept in each polling place to be made
available for examination by the qualified electors during election day. When practicable,
copies in the principal native languages, as may be determined by the Secretary of the
Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:
The said amendment shall be published in English and Spanish in three consecutive issues
of the Official Gazette at least twenty days prior to the election. A printed copy thereof
shall be posted in a conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than February eleven, nineteen
hundred and forty-seven, and shall remain posted therein until after the election. At least,
ten copies of the said amendment shall be kept in each polling place to be made available
for examination by the qualified electors during election day. When practicable, copies in
the principal native languages, as may be determined by the Commission on Elections,
shall also be kept in each polling place.
The main difference between the present situation and that obtaining in connection with
the former proposals does not arise from the law enacted therefor. The difference springs
from the circumstance that the major political parties had taken sides on previous
amendments to the Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite took place. Upon the
other hand, said political parties have not seemingly made an issue on the amendments
now being contested and have, accordingly, refrained from discussing the same in the
current political campaign. Such debates or polemics as may have taken place — on a
rather limited scale — on the latest proposals for amendment, have been due principally
to the initiative of a few civic organizations and some militant members of our citizenry
who have voiced their opinion thereon. A legislation cannot, however, be nullified by
reason of the failure of certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors than those existing
at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing
agencies, particularly those that take place subsequently to the passage or approval of the
law.
Referring particularly to the contested proposals for amendment, the sufficiency or
insufficiency, from a constitutional angle, of the submission thereof for ratification to the
people on November 14, 1967, depends — in the view of those who concur in this opinion,
and who, insofar as this phase of the case, constitute the minority — upon whether the
provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the
main idea or the substance of said proposals, which is — under R. B. H. No. 1 — the
increase of the maximum number of seats in the House of Representatives, from 120 to
 8
180, and — under R. B. H. No. 3 — the authority given to the members of Congress to run
for delegates to the Constitutional Convention and, if elected thereto, to discharge the
duties of such delegates, without forfeiting their seats in Congress. We — who constitute
the minority — believe that Republic Act No. 4913 satisfies such requirement and that
said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed
maximum of representative districts are actually apportioned by R. B. H. No. 1 among the
provinces in the Philippines. It is not improbable, however, that they are not interested in
the details of the apportionment, or that a careful reading thereof may tend in their
simple minds, to impair a clear vision thereof. Upon the other hand, those who are more
sophisticated, may enlighten themselves sufficiently by reading the copies of the
proposed amendments posted in public places, the copies kept in the polling places and
the text of contested resolutions, as printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage
the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the
future of our Republic. But, then, nobody can foretell such effect with certainty. From our
viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as
legislators, even if they should run for and assume the functions of delegates to the
Convention.
We are impressed by the factors considered by our distinguished and esteemed brethren,
who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No.
4913 and that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down acts of
the Executive or of Congress transcending the confines set forth in the fundamental laws
is not in derogation of the principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of the conditions under
which the proposed amendments shall be submitted to the people is concededly a matter
which falls within the legislative sphere. We do not believe it has been satisfactorily
shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913.
Presumably, it could have done something better to enlighten the people on the
subject-matter thereof. But, then, no law is perfect. No product of human endeavor is
beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6)
Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the
spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and
R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must
be, as they are hereby, dismiss and the writs therein prayed for denied, without special
pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.
b) By the people thru initiative
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,
in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
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 proponent1 and the main sponsor2 of the proposed Article on Amendments or
Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for
both under the 1935 and 1973 Constitutions, only two methods of proposing
amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a constitutional
 9
convention.4 For this and the other reasons hereafter discussed, we resolved to give due
course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to
Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin
Petition)5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's
Initiative,6 a group of citizens desirous to avail of the system intended to institutionalize
people power; that he and the members of the Movement and other volunteers intend to
exercise the power to directly propose amendments to the Constitution granted under
Section 2, Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be established all over
the country, with the assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the Movement and other
volunteers can gather signatures, it is necessary that the time and dates to be designated
for the purpose be first fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process involved, it is likewise necessary
that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and
supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections
4 and 7 of Article VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution.
Attached to the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which consist in the deletion from
the aforecited sections of the provisions concerning term limits, and with the following
proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people,
and after it is signed by at least twelve per cent of the total number of registered voters in
the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin
"to cause the publication of the petition, together with the attached Petition for Initiative
on the 1987 Constitution (including the proposal, proposed constitutional amendment,
and the signature form), and the notice of hearing in three (3) daily newspapers of general
circulation at his own expense" not later than 9 December 1996; and (b) setting the case
for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin
and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together
with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of
the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day,
filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file
their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition
raising the following arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can only
be implemented by law to be passed by Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments
by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still
pending before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative
on the Constitution, on statutes, and on local legislation. However, it failed to provide any
 10
subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates
that the matter of people's initiative to amend the Constitution was left to some future
law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege
speech delivered before the Senate in 1994: "There is not a single word in that law which
can be considered as implementing [the provision on constitutional initiative]. Such
implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar as initiative on amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and regulations for the exercise of the right
of initiative to amend the Constitution. Only Congress is authorized by the Constitution to
pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds
for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners
allege that in the event the COMELEC grants the Delfin Petition, the people's initiative
spearheaded by PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of the initiative itself.
Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing
aside technicalities of procedure and calling for the admission of a taxpayer's and
legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the
ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on
the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING
SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY
DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO
REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."
 11
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC.
12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A
RE-EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT
EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION,
BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a "knee-jerk
reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally
filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory
Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs
the conduct of initiative to amend the Constitution. The absence therein of a subtitle for
such initiative is not fatal, since subtitles are not requirements for the validity or
sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be necessary to
carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or
more specifically, only those which lay term limits. It does not seek to reexamine or
overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact figure.
Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a priority government
expense because it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the
Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power;
and its Section 3, which enumerates the three systems of initiative, includes initiative on
the Constitution and defines the same as the power to propose amendments to the
Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked
pertinent provisions of the law when he claimed that nothing therein was provided
for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735
does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735
and under the Omnibus Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay
Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining
order; (b) noted the aforementioned Comments and the Motion to Lift Temporary
Restraining Order filed by private respondents through Atty. Quadra, as well as the latter's
Manifestation stating that he is the counsel for private respondents Alberto and Carmen
Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion
 12
for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his
Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition in Intervention, which
was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change
from a political philosophy that rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision of Section
2 of Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open
up the political arena to as many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers in the hands of a
few, and to promote effective proper empowerment for participation in policy and
decision-making for the common good"; hence, to remove the term limits is to negate and
nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their elective
officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a)
the proper parties who may file the petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the veracity of the
signatures, (g) the role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of funds for such people's initiative.
Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's
petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the procedure
for a people's initiative under Section 2 of Article XVII of the Constitution. That function
exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal
basis for the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the
people's right to initiate constitutional amendments. This law is a consolidation of Senate
Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the COMELEC was empowered
under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless,
he contends that the respondent Commission is without jurisdiction to take cognizance of
the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and
COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative
on the Constitution is the filing of a petition for initiative which is 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 COMELEC's role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of
the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on
the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
 13
(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 Commission's failure or refusal to do so constituted grave abuse of discretion
amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and
the Record of the House of Representatives relating to the deliberations of House Bill No.
21505, as well as the transcripts of stenographic notes on the proceedings of the
Bicameral Conference Committee, Committee on 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. 23 The parties
thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue
which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to
the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special
civil action when there is a pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.
 14

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
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court
may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28
A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because the
transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
II

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the
Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to
entertain the petition. 26 The COMELEC made no ruling thereon evidently because after
having heard the arguments of Delfin and the oppositors at the hearing on 12 December
1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave
due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on
Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:
Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified therein.
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO
THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action,
in the last analysis it still is dependent on congressional action.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction
Bluntly stated, the right of the people to directly propose amendments to the Constitution
over the Delfin Petition because the said petition is not supported by the required
through the system of initiative would remain entombed in the cold niche of the
minimum number of signatures of registered voters. LABAN also asserts that the
Constitution until Congress provides for its implementation. Stated otherwise, while the
COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which
Constitution has recognized or granted that right, the people cannot exercise it if
does not contain the required number of signatures. In light of these claims, the instant
Congress, for whatever reason, does not provide for its implementation.
case may likewise be treated as a special civil action for certiorari under Section I of Rule
65 of the Rules of Court.
 15
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory
Provisions of the 1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article___ Section
___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as Section
2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the
Members of the Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section 2 of
the complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of
the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left
to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore, that
we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
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 xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to
vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is 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.
 16
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 xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative
as a separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense that
was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage
of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of
initiation to amend, which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2
with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking
into account the modifications submitted by the sponsor himself and the honorable
Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as follows: "SECTION
2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of
the sense contained in Section 2 of our completed Committee Report No. 7, we accept
the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2
clearly showed that it was a legislative act which must implement the exercise of the right.
Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature
to set forth certain procedures to carry out the initiative. . .?
 17
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from
asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this
particular right would be subject to legislation, provided the legislature cannot determine
anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for
submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words,
none of the procedures to be proposed by the legislative body must diminish or impair
the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by
Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not
"revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation.
Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an
amendment to the Constitution. To amend a Constitution would ordinarily require a
proposal by the National Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit the issue of calling a
constitutional convention, a majority of the National Assembly is required, the import
being that the process of amendment must be made more rigorous and difficult than
probably initiating an ordinary legislation or putting an end to a law proposed by the
National Assembly by way of a referendum. I cannot agree to reducing the requirement
approved by the Committee on the Legislative because it would require another voting by
the Committee, and the voting as 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. 41Thereafter, upon his motion for reconsideration, Commissioner
Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved on Second and Third Readings
on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be
amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting
the phrase "by law" in the second paragraph so that said paragraph reads: The
 18
Congress 43 shall provide for the implementation of the exercise of this right. 44 This
amendment was approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution
under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who
answer the question in the affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the
right than through the passage of a statute or legislative act. This is the essence or
rationale of the last minute amendment by the Constitutional Commission to substitute
the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the
rules implementing the exercise of the right. The "rules" means "the details on how [the
right] is to be carried out." 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, 47 which dealt with the initiative and referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which
dealt with the subject matter of House Bill No. 497, as well as with initiative and
referendum under Section 3 of Article X (Local Government) and initiative provided for in
Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative
and referendum concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No.
21505 into a draft bill, which was subsequently approved on 8 June 1989 by the
Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for
the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does
not suggest an initiative on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws, ordinances, or
resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from
Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local
initiative and referendum and appropriately used the phrases "propose and enact,"
"approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems of initiative,
and that Section 5 (Requirements) restates the constitutional requirements as to the
percentage of the registered voters who must submit the proposal. But unlike in the case
of the other systems of initiative, the Act does not provide for the contents of a petition
for initiative on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be. It does not include, as among the contents of the petition,
the provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
 19
c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II)
and for Local Initiative and Referendum (Subtitle III), no subtitle is provided
for initiative on the Constitution. This conspicuous silence as to the latter simply means
that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is
subsumed under the subtitle on National Initiative and Referendum because it is national
in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III
(Local Initiative and Referendum) leaves no room for doubt that the classification is not
based on the scope of the initiative involved, but on its nature and character. It is
"national initiative," if what is proposed to be adopted or enacted is a national law, or a
law which only Congress can pass. It is "local initiative" if what is proposed to be adopted
or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays
can pass. This classification of initiative into national and local is actually based on Section
3 of the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on
initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum are placed
therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become 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. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other
legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings
of sufficiency or insufficiency of the petition for initiative or referendum, which could be
petitions for both national and local initiative and referendum.
 20
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to both
national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the
said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the
details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of
the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes
for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper
of general circulation in the Philippines; and
(f) The 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 body's failure to favorably act thereon, and the invocation
of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the
registered voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735,
in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section
2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the
three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which
the proposition in an initiative on the Constitution may be approved or rejected by the
people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the paramount
system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of
initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be
cured by "empowering" the COMELEC "to promulgate such rules and regulations as may
be necessary to carry out the purposes of [the] Act. 58
 21
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule
are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of
the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no.
5 above. However, in every case of permissible delegation, there must be a showing that
the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth
therein the policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard — the limits of which are sufficiently determinate and determinable — to
which the delegate must conform in the performance of his functions. 61 A sufficient
standard is one which defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No.
6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS
ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to directly propose amendments to the
Constitution through the system of initiative. It does not have that power under R.A. No.
6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b)
a law where subordinate legislation is authorized and which satisfies the "completeness"
and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of
Congress to implement the right to initiate constitutional amendments, or that it has
validly vested upon the COMELEC the power of subordinate legislation and that COMELEC
Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse
of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a
petition for initiative on the Constitution must be signed by at least 12% of the total
number of registered voters of which every legislative district is represented by at least
3% of the registered voters therein. The Delfin Petition does not contain signatures of the
required number of voters. Delfin himself admits that he has not yet gathered signatures
and that the purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The
petition then is the initiatory pleading. Nothing before its filing is cognizable by the
COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before
the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue
through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district; 64 (3) to assist, through its election registrars,
in the establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and
voters' identification cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC
Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC.
The respondent Commission must have known that the petition does not fall under any of
the actions or proceedings under the COMELEC Rules of Procedure or under Resolution
No. 2300, for which reason it did not assign to the petition a docket number. Hence, the
 22

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 Temporary Restraining Order issued on 18 December 1996 is made permanent as
against the Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

The foregoing considered, further discussion on the issue of whether the proposal to lift Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
the term limits of elective national and local officials is an amendment to, and not concur.
a revision of, the Constitution is rendered unnecessary, if not academic.
Padilla, J., took no part.
CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to the G.R. No. 174153 October 25, 2006
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED
VOTERS,Petitioners,
We feel, however, that the system of initiative to propose amendments to the vs.
Constitution should no longer be kept in the cold; it should be given flesh and blood, THE COMMISSION ON ELECTIONS, Respondent.
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
x--------------------------------------------------------x
under that system.

ALTERNATIVE LAW GROUPS, INC., Intervenor.

WHEREFORE, judgment is hereby rendered

x ------------------------------------------------------ x
a) GRANTING the instant petition;

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
to the Constitution, and to have failed to provide sufficient standard for subordinate
legislation;
x------------------------------------------------------ x

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
ATTY. PETE QUIRINO QUADRA, Intervenor.
prescribing rules and regulations on the conduct of initiative or amendments to the
Constitution; and
x--------------------------------------------------------x
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition
(UND-96-037). BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented
by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr.
 23

Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito
Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado,
GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA
WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented
by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by
Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned
Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health
Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human
Rights,Intervenors.
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.
VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,
JR., Intervenor.
x ------------------------------------------------------- x

x--------------------------------------------------------x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA x ------------------------------------------------------- x
HONTIVEROS-BARAQUEL,Intervenors.
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
x--------------------------------------------------------x SALVADOR, and RANDALL TABAYOYONG, Intervenors.

ARTURO M. DE CASTRO, Intervenor. x -------------------------------------------------------- x

x ------------------------------------------------------- x INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x --------------------------------------------------------x
x---------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.
LUWALHATI RICASA ANTONINO, Intervenor. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x ------------------------------------------------------- x
x -----------------------------------------------------x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x -----------------------------------------------------x
x ------------------------------------------------------- x
G.R. No. 174299 October 25, 2006
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.
x -------------------------------------------------------- x SAGUISAG, Petitioners,
vs.
 24
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition to
amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering
signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006,
the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735
or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each legislative
district represented by at least three per centum (3%) of its registered voters. The
Lambino Group also claimed that COMELEC election registrars had verified the signatures
of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential system
to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after
due publication of their petition, the COMELEC should submit the following proposition in
a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC
indicating modifications in the proposed Article XVIII (Transitory Provisions) of their
initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause
on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari
and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel
the COMELEC to give due course to their initiative petition. The Lambino Group contends
that the COMELEC committed grave abuse of discretion in denying due course to their
petition since Santiago is not a binding precedent. Alternatively, the Lambino Group
claims that Santiago binds only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent
COMELEC Commissioners to show cause why they should not be cited in contempt for the
COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition
despite the permanent injunction in Santiago. The Court treated the Binay Group's
petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes with
the petitioners, urging the Court to grant the petition despite the Santiago ruling. The
Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as
temporary devises to implement the system of initiative."
 25
Various groups and individuals sought intervention, filing pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors 10 uniformly hold the
view that the COMELEC committed grave abuse of discretion in relying on Santiago. On
the other hand, the opposing intervenors11 hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also challenged (1) the
Lambino Group's standing to file the petition; (2) the validity of the signature gathering
and verification process; (3) the Lambino Group's compliance with the minimum
requirement for the percentage of voters supporting an initiative petition under Section 2,
Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions
and not mere amendments as provided under Section 2, Article XVII of the 1987
Constitution; and (5) the Lambino Group's compliance with the requirement in Section
10(a) of RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006.
After receiving the parties' memoranda, the Court considered the case submitted for
resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of
the Constitution on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to implement the initiative
clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to
the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based alone on the Lambino
Group's glaring failure to comply with the basic requirements of the Constitution. For
following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the
Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution
on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that
allows a people's initiative to propose amendments to the Constitution. This section
states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least
three per centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an
amendment "directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them and
they are asked whether or not they want to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before" they
sign such proposal. The framers plainly stated that "before they sign there is already a
draft shown to them." The framers also "envisioned" that the people should sign on the
 26
proposal itself because the proponents must "prepare that proposal and pass it around
for signature."
The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means
two essential elements must be present. First, the people must author and thus sign the
entire proposal. No agent or representative can sign on their behalf. Second, as an
initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments
is first shown to the people who express their assent by signing such complete proposal in
a petition. Thus, an amendment is "directly proposed by the people through initiative
upon a petition" only if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of signatories to
the petition had seen the full text of the proposed amendments before signing. Otherwise,
it is physically impossible, given the time constraint, to prove that every one of the
millions of signatories had seen the full text of the proposed amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from
the United States where various State constitutions incorporate an initiative clause. In
almost all States15 which allow initiative petitions, the unbending requirement is that the
people must first see the full text of the proposed amendments before they sign to
signify their assent, and that the people must sign on an initiative petition that contains
the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of
various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of
Massachusetts, affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative
petition to a potential signer, without the signer having actually examined the petition,
could easily mislead the signer by, for example, omitting, downplaying, or even flatly
misrepresenting, portions of the petition that might not be to the signer's liking. This
danger seems particularly acute when, in this case, the person giving the description is
the drafter of the petition, who obviously has a vested interest in seeing that it gets the
requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly
are described in similar terms. x x x (The purpose of the full text requirement is to
provide sufficient information so that registered voters can intelligently evaluate
whether to sign the initiative petition."); x x x (publication of full text of amended
constitutional provision required because it is "essential for the elector to have x x x the
section which is proposed to be added to or subtracted from. If he is to vote intelligently,
he must have this knowledge. Otherwise in many instances he would be required to vote
in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and
effect of that which is proposed" and failure to do so is "deceptive and misleading" which
renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must
set forth the full text of the proposed amendments. However, the deliberations of the
framers of our Constitution clearly show that the framers intended to adopt the relevant
American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they sign, and that the
people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic
Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid,
requires that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents
secure the signatures in their private capacity and not as public officials. The proponents
are not disinterested parties who can impartially explain the advantages and
disadvantages of the proposed amendments to the people. The proponents present
favorably their proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of proving that
they complied with the constitutional requirements in gathering the signatures - that the
 27

petition contained, or incorporated by attachment, the full text of the proposed 5

amendments. 6
7
The Lambino Group did not attach to their present petition with this Court a copy of the
8
paper that the people signed as their initiative petition. The Lambino Group submitted to
this Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 9
when they filed their Memorandum on 11 October 2006. The signature sheet with this 10
Court during the oral arguments was the signature sheet attached21 to the opposition in
_________________ _________________ __________________
intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce below the
signature sheet in full: There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of
the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this
Province: City/Municipality: No. of
during the oral arguments before this Court on 26 September 2006.
Legislative District: Barangay:
Verified
The signature sheet merely asks a question whether the people approve a shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system of government. The
Signatures:
signature sheet does not show to the people the draft of the proposed changes before
they are asked to sign the signature sheet. Clearly, the signature sheet is not the
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE "petition" that the framers of the Constitution envisioned when they formulated the
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT initiative clause in Section 2, Article XVII of the Constitution.
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY Petitioner Atty. Lambino, however, explained that during the signature-gathering from
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR February to August 2006, the Lambino Group circulated, together with the signature
THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" sheets, printed copies of the Lambino Group's draft petition which they later filed on 25
August 2006 with the COMELEC. When asked if his group also circulated the draft of their
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially
herein which shall form part of the petition for initiative to amend the Constitution replied that they circulated both. However, Atty. Lambino changed his answer and stated
signifies my support for the filing thereof. that what his group circulated was the draft of the 30 August 2006 amended petition, not
the draft of the 25 August 2006 petition.
Precinct Name Address Birthdate Signature Verification
Number The Lambino Group would have this Court believe that they prepared the draft of the 30
Last Name, First Name, MM/DD/YY August 2006 amended petition almost seven months earlier in February 2006 when they
M.I. started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification"
1 of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed
2 with the COMELEC, states as follows:

3
4
 28
I have caused the preparation of the foregoing [Amended] Petition in my personal
capacity as a registered voter, for and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present
petition. However, the "Official Website of the Union of Local Authorities of the
Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM
AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP
Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the
majority coalition of the House of Representatives in Manila Hotel sometime in October
2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her
Excellency to recommend amendments to the 1987 Constitution has submitted its final
report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which
militates against the use of the expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of
Congress to amend the Constitution as a constituent assembly, ULAP has unanimously
agreed to pursue the constitutional reform agenda through People's Initiative and
Referendum without prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE
MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP)
SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION
ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE
OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006
at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25
August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC.
ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through people's initiative and referendum as a mode of
amending the 1987 Constitution." The proposals of the Consultative
Commission24 are vastly different from the proposed changes of the Lambino Group in
the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory Provisions.
The proposed revisions have profound impact on the Judiciary and the National
Patrimony provisions of the existing Constitution, provisions that the Lambino Group's
proposed changes do not touch. The Lambino Group's proposed changes purport to affect
only Articles VI and VII of the existing Constitution, including the introduction of new
Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months
before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition
with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP
or the Lambino Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP
Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they
circulated the draft petition together with the signature sheets. ULAP Resolution No.
2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed
changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of
Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly
reflect their proposed amendments.
 29
The Lambino Group did not allege that they were amending the petition because the
amended petition was what they had shown to the people during the February to August
2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25
August 2006 "inaccurately stated and failed to correctly reflect their proposed
amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC that they circulated printed copies of the draft
petition together with the signature sheets. Likewise, the Lambino Group did not allege in
their present petition before this Court that they circulated printed copies of the draft
petition together with the signature sheets. The signature sheets do not also contain any
indication that the draft petition is attached to, or circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino
Group first claimed that they circulated the "petition for initiative filed with the
COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters
who signed the signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition contained in
the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the intervenors
Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty.
Quadra had pointed out that the signature sheets did not contain the text of the proposed
changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the
petition for initiative" but failed to mention the amended petition. This contradicts what
Atty. Lambino finally stated during the oral arguments that what they circulated was the
draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who
did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." The Lambino
Group quotes an authority that cites a proposed change attached to the petition signed
by the people. Even the authority the Lambino Group quotes requires that the proposed
change must be attached to the petition. The same authority the Lambino Group quotes
requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be
incorporated with, or attached to, the initiative petition signed by the people. In the
present initiative, the Lambino Group's proposed changes were not incorporated with, or
attached to, the signature sheets. The Lambino Group's citation of Corpus Juris
Secundumpulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the petition
or amended petition they filed later with the COMELEC. The Lambino Group are less than
candid with this Court in their belated claim that they printed and circulated, together
with the signature sheets, the petition or amended petition. Nevertheless,
even assuming the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating only very limited
copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print additional
copies of the draft petition but he could not state with certainty how many additional
copies the other supporters printed. Atty. Lambino could only assure this Court of the
printing of 100,000 copies because he himself caused the printing of these 100,000
copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino
Group expressly admits that "petitioner Lambino initiated the printing and reproduction
of 100,000 copies of the petition for initiative x x x."25 This admission binds the Lambino
Group and establishes beyond any doubt that the Lambino Group failed to show the full
text of the proposed changes to the great majority of the people who signed the
signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with
certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have circulated with the petition.
Each signature sheet contains space for ten signatures. Assuming ten people signed each
of these 100,000 signature sheets with the attached petition, the maximum number of
 30
people who saw the petition before they signed the signature sheets would not exceed
1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all
or a great majority of the 6.3 million signatories to have seen the petition before they
signed the signature sheets. The inescapable conclusion is that the Lambino Group failed
to show to the 6.3 million signatories the full text of the proposed changes. If ever, not
more than one million signatories saw the petition before they signed the signature
sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the
proposed changes, either on the face of the signature sheets, or as attachment with an
indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted
this during the oral arguments, and this admission binds the Lambino Group. This fact is
also obvious from a mere reading of the signature sheet. This omission is fatal. The
failure to so include the text of the proposed changes in the signature sheets renders the
initiative void for non-compliance with the constitutional requirement that the
amendment must be "directly proposed by the people through initiative upon a
petition." The signature sheet is not the "petition" envisioned in the initiative clause of
the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did
not see the full text of the proposed changes before signing. They could not have known
the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary
elections. Thus, the members of the interim Parliament will determine the expiration of
their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim Parliament
shall convene to propose further amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's
signature sheets. The people who signed the signature sheets had no idea that they were
proposing these amendments. These three proposed changes are highly controversial.
The people could not have inferred or divined these proposed changes merely from a
reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured
the people during the signature-gathering that the elections for the regular Parliament
would be held during the 2007 local elections if the proposed changes were ratified
before the 2007 local elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended
petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of all
local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes,
could have easily written the word "next" before the phrase "election of all local
government officials." This would have insured that the elections for the regular
Parliament would be held in the next local elections following the ratification of the
proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term
of office. This allows incumbent members of the House of Representatives to hold office
beyond their current three-year term of office, and possibly even beyond the five-year
term of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who signed the
signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and
even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or misrepresentation. In
the present initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the signature sheets did not
 31
contain the full text of the proposed changes. The result is a grand deception on the 6.3
million signatories who were led to believe that the proposed changes would require the
holding in 2007 of elections for the regular Parliament simultaneously with the local
elections.
The Lambino Group's initiative springs another surprise on the people who signed the
signature sheets. The proposed changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on
Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and
the Court and the people should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence
on initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma since
they can answer only either yes or no to the entire proposition, forcing them to sign a
petition that effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29 the
Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if our
judicial responsibility is to mean anything, we cannot permit. The very broadness of the
proposed amendment amounts to logrolling because the electorate cannot know what it
is voting on - the amendment's proponents' simplistic explanation reveals only the tip of
the iceberg. x x x x The ballot must give the electorate fair notice of the proposed
amendment being voted on. x x x x The ballot language in the instant case fails to do that.
The very broadness of the proposal makes it impossible to state what it will affect and
effect and violates the requirement that proposed amendments embrace only one subject.
(Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the
Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the
single-subject rule was enacted to prevent are exacerbated. There is a greater danger of
logrolling, or the deliberate intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity for "inadvertence, stealth and
fraud" in the enactment-by-initiative process. The drafters of an initiative operate
independently of any structured or supervised process. They often emphasize particular
provisions of their proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential
petition-signers and eventual voters. Many voters will never read the full text of the
initiative before the election. More importantly, there is no process for amending or
splitting the several provisions in an initiative proposal. These difficulties clearly
distinguish the initiative from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or
revisions to be undertaken by the interim Parliament as a constituent assembly. The
people who signed the signature sheets could not have known that their signatures would
be used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim
Parliament to amend or revise again the Constitution within 45 days from ratification of
the proposed changes, or before the May 2007 elections. In the absence of the proposed
Section 4(4), the interim Parliament has the discretion whether to amend or revise again
the Constitution. With the proposed Section 4(4), the initiative proponents want the
interim Parliament mandated to immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or
revising again so soon the Constitution. The signature sheets do not also explain what
specific amendments or revisions the initiative proponents want the interim Parliament to
make, and why there is a need for such further amendments or revisions. The people are
again left in the dark to fathom the nature and effect of the proposed changes. Certainly,
such an initiative is not "directly proposed by the people" because the people do not even
know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of
30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:
 32

Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament In short, the Lambino Group's initiative is void and unconstitutional because it dismally
until noon of the thirtieth day of June 2010. fails to comply with the requirement of Section 2, Article XVII of the Constitution that the
initiative must be "directly proposed by the people through initiative upon a petition."
After 30 June 2010, not one of the present Senators will remain as member of Parliament
if the interim Parliament does not schedule elections for the regular Parliament by 30 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
June 2010. However, there is no counterpart provision for the present members of the through Initiatives
House of Representatives even if their term of office will all end on 30 June 2007, three
years earlier than that of half of the present Senators. Thus, all the present members of A people's initiative to change the Constitution applies only to an amendment of the
the House will remain members of the interim Parliament after 30 June 2010. Constitution and not to its revision. In contrast, Congress or a constitutional convention
can propose both amendments and revisions to the Constitution. Article XVII of the
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Constitution provides:
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will ARTICLE XVII
come only from the present members of the House of Representatives to the exclusion of AMENDMENTS OR REVISIONS
the present Senators.
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
The signature sheets do not explain this discrimination against the Senators. The 6.3
million people who signed the signature sheets could not have known that their (1) The Congress, upon a vote of three-fourths of all its Members, or
signatures would be used to discriminate against the Senators. They could not have
known that their signatures would be used to limit, after 30 June 2010, the interim (2) A constitutional convention.
Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)
An initiative that gathers signatures from the people without first showing to the people
the full text of the proposed amendments is most likely a deception, and can operate as
Article XVII of the Constitution speaks of three modes of amending the Constitution. The
a gigantic fraud on the people. That is why the Constitution requires that an initiative
first mode is through Congress upon three-fourths vote of all its Members. The second
must be "directly proposed by the people x x x in a petition" - meaning that the people
mode is through a constitutional convention. The third mode is through a people's
must sign on a petition that contains the full text of the proposed amendments. On so
initiative.
vital an issue as amending the nation's fundamental law, the writing of the text of the
proposed amendments cannot be hidden from the people under a general or special
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
power of attorney to unnamed, faceless, and unelected individuals.
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII,
referring to the third mode, applies only to "[A]mendments to this Constitution." This
The Constitution entrusts to the people the power to directly propose amendments to the
distinction was intentional as shown by the following deliberations of the Constitutional
Constitution. This Court trusts the wisdom of the people even if the members of this
Commission:
Court do not personally know the people who sign the petition. However, this trust
emanates from a fundamental assumption: the full text of the proposed amendment is
MR. SUAREZ: Thank you, Madam President.
first shown to the people before they sign the petition, not after they have signed the
petition.
May we respectfully call the attention of the Members of the Commission that pursuant
to the mandate given to us last night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision governing the matter of initiative.
 33
This is now covered by Section 2 of the complete committee report. With the permission
of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of
the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of
the extraordinary developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee members felt
that this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas,
the process of initiation to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered
by Section 1. So insofar as initiative is concerned, it can only relate to "amendments"
not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a
clear distinction between "amendment" and "revision" of the Constitution. The
framers intended, and wrote, that only Congress or a constitutional convention may
propose revisions to the Constitution. The framers intended, and wrote, that a people's
initiative may propose only amendments to the Constitution. Where the intent and
language of the Constitution clearly withhold from the people the power to propose
revisions to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and amendments to
the Constitution' and does not purport to extend to a constitutional revision. x x x x It is
thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for
that purpose as outlined hereinabove. Consequently if the scope of the proposed
initiative measure (hereinafter termed 'the measure') now before us is so broad that if
such measure became law a substantial revision of our present state Constitution would
be effected, then the measure may not properly be submitted to the electorate until and
unless it is first agreed upon by a constitutional convention, and the writ sought by
petitioner should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be
amended or revised, it can be altered by those who favor amendments, revision, or other
change only through the use of one of the specified means. The constitution itself
recognizes that there is a difference between an amendment and a revision; and it is
obvious from an examination of the measure here in question that it is not an
 34
amendment as that term is generally understood and as it is used in Article IV, Section 1.
The document appears to be based in large part on the revision of the constitution
drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative
Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the
Assembly the two-third's majority vote of both houses required by Article XVII, Section 2,
and hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the
plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be
submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at
a convention called in the manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only
propose amendments to the Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures,
cannot justify a deviation from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in the
manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the
people, in adopting a constitution, have prescribed the method by which the people may
alter or amend it, an attempt to change the fundamental law in violation of the
self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot
shirk from its solemn oath and duty to insure compliance with the clear command of the
Constitution ― that a people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision
of the Constitution? If the Lambino Group's initiative constitutes a revision, then the
present petition should be dismissed for being outside the scope of Section 2, Article XVII
of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature,
and the provisions contained therein for its revision indicate the will of the people that
the underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines
of the original instrument as will effect an improvement, or better carry out the purpose
for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like
altering the principle of separation of powers or the system of checks-and-balances. There
is also revision if the change alters the substantial entirety of the constitution, as when
the change affects substantial provisions of the constitution. On the other hand,
amendment broadly refers to a change that adds, reduces, or deletes without altering
the basic principle involved. Revision generally affects several provisions of the
constitution, while amendment generally affects only the specific provision being
amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the proposed
change is "so extensive in its provisions as to change directly the 'substantial entirety' of
the constitution by the deletion or alteration of numerous existing provisions." 36 The
court examines only the number of provisions affected and does not consider the degree
of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will "accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a proper
subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its
 35
Branches."38 A change in the nature of the basic governmental plan also includes changes
that "jeopardize the traditional form of government and the system of check and
balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Group's proposed
changes overhaul two articles - Article VI on the Legislature and Article VII on the
Executive - affecting a total of 105 provisions in the entire Constitution. 40Qualitatively, the
proposed changes alter substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the
three great co-equal branches of government in the present Constitution are reduced into
two. This alters the separation of powers in the Constitution. A shift from the present
Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is a radical change in the
structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters
the separation of powers and thus constitutes a revision of the Constitution. Likewise, the
abolition alone of one chamber of Congress alters the system of checks-and-balances
within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President
and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere
amendment. On the face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of government as set forth
in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional
Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions.
The guiding original intention of an amendment is to improve specific parts or to add new
provisions deemed necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document,
or of provisions of the document which have over-all implications for the entire document,
to determine how and to what extent they should be altered. Thus, for instance a switch
from the presidential system to a parliamentary system would be a revision because of
its over-all impact on the entire constitutional structure. So would a switch from a
bicameral system to a unicameral system be because of its effect on other important
provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State
constitution to shift from a bicameral to a unicameral legislature. The issue turned on
whether the initiative "was defective and unauthorized where [the] proposed
amendment would x x x affect several other provisions of [the] Constitution." The
Supreme Court of Florida, striking down the initiative as outside the scope of the initiative
clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for
a Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation,
except one, since the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed amendment were adopted by
the people at the General Election and if the Legislature at its next session should fail to
submit further amendments to revise and clarify the numerous inconsistencies and
conflicts which would result, or if after submission of appropriate amendments the people
should refuse to adopt them, simple chaos would prevail in the government of this State.
The same result would obtain from an amendment, for instance, of Section 1 of Article V,
to provide for only a Supreme Court and Circuit Courts-and there could be other examples
too numerous to detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and many
sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate
inconsistencies and conflicts and to give the State a workable, accordant, homogenous
and up-to-date document. All of this could disappear very quickly if we were to hold that
it could be amended in the manner proposed in the initiative petition here. 43(Emphasis
supplied)
The rationale of the Adams decision applies with greater force to the present petition.
The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral
 36
legislature, it also seeks to merge the executive and legislative departments. The initiative
in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of the
Constitution would be affected based on the count of Associate Justice Romeo J. Callejo,
Sr.44 There is no doubt that the Lambino Group's present initiative seeks far more radical
changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is
only one of procedure, not of substance. The Lambino Group posits that when a
deliberative body drafts and proposes changes to the Constitution, substantive changes
are called "revisions" because members of the deliberative body work full-time on the
changes. However, the same substantive changes, when proposed through an initiative,
are called "amendments" because the changes are made by ordinary people who do not
make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly
provide for both "amendment" and "revision" when it speaks of legislators and
constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent distinction is
based on the actual experience of the people, that on one hand the common people in
general are not expected to work full-time on the matter of correcting the constitution
because that is not their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to work full-time on the
same matter because that is their occupation, profession or vocation. Thus, the
difference between the words "revision" and "amendment" pertain only to the process
or procedure of coming up with the corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had
drafted the same proposed changes that the Lambino Group wrote in the present
initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino
Group concedes that the proposed changes in the present initiative constitute a revision
if Congress or a constitutional convention had drafted the changes. However, since the
Lambino Group as private individuals drafted the proposed changes, the changes are
merely amendments to the Constitution. The Lambino Group trivializes the serious matter
of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict
the Lambino Group's theory. Where the intent of the framers and the language of the
Constitution are clear and plainly stated, courts do not deviate from such categorical
intent and language.45 Any theory espousing a construction contrary to such intent and
language deserves scant consideration. More so, if such theory wreaks havoc by creating
inconsistencies in the form of government established in the Constitution. Such a theory,
devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only
exposes the flimsiness of the Lambino Group's position. Any theory advocating that a
proposed change involving a radical structural change in government does not constitute
a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the
Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution
proposed by initiative. His theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the
distinction between amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far
reaching changes outside the lines of the original instrument, including profound impacts
on existing fundamental rights and radical restructuring of the government's relationship
with a defined group of citizens. Plaintiffs assert that, because the proposed ballot
measure "will refashion the most basic principles of Oregon constitutional law," the trial
court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
 37
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit
revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded
that a revision of the constitution may not be accomplished by initiative, because of the
provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to
proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the
initiative as a means of amending the Oregon Constitution, but it contains no similar
sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only
section of the constitution which provides the means for constitutional revision and it
excludes the idea that an individual, through the initiative, may place such a measure
before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express
intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the spectrum,
colors fuse and difficulties arise in determining whether there is an amendment or
revision. The present initiative is indisputably located at the far end of the red spectrum
where revision begins. The present initiative seeks a radical overhaul of the existing
separation of powers among the three co-equal departments of government, requiring
far-reaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be considered an
amendment and not a revision. For example, a change reducing the voting age from 18
years to 15 years47 is an amendment and not a revision. Similarly, a change reducing
Filipino ownership of mass media companies from 100 percent to 60 percent is an
amendment and not a revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an amendment and not a
revision.49
The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also
affect the structure of government or the system of checks-and-balances among or within
the three branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the present petition is
located.
However, there can be no fixed rule on whether a change is an amendment or a revision.
A change in a single word of one sentence of the Constitution may be a revision and not
an amendment. For example, the substitution of the word "republican" with "monarchic"
or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis of the Constitution. Thus,
each specific change will have to be examined case-by-case, depending on how it affects
other provisions, as well as how it affects the structure of government, the carefully
crafted system of checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to undertake a
revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow people's initiatives, which do not have
fixed and identifiable deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent
with a prior law, the later law prevails. This rule also applies to construction of
constitutions. However, the Lambino Group's draft of Section 2 of the Transitory
Provisions turns on its head this rule of construction by stating that in case of such
irreconcilable inconsistency, the earlier provision "shall be amended to conform with a
 38
unicameral parliamentary form of government." The effect is to freeze the two
irreconcilable provisions until the earlier one "shall be amended," which requires a future
separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino
readily conceded during the oral arguments that the requirement of a future amendment
is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory
construction so that the later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory
Provisions is not between a provision in Article VI of the 1987 Constitution and a provision
in the proposed changes. The inconsistency is between a provision in Article VI of the
1987 Constitution and the "Parliamentary system of government," and the inconsistency
shall be resolved in favor of a "unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's
proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand
models, which are among the few countries with unicameral parliaments? The proposed
changes could not possibly refer to the traditional and well-known parliamentary forms of
government ― the British, French, Spanish, German, Italian, Canadian, Australian, or
Malaysian models, which have all bicameral parliaments. Did the people who signed the
signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the
Constitution but only for amendments. A shift from the present Bicameral-Presidential to
a Unicameral-Parliamentary system requires harmonizing several provisions in many
articles of the Constitution. Revision of the Constitution through a people's initiative will
only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and
not an amendment. Thus, the present initiative is void and unconstitutional because it
violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative
to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements
of Section 2, Article XVII of the Constitution on the conduct and scope of a people's
initiative to amend the Constitution. There is no need to revisit this Court's ruling
in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution. An affirmation or
reversal of Santiago will not change the outcome of the present petition. Thus, this Court
must decline to revisit Santiago which effectively ruled that RA 6735 does not comply
with the requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the
case before the Court can be resolved on some other grounds. Such avoidance is a logical
consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result here
because the present petition violates Section 2, Article XVII of the Constitution. To be a
valid initiative, the present initiative must first comply with Section 2, Article XVII of the
Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the
"petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA
6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended
petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended
petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the
COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories,
merely attached the signature sheets to the petition and amended petition. Thus, the
petition and amended petition filed with the COMELEC did not even comply with the basic
requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating,
"No petition embracing more than one (1) subject shall be submitted to the electorate; x
x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim
Parliament to propose further amendments or revisions to the Constitution, is a subject
matter totally unrelated to the shift in the form of government. Since the present
initiative embraces more than one subject matter, RA 6735 prohibits submission of the
 39
initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's
initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform, Modernization
and Action (PIRMA) v. COMELEC.52 For following this Court's ruling, no grave abuse of
discretion is attributable to the COMELEC. On this ground alone, the present petition
warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling
in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decisions of this
Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10,
1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and
obedience of all the citizens of this nation. No one can trivialize the Constitution by
cavalierly amending or revising it in blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of the day.
If this Court allows today a cavalier change in the Constitution outside the constitutionally
prescribed modes, tomorrow the new dominant political group that comes will demand
its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door
constitution does not augur well for the rule of law in this country.
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total
votes cast53 − approved our Constitution in a national plebiscite held on 11 February
1987. That approval is the unmistakable voice of the people, the full expression of the
people's sovereign will. That approval included the prescribed modes for amending or
revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they ratified the Constitution. The
alternative is an extra-constitutional change, which means subverting the people's
sovereign will and discarding the Constitution. This is one act the Court cannot and
should never do. As the ultimate guardian of the Constitution, this Court is sworn to
perform its solemn duty to defend and protect the Constitution, which embodies the real
sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution ― the people's fundamental covenant that
provides enduring stability to our society ― becomes easily susceptible to manipulative
changes by political groups gathering signatures through false promises. Then, the
Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of
their petition with the COMELEC, that "ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms."
The Lambino Group thus admits that their "people's" initiative is an "unqualified support
to the agenda" of the incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of "people's voice" or "sovereign will" in the present
initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The
Constitution, which embodies the people's sovereign will, is the bible of this Court. This
Court exists to defend and protect the Constitution. To allow this constitutionally infirm
initiative, propelled by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario,
Garcia, and Velasco, Jr., JJ., concur.
 40

G.R. No. L-34150 October 16, 1971 the Convention are indispensable parties in a proceeding of this nature, since the acts
sought to be enjoined involve the expenditure of funds appropriated by law for the
ARTURO M. TOLENTINO, petitioner, Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and
vs. Auditor of the Convention be made respondents. After the petition was so amended, the
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL Gonzales. All said respondents, thru counsel, resist petitioner's action.
S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, For reasons of orderliness and to avoid unnecessary duplication of arguments and even
and JUAN V. BORRA, Intervenors. possible confusion, and considering that with the principal parties being duly represented
by able counsel, their interests would be adequately protected already, the Court had to
Arturo M. Tolentino in his own behalf. limit the number of intervenors from the ranks of the delegates to the Convention who,
more or less, have legal interest in the success of the respondents, and so, only Delegates
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B.
Constitutional Convention. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all
distinguished lawyers in their own right, have been allowed to intervene jointly. The Court
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing feels that with such an array of brilliant and dedicated counsel, all interests involved
Officer of the 1971 Constitutional Convention. should be duly and amply represented and protected. At any rate, notwithstanding that
their corresponding motions for leave to intervene or to appear as amicus curiae 1 have
been denied, the pleadings filed by the other delegates and some private parties, the
Intervenors in their own behalf.
latter in representation of their minor children allegedly to be affected by the result of
this case with the records and the Court acknowledges that they have not been without
value as materials in the extensive study that has been undertaken in this case.

BARREDO, J.:
The background facts are beyond dispute. The Constitutional Convention of 1971 came
into being by virtue of two resolutions of the Congress of the Philippines approved in its
Petition for prohibition principally to restrain the respondent Commission on Elections capacity as a constituent assembly convened for the purpose of calling a convention to
"from undertaking to hold a plebiscite on November 8, 1971," at which the proposed propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint
constitutional amendment "reducing the voting age" in Section 1 of Article V of the sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The
Constitution of the Philippines to eighteen years "shall be, submitted" for ratification by delegates to the said Convention were all elected under and by virtue of said resolutions
the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the implementing legislation thereof, Republic Act 6132. The pertinent portions of
and the subsequent implementing resolutions, by declaring said resolutions to be without Resolution No 2 read as follows:
the force and effect of law in so far as they direct the holding of such plebiscite and by
also declaring the acts of the respondent Commission (COMELEC) performed and to be
SECTION 1. There is hereby called a convention to propose amendments to the
done by it in obedience to the aforesaid Convention resolutions to be null and void, for
Constitution of the Philippines, to be composed of two elective Delegates from each
being violative of the Constitution of the Philippines.
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.
As a preliminary step, since the petition named as respondent only the COMELEC, the
Count required that copies thereof be served on the Solicitor General and the
xxx xxx xxx
Constitutional Convention, through its President, for such action as they may deem
proper to take. In due time, respondent COMELEC filed its answer joining issues with
petitioner. To further put things in proper order, and considering that the fiscal officers of
 41

SECTION 7. The amendments proposed by the Convention shall be valid and considered Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its
part of the Constitution when approved by a majority of the votes cast in an election at savings or from its unexpended funds for the expense of the advanced plebiscite;
which they are submitted to the people for their ratification pursuant to Article XV of the provided, however that should there be no savings or unexpended sums, the Delegates
Constitution. waive P250.00 each or the equivalent of 2-1/2 days per diem.

Resolution No. 4 merely modified the number of delegates to represent the different By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
cities and provinces fixed originally in Resolution No 2. respondent Comelec "to help the Convention implement (the above) resolution." The said
letter reads:
After the election of the delegates held on November 10, 1970, the Convention held its
inaugural session on June 1, 1971. Its preliminary labors of election of officers, September 28, 1971
organization of committees and other preparatory works over, as its first formal proposal
to amend the Constitution, its session which began on September 27, 1971, or more The Commission on Elections Manila
accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus: . Thru the Chairman

CC ORGANIC RESOLUTION NO. 1 Gentlemen:

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18
xxx xxx xxx
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
(see above)
Section 1. Section One of Article V of the Constitution of the Philippines is amended to as
follows: Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention
Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise implement this resolution:
disqualified by law, who are (twenty-one) EIGHTEEN years or over and are able to read
and write, and who shall have resided in the Philippines for one year and in the Sincerely,
municipality wherein they propose to vote for at least six months preceding the election.
(Sgd.) DIOSDADO P. MACAPAGAL
Section 2. This amendment shall be valid as part of the Constitution of the Philippines DIOSDADO P. MACAPAGAL
when approved by a majority of the votes cast in a plebiscite to coincide with the local President
elections in November 1971.
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention
Section 3. This partial amendment, which refers only to the age qualification for the that it will hold the plebiscite on condition that:
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
(a) The Constitutional Convention will undertake the printing of separate official ballots,
amended Section or on other portions of the entire Constitution.
election returns and tally sheets for the use of said plebiscite at its expense;
 42
(b) The Constitutional Convention will adopt its own security measures for the printing
and shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time so
that they could be distributed at the same time that the Commission will distribute its
official and sample ballots to be used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors'
statement of the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.
This Committee issued implementing guidelines which were approved by the President
who then transmitted them to the Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies of
the order, resolution and letters of transmittal above referred to (Copy of the report is
hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of
the Convention from November 1, 1971 to November 9, 1971 to permit the delegates to
campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and
the transcript of debate thereon are hereto attached as Annexes 9 and 9-A Memorandum,
respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate
Jose Ozamiz confirming the authority of the President of the Convention to implement
Organic Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the
other implementing resolutions thereof subsequently approved by the Convention have
no force and effect as laws in so far as they provide for the holding of a plebiscite
co-incident with the elections of eight senators and all city, provincial and municipal
officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof
and tending to carry out the holding of the plebiscite directed by said resolutions are null
and void, on the ground that the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the
proposed amendment in question cannot be presented to the people for ratification
separately from each and all of the other amendments to be drafted and proposed by the
Convention. On the other hand, respondents and intervenors posit that the power to
provide for, fix the date and lay down the details of the plebiscite for the ratification of
any amendment the Convention may deem proper to propose is within the authority of
the Convention as a necessary consequence and part of its power to propose
amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion.
The Court's delicate task now is to decide which of these two poses is really in accord with
the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction.
They contend that the issue before Us is a political question and that the Convention
being legislative body of the highest order is sovereign, and as such, its acts impugned by
petitioner are beyond the control of the Congress and the courts. In this connection, it is
to be noted that none of the respondent has joined intervenors in this posture. In fact,
respondents Chief Accountant and Auditor of the convention expressly concede the
jurisdiction of this Court in their answer acknowledging that the issue herein is a
justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this
Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court,
despite their being divided in their opinions as to the other matters therein involved,
were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel
have either failed to grasp the full impact of the portions of Our decision they have
quoted or would misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction
vis-a-vis the constitutionality of the acts of the Congress, acting as a constituent assembly,
and, for that matter, those of a constitutional convention called for the purpose of
proposing amendments to the Constitution, which concededly is at par with the former. A
simple reading of Our ruling in that very case of Gonzales relied upon by intervenors
should dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus: .
 43
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking
through one of the leading members of the Constitutional Convention and a respected
professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial
department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and among the integral or
constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or not a
given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the
three-fourths vote requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil.
818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v. Cuenco, (L-10520, Feb.
28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we
held that the officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber, purporting to act, on behalf
of the party having the second largest number of votes therein of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be possible according to the number
of inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of which is
beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not
included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people — as the
repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution
of the Philippines) — to make, and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution merely because the same
explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence,
when exercising the same, it is said that Senators and members of the House of
Representatives act, not as members of Congress, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same function,
(Of amending the Constitution) for their authority does not emanate from the
Constitution — they are the very source of all powers of government including the
Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the
members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a constituent
assembly — violates the Constitution is essentially justiciable not political, and, hence,
subject to judicial review, and, to the extent that this view may be inconsistent with the
stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention
is not supreme. Nowhere in his petition and in his oral argument and memoranda does
petitioner point otherwise. Actually, what respondents and intervenors are seemingly
reluctant to admit is that the Constitutional Convention of 1971, as any other convention
of the same nature, owes its existence and derives all its authority and power from the
existing Constitution of the Philippines. This Convention has not been called by the people
directly as in the case of a revolutionary convention which drafts the first Constitution of
an entirely new government born of either a war of liberation from a mother country or
of a revolution against an existing government or of a bloodless seizure of power a la coup
d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that
the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted
by Senator Pelaez refer. No amount of rationalization can belie the fact that the current
convention came into being only because it was called by a resolution of a joint session of
Congress acting as a constituent assembly by authority of Section 1, Article XV of the
present Constitution which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately, may
 44
propose amendments to this Constitution or call a convention for the purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their
ratification.
True it is that once convened, this Convention became endowed with extra ordinary
powers generally beyond the control of any department of the existing government, but
the compass of such powers can be co-extensive only with the purpose for which the
convention was called and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the
acts of convention, its officers and members are not immune from attack on
constitutional grounds. The present Constitution is in full force and effect in its entirety
and in everyone of its parts the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in its internal
operation and the performance of its task to propose amendments to the Constitution it
is not subject to any degree of restraint or control by any other authority than itself, it is
equally beyond cavil that neither the Convention nor any of its officers or members can
rightfully deprive any person of life, liberty or property without due process of law, deny
to anyone in this country the equal protection of the laws or the freedom of speech and
of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that
matter, can such Convention validly pass any resolution providing for the taking of private
property without just compensation or for the imposition or exacting of any tax, impost or
assessment, or declare war or call the Congress to a special session, suspend the privilege
of the writ of habeas corpus, pardon a convict or render judgment in a controversy
between private individuals or between such individuals and the state, in violation of the
distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly
assert, much less exercise, in the light of the existing Constitution, the simple question
arises, should an act of the Convention be assailed by a citizen as being among those not
granted to or inherent in it, according to the existing Constitution, who can decide
whether such a contention is correct or not? It is of the very essence of the rule of law
that somehow somewhere the Power and duty to resolve such a grave constitutional
question must be lodged on some authority, or we would have to confess that the
integrated system of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of their learning,
experience and craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have posed. The very
decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors,
reiterates and reinforces the irrefutable logic and wealth of principle in the opinion
written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63
Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say where the one leaves off and the
other begins. In times of social disquietude or political excitement, the great landmark of
the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of check and balances and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets
forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in any living
Constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for
a period of more than one and half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of Article VIII of our
Constitution.
The Constitution is a definition of the powers or government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This
 45
is in truth all that is involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its
functions is in this manner the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must be
ever ready to mark, their voices to pronounce ... aggression on the authority of their
Constitution." In the last and ultimate analysis then, must the success of our government
in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as
the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly; notwithstanding the previous confirmations made by
the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of
the National Assembly has the effect of cutting off the power of the Electoral Commission
to entertain protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last day for
filing protests against the election, returns and qualifications of members of the National
Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the republican government established
in our country in the light of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission as we shall
have occasion to refer hereafter, is a constitutional organ, created for a specific purpose,
namely, to determine all contests relating to the election, returns and qualifications of the
members of the National Assembly. Although the Electoral Commission may not be
interfered with, when and while acting within the limits of its authority, it does not follow
that it is beyond the reach of the constitutional mechanism adopted by the people and
that it is not subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting claims of
authority under the fundamental law between departmental powers and agencies of the
government are necessarily determined by the judiciary in justiciable and appropriate
cases. Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the power to interpret the
fundamental law. This is taken as a recognition of what otherwise would be the rule that
in the absence of direct prohibition, courts are bound to assume what is logically their
function. For instance, the Constitution of Poland of 1921 expressly provides that courts
shall have no power to examine the validity of statutes (art. 81, Chap. IV). The former
Austrian Constitution contained a similar declaration. In countries whose constitution are
silent in this respect, courts have assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts.
121-123, Title IX, Constitution of the Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In our case, the nature of the
present controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must
we avoid exhaustion in our constitutional system. Upon principle, reason, and authority,
we are clearly of the opinion that upon the admitted facts of the present case, this court
has jurisdiction over the Electoral Commission and the subject matter of the present
controversy for the purpose of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole judge of all contests relating
to the election, returns and qualifications of the members of the National Assembly." .
 46
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three
existing regular departments of the government but to all such conflicts between and
among these departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in Congress, the
Comelec and the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been convincingly
shown to Us by any of the respondents and intervenors, why the same ruling should not
apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of
and under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court
over the present case. It goes without saying that We do this not because the Court is
superior to the Convention or that the Convention is subject to the control of the Court,
but simply because both the Convention and the Court are subject to the Constitution and
the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is
within the power as it is the solemn duty of the Court, under the existing Constitution to
resolve the issues in which petitioner, respondents and intervenors have joined in this
case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the
powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a
plebiscite for the ratification of the proposed amendment reducing to eighteen years the
age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed
in the Convention's Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate
and unequivocal statement of the real issue which the Court is called upon to resolve.
Petitioner has very clearly stated that he is not against the constitutional extension of the
right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or
sponsored in Congress such a proposal, and that, in truth, the herein petition is not
intended by him to prevent that the proposed amendment here involved be submitted to
the people for ratification, his only purpose in filing the petition being to comply with his
sworn duty to prevent, Whenever he can, any violation of the Constitution of the
Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case
is limited solely and only to the point of whether or not it is within the power of the
Convention to call for a plebiscite for the ratification by the people of the constitutional
amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subject question implementing actions
and resolution of the Convention and its officers, at this juncture of its proceedings, when
as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die,
and is, in fact, still in the preliminary stages of considering other reforms or amendments
affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1
itself expressly provides, that the amendment therein proposed "shall be without
prejudice to other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended section or on other portions
of the entire Constitution." In other words, nothing that the Court may say or do, in this
case should be understood as reflecting, in any degree or means the individual or
collective stand of the members of the Court on the fundamental issue of whether or not
the eighteen-year-olds should be allowed to vote, simply because that issue is not before
Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the
youth have not blinded them to the absolute necessity, under the fundamental principles
of democracy to which the Filipino people is committed, of adhering always to the rule of
law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of
conduct or approach in respect of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of the pressure brought to bear upon
the Congress of the Philippines by various elements of the people, the youth in particular,
in their incessant search for a peaceful and orderly means of bringing about meaningful
changes in the structure and bases of the existing social and governmental institutions,
including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the
preservation and protection of our natural resources and the national patrimony, as an
alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside
the excesses of enthusiasm which at times have justifiably or unjustifiably marred the
demonstrations in the streets, plazas and campuses, the youth of the Philippines, in
general, like the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness, even in the
pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion
of these perspectives, if the Court were to allow itself in deciding this case to be carried
astray by considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger measure than when
 47
it binds other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate cases with the
proper parties, and by striking down any act violative thereof. Here, as in all other cases,
We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful change is the only
alternative to a violent revolution, this Court would be the last to put any obstruction or
impediment to the work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution in its entirety,
since its enabling provision, Article XV, from which the Convention itself draws life
expressly speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present
condition of things, as they see it, can limit the extent of the constitutional innovations
the Convention may propose, hence the complete substitution of the existing constitution
is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve,
this grave divergence of views, the Court does not consider this case to be properly the
one in which it should discharge its constitutional duty in such premises. The issues raised
by petitioner, even those among them in which respondents and intervenors have joined
in an apparent wish to have them squarely passed upon by the Court do not necessarily
impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled
and unrestrained in the performance of its constitutionally as signed mission in the
manner and form it may conceive best, and so the Court may step in to clear up doubts as
to the boundaries set down by the Constitution only when and to the specific extent only
that it would be necessary to do so to avoid a constitutional crisis or a clearly
demonstrable violation of the existing Charter. Withal, it is a very familiar principle of
constitutional law that constitutional questions are to be resolved by the Supreme Court
only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate
departments of the government, and certainly, the Constitutional Convention stands
almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the
Convention came into being by a call of a joint session of Congress pursuant to Section I of
Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also
that as to matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments to the Constitution, it is
subject to the provisions of Section I of Article XV. This must be so, because it is plain to
Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power, second to none, of the people
in a constitutional democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable aspect of the
lives of all the people within the country and those subject to its sovereignty, every
degree of care is taken in preparing and drafting it. A constitution worthy of the people
for which it is intended must not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and
prepared with as much care and deliberation. From the very nature of things, the drafters
of an original constitution, as already observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose upon themselves. This is not
necessarily true of subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not lightly treated and
as easily mutilated or changed, not only for reasons purely personal but more importantly,
because written constitutions are supposed to be designed so as to last for some time, if
not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of
the people, hence, they must be insulated against precipitate and hasty actions motivated
by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so
by the people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and disregard
such conditions because they are as powerful and omnipotent as their original
counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number
and nature and the scope and extent of the amendments the Convention may deem
proper to propose. Nor does the Court propose to pass on the issue extensively and
brilliantly discussed by the parties as to whether or not the power or duty to call a
plebiscite for the ratification of the amendments to be proposed by the Convention is
exclusively legislative and as such may be exercised only by the Congress or whether the
said power can be exercised concurrently by the Convention with the Congress. In the
view the Court takes of present case, it does not perceive absolute necessity to resolve
that question, grave and important as it may be. Truth to tell, the lack of unanimity or
even of a consensus among the members of the Court in respect to this issue creates the
need for more study and deliberation, and as time is of the essence in this case, for
 48
obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is
calling, being nigh, We will refrain from making any pronouncement or expressing Our
views on this question until a more appropriate case comes to Us. After all, the basis of
this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in
Section 1 of Article XV of the Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and limitation that all the amendments to
be proposed by the same Convention must be submitted to the people in a single
"election" or plebiscite. It being indisputable that the amendment now proposed to be
submitted to a plebiscite is only the first amendment the Convention propose We hold
that the plebiscite being called for the purpose of submitting the same for ratification of
the people on November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that
direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says
distinctly that either Congress sitting as a constituent assembly or a convention called for
the purpose "may propose amendments to this Constitution," thus placing no limit as to
the number of amendments that Congress or the Convention may propose. The same
provision also as definitely provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification," thus leaving no room
for doubt as to how many "elections" or plebiscites may be held to ratify any amendment
or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness
of this provision. As already stated, amending the Constitution is as serious and important
an undertaking as constitution making itself. Indeed, any amendment of the Constitution
is as important as the whole of it if only because the Constitution has to be an integrated
and harmonious instrument, if it is to be viable as the framework of the government it
establishes, on the one hand, and adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties, ideology, social ideals, and national and
nationalistic policies and aspirations of the people, on the other. lt is inconceivable how a
constitution worthy of any country or people can have any part which is out of tune with
its other parts..
A constitution is the work of the people thru its drafters assembled by them for the
purpose. Once the original constitution is approved, the part that the people play in its
amendment becomes harder, for when a whole constitution is submitted to them, more
or less they can assumed its harmony as an integrated whole, and they can either accept
or reject it in its entirety. At the very least, they can examine it before casting their vote
and determine for themselves from a study of the whole document the merits and
demerits of all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in relation to the
whole existing constitution and or any of its parts and thereby arrive at an intelligent
judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from
the fact that under Section 3 of the questioned resolution, it is evident that no fixed frame
of reference is provided the voter, as to what finally will be concomitant qualifications
that will be required by the final draft of the constitution to be formulated by the
Convention of a voter to be able to enjoy the right of suffrage, there are other
considerations which make it impossible to vote intelligently on the proposed
amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed
under the circumstances, and he does not see those conditions in the ballot nor is there
any possible indication whether they will ever be or not, because Congress has reserved
those for future action, what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the
fundamental principles of the constitution the Convention will be minded to approve. To
be more specific, we do not have any means of foreseeing whether the right to vote
would be of any significant value at all. Who can say whether or not later on the
Convention may decide to provide for varying types of voters for each level of the political
units it may divide the country into. The root of the difficulty in other words, lies in that
the Convention is precisely on the verge of introducing substantial changes, if not radical
ones, in almost every part and aspect of the existing social and political order enshrined in
the present Constitution. How can a voter in the proposed plebiscite intelligently
determine the effect of the reduction of the voting age upon the different institutions
which the Convention may establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the Constitution with which
it has to form a harmonious whole. In the context of the present state of things, where
 49

the Convention has hardly started considering the merits of hundreds, if not thousands, of Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
proposals to amend the existing Constitution, to present to the people any single proposal
or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or
"election" wherein the people are in the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the present Constitution is a possible
frame of reference, for the simple reason that intervenors themselves are stating that the
sole purpose of the proposed amendment is to enable the eighteen year olds to take part
in the election for the ratification of the Constitution to be drafted by the Convention. In
brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, "no proper submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment on the merits
of the proposal to allow these eighteen years old to vote. But like the Convention, the
Court has its own duties to the people under the Constitution which is to decide in PART III: JUDICIAL REVIEW
appropriate cases with appropriate parties Whether or not the mandates of the
fundamental law are being complied with. In the best light God has given Us, we are of A. Separation of Powers
the conviction that in providing for the questioned plebiscite before it has finished, and B. Theory and Justification of Judicial Review
separately from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the Convention G.R. No. L-45081 July 15, 1936
implementing the same violate the condition in Section 1, Article XV that there should
only be one "election" or plebiscite for the ratification of all the amendments the JOSE A. ANGARA, petitioner,
Convention may propose. We are not denying any right of the people to vote on the vs.
proposed amendment; We are only holding that under Section 1, Article XV of the THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
Constitution, the same should be submitted to them not separately from but together MAYOR,respondents.
with all the other amendments to be proposed by this present Convention.
Godofredo Reyes for petitioner.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 Office of the Solicitor General Hilado for respondent Electoral Commission.
of the Constitutional Convention of 1971 and the implementing acts and resolutions of Pedro Ynsua in his own behalf.
the Convention, insofar as they provide for the holding of a plebiscite on November 8, No appearance for other respondents.
1971, as well as the resolution of the respondent Comelec complying therewith (RR
Resolution No. 695) are hereby declared null and void. The respondents Comelec, LAUREL, J.:
Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are
hereby enjoined from taking any action in compliance with the said organic resolution. In This is an original action instituted in this court by the petitioner, Jose A. Angara, for the
view of the peculiar circumstances of this case, the Court declares this decision issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of
immediately executory. No costs. the respondents, from taking further cognizance of the protest filed by Pedro Ynsua,
 50
another respondent, against the election of said petitioner as member of the National
Assembly for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents
are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for
the position of member of the National Assembly for the first district of the Province of
Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner
as member-elect of the National Assembly for the said district, for having received the
most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes
no se hubiere presentado debidamente una protesta antes de la
adopcion de la presente resolucion sean, como por la presente, son
aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the
Electoral Commission a "Motion of Protest" against the election of the herein petitioner,
Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8
aforequoted, and praying, among other-things, that said respondent be declared elected
member of the National Assembly for the first district of Tayabas, or that the election of
said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph
6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de
este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a)
that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of
its constitutional prerogative to prescribe the period during which protests against the
election of its members should be presented; (b) that the aforesaid resolution has for its
object, and is the accepted formula for, the limitation of said period; and (c) that the
protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to
the Motion of Dismissal" alleging that there is no legal or constitutional provision barring
the presentation of a protest against the election of a member of the National Assembly
after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to
the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the
Protest."
The application of the petitioner sets forth the following grounds for the issuance of the
writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission
solely as regards the merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the Constitution,
whose exclusive jurisdiction relates solely to deciding the merits of controversies
submitted to them for decision and to matters involving their internal organization, the
 51
Electoral Commission can regulate its proceedings only if the National Assembly has not
availed of its primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution
and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of
the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article
VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental
question herein raised because it involves an interpretation of the Constitution of the
Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to decide "all
contests relating to the election, returns, and qualifications of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date
as the last day for the presentation of protests against the election of any member of the
National Assembly, it acted within its jurisdiction and in the legitimate exercise of the
implied powers granted it by the Constitution to adopt the rules and regulations essential
to carry out the power and functions conferred upon the same by the fundamental law;
that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner
to dismiss the election protest in question, and declaring itself with jurisdiction to take
cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions
a an instrumentality of the Legislative Department of the Commonwealth Government,
and hence said act is beyond the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to
take cognizance of election protests filed within the time that might be set by its own
rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions, created
by the Constitution as an instrumentality of the Legislative Department, and is not an
"inferior tribunal, or corporation, or board, or person" within the purview of section 226
and 516 of the Code of Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf
on March 2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on December
9, 1935, there was no existing law fixing the period within which protests against the
election of members of the National Assembly should be filed; that in fixing December 9,
1935, as the last day for the filing of protests against the election of members of the
National Assembly, the Electoral Commission was exercising a power impliedly conferred
upon it by the Constitution, by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral Commission
on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral
Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral
Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was
an act within the jurisdiction of the said commission, and is not reviewable by means of a
writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National
Assembly of the election of its members, and that such confirmation does not operate to
limit the period within which protests should be filed as to deprive the Electoral
Commission of jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,
corporation, board or person, within the terms of sections 226 and 516 of the Code of
Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II
(should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance
appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ
of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision,
the petitioner prayed for the issuance of a preliminary writ of injunction against the
 52
respondent Electoral Commission which petition was denied "without passing upon the
merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal
propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject
matter of the controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the
controversy. However, the question of jurisdiction having been presented, we do not feel
justified in evading the issue. Being a case primæ impressionis, it would hardly be
consistent with our sense of duty to overlook the broader aspect of the question and
leave it undecided. Neither would we be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of jurisdiction squarely presented to our
consideration.
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for
an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. For example, the Chief Executive under our
Constitution is so far made a check on the legislative power that this assent is required in
the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of
two-thirds or three-fourths, as the case may be, of the National Assembly. The President
has also the right to convene the Assembly in special session whenever he chooses. On
the other hand, the National Assembly operates as a check on the Executive in the sense
that its consent through its Commission on Appointments is necessary in the
appointments of certain officers; and the concurrence of a majority of all its members is
essential to the conclusion of treaties. Furthermore, in its power to determine what
courts other than the Supreme Court shall be established, to define their jurisdiction and
to appropriate funds for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just where the one leaves off and
the other begins. 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.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets
forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitation and
restrictions embodied in our Constitution are real as they should be in any living
constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for
a period of more than one and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article VIII of our
constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
 53
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This
is in truth all that is involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
governments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty . . . the
people who are authors of this blessing must also be its guardians . . . their eyes must be
ever ready to mark, their voice to pronounce . . . aggression on the authority of their
constitution." In the Last and ultimate analysis, then, must the success of our government
in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as
the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly, notwithstanding the previous confirmation made by
the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of
the National Assembly has the effect of cutting off the power of the Electoral Commission
to entertain protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935, then the resolution of the
Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if,
as contended by the respondents, the Electoral Commission has the sole power of
regulating its proceedings to the exclusion of the National Assembly, then the resolution
of December 9, 1935, by which the Electoral Commission fixed said date as the last day for
filing protests against the election, returns and qualifications of members of the National
Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the republican government established
in our country in the light of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission, as we
shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the limits of its
authority, it does not follow that it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to constitutional restrictions. The
Electoral Commission is not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between department powers
and agencies of the government are necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted the American type
where the written constitution is interpreted and given effect by the judicial department.
In some countries which have declined to follow the American example, provisions have
been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be
the rule that in the absence of direct prohibition courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of 1921, expressly
provides that courts shall have no power to examine the validity of statutes (art. 81, chap.
IV). The former Austrian Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920)
and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws. In our case,
the nature of the present controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies created by the Constitution.
Were we to decline to take cognizance of the controversy, who will determine the conflict?
And if the conflict were left undecided and undetermined, would not a void be thus
created in our constitutional system which may be in the long run prove destructive of the
entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason and
authority, we are clearly of the opinion that upon the admitted facts of the present case,
 54
this court has jurisdiction over the Electoral Commission and the subject mater of the
present controversy for the purpose of determining the character, scope and extent of
the constitutional grant to the Electoral Commission as "the sole judge of all contests
relating to the election, returns and qualifications of the members of the National
Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the
second proposition and determine whether the Electoral Commission has acted without
or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in
assuming to take cognizance of the protest filed against the election of the herein
petitioner notwithstanding the previous confirmation thereof by the National Assembly
on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges
on the interpretation of section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein. The
senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be
the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly." It is imperative, therefore, that we delve into the
origin and history of this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly appreciate its full
meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7,
par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns,
and qualifications of its members", was taken from clause 1 of section 5, Article I of the
Constitution of the United States providing that "Each House shall be the Judge of the
Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of
August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word
"sole" as follows: "That the Senate and House of Representatives, respectively, shall be
the sole judges of the elections, returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the Legislative over the particular case s
therein specified. This court has had occasion to characterize this grant of power to the
Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding
contested elections to the legislature was taken by the sub-committee of five appointed
by the Committee on Constitutional Guarantees of the Constitutional Convention, which
sub-committee submitted a report on August 30, 1934, recommending the creation of a
Tribunal of Constitutional Security empowered to hear legislature but also against the
election of executive officers for whose election the vote of the whole nation is required,
as well as to initiate impeachment proceedings against specified executive and judicial
officer. For the purpose of hearing legislative protests, the tribunal was to be composed of
three justices designated by the Supreme Court and six members of the house of the
legislature to which the contest corresponds, three members to be designed by the
majority party and three by the minority, to be presided over by the Senior Justice unless
the Chief Justice is also a member in which case the latter shall preside. The foregoing
proposal was submitted by the Committee on Constitutional Guarantees to the
Convention on September 15, 1934, with slight modifications consisting in the reduction
of the legislative representation to four members, that is, two senators to be designated
one each from the two major parties in the Senate and two representatives to be
designated one each from the two major parties in the House of Representatives, and in
awarding representation to the executive department in the persons of two
representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As
submitted to the Convention on September 24, 1934 subsection 5, section 5, of the
proposed Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral
Commission, constituted, as to each House, by three members elected by the members of
the party having the largest number of votes therein, three elected by the members of
the party having the second largest number of votes, and as to its Chairman, one Justice
of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction
as proposed by the Committee on Constitutional Guarantees which was probably inspired
by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon
abandoned in favor of the proposition of the Committee on Legislative Power to create a
similar body with reduced powers and with specific and limited jurisdiction, to be
designated as a Electoral Commission. The Sponsorship Committee modified the proposal
of the Committee on Legislative Power with respect to the composition of the Electoral
Commission and made further changes in phraseology to suit the project of adopting a
unicameral instead of a bicameral legislature. The draft as finally submitted to the
Convention on October 26, 1934, reads as follows:
 55
(6) The elections, returns and qualifications of the Members of the National Assembly and
all cases contesting the election of any of its Members shall be judged by an Electoral
Commission, composed of three members elected by the party having the largest number
of votes in the National Assembly, three elected by the members of the party having the
second largest number of votes, and three justices of the Supreme Court designated by
the Chief Justice, the Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and
others, proposing to strike out the whole subsection of the foregoing draft and inserting
in lieu thereof the following: "The National Assembly shall be the soled and exclusive
judge of the elections, returns, and qualifications of the Members", the following
illuminating remarks were made on the floor of the Convention in its session of December
4, 1934, as to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the
first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the
election of any of its Members shall be judged by an Electoral Commission, . . ." I should
like to ask from the gentleman from Capiz whether the election and qualification of the
member whose elections is not contested shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing to
be judged; that is why the word "judge" is used to indicate a controversy. If there is no
question about the election of a member, there is nothing to be submitted to the
Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall
confirm also the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the
rules of the assembly. It is not constitutional. It is not necessary. After a man files his
credentials that he has been elected, that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body,
because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected?
What happens with regards to the councilors of a municipality? Does anybody confirm
their election? The municipal council does this: it makes a canvass and proclaims — in this
case the municipal council proclaims who has been elected, and it ends there, unless
there is a contest. It is the same case; there is no need on the part of the Electoral
Commission unless there is a contest. The first clause refers to the case referred to by the
gentleman from Cavite where one person tries to be elected in place of another who was
declared elected. From example, in a case when the residence of the man who has been
elected is in question, or in case the citizenship of the man who has been elected is in
question.
However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised by
the assembly referring to the elections, returns and qualifications of the members. When
there is no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago. However I want to ask more questions from
the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting
the election as separate from the first part of the sections which refers to elections,
returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections
are already included in the phrase "the elections, returns and qualifications." This phrase
"and contested elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance,
refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
 56
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a member has not the qualifications
provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National
Assembly even though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns
and qualifications of the members of the National Assembly and" was eliminated by the
Sponsorship Committee in response to an amendment introduced by Delegates Francisco,
Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between
the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship
Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion
apuntada por varios Delegados al efecto de que la primera clausula del draft que dice:
"The elections, returns and qualifications of the members of the National Assembly"
parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los
miembros que no ha sido protestados y para obviar esa dificultad, creemos que la
enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea
como sigue: "All cases contesting the election", de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas."
Before the amendment of Delegate Labrador was voted upon the following interpellation
also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a
la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente
a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros
de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que
el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
 57
The amendment introduced by Delegates Labrador, Abordo and others seeking to restore
the power to decide contests relating to the election, returns and qualifications of
members of the National Assembly to the National Assembly itself, was defeated by a
vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by
reducing the representation of the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more representation to the majority
party. The Convention rejected this amendment by a vote of seventy-six (76) against
forty-six (46), thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National
Assembly, three elected by the members of the party having the second largest number
of votes, and three justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of votes therein. The
senior Justice in the Commission shall be its chairman. The Electoral Commission shall be
the sole judge of the election, returns, and qualifications of the Members of the National
Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style
Committee, through President Recto, to effectuate the original intention of the
Convention, agreed to insert the phrase "All contests relating to" between the phrase
"judge of" and the words "the elections", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election, returns and qualifications of the
members of the legislature long lodged in the legislative body, to an independent,
impartial and non-partisan tribunal, is by no means a mere experiment in the science of
government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages
57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by
political parties in the disposition of contests by the House of Commons in the following
passages which are partly quoted by the petitioner in his printed memorandum of March
14, 1936:
153. From the time when the commons established their right to be the exclusive judges
of the elections, returns, and qualifications of their members, until the year 1770, two
modes of proceeding prevailed, in the determination of controverted elections, and rights
of membership. One of the standing committees appointed at the commencement of
each session, was denominated the committee of privileges and elections, whose
functions was to hear and investigate all questions of this description which might be
referred to them, and to report their proceedings, with their opinion thereupon, to the
house, from time to time. When an election petition was referred to this committee they
heard the parties and their witnesses and other evidence, and made a report of all the
evidence, together with their opinion thereupon, in the form of resolutions, which were
considered and agreed or disagreed to by the house. The other mode of proceeding was
by a hearing at the bar of the house itself. When this court was adopted, the case was
heard and decided by the house, in substantially the same manner as by a committee. The
committee of privileges and elections although a select committee. The committee of
privileges and elections although a select committee was usually what is called an open
one; that is to say, in order to constitute the committee, a quorum of the members
named was required to be present, but all the members of the house were at liberty to
attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to
the year 1770, controverted elections had been tried and determined by the house of
commons, as mere party questions, upon which the strength of contending factions might
be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his
government, resigned his office in consequence of an adverse vote upon the Chippenham
election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this
system, that "Every principle of decency and justice were notoriously and openly
prostituted, from whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more serious matters, and
in questions of higher importance to the public welfare." Mr. George Grenville, a
distinguished member of the house of commons, undertook to propose a remedy for the
evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring
in a bill, "to regulate the trial of controverted elections, or returns of members to serve in
parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville
alluded to the existing practice in the following terms: "Instead of trusting to the merits of
 58
their respective causes, the principal dependence of both parties is their private interest
among us; and it is scandalously notorious that we are as earnestly canvassed to attend in
favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the
principles of justice, but by the discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist
themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in a
bill which met with the approbation of both houses, and received the royal assent on the
12th of April, 1770. This was the celebrated law since known by the name of the Grenville
Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of
the house of commons, and the security of the constitution, that was ever devised by any
minister or statesman." It is probable, that the magnitude of the evil, or the apparent
success of the remedy, may have led many of the contemporaries of the measure to the
information of a judgement, which was not acquiesced in by some of the leading
statesmen of the day, and has not been entirely confirmed by subsequent experience. The
bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common
pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox,
chiefly on the ground, that the introduction of the new system was an essential alteration
of the constitution of parliament, and a total abrogation of one of the most important
rights and jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the
non-partisan settlement of the controverted elections of its members by abdicating its
prerogative to two judges of the King's Bench of the High Court of Justice selected from a
rota in accordance with rules of court made for the purpose. Having proved successful,
the practice has become imbedded in English jurisprudence (Parliamentary Elections Act,
1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices
Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46
& 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of
England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests
which were originally heard by the Committee of the House of Commons, are since 1922
tried in the courts. Likewise, in the Commonwealth of Australia, election contests which
were originally determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the election of members of the
Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22
of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19)
and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority
to decide contested elections to the Diet or National Assembly in the Supreme Court. For
the purpose of deciding legislative contests, the Constitution of the German Reich of July
1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art.
19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for
an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the
legislature and the judiciary is by no means unknown in the United States. In the
presidential elections of 1876 there was a dispute as to the number of electoral votes
received by each of the two opposing candidates. As the Constitution made no adequate
provision for such a contingency, Congress passed a law on January 29, 1877 (United
States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral
Commission composed of five members elected by the Senate, five members elected by
the House of Representatives, and five justices of the Supreme Court, the fifth justice to
be selected by the four designated in the Act. The decision of the commission was to be
binding unless rejected by the two houses voting separately. Although there is not much
of a moral lesson to be derived from the experience of America in this regard, judging
from the observations of Justice Field, who was a member of that body on the part of the
Supreme Court (Countryman, the Supreme Court of the United States and its Appellate
Power under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral
Commission, p. 25 et seq.), the experiment has at least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental law were in
their majority men mature in years and experience. To be sure, many of them were
familiar with the history and political development of other countries of the world. When ,
therefore, they deemed it wise to create an Electoral Commission as a constitutional
organ and invested it with the exclusive function of passing upon and determining the
election, returns and qualifications of the members of the National Assembly, they must
have done so not only in the light of their own experience but also having in view the
experience of other enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the framers of our
Constitution were cognizant. Notwithstanding the vigorous opposition of some members
of the Convention to its creation, the plan, as hereinabove stated, was approved by that
body by a vote of 98 against 58. All that can be said now is that, upon the approval of the
constitutional the creation of the Electoral Commission is the expression of the wisdom
and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4,
1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was
to transfer in its totality all the powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an independent and impartial
 59
tribunal. It was not so much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long-felt need of determining legislative
contests devoid of partisan considerations which prompted the people, acting through
their delegates to the Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both the majority and
minority parties are equally represented to off-set partisan influence in its deliberations
was created, and further endowed with judicial temper by including in its membership
three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary
authority in the performance and execution of the limited and specific function assigned
to it by the Constitution. Although it is not a power in our tripartite scheme of
government, it is, to all intents and purposes, when acting within the limits of its authority,
an independent organ. It is, to be sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating the Electoral Commission under
Article VI entitled "Legislative Department" of our Constitution is very indicative. Its
compositions is also significant in that it is constituted by a majority of members of the
legislature. But it is a body separate from and independent of the legislature.
The grant of power to the Electoral Commission to judge all contests relating to the
election, returns and qualifications of members of the National Assembly, is intended to
be as complete and unimpaired as if it had remained originally in the legislature. The
express lodging of that power in the Electoral Commission is an implied denial of the
exercise of that power by the National Assembly. And this is as effective a restriction upon
the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex.
Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power
claimed in behalf of the National Assembly that said body may regulate the proceedings
of the Electoral Commission and cut off the power of the commission to lay down the
period within which protests should be filed, the grant of power to the commission would
be ineffective. The Electoral Commission in such case would be invested with the power
to determine contested cases involving the election, returns and qualifications of the
members of the National Assembly but subject at all times to the regulative power of the
National Assembly. Not only would the purpose of the framers of our Constitution of
totally transferring this authority from the legislative body be frustrated, but a dual
authority would be created with the resultant inevitable clash of powers from time to
time. A sad spectacle would then be presented of the Electoral Commission retaining the
bare authority of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and whenever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by the
framers of our Constitution. The power to regulate on the part of the National Assembly
in procedural matters will inevitably lead to the ultimate control by the Assembly of the
entire proceedings of the Electoral Commission, and, by indirection, to the entire
abrogation of the constitutional grant. It is obvious that this result should not be
permitted.
We are not insensible to the impassioned argument or the learned counsel for the
petitioner regarding the importance and necessity of respecting the dignity and
independence of the national Assembly as a coordinate department of the government
and of according validity to its acts, to avoid what he characterized would be practically an
unlimited power of the commission in the admission of protests against members of the
National Assembly. But as we have pointed out hereinabove, the creation of the Electoral
Commission carried with it ex necesitate rei the power regulative in character to limit the
time with which protests intrusted to its cognizance should be filed. It is a settled rule of
construction that where a general power is conferred or duty enjoined, every particular
power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the
absence of any further constitutional provision relating to the procedure to be followed in
filing protests before the Electoral Commission, therefore, the incidental power to
promulgate such rules necessary for the proper exercise of its exclusive power to judge all
contests relating to the election, returns and qualifications of members of the National
Assembly, must be deemed by necessary implication to have been lodged also in the
Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral
Commission may abuse its regulative authority by admitting protests beyond any
reasonable time, to the disturbance of the tranquillity and peace of mind of the members
of the National Assembly. But the possibility of abuse is not argument against the
concession of the power as there is no power that is not susceptible of abuse. In the
second place, if any mistake has been committed in the creation of an Electoral
Commission and in investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National Assembly, the remedy is
political, not judicial, and must be sought through the ordinary processes of democracy.
All the possible abuses of the government are not intended to be corrected by the
judiciary. We believe, however, that the people in creating the Electoral Commission
reposed as much confidence in this body in the exclusive determination of the specified
cases assigned to it, as they have given to the Supreme Court in the proper cases
entrusted to it for decision. All the agencies of the government were designed by the
Constitution to achieve specific purposes, and each constitutional organ working within its
own particular sphere of discretionary action must be deemed to be animated with the
same zeal and honesty in accomplishing the great ends for which they were created by
the sovereign will. That the actuations of these constitutional agencies might leave much
to be desired in given instances, is inherent in the perfection of human institutions. In the
 60
third place, from the fact that the Electoral Commission may not be interfered with in the
exercise of its legitimate power, it does not follow that its acts, however illegal or
unconstitutional, may not be challenge in appropriate cases over which the courts may
exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of
the intrinsic merits of the controversy. The Commonwealth Government was inaugurated
on November 15, 1935, on which date the Constitution, except as to the provisions
mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly
convened on November 25th of that year, and the resolution confirming the election of
the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The
protest by the herein respondent Pedro Ynsua against the election of the petitioner was
filed on December 9 of the same year. The pleadings do not show when the Electoral
Commission was formally organized but it does appear that on December 9, 1935, the
Electoral Commission met for the first time and approved a resolution fixing said date as
the last day for the filing of election protest. When, therefore, the National Assembly
passed its resolution of December 3, 1935, confirming the election of the petitioner to the
National Assembly, the Electoral Commission had not yet met; neither does it appear that
said body had actually been organized. As a mater of fact, according to certified copies of
official records on file in the archives division of the National Assembly attached to the
record of this case upon the petition of the petitioner, the three justices of the Supreme
Court the six members of the National Assembly constituting the Electoral Commission
were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the
National Assembly confirming non-protested elections of members of the National
Assembly had the effect of limiting or tolling the time for the presentation of protests, the
result would be that the National Assembly — on the hypothesis that it still retained the
incidental power of regulation in such cases — had already barred the presentation of
protests before the Electoral Commission had had time to organize itself and deliberate
on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction
by the Constitution. This result was not and could not have been contemplated, and
should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of
members against whom no protests had been filed at the time of its passage on
December 3, 1935, can not be construed as a limitation upon the time for the initiation of
election contests. While there might have been good reason for the legislative practice of
confirmation of the election of members of the legislature at the time when the power to
decide election contests was still lodged in the legislature, confirmation alone by the
legislature cannot be construed as depriving the Electoral Commission of the authority
incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the
time for the filing of said election protests. Confirmation by the National Assembly of the
returns of its members against whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral Commission in its resolution of
January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest
filed by the respondent Pedro Ynsua, confirmation of the election of any member is not
required by the Constitution before he can discharge his duties as such member. As a
matter of fact, certification by the proper provincial board of canvassers is sufficient to
entitle a member-elect to a seat in the national Assembly and to render him eligible to
any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6,
1935).
Under the practice prevailing both in the English House of Commons and in the Congress
of the United States, confirmation is neither necessary in order to entitle a member-elect
to take his seat. The return of the proper election officers is sufficient, and the
member-elect presenting such return begins to enjoy the privileges of a member from the
time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp.
694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of
contested elections where the decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted elections is certified to the Speaker
of the House of Commons, and the House, upon being informed of such certificate or
report by the Speaker, is required to enter the same upon the Journals, and to give such
directions for confirming or altering the return, or for the issue of a writ for a new election,
or for carrying into execution the determination as circumstances may require (31 & 32
Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the
particular house itself is generally regarded as sufficient, without any actual alternation or
amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed.,
sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the
Philippine Legislature fixed the time when protests against the election of any of its
members should be filed. This was expressly authorized by section 18 of the Jones Law
making each house the sole judge of the election, return and qualifications of its members,
as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively
prescribe by resolution the time and manner of filing contest in the election of member of
said bodies. As a matter of formality, after the time fixed by its rules for the filing of
protests had already expired, each house passed a resolution confirming or approving the
returns of such members against whose election no protests had been filed within the
prescribed time. This was interpreted as cutting off the filing of further protests against
the election of those members not theretofore contested (Amistad vs. Claravall [Isabela],
Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third
 61
District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine
Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District,
Cebu], Sixth Philippine Legislature, Record — First Period, pp. 1121, 1122;
Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III,
No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly abrogated also, for the reason
that with the power to determine all contest relating to the election, returns and
qualifications of members of the National Assembly, is inseparably linked the authority to
prescribe regulations for the exercise of that power. There was thus no law nor
constitutional provisions which authorized the National Assembly to fix, as it is alleged to
have fixed on December 3, 1935, the time for the filing of contests against the election of
its members. And what the National Assembly could not do directly, it could not do by
indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory
of separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only
constitutional mechanism devised finally to resolve the conflict and allocate constitutional
boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and appropriate
cases and controversies, and is the power and duty to see that no one branch or agency of
the government transcends the Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the election,
returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns, and
qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised by
the legislature with respect to contests relating to the elections, returns and qualifications
of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns
and qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain
the power to prescribe rules and regulations regarding the manner of conducting said
contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones
Law making each house of the Philippine Legislature respectively the sole judge of the
elections, returns and qualifications of its elective members, but also section 478 of Act
No. 3387 empowering each house to prescribe by resolution the time and manner of filing
contests against the election of its members, the time and manner of notifying the
adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses
of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member against
whom no protest had been filed prior to said confirmation, does not and cannot deprive
the Electoral Commission of its incidental power to prescribe the time within which
protests against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate
exercise of its constitutional prerogative in assuming to take cognizance of the protest
filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A.
Angara, and that the resolution of the National Assembly of December 3, 1935 can not in
 62
any manner toll the time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor prevent the filing of a protest
within such time as the rules of the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of the Electoral
Commission as a constitutional creation and as to the scope and extent of its authority
under the facts of the present controversy, we deem it unnecessary to determine
whether the Electoral Commission is an inferior tribunal, corporation, board or person
within the purview of sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission is hereby denied,
with costs against the petitioner. So ordered.
Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.
C. JUSTICIABLE AND POLITICAL QUESTIONS
a) Francisco vs. House of Rep., supra
b) Vinuya vs Romulo, GR. No. 162330, April 28,21010
G.R. No. 225973, November 08, 2016
SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P.
ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN
NG EX�DETAINEES LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY
DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C.
DALISAY, AND DANILO M. DELAFUENTE,* Petitioners, v. REAR ADMIRAL ERNESTO C.
ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND
RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES UNIT
(PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA (IN HIS CAPACITY AS THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN
LORENZANA, AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING
SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents.
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C. SAGUISAG
III, Intervenors.
G.R. No. 225984
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES AND AS A MEMBER
OF CONGRESS AND AS THE HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCE (FIND), REPRESENTED BY ITS CO�CHAIRPERSON, NILDA L. SEVILLA; REP.
TEDDY BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE;
AND REP. EMMANUEL A. BILLONES, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF OF STAFF LT. GEN.
RICARDO R. VISAYA; AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C.
ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING
SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents.
G.R. No. 226097
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. SANTOS�MARANAN,
JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P.
BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ,
LOUIE G. CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI
DE LEON IMAO, JR., Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL
ERNESTO C. ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AND
PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR LT. GEN. ERNESTO G.
CAROLINA (RET.), Respondents.
G.R. No. 226116
HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X. MANGLAPUS, EDILBERTO C. DE
JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR.,
ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES,
NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN,
SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P.
LEGASTO, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE
SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AFP
DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE
VETERANS AFFAIRS OFFICE (PVAO) OF THE DND, Respondents.
G.R. No. 226117
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, JUAN
ANTONIO RAROGAL MAGALANG, Petitioners, v. SECRETARY OF NATIONAL DEFENSE
DELFIN N. LORENZANA, AFP CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF
THE PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA, Respondents.
 63
G.R. No. 226120
ALGAMAR A. LATIPH, Petitioner, v. SECRETARY DELFIN N. LORENZANA, SUED IN HIS
CAPACITY AS SECRETARY OF NATIONAL DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS
CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN.
ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS ADMINISTRATOR, PHILIPPINE
VETERANS AFFAIRS OFFICE (PVAO), Respondents.
G.R. No. 226294
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC AND AS
TAXPAYER, Petitioner, v. HON. SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN
LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, UNDERSECRETARY
ERNESTO G. CAROLINA, IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS OFFICE
(PVAO) ADMINISTRATOR AND B/GEN. RESTITUTO L. AGUILAR, IN HIS CAPACITY AS
SHRINE CURATOR AND CHIEF VETERANS MEMORIAL AND HISTORICAL DIVISION AND
HEIRS OF FERDINAND EDRALIN MARCOS, Respondent.
DECISION
PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues that have lingered and
festered for so long and which unnecessarily divide the people and slow the path to the
future have to be interred. To move on is not to forget the past. It is to focus on the
present and the future, leaving behind what is better left for history to ultimately
decide. The Court finds guidance from the Constitution and the applicable laws, and in
the absence of clear prohibition against the exercise of discretion entrusted to the
political branches of the Government, the Court must not overextend its readings of
what may only be seen as providing tenuous connection to the issue before it.
Facts
During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R.
Duterte (Duterte) publicly announced that he would allow the burial of former President
Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9,
2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed
his office at the Rizal Hall in the Malaca�an Palace.
On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana
issued a Memorandum to the public respondent Chief of Staff of the Armed Forces of the
Philippines (AFP), General Ricardo R. Visaya, regarding the interment of Marcos at the
LNMB, to wit:ChanRoblesVirtualawlibrary
Subject: Interment of the late Former President Ferdinand Marcos at
LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.
In compliance to (sic) the verbal order of the President to implement
his election campaign promise to have the remains of the late former
President Ferdinand E. Marcos be interred at the Libingan ng mga
Bayani, kindly undertake all the necessary planning and preparations to
facilitate the coordination of all agencies concerned specially the
provisions for ceremonial and security requirements. Coordinate
closely with the Marcos family regarding the date of interment and the
transport of the late former President's remains from Ilocos Norte to
the LNMB.
The overall OPR for this activity will [be] the PVAO since the LNMB is
under its supervision and administration. PVAO shall designate the
focal person for this activity who shall be the overall overseer of the
event.
Submit your Implementing Plan to my office as soon as
possible.1chanroblesvirtuallawlibrary
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following
directives to the Philippine Army (PA) Commanding General:ChanRoblesVirtualawlibrary
SUBJECT:����Funeral Honors and Service
TO:�������������Commanding General, Philippine Army
������������������Headquarters, Philippine Army
������������������Fort Bonifacio, Taguig City
������������������Attn: Assistant Chief of Staff for RRA, G9
1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14
July 1992, provide services, honors and other courtesies for
the late Former President Ferdinand E. Marcos as indicated:
 64
chanRoblesvirtualLawlibrary���[x] Vigil - Provide vigil�
���[x] Bugler/Drummer
���[x] Firing Party
���[x] Military Host/Pallbearers
���[x] Escort and Transportation
���[x] Arrival/Departure Honors
2. His remains lie in state at Ilocos Norte
3. Interment will take place at the Libingan ng mga Bayani, Ft.
Bonifacio, Taguig City. Date: TBAL.
4. Provide all necessary military honors accorded for a
President
5. POC: Administrator, PVAO BY COMMAND OF GENERAL
VISAYA2
Dissatisfied with the foregoing issuance, the following were filed by petitioners:
chanRoblesvirtualLawlibrary1. Petition for Certiorari and Prohibition3 filed by Saturnino
Ocampo and several others,4 in their capacities as human rights advocates or human
rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368
(Human Rights Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag, Sr. and his son,6 as
members of the Bar and human rights lawyers, and his grandchild.7chanrobleslaw
3. Petition for Prohibition8 filed by Representative Edcel C. Lagman, in his personal
capacity, as member of the House of Representatives and as Honorary Chairperson of
Families of Victims of Involuntary Disappearance (FIND), a duly-registered corporation and
organization of victims and families of enforced disappearance, mostly during the martial
law regime of the former President Marcos, and several others, 9 in their official capacities
as duly-elected Congressmen of the House of Representatives of the Philippines.
4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales, former Chairperson of the
Commission on Human Rights, and several others,11 suing as victims of State-sanctioned
human rights violations during the martial law regime of Marcos.
5. Petition for Mandamus and Prohibition12 filed by Heherson T. Alvarez, former Senator
of the Republic of the Philippines, who fought to oust the dictatorship of Marcos, and
several others,13as concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B. Baniaga and several
others,15 as concerned Filipino citizens and taxpayers.
7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph, former Chairperson
of the Regional Human Rights Commission, Autonomous Region in Muslim Mindanao, by
himself and on behalf of the Moro17 who are victims of human rights during the martial
law regime of Marcos.
8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima as member of the
Senate of the Republic of the Philippines, public official and concerned citizen.
Issues
Procedural
1. Whether President Duterte's determination to have the remains of Marcos interred at
the LNMB poses a justiciable controversy.
2. Whether petitioners have locus standi to file the instant petitions.
3. Whether petitioners violated the doctrines of exhaustion of administrative remedies
and hierarchy of courts.
Substantive
1. Whether the respondents Secretary of National Defense and AFP Rear Admiral
committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when
they issued the assailed memorandum and directive in compliance with the verbal order
of President Duterte to implement his election campaign promise to have the remains of
Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed memorandum and directive
violate the Constitution, domestic and international laws, particularly:
chanRoblesvirtualLawlibrary(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1
 65
of Article III, Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV, and
Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law" of the United Nations (U.N.) General Assembly;
and cralawlawlibrary
(g) The "Updated Set of Principles for Protection and Promotion of Human Rights through
Action to Combat Impunity" of the U.N. Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses
and their cronies, and the pronouncements of the Court on the Marcos regime have
nullified his entitlement as a soldier and former President to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of the remains of
former President Marcos at the LNMB after they entered into an agreement with the
Government of the Republic of the Philippines as to the conditions and procedures by
which his remains shall be brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless the following requisites
for judicial inquiry are present: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must have the standing
to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the very lis mota of the case.19 In this case, the absence of the first two requisites, which
are the most essential, renders the discussion of the last two superfluous.20chanrobleslaw
An "actual case or controversy" is one which involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.21 There must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and
jurisprudence.22 Related to the requisite of an actual case or controversy is the requisite
of "ripeness," which means that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege
the existence of an immediate or threatened injury to itself as a result of the challenged
action.23 Moreover, the limitation on the power of judicial review to actual cases and
controversies carries the assurance that the courts will not intrude into areas committed
to the other branches of government.24 Those areas pertain to questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive
branch of the government.25cralawred As they are concerned with questions of policy and
issues dependent upon the wisdom, not legality of a particular measure, 26 political
questions used to be beyond the ambit of judicial review. However, the scope of the
political question doctrine has been limited by Section 1 of Article VIII of the 1987
Constitution when it vested in the judiciary the power to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to have the remains of
Marcos interred at the LNMB involves a political question that is not a justiciable
controversy. In the exercise of his powers under the Constitution and the Executive Order
(E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the
interment of Marcos at the LNMB, which is a land of the public domain devoted for
national military cemetery and military shrine purposes, President Duterte decided a
question of policy based on his wisdom that it shall promote national healing and
forgiveness. There being no taint of grave abuse in the exercise of such discretion, as
discussed below, President Duterte's decision on that political question is outside the
ambit of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given question, 27locus
standi requires that a party alleges such personal stake in the outcome of the controversy
 66
as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. 28 Unless a
person has sustained or is in imminent danger of sustaining an injury as a result of an act
complained of, such proper party has no standing.29 Petitioners, who filed their respective
petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human
rights violations victims, legislators, members of the Bar and taxpayers, have no legal
standing to file such petitions because they failed to show that they have suffered or will
suffer direct and personal injury as a result of the interment of Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public funds are illegally
disbursed or that public money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or unconstitutional law.30 In this
case, what is essentially being assailed is the wisdom behind the decision of the President
to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely
claim illegal disbursement of public funds, without showing that Marcos is disqualified to
be interred at the LNMB by either express or implied provision of the Constitution, the
laws or jurisprudence.
Petitioners Saguisag, et al.,31 as members of the Bar, are required to allege any direct or
potential injury which the Integrated Bar of the Philippines, as an institution, or its
members may suffer as a consequence of the act complained of.32 Suffice it to state that
the averments in their petition-in-intervention failed to disclose such injury, and that their
interest in this case is too general and shared by other groups, such that their duty to
uphold the rule of law, without more, is inadequate to clothe them with requisite legal
standing.33chanrobleslaw
As concerned citizens, petitioners are also required to substantiate that the issues raised
are of transcendental importance, of overreaching significance to society, or of
paramount public interest.34 In cases involving such issues, the imminence and clarity of
the threat to fundamental constitutional rights outweigh the necessity for
prudence.35 In Marcos v. Manglapus,36 the majority opinion observed that the subject
controversy was of grave national importance, and that the Court's decision would have a
profound effect on the political, economic, and other aspects of national life.
The ponencia explained that the case was in a class by itself, unique and could not create
precedent because it involved a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and who, within the
short space of three years (from 1986), sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally established as a
national military cemetery and declared a national shrine would have no profound effect
on the political, economic, and other aspects of our national life considering that more
than twenty-seven (27) years since his death and thirty (30) years after his ouster have
already passed. Significantly, petitioners failed to demonstrate a clear and imminent
threat to their fundamental constitutional rights.
As human rights violations victims during the Martial Law regime, some of petitioners
decry re-traumatization, historical revisionism, and disregard of their state recognition as
heroes. Petitioners' argument is founded on the wrong premise that the LNMB is the
National Pantheon intended by law to perpetuate the memory of all Presidents, national
heroes and patriots. The history of the LNMB, as will be discussed further, reveals its
nature and purpose as a national military cemetery and national shrine, under the
administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and
Congressman Lagman, et al.37 come before the Court as legislators suing to defend the
Constitution and to protect appropriated public funds from being used unlawfully. In the
absence of a clear showing of any direct injury to their person or the institution to which
they belong, their standing as members of the Congress cannot be upheld. 38 They do not
specifically claim that the official actions complained of, i.e., the memorandum of the
Secretary of National Defense and the directive of the AFP Chief of Staff regarding the
interment of Marcos at the LNMB, encroach on their prerogatives as
legislators.39chanrobleslaw
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy
of courts. Under the doctrine of exhaustion of administrative remedies, before a party is
allowed to seek the intervention of the court, one should have availed first of all the
means of administrative processes available. 40 If resort to a remedy within the
administrative machinery can still be made by giving the administrative officer concerned
every opportunity to decide on a matter that comes within his jurisdiction, then such
remedy should be exhausted first before the court's judicial power can be sought. 41 For
reasons of comity and convenience, courts of justice shy away from a dispute until the
system of administrative redress has been completed and complied with, so as to give the
administrative agency concerned every opportunity to correct its error and dispose of the
case.42 While there are exceptions43 to the doctrine of exhaustion of administrative
remedies, petitioners failed to prove the presence of any of those exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of
law, petitioners should be faulted for failing to seek reconsideration of the assailed
memorandum and directive before the Secretary of National Defense. The Secretary of
National Defense should be given opportunity to correct himself, if warranted,
 67
considering that AFP Regulations G 161-375 was issued upon his order. Questions on the
implementation and interpretation thereof demand the exercise of sound administrative
discretion, requiring the special knowledge, experience and services of his office to
determine technical and intricate matters of fact. If petitioners would still be dissatisfied
with the decision of the Secretary, they could elevate the matter before the Office of the
President which has control and supervision over the Department of National Defense
(DND).44chanrobleslaw
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions for the extraordinary
writs of certiorari, prohibition and mandamus are allowed under exceptional
cases,45 which are lacking in this case, petitioners cannot simply brush aside the doctrine
of hierarchy of courts that requires such petitions to be filed first with the proper Regional
Trial Court (RTC). The RTC is not just a trier of facts, but can also resolve questions of law
in the exercise of its original and concurrent jurisdiction over petitions for certiorari,
prohibition and mandamus, and has the power to issue restraining order and injunction
when proven necessary.
In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We
decide the case based on the merits, the petitions should still be denied.
Substantive Grounds
There is grave abuse of discretion when an act is (1) done contrary to the Constitution,
the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of
malice, ill will or personal bias.46 None is present in this case.
I
The President's decision to bury Marcos at the LNMB is in accordance with the
Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it
has the effect of not just rewriting history as to the Filipino people's act of revolting
against an authoritarian ruler but also condoning the abuses committed during the
Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a
"post-dictatorship charter" and a "human rights constitution." For them, the ratification of
the Constitution serves as a clear condemnation of Marcos' alleged "heroism." To support
their case, petitioners invoke Sections 2,4711,48 13,49 23,50 26,51 2752 and 2853 of Article II,
Sec. 17 of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 of Art. XI,56 and Sec. 26 of Art. XVIII57 of
the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution
is a product of our collective history as a people, its entirety should not be interpreted as
providing guiding principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the LNMB.
Ta�ada v. Angara58 already ruled that the provisions in Article II of the Constitution are not
self-executing. Thus:ChanRoblesVirtualawlibrary
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the 1935
Constitution is called the "basic political creed of the nation" by Dean
Vicente Sinco. These principles in Article II are not intended to be self�
executing principles ready for enforcement through the courts. They
are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of laws.
As held in the leading case of Kilosbayan, Incorporated vs. Morato, the
principles and state policies enumerated in Article II x x x are not
"self-executing provisions, the disregard of which can give rise to a
cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor that broad constitutional
principles need legislative enactments to implement them x x x.
xxx
The reasons for denying a cause of action to an alleged infringement of
broad constitutional principles are sourced from basic considerations of
due process and the lack of judicial authority to wade "into the
uncharted ocean of social and economic policy
making."59chanroblesvirtuallawlibrary
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self�-executing provision
considering that a law should be passed by the Congress to clearly define and effectuate
the principle embodied therein. As a matter of fact, pursuant thereto, Congress enacted
R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and
Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"), R.A. No. 7080 (An Act
Defining and Penalizing the Crime of Plunder), and Republic Act No. 9485 ("Anti-�Red
 68
Tape Act of 2007"). To complement these statutes, the Executive Branch has issued
various orders, memoranda, and instructions relative to the norms of behavior/code of
conduct/ethical standards of officials and employees; workflow charts/public transactions;
rules and policies on gifts and benefits; whistle blowing and reporting; and client feedback
program.
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is
also misplaced. Sec. 3(2) of Art. XIV refers to the constitutional duty of educational
institutions in teaching the values of patriotism and nationalism and respect for human
rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders
in relation to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these
provisions, there is no direct or indirect prohibition to Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to
"ensure that the laws be faithfully executed," which is identical to Sec. 1, Title I, Book III of
the Administrative Code of 1987,60 is likewise not violated by public respondents. Being
the Chief Executive, the President represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his or her department. 61 Under
the Faithful Execution Clause, the President has the power to take "necessary and proper
steps" to carry into execution the law.62 The mandate is self-executory by virtue of its
being inherently executive in nature and is intimately related to the other executive
functions.63 It is best construed as an imposed obligation, not a separate grant of
power.64 The provision simply underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is obliged to obey and execute
them.65chanrobleslaw
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution,
the burial of Marcos at the LNMB does not contravene R.A. No. 289, R.A. No. 10368, and
the international human rights laws cited by petitioners.
A. On R.A. No. 28966chanrobleslaw
For the perpetuation of their memory and for the inspiration and emulation of this
generation and of generations still unborn, R.A. No. 289 authorized the construction of a
National Pantheon as the burial place of the mortal remains of all the Presidents of the
Philippines, national heroes and patriots.67 It also provided for the creation of a Board on
National Pantheon to implement the law.68chanrobleslaw
On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon
at East Avenue, Quezon City.69 On December 23, 1953, he issued Proclamation No. 431 to
formally "withdraw from sale or settlement and reserve as a site for the construction of
the National Pantheon a certain parcel of land located in Quezon City." However, on July 5,
1954, President Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422
and 431, both series of 1953, and reserving the parcels of land embraced therein for
national park purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's
mortal remains may be interred at the LNMB, and that AFP Regulations G 161-375 merely
implements the law and should not violate its spirit and intent. Petitioners claim that it is
known, both here and abroad, that Marcos' acts and deed - the gross human rights
violations, the massive corruption and plunder of government coffers, and his military
record that is fraught with myths, factual inconsistencies, and lies - are neither worthy of
perpetuation in our memory nor serve as a source of inspiration and emulation of the
present and future generations. They maintain that public respondents are not members
of the Board on National Pantheon, which is authorized by the law to cause the burial at
the LNMB of the deceased Presidents of the Philippines, national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral arguments, they
miserably failed to provide legal and historical bases as to their supposition that the LNMB
and the National Pantheon are one and the same. This is not at all unexpected because
the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The
parcel of land subject matter of President Quirino's Proclamation No. 431, which was later
on revoked by President Magsaysay's Proclamation No. 42, is different from that covered
by Marcos' Proclamation No. 208. The National Pantheon does not exist at present. To
date, the Congress has deemed it wise not to appropriate any funds for its construction or
the creation of the Board on National Pantheon. This is indicative of the legislative will not
to pursue, at the moment, the establishment of a singular interment place for the mortal
remains of all Presidents of the Philippines, national heroes, and patriots. Perhaps, the
Manila North Cemetery, the Manila South Cemetery, and other equally distinguished
private cemeteries already serve the noble purpose but without cost to the limited funds
of the government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations
must fail. To apply the standard that the LNMB is reserved only for the "decent and the
brave" or "hero" would be violative of public policy as it will put into question the validity
of the burial of each and every mortal remains resting therein, and infringe upon the
principle of separation of powers since the allocation of plots at the LNMB is based on the
grant of authority to the President under existing laws and regulations. Also, the Court
shares the view of the OSG that the proposed interment is not equivalent to the
consecration of Marcos' mortal remains. The act in itself does not confer upon him the
status of a "hero." Despite its name, which is actually a misnomer, the purpose of the
LNMB, both from legal and historical perspectives, has neither been to confer to the
 69
people buried there the title of "hero" nor to require that only those interred therein
should be treated as a "hero." Lastly, petitioners' repeated reference to a "hero's burial"
and "state honors," without showing proof as to what kind of burial or honors that will be
accorded to the remains of Marcos, is speculative until the specifics of the interment have
been finalized by public respondents.
B. On R.A. No. 1036870chanrobleslaw
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly
disqualifying Marcos' burial at the LNMB because the legislature, which is a co-equal
branch of the government, has statutorily declared his tyranny as a deposed dictator and
has recognized the heroism and sacrifices of the Human Rights Violations Victims
(HRVVs)71 under his regime. They insist that the intended act of public respondents
damages and makes mockery of the mandatory teaching of Martial Law atrocities and of
the lives and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368
is non-judicial in nature but a political action of the State through the Legislative and
Executive branches by providing administrative relief for the compensation, recognition,
and memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were
victims of summary execution, torture, enforced or involuntary disappearance, and other
gross human rights violations committed from September 21, 1972 to February 25, 1986.
To restore their honor and dignity, the State acknowledges its moral and legal
obligation72 to provide reparation to said victims and/or their families for the deaths,
injuries, sufferings, deprivations and damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an
effective remedy, R.A. No. 10368 entitles them to monetary and non-monetary reparation.
Any HRVV qualified under the law73 shall receive a monetary reparation, which is tax-free
and without prejudice to the receipt of any other sum from any other person or entity in
any case involving human rights violations.74 Anent the non-monetary reparation, the
Department of Health (DOH), the Department of Social Welfare and Development (DSWD),
the Department of Education (DepEd), the Commission on Higher Education (CHED), the
Technical Education and Skills Development Authority (TESDA), and such other
government agencies are required to render the necessary services for the HRVVs and/or
their families, as may be determined by the Human Rights Victims' Claims Board (Board)
pursuant to the provisions of the law.75chanrobleslaw
Additionally, R.A. No. 10368 requires the recognition of the violations committed against
the HRVVs, regardless of whether they opt to seek reparation or not. This is manifested by
enshrining their names in the Roll of Human Rights Violations Victims (Roll) prepared by
the Board.76 The Roll may be displayed in government agencies designated by the HRVV
Memorial Commission (Commission).77 Also, a Memorial/Museum/Library shall be
established and a compendium of their sacrifices shall be prepared and may be readily
viewed and accessed in the internet.78 The Commission is created primarily for the
establishment, restoration, preservation and conservation of the Memorial/Museum/
Library/Compendium.79chanrobleslaw
To memorialize80 the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368
further mandates that: (1) the database prepared by the Board derived from the
processing of claims shall be turned over to the Commission for archival purposes, and
made accessible for the promotion of human rights to all government agencies and
instrumentalities in order to prevent recurrence of similar abuses, encourage continuing
reforms and contribute to ending impunity;81 (2) the lessons learned from Martial Law
atrocities and the lives and sacrifices of HRVVs shall be included in the basic and higher
education curricula, as well as in continuing adult learning, prioritizing those most prone
to commit human rights violations;82 and (3) the Commission shall publish only those
stories of HRVVs who have given prior informed consent.83chanrobleslaw
This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No.
10368 are not exclusive as it includes the prohibition on Marcos' burial at the LNMB. It
would be undue to extend the law beyond what it actually contemplates. With its
victim-oriented perspective, our legislators could have easily inserted a provision
specifically proscribing Marcos' interment at the LNMB as a "reparation" for the HRVVs,
but they did not. As it is, the law is silent and should remain to be so. This Court cannot
read into the law what is simply not there. It is irregular, if not unconstitutional, for Us to
presume the legislative will by supplying material details into the law. That would be
tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will
surely not be impaired by the interment of Marcos at the LNMB. As opined by the OSG,
the assailed act has no causal connection and legal relation to the law. The subject
memorandum and directive of public respondents do not and cannot interfere with the
statutory powers and functions of the Board and the Commission. More importantly, the
HRVVs' entitlements to the benefits provided for by R.A. No 10368 and other domestic
laws are not curtailed. It must be emphasized that R.A. No. 10368 does not amend or
repeal, whether express or implied, the provisions of the Administrative Code or AFP
Regulations G 161-375:ChanRoblesVirtualawlibrary
 70
It is a well-settled rule of statutory construction that repeals by
implication are not favored. In order to effect a repeal by implication,
the later statute must be so irreconcilably inconsistent and repugnant
with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the
inference of implied repeal may be drawn, for inconsistency is never
presumed. There must be a showing of repugnance clear and
convincing in character. The language used in the later statute must be
such as to render it irreconcilable with what had been formerly enacted.
An inconsistency that falls short of that standard does not suffice. x x
x84chanroblesvirtuallawlibrary
C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the
HRVVs to "full" and "effective" reparation, which is provided under the International
Covenant on Civil and Political Rights (ICCPR),85 the Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law86 adopted by the U.N.
General Assembly on December 16, 2005, and the Updated Set of Principles for the
Protection and Promotion of Human Rights Through Action to Combat Impunity 87 dated
February 8, 2005 by the U.N. Economic and Social Council.
We do not think so. The ICCPR,88 as well as the U.N. principles on reparation and to
combat impunity, call for the enactment of legislative measures, establishment of
national programmes, and provision for administrative and judicial recourse, in
accordance with the country's constitutional processes, that are necessary to give effect
to human rights embodied in treaties, covenants and other international laws. The U.N.
principles on reparation expressly states:ChanRoblesVirtualawlibrary
Emphasizing that the Basic Principles and Guidelines contained
herein do not entail new international or domestic legal obligations but
identify mechanisms, modalities, procedures and methods for the
implementation of existing legal obligations under international human
rights law and international humanitarian law which are
complementary though different as to their norms[.][Emphasis
supplied]
The Philippines is more than compliant with its international obligations. When the
Filipinos regained their democratic institutions after the successful People Power
Revolution that culminated on February 25, 1986, the three branches of the government
have done their fair share to respect, protect and fulfill the country's human rights
obligations, to wit:
chanRoblesvirtualLawlibraryThe 1987 Constitution contains provisions that promote and
protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus, amparo,89 and habeas
data,90 the Supreme Court promulgated on March 1, 2007 Administrative Order No.
25-2007,91 which provides rules on cases involving extra-judicial killings of political
ideologists and members of the media. The provision of the Basic Principles and
Guidelines on the prevention of the victim's re-traumatization applies in the course of
legal and administrative procedures designed to provide justice and
reparation.92chanrobleslaw
On the part of the Executive Branch, it issued a number of administrative and executive
orders. Notable of which are the following:
1. A.O. No. 370 dated December 10, 1997 (Creating the Inter�-Agency Coordinating
Committee on Human Rights)
2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National
Committee on the Culture of Peace)
3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every 12th Day
of August Thereafter as International Humanitarian Law Day)
4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the Republic
of the Philippines Monitoring Committee [GRP�MC] on Human Rights and
International Humanitarian Law)
5. A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to
Address Media and Activist Killings)
6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the
Membership of the Presidential Human Rights Committee, and Expanding
Further the Functions of Said Committee)93chanrobleslaw
7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Coordination
Between the National Prosecution Service and Other Concerned Agencies of
Government for the Successful Investigation and Prosecution of Political and
Media Killings)
 71

8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with PHRC 6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
Sub-committee on Killings and Disappearances)
7. Republic Act No. 9372 (Human Security Act of 2007)
9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Political
Violence) 8. Republic Act No. 9710 (The Magna Carta of Women)

10. A.O. No. 249 dated December 10, 2008 (Further Strengthening Government 9. Republic Act No. 9745 (Anti-Torture Act of 2009)
Policies, Plans, and Programs for the Effective Promotion and Protection of
Human Rights on the Occasion of the 60th Anniversary of the Universal 10. Republic Act No. 9851 (Philippine Act on Crimes Against International
Declaration of Human Rights) Humanitarian Law, Genocide, and Other Crimes Against Humanity)

11. E.O. No. 847 dated November 23, 2009 (Creating the 11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act
Church-Police-Military-Liaison Committee to Formulate and Implement a of 2010)
Comprehensive Program to Establish Strong Partnership Between the State and
the Church on Matters Concerning Peace and Order and Human Rights)
12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression
Act of 2012)
12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-�Agency Committee
on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave
13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of
Violations of the Right to Life, Liberty and Security of Persons)
2012)

13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force on
14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012)
Violations of the Right to Life, Liberty and Security of the Members of the Media)

15. Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act
Finally, the Congress passed the following laws affecting human rights:
of 2013)

1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, 16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)
Detained or Under Custodia/Investigation as well as the Duties of the Arresting,
Detaining and Investigating Officers and Providing Penalties for Violations
Contrary to petitioners' postulation, our nation's history will not be instantly revised by a
Thereof)
single resolve of President Duterte, acting through the public respondents, to bury Marcos
at the LNMB. Whether petitioners admit it or not, the lessons of Martial Law are already
2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997) engraved, albeit in varying degrees, in the hearts and minds of the present generation of
Filipinos. As to the unborn, it must be said that the preservation and popularization of our
3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002) history is not the sole responsibility of the Chief Executive; it is a joint and collective
endeavor of every freedom-loving citizen of this country.
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
Notably, complementing the statutory powers and functions of the Human Rights Victims'
5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of Claims Board and the HRVV Memorial Commission in the memorialization of HRVVs, the
2004) National Historical Commission of the Philippines (NHCP), formerly known as the National
Historical Institute (NHI),94 is mandated to act as the primary government agency
 72
responsible for history and is authorized to determine all factual matters relating to
official Philippine history.95 Among others, it is tasked to: (a) conduct and support all kinds
of research relating to Philippine national and local history; (b) develop educational
materials in various media, implement historical educational activities for the
popularization of Philippine history, and disseminate, information regarding Philippine
historical events, dates, places and personages; and (c) actively engage in the settlement
or resolution of controversies or issues relative to historical personages, places, dates and
events.96 Under R.A. Nos. 10066 (National Cultural Heritage Act of 2009)97 and 10086
(Strengthening Peoples' Nationalism Through Philippine History Act),98 the declared State
policy is to conserve, develop, promote, and popularize the nation's historical and cultural
heritage and resources.99 Towards this end, means shall be provided to strengthen
people's nationalism, love of country, respect for its heroes and pride for the people's
accomplishments by reinforcing the importance of Philippine national and local history in
daily life with the end in view of raising social consciousness. 100 Utmost priority shall be
given not only with the research on history but also its popularization.101chanrobleslaw
II.
The President's decision to bury Marcos at the LNMB is not done whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias
Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a
sacred and hallowed place and a revered national shrine where the mortal remains of our
country's great men and women are interred for the inspiration and emulation of the
present generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical shrines (or historical
shrines) refer to sites or structures hallowed and revered for their history or association as
declared by the NHCP.102 The national shrines created by law and presidential issuance
include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;103 all battlefield
areas in Corregidor and Bataan;104 the site of First Mass in the Philippines in Magallanes,
Limasawa, Leyte;105 Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;106 Fort San
Antonio Abad National Shrine in Malate, Manila;107 Tirad Pass National Shrine in Ilocos
Sur;108 Ricarte Shrine109 and Aglipay Shrine110 in Batac, Ilocos Norte; Liberty Shrine in
Lapu-Lapu, Cebu;111 "Red Beach" or the landing point of General Douglas MacArthur and
the liberating forces in Baras, Palo, Leyte;112 Dapitan City as a National Shrine City in
Zamboanga Del Norte;113 General Leandro Locsin Fullon National Shrine in Hamtic,
Antique;114 and Mabini Shrine in Polytechnic University of the Philippines - Mabini Campus,
Sta. Mesa, Manila.115 As sites of the birth, exile, imprisonment, detention or death of great
and eminent leaders of the nation, it is the policy of the Government to hold and keep the
national shrines as sacred and hallowed place.116 P.O. No. 105117 strictly prohibits and
punishes by imprisonment and/or fine the desecration of national shrines by disturbing
their peace and serenity through digging, excavating, defacing, causing unnecessary noise,
and committing unbecoming acts within their premises. R.A. No. 10066 also makes it
punishable to intentionally modify, alter, or destroy the original features of, or undertake
construction or real estate development in any national shrine, monument, landmark and
other historic edifices and structures, declared, classified, and marked by the NHCP as
such, without the prior written permission from the National Commission for Culture and
the Arts (NCAA).118chanrobleslaw
As one of the cultural agencies attached to the NCAA,119 the NHCP manages, maintains
and administers national shrines, monuments, historical sites, edifices and landmarks of
significant historico-cultural value.120 In particular, the NHCP Board has the power to
approve the declaration of historic structures and sites, such as national shrines,
monuments, landmarks and heritage houses and to determine the manner of their
identification, maintenance, restoration, conservation, preservation and
protection.121chanrobleslaw
Excluded, however, from the jurisdiction of the NHCP are the military memorials and
battle monuments declared as national shrines, which have been under the
administration, maintenance and development of the Philippine Veterans Affairs Office
(PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar,
Bataan;122 Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao;123 Capas National
Shrine in Capas, Tarlac;124 Ricarte National Shrine in Malasin, Batac, Ilocos
Norte;125 Balantang Memorial Cemetery National Shrine in Jaro, Iloilo;126 Balete Pass
National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP, NL Military Shrine and Park in
Bessang Pass, Cervantes, Ilocos Sur;128 and the LNMB in Taguig City, Metro
Manila.129chanrobleslaw
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the death of
thousands of Filipinos. Several places served as grounds for the war dead, such as the
Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places
throughout the country. The Republic Memorial Cemetery, in particular, was established
in May 1947 as a fitting tribute and final resting place of Filipino military personnel who
died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which
ordered "the remains of the war dead interred at the Bataan Memorial Cemetery, Bataan
 73
Province, and at other places in the Philippines, be transferred to, and reinterred at, the
Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the
expenses for the maintenance and upkeep, and to make the remains accessible to the
widows, parents, children, relatives, and friends.
On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed
the name of Republic Memorial Cemetery to Libingan Ng Mga Bayani to symbolize "the
cause for which our soldiers have died" and to "truly express the nations esteem and
reverence for her war dead."130chanrobleslaw
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved
for military purposes, under the administration of the AFP Chief of Staff, the land where
LNMB is located. The LNMB was part of a military reservation site then known as Fort Wm
McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from
the Fort Bonifacio military reservation and reserved the LNMB for national shrine
purposes under the administration of the National Shrines Commission (NSC) under the
DND.
On September 24, 1972, Marcos, in the exercise of his powers as the AFP
Commander-in-Chief, and pursuant to Proclamation No. 1081 dated September 21, 1972,
and General Order No. 1 dated September 22, 1972, as amended, issued Presidential
Decree (P.D.) No. 1 which reorganized the Executive Branch of the National Government
through the adoption of the Integrated Reorganization Plan (IRP). Section 7, Article XV,
Chapter I, Part XII thereof abolished the NSC and its functions together with applicable
appropriations, records, equipment, property and such personnel as may be necessary
were transferred to the NHI under the Department of Education (DEC). The NHI was
responsible for promoting and preserving the Philippine cultural heritage by
undertaking, inter alia, studies on Philippine history and national heroes and maintaining
national shrines and monuments.131chanrobleslaw
Pending the organization of the DEC, the functions relative to the administration,
maintenance and development of national shrines tentatively integrated into the PVAO in
July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV,
Chapter I, Part XII of the IRP was repealed on the grounds that "the administration,
maintenance and development of national shrines consisting of military memorials or
battle monuments can be more effectively accomplished if they are removed from the
[DEC] and transferred to the [DND] by reason of the latter s greater capabilities and
resources" and that "the functions of the [DND] are more closely related and relevant to
the charter or significance of said national shrines." Henceforth, the PVAO through the
Military Shrines Service (MSS), which was created to perform the functions of the
abolished NSC - would administer, maintain and develop military memorials and battle
monuments proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code
retains PVAO under the supervision and control of the Secretary of National
Defense.132 Among others, PVAO shall administer, develop and maintain military
shrines.133 With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to
E.O. No. 366 dated October 4, 2004, MSS was renamed to Veterans Memorial and
Historical Division, under the supervision and control of PVAO, which is presently tasked
with the management and development of military shrines and the perpetuation of the
heroic deeds of our nation's veterans.
As a national military shrine, the main features, structures, and facilities of the LNMB are
as follows:
1. Tomb of the Unknown Soldiers - The main structure constructed at the center
of the cemetery where wreath laying ceremonies are held when Philippine
government officials and foreign dignitaries visit the LNMB. The following
inscription is found on the tomb: "Here lies a Filipino soldier whose name is
known only to God." Behind the tomb are three marble pillars representing the
three main island groups of the Philippines - Luzon, Visayas and Mindanao.
Buried here were the remains of 39,000 Filipino soldiers who were originally
buried in Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros,
Manila.
2. Heroes Memorial Gate - A structure shaped in the form of a large concrete
tripod with a stairway leading to an upper view deck and a metal sculpture at
the center. This is the first imposing structure one sees upon entering the
grounds of the cemetery complex.
3. Black Stone Walls - Erected on opposite sides of the main entrance road leading
to the Tomb of the Unknown Soldiers and just near the Heroes Memorial are
two 12-foot high black stone walls which bear the words, "I do not know the
dignity of his birth, but I do know the glory of his death." that General Douglas
MacArthur made during his sentimental journey to the Philippines in 1961.
 74
4. Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated on April 5,
1977 by Secretary Renato S. De Villa in memory of the defenders of Bataan and
Corregidor during World War II. This monument is dedicated as an eternal
acknowledgment of their valor and sacrifice in defense of the Philippines.
5. Korean Memorial Pylon - A towering monument honoring the 112 Filipino
officers and men who, as members of the Philippine Expeditionary Forces to
Korea (PEFTOK), perished during the Korean War.
6. Vietnam Veterans Memorial Pylon - Dedicated to the members of the Philippine
contingents and Philippine civic action groups to Vietnam (PHILCON�-V and
PHILCAG-V) who served as medical, dental, engineering construction,
community and psychological workers, and security complement. They offered
tremendous sacrifices as they alleviated human suffering in war-ravaged
Vietnam from 1964-1971. Inscribed on the memorial pylon are the words: "To
build and not to destroy, to bring the Vietnamese people happiness and not
sorrow, to develop goodwill and not hatred."
7. Philippine World War II Guerillas Pylon - Erected by the Veterans Federation of
the Philippines as a testimony to the indomitable spirit and bravery of the
Filipino guerillas of World War II who refused to be cowed into submission and
carried on the fight for freedom against an enemy with vastly superior arms and
under almost insurmountable odds. Their hardship and sufferings, as well as
their defeats and victories, are enshrined in this memorial.134
Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB. Despite the fact that
P.D. No. 208 predated P.D. No. 105,136 the LNMB was not expressly included in the
national shrines enumerated in the latter.137 The proposition that the LNMB is implicitly
covered in the catchall phrase "and others which may be proclaimed in the future as
National Shrines" is erroneous because:
chanRoblesvirtualLawlibrary(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem generis,138 the LNMB
is not a site "of the birth, exile, imprisonment, detention or death of great and eminent
leaders of the nation." What P.D. No. 105 contemplates are the following national shrines:
Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the
site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio
Abad National Shrine, Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty
Shrine, "Red Beach" or the landing point of General Douglas MacArthur and the liberating
forces, Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini Shrine.
Excluded are the military memorials and battle monuments declared as national shrines
under the PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine,
Capas National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery National
Shrine, Balete Pass National Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of
the PVAO. While P.D. No. 1 dated September 24, 1972 transferred the administration,
maintenance and development of national shrines to the NHI under the DEC, it never
actually materialized. Pending the organization of the DEC, its functions relative to
national shrines were tentatively integrated into the PVAO in July 1973. Eventually, on
January 26, 1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS, was tasked
to administer, maintain, and develop military memorials and battle monuments
proclaimed as national shrines. The reasons being that "the administration, maintenance
and development of national shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are removed from the [DEC] and
transferred to the [DND] by reason of the latter's greater capabilities and resources" and
that "the functions of the [DND] are more closely related and relevant to the charter or
significance of said national shrines."
The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it
is consistent with the letter and intent of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed"
refer to the LNMB as a place and not to each and every mortal remains interred therein.
Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a revered
and respected ground. Neither does it negate the presumed individual or collective
"heroism" of the men and women buried or will be buried therein. The "nations esteem
and reverence for her war dead," as originally contemplated by President Magsaysay in
issuing Proclamation No. 86, still stands unaffected. That being said, the interment of
Marcos, therefore, does not constitute a violation of the physical, historical, and cultural
integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery (Arlington),
which is identical to the LNMB in terms of its prominence in the U.S. It is not amiss to
point that our armed forces have been patterned after the U.S. and that its military code
produced a salutary effect in the Philippines' military justice system.139 Hence, relevant
military rules, regulations, and practices of the U.S. have persuasive, if not the same,
effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,140 the Arlington is under the
 75
jurisdiction of the Department of the Army.141 The Secretary of the U.S. Army has the
responsibility to develop, operate, manage, administer, oversee, and fund the Army
national military cemeteries in a manner and to standards that fully honor the service and
sacrifices of the deceased members of the armed forces buried or inurned therein, and
shall prescribe such regulations and policies as may be necessary to administer the
cemeteries.142 In addition, the Secretary of the U.S. Army is empowered to appoint an
advisory committee, which shall make periodic reports and recommendations as well as
advise the Secretary with respect to the administration of the cemetery, the erection of
memorials at the cemetery, and master planning for the cemetery.143chanrobleslaw
Similar to the Philippines, the U.S. national cemeteries are established as national shrines
in tribute to the gallant dead who have served in the U.S. Armed Forces. 144 The areas are
protected, managed and administered as suitable and dignified burial grounds and as
significant cultural resources.145 As such, the authorization of activities that take place
therein is limited to those that are consistent with applicable legislation and that are
compatible with maintaining their solemn commemorative and historic
character.146chanrobleslaw
The LNMB is considered as a national shrine for military memorials. The PVAO, which is
empowered to administer, develop, and maintain military shrines, is under the
supervision and control of the DND. The DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of Government is a
self-executing provision of the Constitution and does not require statutory
implementation, nor may its exercise be limited, much less withdrawn, by the
legislature.147 This is why President Duterte is not bound by the alleged 1992
Agreement148 between former President Ramos and the Marcos family to have the
remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free
to amend, revoke or rescind political agreements entered into by his predecessors, and to
determine policies which he considers, based on informed judgment and presumed
wisdom, will be most effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the power to reserve for
public use and for specific public purposes any of the lands of the public domain and that
the reserved land shall remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.149 At present, there is no law or executive
issuance specifically excluding the land in which the LNMB is located from the use it was
originally intended by the past Presidents. The allotment of a cemetery plot at the LNMB
for Marcos as a former President and Commander-in-Chief,150 a legislator,151 a Secretary
of National Defense,152 a military personnel,153 a veteran,154 and a Medal of Valor
awardee,155 whether recognizing his contributions or simply his status as such, satisfies
the public use requirement. The disbursement of public funds to cover the expenses
incidental to the burial is granted to compensate him for valuable public services
rendered.156 Likewise, President Duterte's determination to have Marcos' remains
interred at the LNMB was inspired by his desire for national healing and reconciliation.
Presumption of regularity in the performance of official duty prevails over petitioners'
highly disputed factual allegation that, in the guise of exercising a presidential prerogative,
the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad
utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the
burden of proof to establish the factual basis of their claim. They failed. Even so, this
Court cannot take cognizance of factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who may and may not be
interred at the LNMB underscores the nature and purpose of the LNMB as an active
military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the
President and by order of the Secretary of National Defense, issued General Orders No.
111, which constituted and activated, as of said date, the Graves Registration Platoon as a
unit of the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense,
issued AFP Regulations G 161-371 (Administrative and Special Staff Services, Grave
Registration Service), which provided that the following may be interred in the LNMB: (a)
World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c)
Retired military personnel of the AFP; (d) Remains of former members of the AFP who
died while in the active service and in the Retired List of the AFP now interred at different
cemeteries and other places throughout the Philippines or the Secretary of National
Defense; and (e) Others upon approval of the Congress of the Philippines, the President of
the Philippines or the Secretary of National Defense. The regulation also stated that the
AFP Quartermaster General will be responsible for, among other matters, the efficient
operation of the Graves Registration Service; the interment, disinterment and
reinterment of the dead mentioned above; and preservation of military cemeteries,
national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense,
issued AFP Regulations G 161-372 (Administration and Operation of AFP Graves
Registration Installations), which superseded AFP Regulations G 161-371. It provided that
the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine
Revolution of 1896/World War I; (b) Deceased World War II members of the AFP and
 76
recognized guerillas; (c) Deceased military personnel of the AFP who died while in the
active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased military
personnel of the AFP interred at different cemeteries and other places outside the LNMB;
and (f) Such remains of persons as the Commander-in-Chief of the AFP may direct. The
remains of the following were not allowed to be interred in the LNMB: (a) The spouse of
an active, or retired, deceased military personnel, recognized guerillas who
himself/herself is not a military personnel; and (b) AFP personnel who were retireable but
separated/reverted/discharged for cause, or joined and aided the enemy of the Republic
of the Philippines, or were convicted of capital or other criminal offenses, involving moral
turpitude. The regulation also stated that the Quartermaster General shall be responsible
for, among other matters, the efficient operation of the AFP graves registration
installations; the interment, disinterment and reinterment of deceased military personnel
mentioned above; and the preservation of military cemeteries, proper marking and
official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister,
issued AFP Regulations G 161-373 (Allocation of Cemetery Plots at the Libingan Ng Mga
Bayani), which superseded AFP Regulations G 161-372. It enumerated a list of deceased
person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b)
Presidents or Commanders-in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of
Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of
the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and recognized
guerillas; and (h) Government Dignitaries, Statesmen, National Artist and other deceased
persons whose interment or reinterment has been approved by the
Commander-in-Chief, Batasang Pambansa or the Minister of National Defense. The
regulation also stated that the Quartermaster General shall be responsible for the
allocation of specific section/areas for the said deceased persons, while the Commanding
Officer of the Quartermaster Graves Registration Company shall be charged with the
preparation of grave sites, supervision of burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense,
issued AFP Regulations G 161-374 (Allocation of Cemetery Plots at the Libingan Ng Mga
Bayani), which superseded AFP Regulations G 161-373. It provided that the following may
be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in�Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g)
Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (h)
Government Dignitaries, Statesmen, National Artists and other deceased persons whose
interment or reinterment has been approved by the Commander-in-Chief, Congress or
Secretary of National Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP,
Generals/Flag Officers, Dignitaries, Statesmen, National Artists, widows of former
Presidents, Secretaries of National Defense and Chief of Staff. The remains of the
following were not allowed to be interred in the LNMB: (a) Personnel who were
dishonorably separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense involving moral turpitude.
Like AFP Regulations G 161-373, it stated that the Quartermaster General shall be
responsible for the allocation of specific section/areas for the deceased persons, whereas
the Commanding Officer of the Quartermaster Graves Registration Unit shall be charged
with the preparation of grave sites, supervision of burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of
National Defense, issued AFP Regulations G 161-375 (Allocation of Cemetery Plots at
the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The
regulation stated that the Chief of Staff shall be responsible for the issuance of interment
directive for all active military personnel for interment, authorized personnel (such as
those former members of the AFP who laterally entered or joined the Philippine Coast
Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and
reservists enumerated therein. The Quartermaster General is tasked to exercise over-all
supervision in the implementation of the regulation and the Commander ASCOM, PA
through the Commanding Officer of Grave Services Unit is charged with the registration of
the deceased/graves, the allocation of specific section/area at the LNMB for interment of
deceased, the preparation of grave sites, and the supervision of burials.
Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a)
Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Secretaries of
National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP to include active draftees and trainees who died
in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat
operations or combat related activities; (g) Former members of the AFP who laterally
entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890,
WWI, WWII and recognized guerillas; (i) Government Dignitaries, Statesmen, National
Artists and other deceased persons whose interment or reinterment has been approved
by the Commander-in-Chief, Congress or the Secretary of National Defense; and G)
Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists,
widows of Former Presidents, Secretaries of National Defense and Chief of Staff. Similar to
AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a)
Personnel who were dishonorably separated/reverted/discharged from the service; and
(b) Authorized personnel who were convicted by final judgment of an offense involving
moral turpitude.
In the absence of any executive issuance or law to the contrary, the AFP Regulations G
161-375 remains to be the sole authority in determining who are entitled and disqualified
 77
to be interred at the LNMB. Interestingly, even if they were empowered to do so, former
Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves
aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of
Marcos at the LNMB. The validity of AFP Regulations G 161-375 must, therefor, be
sustained for having been issued by the AFP Chief of Staff acting under the direction of
the Secretary of National Defense, who is the alter ego of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego
principle or the doctrine of qualified political agency and its limit in this
wise:
chanRoblesvirtualLawlibraryUnder this doctrine, which recognizes the
establishment of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of
the various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the exigencies
of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in
the regular course of business, are, unless disapproved or reprobated
by the Chief Executive presumptively the acts of the Chief Executive.
(Emphasis ours, citation omitted.)157chanroblesvirtuallawlibrary
It has been held that an administrative regulation adopted pursuant to law has the force
and effect of law and, until set aside, is binding upon executive and administrative
agencies, including the President as the chief executor of laws.158chanrobleslaw
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence of clear and
unmistakable showing that it has been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction. Neither could it be considered ultra vires for purportedly
providing incomplete, whimsical, and capricious standards for qualification for burial at
the LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the
Secretary of the Army, with the approval of the Secretary of Defense, determines
eligibility for interment or inurnment in the Army national military cemeteries. 159 Effective
October 26, 2016, the rule160 is as follows:ChanRoblesVirtualawlibrary
Only those who qualify as a primarily eligible person or a derivatively
eligible person are eligible for interment in Arlington National
Cemetery, unless otherwise prohibited as provided for in ��
553.19161-553.20,162 provided that the last period of active duty of the
service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible
persons for purposes of interment:
chanRoblesvirtualLawlibrary(1) Any service member who dies on active
duty in the U.S. Armed Forces (except those service members serving
on active duty for training only), if the General Courts Martial
Convening Authority grants a certificate of honorable service.
(2) Any veteran retired from a Reserve component who served a period
of active duty (other than for training), is carried on the official retired
list, and is entitled to receive military retired pay.
(3) Any veteran retired from active military service and entitled to
receive military retired pay.
(4) Any veteran who received an honorable discharge from the Armed
Forces prior to October 1, 1949, who was discharged for a permanent
physical disability, who served on active duty (other than for training),
and who would have been eligible for retirement under the provisions
of 10 U.S.C. 1201 had the statute been in effect on the date of
separation.
(5) Any veteran awarded one of the following decorations:
chanRoblesvirtualLawlibrary(i) Medal of Honor;163chanrobleslaw
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;
(iii) Distinguished Service Medal;
(iv) Silver Star; or
(v) Purple Heart.
(6) Any veteran who served on active duty (other than active duty for
 78
training) and who held any of the following positions:
chanRoblesvirtualLawlibrary(i) President or Vice President of the
United States;
(ii) Elected member of the U.S. Congress;
(iii) Chief Justice of the Supreme Court of the United States or Associate
Justice of the Supreme Court of the United States;
(iv) A position listed, at the time the person held the position, in 5 U.S.C.
5312164 or 5313165 (Levels I and II of the Executive Schedule); or
(v) Chief of Mission of a Category 4, 5, or post if the Department of
State classified that post as a Category 4, 5, or 5+ post during the
person's tenure as Chief of Mission.
(7) Any former prisoner of war who, while a prisoner of war, served
honorably in the active military service, and who died on or after
November 30, 1993.
(b) Derivatively eligible persons. The following individuals are
derivatively eligible persons for purposes of interment who may be
interred if space is available in the gravesite of the primarily eligible
person:
chanRoblesvirtualLawlibrary(1) The spouse of a primarily eligible
person who is or will be interred in Arlington National Cemetery. A
former spouse of a primarily eligible person is not eligible for interment
in Arlington National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible veteran,
who was:
chanRoblesvirtualLawlibrary(i) Lost or buried at sea, temporarily
interred overseas due to action by the Government, or officially
determined to be missing in action;
(ii) Buried in a U.S. military cemetery maintained by the American
Battle Monuments Commission; or
(iii) Interred in Arlington National Cemetery as part of a group burial
(the derivatively eligible spouse may not be buried in the group burial
gravesite).
(3) The parents of a minor child or a permanently dependent adult
child, whose remains were interred in Arlington National Cemetery
based on the eligibility of a parent at the time of the child's death,
unless eligibility of the non-service connected parent is lost through
divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a
primarily eligible person, if the veteran will be buried in the same
gravesite as an already interred primarily eligible person who is a close
relative, where the interment meets the following conditions:
chanRoblesvirtualLawlibrary(i) The veteran is without minor or
unmarried adult dependent children;
(ii) The veteran will not occupy space reserved for the spouse, a minor
child, or a permanently dependent adult child;
(iii) All other close relatives of the primarily eligible person concur with
the interment of the veteran with the primarily eligible person by
signing a notarized statement;
(iv) The veteran's spouse waives any entitlement to interment in
Arlington National Cemetery, where such entitlement might be based
on the veteran's interment in Arlington National Cemetery. The
Executive Director may set aside the spouse's waiver, provided space is
available in the same gravesite, and all close relatives of the primarily
eligible person concur;
(v) Any cost of moving, recasketing, or revaulting the remains will be
paid from private funds.
There is a separate list of eligible with respect to the inurnment of cremated remains in
the Columbarium,166 interment of cremated remains in the Unmarked Area, 167 and group
burial.168 As a national military cemetery, eligibility standards for interment, inurnment, or
memorialization in Arlington are based on honorable military service.169 Exceptions to the
eligibility standards for new graves, which are rarely granted, are for those persons who
have made significant contributions that directly and substantially benefited the U.S.
 79
military.170chanrobleslaw
Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and
the AFP Regulations G 161-375 on the LNMB, as a general rule, recognize and reward the
military services or military related activities of the deceased. Compared with the latter,
however, the former is actually less generous in granting the privilege of interment since
only the spouse or parent, under certain conditions, may be allowed "if space is available
in the gravesite of the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent described it, to argue
that the word "bayani" in the LNMB has become a misnomer since while a symbolism of
heroism may attach to the LNMB as a national shrine for military memorial, the same
does not automatically attach to its feature as a military cemetery and to those who were
already laid or will be laid therein. As stated, the purpose of the LNMB, both from the
legal and historical perspectives, has neither been to confer to the people buried there
the title of "hero" nor to require that only those interred therein should be treated as a
"hero." In fact, the privilege of internment at the LNMB has been loosen up through the
years. Since 1986, the list of eligible includes not only those who rendered active military
service or military-related activities but also non-military personnel who were recognized
for their significant contributions to the Philippine society (such as government dignitaries,
statesmen, national artists, and other deceased persons whose interment or reinterment
has been approved by the Commander-in-Chief, Congress or Secretary of National
Defense). In 1998, the widows of former Presidents, Secretaries of National Defense and
Chief of Staff were added to the list. Whether or not the extension of burial privilege to
civilians is unwarranted and should be restricted in order to be consistent with the
original purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is
indubitable that Marcos had rendered significant active military service and
military-related activities.
Petitioners did not dispute that Marcos was a former President and Commander-in-Chief,
a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal
of Valor awardee. For his alleged human rights abuses and corrupt practices, we may
disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the
right to be acknowledged based on the other positions he held or the awards he received.
In this sense, We agree with the proposition that Marcos should be viewed and judged in
his totality as a person. While he was not all good, he was not pure evil either. Certainly,
just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No.
9049171 declares the policy of the State "to consistently honor its military heroes in order
to strengthen the patriotic spirit and nationalist consciousness of the military."172 For the
"supreme self�-sacrifice and distinctive acts of heroism and gallantry,"173 a Medal of Valor
awardee or his/her dependents/heirs/beneficiaries are entitled to the following social
services and financial rewards:
1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00),
which is separate and distinct from any salary or pension that the awardee
currently receives or will receive from the government of the
Philippines;174chanrobleslaw
2. Precedence in employment in government agencies or government-owned or
controlled corporation, if the job qualifications or requirements are met;
3. Priority in the approval of the awardee's housing application under existing
housing programs of the government;
4. Priority in the acquisition of public lands under the Public Land Act and
preferential right in the lease of pasture lands and exploitation of natural
resources;
5. Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred
Thousand Pesos (P500,000.00) from government�owned or controlled financial
institutions without having to put up any collateral or constitute any pledge or
mortgage to secure the payment of the loan;
6. Twenty (20%) percent discount from all establishments relative to utilization of
transportation services, hotels and similar lodging establishments, restaurants,
recreation and sport centers and purchase of medicine anywhere in the
country;
7. Twenty (20%) percent discount on admission fees charged by theaters, cinema
houses and concert halls, circuses, carnivals and other similar places of culture,
leisure and amusement;
8. Free medical and dental services and consultation in hospital and clinics
anywhere in the country;
9. Exemption from the payment of tuition and matriculation fees in public or
private schools, universities, colleges and other educational institutions in any
pre-school, baccalaureate or post�graduate courses such as or including course
 80
leading to the degree of Doctor of Medicine (MD), Bachelor of Laws (LLB), and
Bachelor of Science in Nursing (BSN) or allied and similar courses;
and cralawlawlibrary
10. If interested and qualified, a quota is given to join the cadet corps of the
Philippine Military Academy or otherwise priority for direct commission, call to
active duty (CAD) and/or enlistment in regular force of the AFP.
On the other hand, in recognizing their patriotic services in times of war and peace for the
cause of freedom and democracy; for the attainment of national unity, independence,
and socioeconomic advancement; and for the maintenance of peace and order, 175 R.A. No.
6948, as amended,176 grants our veterans177 and their dependents or survivors with
pension (old age, disability, total administrative disability, and death) and non-pension
(burial, education, hospitalization, and medical care and treatment) benefits as well as
provisions from the local governments. Under the law, the benefits may be withheld if the
Commission on Human Rights certifies to the AFP General Headquarters that the veteran
has been found guilty by final judgment of a gross human rights violation while in the
service, but this factor shall not be considered taken against his next of
kin.178chanrobleslaw
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the
disqualifications stated in AFP Regulations G 161-375. He was neither convicted by final
judgment of the offense involving moral turpitude nor dishonorably
separated/reverted/discharged from active military service.
Petitioners, however, protest that a narrow interpretation of the AFP regulations
disregards historical context and the rule on statutory construction. They urge the Court
to construe statutes not literally but according to their spirit and reason.
It is argued that Marcos committed offenses involving moral turpitude for his gross
human rights violations, massive graft and corruption, and dubious military records, as
found by foreign and local courts as well as administrative agencies. By going into exile, he
deliberately evaded liability for his actions. And by allowing death to overtake him, he
inevitably escaped the prospect of facing accountability for his crimes. They also contend
that his removal in the 1986 popular uprising is a clear sign of his discharge from the AFP.
The People Power Revolution was the direct exercise of the Filipinos' power to overthrow
an illegitimate and oppressive regime. As a sovereign act, it necessarily includes the
power to adjudge him as dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the disqualifying
provisions of AFP Regulations G 161-375 only to soldiers would be unfair (since, unlike
Presidents, soldiers have an additional cause for disqualification) and lead to absurd
results (because soldiers who were dishonorably discharged would be disqualified for acts
that are less atrocious than that committed by Marcos). Also, the AFP regulations would
place Marcos in the same class as the other Philippine Presidents when in fact he is a class
of his own, sui generis. The other Presidents were never removed by People Power
Revolution and were never subject of laws declaring them to have committed human
rights violations. Thus, the intended burial would be an act of similarly treating persons
who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not
convicted by final judgment of any offense involving moral turpitude. No less than the
1987 Constitution mandates that a person shall not be held to answer for a criminal
offense without due process of law and that, "[i]n all criminal prosecutions, the accused
shall be presum innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf."179 Even the U.N. principles on reparation and to combat impunity
cited by petitioners unequivocally guarantee the rights of the accused, providing
that:ChanRoblesVirtualawlibrary
XIII. Rights of others
27. Nothing in this document is to be construed as derogating from
internationally or nationally protected rights of others, in particular the
right of an accused person to benefit from applicable standards of due
process.
xxx
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the
individuals concerned shall be entitled to the following guarantees:
chanRoblesvirtualLawlibrary(a) The commission must try to
corroborate information implicating individuals before they are named
 81
publicly;
(b) The individuals implicated shall be afforded an opportunity to
provide a statement setting forth their version of the facts either at a
hearing convened by the commission while conducting its investigation
or through submission of a document equivalent to a right of reply for
inclusion in the commission's file.
To note, in the U.S., a person found to have committed a Federal or State capital crime
(i.e., a crime which a sentence of imprisonment for life or death penalty may be imposed)
but who has not been convicted by reason of not being available for trial due to death or
flight to avoid prosecution, may be ineligible for interment, inurnment, or
memorialization in an Army national military cemetery. Nevertheless, such ineligibility
must still observe the procedures specified in �553.21.180chanrobleslaw
The various cases cited by petitiOners, which were decided with finality by courts here
and abroad, have no bearing in this case since they are merely civil in nature; hence,
cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated. Generally, there is no property right to
safeguard because even if one is eligible to be buried at the LNMB, such fact would only
give him or her the privilege to be interred therein. Unless there is a favorable
recommendation from the Commander-�in-Chief, the Congress or the Secretary of
National Defense, no right can be said to have ripen. Until then, such inchoate right is not
legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of equal protection
clause are not met.181 In this case, there is a real and substantial distinction between a
military personnel and a former President. The conditions of dishonorable discharge
under the Articles of War182 attach only to the members of the military. There is also no
substantial distinction between Marcos and the three Philippine Presidents buried at the
LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not convicted of a
crime involving moral turpitude. In addition, the classification between a military
personnel and a former President is germane to the purposes of Proclamation No. 208
and P.D. No. 1076. While the LNMB is a national shrine for militarymemorials, it is also an
active military cemetery that recognizes the status or position held by the persons
interred therein.
Likewise, Marcos was honorably discharged from military service. PVAO expressly
recognized him as a retired veteran pursuant to R.A. No. 6948, as amended. Petitioners
have not shown that he was dishonorably discharged from military service under AFP
Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of
Enlistment) for violating Articles 94, 95 and 97 of the Articles of War. 183 The NHCP
study184 is incomplete with respect to his entire military career as it failed to cite and
include the official records of the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably
separated/reverted/discharged from the service," the same should be viewed in light of
the definition provided by AFP Regulations G 161-375 to the term "active service" which is
"[s]ervice rendered by a military person as a Commissioned Officer, enlisted man/woman,
probationary officer, trainee or draftee in the Armed Forces of the Philippines and service
rendered by him/her as a civilian official or employee in the Philippine Government prior
to the date of his/her separation or retirement from the Armed Forces of the Philippines,
for which military and/or civilian service he/she shall have received pay from the
Philippine Government, and/or such others as may be hereafter be prescribed by law as
active service (PD 1638, as amended)."185 To my mind, the word "service" should be
construed as that rendered by a military person in the AFP, including civil service, from
the time of his/her commission, enlistment, probation, training or drafting, up to the date
of his/her separation or retirement from the AFP. Civil service after honorable separation
and retirement from the AFP is outside the context of "service" under AFP Regulations G
161-375.
Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during
the EDSA Revolution is tantamount to his dishonorable separation, reversion or discharge
from the military service. The fact that the President is the Commander-in-Chief of the
AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian
authority over the military. Not being a military person who may be prosecuted before
the court martial, the President can hardly be deemed "dishonorably
separated/reverted/discharged from the service" as contemplated by AFP Regulations G
161-375. Dishonorable discharge through a successful revolution is an extra-constitutional
and direct sovereign act of the people which is beyond the ambit of judicial review, let
alone a mere administrative regulation.
It is undeniable that former President Marcos was forced out of office by the people
through the so-called EDSA Revolution. Said political act of the people should not be
automatically given a particular legal meaning other than its obvious consequence- that of
ousting him as president. To do otherwise would lead the Court to the treacherous and
perilous path of having to make choices from multifarious inferences or theories arising
from the various acts of the people. It is not the function of the Court, for instance, to
divine the exact implications or significance of the number of votes obtained in elections,
or the message from the number of participants in public assemblies. If the Court is not to
fall into the pitfalls of getting embroiled in political and oftentimes emotional, if not
 82
acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars -
clear constitutional and legal rules - not by the uncertain, ambiguous and confusing
messages from the actions of the people.
Conclusion
In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse
of discretion amounting to lack or excess of jurisdiction which would justify the Court to
interpose its authority to check and override an act entrusted to the judgment of another
branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a
free�spirited stallion that runs and roams wherever it pleases but is reined in to keep it
from straying. In its classic formulation, 'discretion is not unconfined and vagrant' but
'canalized within banks that keep it from overflowing.'"186 At bar, President Duterte,
through the public respondents, acted within the bounds of the law and jurisprudence.
Notwithstanding the call of human rights advocates, the Court must uphold what is legal
and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the
Framers of our Constitution intend that full respect for human rights is available at any
stage of a person's development, from the time he or she becomes a person to the time
he or she leaves this earth.187chanrobleslaw
There are certain things that are better left for history - not this Court - to adjudge. The
Court could only do so much in accordance with the clearly established rules and
principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to
decide, a task that may require the better perspective that the passage of time
provides. In the meantime, the country must mov'e on and let this issue rest.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily,
the Status Quo Ante Order is hereby LIFTED.
D. REQUISITES OF JUDICIAL REVIEW
a) ACTUAL CASE OR CONTROVERSY
i. Imbong vs Ochoa, J. Leonen dissent
DISSENTING OPINION
LEONEN, J.:
The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared
unconstitutional in whole or in any of its parts given the petitions filed in this case.
None of the petitions properly present an �actual case or controversy,�which deserves
the exercise of our awesome power of judicial review.2 It is our duty not to rule on the
abstract and speculative issues barren of actual facts.3 These consolidated petitions,
which contain bare allegations, do not provide the proper venue to decide on
fundamental issues.�The law in question is needed social legislation.
That we rule on these special civil actions for certiorari and prohibition �which amounts
to a pre�enforcement free�wheeling facial review of the statute and the implementing
rules and regulations4 � is very bad precedent. The issues are far from justiciable.
Petitioners claim in their class suits that they entirely represent a whole religion, 5 the
Filipino nation6 and, worse, all the unborn.7 The intervenors also claim the same
representation: Filipinos and Catholics.8 Many of the petitions also sue the President of
the Republic.9
We should apply our rules rigorously and dismiss these cases. The transcendental
importance of the issues they want us to decide will be better served when we wait for
the proper cases with the proper parties suffering real, actual or more imminent injury.
There is no showing of an injury so great and so imminent that we cannot wait for these
cases.
Claims relating to the beginning of life, the relationship of conscientious objection and the
right to religion, the effects of contraception, and even the ponencia�s claim that the
family is put in danger if one spouse decides when there is a disagreement between them
are best decided within their real contexts so that we will be able to narrowly tailor the
doctrines in our decision.10 The danger of ruling on abstract cases is that we foreclose real
litigation between real parties.11 The danger of an advisory opinion is that we are forced
to substitute our own imagination of the facts that can or will happen.�In an actual case,
there is judicial proof of the real facts that frame our discretion.
The law clearly adopts a policy against abortion and prohibits abortifacients. 12 The
definition of abortifacients is sufficiently broad to cover many moral convictions relating
to the beginning of life.13 We do not need to decide on these issue barren of actual facts
that can sharpen factual and legal positions.
The court cannot make a declaration on the beginning of life. Any declaration on this issue
will be fraught with contradictions. Even the Constitutional Commissioners were not in
 83
full agreement; hence, the use of the word �conception�rather than �fertilized ovum�in
Article II, Section 12 of the Constitution.14 There were glaring factual inaccuracies peddled
during their discussion.15
Moreover, declaring the beginning of life complicates future constitutional adjudication.
This will have real repercussions on, among others, acceptable medical procedures for
ectopic pregnancies,16 medical complications as a result of pregnancy resulting from
sexual assaults,17 and on assisted reproductive technologies.18
The petitions have failed to present clear cases when the provisions for conscientious
objection would truly amount to a violation of religion. They have not distinguished the
relationship of conscience and specific religious dogma.19 They have not established
religious canon that conflict with the general provision of Sections 7, 17 and 23 of the law.
The comments in intervention20 in fact raise serious questions regarding what could be
acceptable Catholic doctrine on some issues of contraception and sex as only for
procreation.
The majority has decided to nullify portions of the law on the basis of inchoate Catholic
doctrine without considering that the law as phrased would be acceptable to other faiths,
consciences and beliefs. Due to the failure of the petitioners to present actual cases, it
cannot be possible to see whether their religious objection can be accommodated in the
application and interpretation of the law rather than nullify the provisions wholesale.
We should tread carefully when what is involved is a religion that is not the minority.
Invocations of religious freedom can be a disguised way of imposing the dominant faith
on others. This is especially true in physician�patient relationships. While the physician
may have her or his own religious beliefs, this should not improperly dictate on the range
of services that is wanted and needed by the patient.21 Again, there are no actual cases in
specific contexts with clear religious beliefs pertaining to accepted dogma of a religion
established by the petitions. The proposed declaration of unconstitutionality of portions
of Section 23 is premature and inadvisable.�It also amounts to a judicial amendment of
the physician�s oath.
The law breaks the deadlock when there is disagreement between the spouses as to
whether to avail of a reproductive health technology. 22 The ponencia proposes that this
violates the right to family.23 This is one conclusion. The other is that it allows the couple
to have a final decision and not continue with a perennial conflict. The other possibility
here is that the man, who most often is not the one who avails of the reproductive health
technology, dictates on the woman. This will then result in a violation of the requirement
of fundamental equality in Article II, Section 14 of the Constitution.24 The majority, in
refusing to acknowledge the autonomy of individuals over their own bodies even in the
context of marriage, has just strengthened patriarchy and increased the possibility for
spousal abuse.
All the petitions are premature. At worse, the petitions attempt to impose a moral or
political belief upon the others by tempting this court to use its power of judicial review.
This court is not the venue to continue the brooding and vociferous political debate that
has already happened and has resulted in legislation.25 Constitutional issues normally
arise when the right and obligations become doubtful as a result of the implementation of
the statute. This forum does not exist to undermine the democratically deliberated results
coming from the Congress and approved by the President. Again, there is no injury to a
fundamental right arising from concrete facts established with proof. Rather, the
pleadings raise grave moral and philosophical issues founded on facts that have not yet
happened.�They are the product of speculation by the petitioners.
To steeled advocates who have come to believe that their advocacy is the one true moral
truth, their repeated view may seem to them as the only factual possibility. Rabid
advocacy of any view will be intolerant of the nuanced reality that proceeds from
conscious and deliberate examination of facts.
This kind of advocacy should not sway us.
Our competence is to decide on legal principle only in concrete controversies. We should
jealously and rigorously protect the principle of justiciability of constitutional challenges.
We should preserve our role within the current constitutional order. We undermine the
legitimacy of this court when we participate in rulings in the abstract because there will
always be the strong possibility that we will only tend to mirror our own personal
predilections. We should thus adopt a deferential judicial temperament especially for
social legislation.
This law should not be declared as unconstitutional, in whole or in part, on the basis of
the consolidated petitions. The status quo ante order against the Responsible Parenthood
and Reproductive Health Act of 2012 or Republic Act No. 10354 (RH Law) should be lifted
immediately.
There should be no further obstacle in having the entire law fully implemented.
I
No Actual Controversy,
�Facial Review�is Improper
 84
It has never been the constitutional mandate of the Supreme Court to answer all of life�s
questions. It is endowed instead with the solemn duty to determine when it should
decline to decide with finality questions that are not legal and those that are theoretical
and speculative. This court�s duty includes its ability to stay its hand when the issues
presented are not justiciable.
The requirement in constitutional adjudication is that we decide only when there is a
�case or controversy.�26 This is clear in the second paragraph of Article VIII, Section 1 of
the Constitution, thus:
Section 1. The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess jurisdiction on the part
of any branch or instrumentality of the Government. (Emphasis
supplied)
The requirement for a �case�or �controversy�locates the judiciary in the scheme of our
constitutional order. It defines our role and distinguishes this institution from the other
constitutional organs.
The ponencia claims that there is an actual case and controversy existing in the present
controversy, and it is ripe for determination.27 The ponente reasons that �[c]onsidering
that the RH Law and its implementing rules have already taken effect, and considering
that the budgetary measures to carry out the law have already been passed, it is evident
that the subject petitions present a justiciable controversy. As stated earlier, when an
action of the legislative branch is seriously alleged to have infringed the Constitution, it
not only becomes a right, but also a duty of the Judiciary to [settle] the dispute.�28
I disagree.
An actual case or controversy is �one which involves a conflict of legal rights, an assertion
of opposite legal claims susceptible of judicial resolution; the case must not be moot or
academic or based on extra�legal or other similar considerations not cognizable by a
court of justice.�29 To be justiciable, the issues presented must be ��definite and concrete,
touching the legal relations of parties having adverse legal interest;�a real and substantial
controversy admitting of specific relief.�30 The term justiciability refers to the dual
limitation of only considering in an adversarial context the questions presented before
courts, and in the process, the courts� duty to respect its co�equal branches of
government�s powers and prerogatives under the doctrine of separation of powers. 31
There is a case or controversy when there is a real conflict of rights or duties arising from
actual facts. These facts, properly established in court through evidence or judicial notice,
provide the natural limitations upon judicial interpretation of the statute. When it is
claimed that a statute is inconsistent with a provision of the Constitution, the meaning of
a constitutional provision will be narrowly drawn.
Without the necessary findings of facts, this court is left to speculate leaving justices to
grapple within the limitations of their own life experiences. This provides too much
leeway for the imposition of political standpoints or personal predilections of the majority
of this court. This is not what the Constitution contemplates. Rigor in determining
whether controversies brought before us are justiciable avoids the counter majoritarian
difficulties attributed to the judiciary.
Without the existence and proper proof of actual facts, any review of the statute or its
implementing rules will be theoretical and abstract. Courts are not structured to predict
facts, acts or events that will still happen. Unlike the legislature, we do not determine
policy. We read law only when we are convinced that there is enough proof of the real
acts or events that raise conflicts of legal rights or duties. Unlike the executive, our
participation comes in after the law has been implemented. Verily, we also do not
determine how laws are to be implemented.
The existence of a law or its implementing orders or a budget for its implementation is far
from the requirement that there are acts or events where concrete rights or duties arise.
The existence of rules do not substitute for real facts.
Petitioners cite Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP)32 as basis for asserting that this court
can take cognizance of constitutional cases without actual controversies. In that case, this
court was asked to rule on the validity of the Memorandum of Agreement on the
Ancestral Domain (MOA�AD) between the GRP and the Moro Islamic Liberation Front
(MILF) which included provisions on the definition of the �Bangsamoro�people; the
�Bangsamoro Juridical Entity�(BJE); territory of the Bangsamoro homeland; the total
production sharing between the central government and the BJE relating to natural
resources; and �associative relationship�with the central government.33
 85
Even in that case, this court acknowledged the requirement of an actual case or
controversy in exercising the power of judicial review.
The power of judicial review is limited to actual cases or controversies.
Courts decline to issue advisory opinions or to resolve hypothetical or
feigned problems, or mere academic questions. The limitation of the
power of judicial review to actual cases and controversies defines the
role assigned to the judiciary in a tripartite allocation of power, to
assure that the courts will not intrude into areas committed to the
other branches of government.34
This court then ruled that the petitions were ripe for adjudication because of: �[1] the
failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3; [2]
respondents exceeded their authority by the mere act of guaranteeing amendments to
the Constitution. Any alleged violation of the Constitution by any branch of government is
a proper matter for judicial review.�35 Citing David v. Macapagal�Arroyo, this court
allowed petitioners, petitioners�in�intervention, and intervening respondents�claims of
locus standi due to the paramount public interest or transcendental importance of the
issues involved.
The actual case in Province of North Cotabato was triggered by the process invoked in the
negotiation of the agreement and the claim that it exceeded the authority of the
government panel in talks with the Moro Islamic Liberation Front (MILF). Executive Order
No. 3 was already implemented by the acts of the negotiating panel.
The ponencia�s reading of Province of North Cotabato is inaccurate.� My esteemed
colleague holds:
x x x Citing precedents, the Court ruled that the fact of the law or act in
question being not yet effective does not negate ripeness. Concrete
acts under a law are not necessary to render the controversy ripe. Even
a singular violation of the Constitution and/or law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy
exists and that the same is ripe for judicial determination. Considering
that the RH Law and its implementing rules have already taken effect,
and that the budgetary measures to carry out the law have already
been passed, it is evident that the subject petitions present a justiciable
controversy. As stated earlier, when an action of the legislative branch
is seriously alleged to have infringed the Constitution, it not only
becomes a right, but also a duty of the Judiciary to settle the
dispute.36 (Emphasis in the original)
Unlike Province of North Cotabato, there is yet no implementation of the RH law. The
waiver of justiciability is the exception.�It is not the general rule.37 Province of North
Cotabato involved a peculiar set of facts that required this court to exercise its power of
judicial review. The respondents attempted to put the constitutional question outside the
court�s sphere of judicial review through the performance of acts that rendered a
ripening case moot and academic.38
In Garcia v. Executive Secretary,39 this court was faced with the issue of the
constitutionality of Section 19 of Republic Act No. 847940 entitled �An Act Deregulating
The Downstream Oil Industry And For Other Purposes.�This court held that there was no
justiciable controversy in the case as the issue raised went into the policy or wisdom of
the law, thus:
Stripped to its core, what petitioner Garcia raises as an issue is the
propriety of immediately and fully deregulating the oil industry. Such
determination essentially dwells on the soundness or wisdom of the
timing and manner of the deregulation Congress wants to implement
through R.A. No. 8497. Quite clearly, the issue is not for us to resolve;
we cannot rule on when and to what extent deregulation should take
place without passing upon the wisdom of the policy of deregulation
that Congress has decided upon. To use the words of Baker v. Carr, the
ruling that petitioner Garcia asks requires �an initial policy
determination of a kind clearly for non�judicial discretion�; the branch
of government that was given by the people the full discretionary
authority to formulate the policy is the legislative department.
xxxx
Petitioner Garcia�s thesis readily reveals the political, hence,
non�justiciable, nature of his petition; the choice of undertaking full or
partial deregulation is not for this Court to make.41
Then in Atty. Lozano v. Speaker Nograles,42 this court reiterated that �[i]n our jurisdiction,
the issue of ripeness [which is an aspect of the case or controversy requirement] is
generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for
 86
adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it x x x [or when] an action has already been accomplished or
performed by a branch of government x x x.�43
In Southern Hemisphere Engagement Network, Inc. v. Anti�Terrorism Council,44 this court
declined to rule on the constitutionality of Republic Act No. 9372 or �An Act to Secure the
State and Protect Our People from Terrorism,�otherwise known as the Human Security
Act of 2007. Again, with respect to the requirement of the existence of an actual case, this
court held:
As early as Angara v. Electoral Commission, the Court ruled that the
power of judicial review is limited to actual cases or controversies to be
exercised after full opportunity of argument by the parties. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy
that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory
opinion.
Information Technology Foundation of the Philippines v. COMELEC
cannot be more emphatic:
�[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy
must be justiciable�definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on
the one hand, and a denial thereof on the other hand; that is, it must
concern a real and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of
facts.�
Thus, a petition to declare unconstitutional a law converting the
Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events. Similarly, a
petition that fails to allege that an application for a license to operate a
radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem.
The Court dismissed the petition in Philippine Press Institute v.
Commission on Elections for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections, to rule on
the religious freedom claim of the therein petitioners based merely on
a perceived potential conflict between the provisions of the Muslim
Code and those of the national law, there being no actual controversy
between real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence
of a perceived threat to any constitutional interest suffices to provide a
basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient facts to
enable the Court to intelligently adjudicate the issues.45 (Emphasis
supplied)
Recently, this court in Corales v. Republic46 passed upon the ripeness or prematurity of a
petition for prohibition assailing the Audit Observation Memorandum (AOM) issued by
the Provincial State Auditor of Laguna against petitioner as Mayor. We again held that:
x x x this Court can hardly see any actual case or controversy to warrant
the exercise of its power of judicial review. Settled is the rule that for
the courts to exercise the power of judicial review, the following must
be extant: (1) there must be an actual case calling for the exercise of
judicial power; (2) the question must be ripe for adjudication; and (3)
the person challenging must have the �standing.�An actual case or
controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a
mere hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the
basis of existing law and jurisprudence. Closely related thereto is that
the question must be ripe for adjudication. A question is considered
ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it.
 87
xxxx
The requisites of actual case and ripeness are absent in the present
case. To repeat, the AOM issued by Andal merely requested petitioner
Corales to comment/reply thereto. Truly, the AOM already contained a
recommendation to issue a Notice of Disallowance; however, no Notice
of Disallowance was yet issued. More so, there was no evidence to
show that Andal had already enforced against petitioner Corales the
contents of the AOM. x x x.�The action taken by the petitioners to
assail the AOM was, indeed, premature and based entirely on surmises,
conjectures and speculations that petitioner Corales would eventually
be compelled to reimburse petitioner Dr. Angeles�salaries, should the
audit investigation confirm the irregularity of such disbursements.47
The doctrinal character of the requirement of an actual case may also be inferred from
the tenor of the reservations of several members of this court in Province of North
Cotabato.48
Then Justice Chico�Nazario, in voting to grant the motion to dismiss of the Office of
Solicitor General and to dismiss the petitions, pointed out that:
The Court should not feel constrained to rule on the Petitions at bar
just because of the great public interest these cases have generated.
We are, after all, a court of law, and not of public opinion. The power
of judicial review of this Court is for settling real and existent dispute,
it is not for allaying fears or addressing public clamor. In acting on
supposed abuses by other branches of government, the Court must
be careful that it is not committing abuse itself by ignoring the
fundamental principles of constitutional law.
x x x. The Court must accord a co�equal branch of the government
nothing less than trust and the presumption of good faith.
xxxx
Upon the Executive Department falls the indisputably difficult
responsibility of diffusing the highly volatile situation in Mindanao
resulting from the continued clashes between the Philippine military
and Muslim rebel groups. In negotiating for peace, the Executive
Department should be given enough leeway and should not be
prevented from offering solutions which may be beyond what the
present Constitution allows, as long as such solutions are agreed upon
subject to the amendment of the Constitution by completely legal
means.49 (Emphasis supplied)
Justice Velasco in that case emphasized the need to be vigilant in protecting the doctrine
of separation of powers enshrined in our Constitution, hence:
Over and above the foregoing considerations, however, is the matter of
separation of powers which would likely be disturbed should the Court
meander into alien territory of the executive and dictate how the final
shape of the peace agreement with the MILF should look like. The
system of separation of powers contemplates the division of the
functions of government into its three (3) branches x x x. Consequent
to the actual delineation of power, each branch of government is
entitled to be left alone to discharge its duties as it sees fit. Being one
such branch, the judiciary, as Justice Laurel asserted in Planas v. Gil,
�will neither direct nor restrain executive [or legislative action].�
Expressed in another perspective, the system of separated powers is
designed to restrain one branch from inappropriate interference in the
business, or intruding upon the central prerogatives, of another branch;
it is a blend of courtesy and caution, �a self�executing safeguard
against the encroachment or aggrandizement of one branch at the
expense of the other.�x x x. The sheer absurdity of the situation where
the hands of executive officials, in their quest for a lasting and
honorable peace, are sought to be tied lest they agree to something
irreconcilable with the Constitution, should not be lost on the Court.
Under our constitutional set up, there cannot be any serious dispute
that the maintenance of the peace, insuring domestic tranquility and
the suppression of violence are the domain and responsibility of the
executive. Now then, if it be important to restrict the great
departments of government to the exercise of their appointed powers,
it follows, as a logical corollary, equally important, that one branch
should be left completely independent of the others, independent not
in the sense that the three shall not cooperate in the common end of
carrying into effect the purposes of the constitution, but in the sense
that the acts of each shall never be controlled by or subjected to the
influence of either of the branches.50
 88
Eloquently, Justice Brion in his dissenting opinion in Province of North Cotabato asserted:
x x x. Where policy is involved, we are bound by our constitutional
duties to leave the question for determination by those duly
designated by the Constitution�the Executive, Congress, or the people
in their sovereign capacity.
In the present case, the peace and order problems of Mindanao are
essentially matters for the Executive to address, with possible
participation from Congress and the sovereign people as higher levels
of policy action arise. Its search for solutions, in the course of several
presidencies, has led the Executive to the peace settlement process. As
has been pointed out repetitively in the pleadings and the oral
arguments, the latest move in the Executive�s quest for peace�the
MOA�AD�would have not been a good deal for the country if it had
materialized. This Court, however, seasonably intervened and aborted
the planned signing of the agreement. The Executive, for its part, found
it wise and appropriate to fully heed the signals from our initial action
and from the public outcry the MOA�AD generated; it backtracked at
the earliest opportunity in a manner consistent with its efforts to avoid
or minimize bloodshed while preserving the peace process. At the
moment, the peace and order problem is still with the Executive where
the matter should be; the initiative still lies with that branch of
government. The Court�s role, under the constitutional scheme that
we are sworn to uphold, is to allow the initiative to be where the
Constitution says it should be. We cannot and should not interfere
unless our action is unavoidably necessary because the Executive is
acting beyond what is allowable, or because it has failed to act in the
way it should act, under the Constitution and our laws.
xxxx
Rather than complicate the issues further with judicial
pronouncements that may have unforeseen or unforeseeable effects
on the present fighting and on the solutions already being applied,
this Court should exercise restraint as the fears immediately
generated by a signed and concluded MOA�AD have been addressed
and essentially laid to rest. Thus, rather than pro �actively act on
areas that now are more executive than judicial, we should act with
calibrated restraint along the lines dictated by the constitutional
delineation of powers. Doing so cannot be equated to the failure of
this Court to act as its judicial duty requires; as I mentioned earlier, we
have judicially addressed the concerns posed with positive effects and
we shall not hesitate to judicially act in the future, as may be necessary,
to ensure that the integrity of our constitutional and statutory rules
and standards are not compromised. If we exercise restraint at all, it is
because the best interests of the nation and our need to show national
solidarity at this point so require, in order that the branch of
government in the best position to act can proceed to act.
xxxx
x x x. We can effectively move as we have shown in this MOA�AD
affair, but let this move be at the proper time and while we ourselves
observe the limitations the Constitution commonly impose on all
branches of government in delineating their respective
roles.51 (Emphasis supplied)
It is true that the present Constitution grants this court with the exercise of judicial review
when the case involves the determination of �grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government.�52 This new feature of the 1987 Constitution affects our political question
doctrine.�It does not do away with the requirement of an actual case.�The requirement
of an actual case is fundamental to the nature of the judiciary.
No less than Justice Vicente V. Mendoza implied that the rigorous requirement of an
actual case or controversy is determinative of the nature of the judiciary.�Thus:
[i]nsistence on the existence of a case or controversy before the
judiciary undertakes a review of legislation gives it the opportunity,
denied to the legislature, of seeing the actual operation of the statute
as it is applied to actual facts and thus enables to it to reach sounder
judgment.53
In the recent case of Belgica, et al. v. Executive Secretary, we pointed out:54
[b]asic in litigation raising constitutional issues is the requirement that
there must be an actual case or controversy. This Court cannot render
an advisory opinion. We assume that the Constitution binds all other
constitutional departments, instrumentalities, and organs. We are
 89

aware that in the exercise of their various powers, they do interpret determination which drugs or devices are declared by the FDA as safe,
the text of the Constitution in the light of contemporary needs that it being the agency tasked to ensure that food and medicines available
they should address. A policy that reduces this Court to an adviser for to the public are safe for public consumption. x x x Indeed, the various
official acts by the other departments that have not yet been done kinds of contraceptives must first be measured up to the constitutional
would unnecessarily tax our resources. It is inconsistent with our role yardstick x x x to be determined as the case presents itself.57 (Emphasis
as final arbiter and adjudicator and weakens the entire system of the in the original)
Rule of Law. Our power of judicial review is a duty to make a final and
binding construction of law. This power should generally be reserved
when the departments have exhausted any and all acts that would Moreover, the ponencia also correctly held that a discussion on the constitutionality of
remedy any perceived violation of right. The rationale that defines the Section 14 of the law, pertaining to the teaching of Age�and Development�Appropriate
extent of our doctrines laying down exceptions to our rules on Reproductive Health Education,58 is not yet ripe for determination:
justiciability are clear: Not only should the pleadings show a convincing
x x x any attack on the validity of Section 14 of the RH Law is premature,
violation of a right, but the impact should be shown to be so grave,
as the Department of Education, Culture and Sports have yet to
imminent, and irreparable that any delayed exercise of judicial review
formulate any curriculum on age�appropriate reproductive health
or deference would undermine fundamental principles that should be
education. At this point, one can only speculate [on the] contents,
enjoyed by the party complaining or the constituents that they
manner and medium of instruction that would be used to educate the
legitimately represent.
adolescents and whether [these] would contradict the religious beliefs
of petitioners, and validate their apprehensions. x x x.
The requirement of an �actual case,�thus, means that the case before
this Court �involves a conflict of legal rights, an assertion of opposite
xxxx
legal claims susceptible of judicial resolution; the case must not be
moot or academic based on extra�legal or other similar considerations
While the Court notes the possibility that educators could raise their
not cognizable by a court of justice.�Furthermore, �the controversy
objection to their participation in the reproductive health education
needs to be definite and concrete, bearing upon the legal relations of
program provided under Section 14 of the RH Law on the ground that
parties who are pitted against each other due to their adverse legal
the same violates their religious beliefs, the Court reserves its
interests.�Thus, the adverse position of the parties must be sufficient
judgment should an actual case be filed before it.59(Emphasis in the
enough for the case to be pleaded and for this Court to be able to
original)
provide the parties the proper relief/s prayed for.

The requirement of an �actual case�will ensure that this Court will not
issue advisory opinions. It prevents us from using the immense power
of judicial review absent a party that can sufficiently argue from a
standpoint with real and substantial interests.55
Regretfully, the ponencia takes inconsistent positions as to whether the petitions do
allege actual cases. On the issue of the violation of the right to health under Section 9 of
the law,56 he correctly held that the constitutional challenge is premature:
x x x not a single contraceptive has yet been submitted to the FDA
pursuant [to the] RH Law. It [behooves] the Court to await its
Unfortunately, the ponencia failed to discuss how several provisions of the RH Law
became vulnerable to a facial attack, whereas other provisions must await an actual case
or controversy to pass upon its constitutionality. The ponencia explained that the:
x x x foregoing petitions have seriously alleged that the constitutional
human right to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the
Court has authority to take cognizance of these kindred petitions and
determine if the RH Law can indeed pass constitutional scrutiny.60
I restate, for purposes of emphasis, parts of my disquisition on facial challenges in my
 90
dissenting and concurring opinion in Disini v. Secretary of Justice. 61 After all, the
challenges to this present law and the Cybercrime Prevention Act of 2012 are the public�s
reaction to the increasingly liberal but disturbing treatment that we have given on the
issue of rigorous analysis for the justiciability of controversies brought before us.
The invalidation of the statute is either �on its face�or �as applied.�The only instance
when a facial review of the law is not only allowed but also essential is �when the
provisions in question are so broad that there is a clear and imminent threat that
actually operates or it can be used as a prior restraint of speech.�62
In Cruz v. Secretary of Environment and Natural Resources, 63 Justice Vicente V. Mendoza
explained the difference of an �as applied�challenge from an �on its face�challenge:
The only instance where a facial challenge to a statute is allowed is when it operates in
the area of freedom of expression. In such instance, the overbreadth doctrine permits a
party to challenge the validity of a statute even though as applied to him it is not
unconstitutional but it might be if applied to others not before the Court whose activities
are constitutionally protected. Invalidation of the statute �on its face�rather than �as
applied�is permitted in the interest of preventing a �chilling�effect on freedom of
expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so
far inseparable from the rest of the statute that a declaration of partial invalidity is not
possible.64 (Emphasis supplied)
Subsequently, in Estrada v. Sandiganbayan,65 Justice Mendoza culled a more extensive
rule regarding facial or �on its face�challenges, thus:
[a] facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible �chilling effect�upon
protected speech. The theory is that �[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself
as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.� The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory
effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, �we have not recognized an
�overbreadth� doctrine outside the limited context of the First
Amendment.�In Broadrick v. Oklahoma, the Court ruled that �claims
of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words�and, again,
that �overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct.�For this reason, it has been held that �a
facial challenge to a legislative Act is �the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.��x x x.
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing �on their faces�statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is
that �one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also
be taken as applying to other persons or other situations in which its
application might be unconstitutional.�x x x.66 (Emphasis supplied)
Similarly, this court in Prof. David v. Pres. Macapagal�Arroyo67 laid down guides when a
facial challenge may be properly brought before this court, thus:
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing �on their faces�statutes in free speech cases,
also known under the American Law as First Amendment cases.
 91
xxxx
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only �spoken
words�and again, that �overbreadth claims, if entertained at all, have
been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct.�Here, the incontrovertible
fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as �manifestly strong
medicine,�to be used �sparingly and only as a last resort,�and
is �generally disfavored;�The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be heard
to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the
Court. A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth
technique is that it marks an exception to some of
the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute
is unconstitutional as applied to him or her; if the
litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis,
those rules give way; challenges are permitted to
raise the rights of third parties; and the court
invalidates the entire statute �on its face,� not
merely �as applied for�so that the overbroad law
becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that
motivates courts to depart from the normal
adjudicatory rules is the concern with the �chilling;�
deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The
Court assumes that an overbroad law�s �very
existence may cause others not before the court to
refrain from constitutionally protected speech or
expression.�An overbreadth ruling is designed to
remove that deterrent effect on the speech of those
third parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on
the assumption or prediction that its very existence may cause others
not before the Court to refrain from constitutionally protected speech
or expression. In Younger v. Harris, it was held that:
[T]he task of analyzing a proposed statute,
pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into
effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative
remoteness of the controversy, the impact on the
legislative process of the relief sought, and above
all the speculative and amorphous nature of the
required line�by�line analysis of detailed
statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether this
situation exists.68 (Emphasis in the original)
A similar view was adopted by this court in Romualdez v. Hon.
Sandiganbayan69 and Spouses Romualdez v. Commission on Elections.70 Unfortunately, in
resolving the motion for reconsideration in Spouses Romualdez v. Commission on
Elections,71 this court seemed to have expanded the scope of the application of facial
challenges. Hence:
 92
x x x. The rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge.72
However, the basic rule was again restated in Southern Hemisphere Engagement Network,
Inc. v. Anti�Terrorism Council:73
Distinguished from an as�applied challenge which considers
only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities.
Justice Mendoza accurately phrased the subtitle in his concurring
opinion that the vagueness and overbreadth doctrines, as grounds for a
facial challenge, are not applicable to penal laws. A litigant cannot
thus successfully mount a facial challenge against a criminal statute
on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by
the aim to avert the �chilling effect�on protected speech, the exercise
of which should not at all times be abridged. As reflected earlier, this
rationale is inapplicable to plain penal statutes that generally bear an
�in terrorem effect�in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or
dissuading the exercise of constitutionally protected rights.
The Court reiterated that there are �critical limitations by which a
criminal statute may be challenged� and �underscored that an
�on�its�face�invalidation of penal statutes x x x may not be allowed.�
[T]he rule established in our jurisdiction is, only
statutes on free speech, religious freedom, and
other fundamental rights may be facially
challenged. Under no case may ordinary penal
statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal
statute is permitted, the prosecution of crimes may
be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge
in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the
doctrinal requirement of an existing and concrete
controversy before judicial power may be
appropriately exercised. A facial challenge against a
penal statute is, at best, amorphous and speculative.
It would, essentially, force the court to consider
third parties who are not before it. As I have said in
my opposition to the allowance of a facial challenge
to attack penal statutes, such a test will impair the
State�s ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from
defeating the State�s power to prosecute on a mere
showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that
the law is clear as applied to him.
It is settled, on the other hand, that the application of the overbreadth
doctrine is limited to a facial kind of challenge and, owing to the given
rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial
type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as
applied to the litigants.
xxxx
In restricting the overbreadth doctrine to free speech claims, the Court,
in at least two cases, observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the
First Amendment, and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
 93

regulate only spoken words. In Virginia v. Hicks, it was held that rarely,
if ever, will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed
to speech or speech�related conduct. Attacks on overly broad statutes
are justified by the �transcendent value to all society of constitutionally
protected expression.�74 (Emphasis and underscoring in the original)
The prevailing doctrine today is that:
a facial challenge only applies to cases where the free speech and its
cognates are asserted before the court. While as a general rule penal
statutes cannot be subjected to facial attacks, a provision in a statute
can be struck down as unconstitutional when there is a clear showing
that there is an imminent possibility that its broad language will allow
ordinary law enforcement to cause prior restraints of speech and the
value of that speech is such that its absence will be socially
irreparable.75
Facial challenges can only be raised on the basis of overbreadth and not on
vagueness. Southern Hemisphere demonstrated how vagueness relates to violations of
due process rights, whereas facial challenges are raised on the basis of overbreadth and
limited to the realm of freedom of expression.
None of these petitions justify a facial review of this social legislation.�The free exercise
of one�s religion may be a cognate of the freedom of expression.�However, the petitions
have not properly alleged the religion, the religious dogma, the actual application of the
religious dogma where a repugnancy can be shown.� They have also failed to
demonstrate that the violation of the amorphous religious dogmas that they imagine
should result in the invalidation of statutory text rather than simply an adjustment in its
interpretation and in its application.
II
No Locus Standi
Besides, the consolidated cases are improper class suits that should be dismissed outright.

Broken down into its elements, a facial review should only be allowed when: A class suit is allowed under the rules77 if those who instituted the action are found to be
sufficiently numerous and representative of the interests of all those they seek to
First, the ground for the challenge of the provision in the statute is that
represent. They must be so numerous that it would be impractical to bring them all to
it violates freedom of expression or any of its cognates;
court or join them as parties. Lastly, a common interest in the controversy raised must be
clearly established.78
Second, the language in the statute is impermissibly vague;
These requirements afford protection for all those represented in the class suit
Third, the vagueness in the text of the statute in question allows for an
considering that this court�s ruling will be binding on all of them.� We should be
interpretation that will allow prior restraints;
especially cautious when the class represented by a few in an alleged class suit is the
�entire Filipino Nation�or all the adherents of a particular religion. This court must be
Fourth, the �chilling effect�is not simply because the provision is
convinced that the interest is so common that there can be no difference in the positions
found in a penal statute but because there can be a clear showing that
and points of view of all that belong to that class. Anything less than this standard will be
there are special circumstances which show the imminence that the
an implied acceptance that in this important adjudication of alleged constitutional rights,
provision will be invoked by law enforcers;
the views of a few can be imposed on the many.

Fifth, the application of the provision in question will entail prior

In the 1908 case of Iba�es v. Roman Catholic Church,79 13 plaintiffs filed the complaint for
restraints; and
themselves and on behalf of the other inhabitants of the town of Ternate against the
Roman Catholic Church for the proprietorship of an image of the Holy Child.80 This court
Sixth, the value of the speech that will be restrained is such that its
held that the action could not be maintained.
absence will be socially irreparable. This will necessarily mean
balancing between the state interests protected by the regulation and
the value of the speech excluded from society.76
 94
It sufficiently appears from the record in this case that it is a
controversy between the Roman Catholic Church on one side and the
Independent Filipino Church on the other. That it is the purpose of the
plaintiffs, if they secure possession of the image, to place it in the
chapel of the Independent Church is also very clear. What number of
the inhabitants of the town (2,460 according to the census) are
members of the Roman Catholic Church and what part are members
of the Independent Filipino Church does not appear. But it is very
apparent that many of the inhabitants are opposed to the transfer of
the image from the Roman Catholic Church. Under the circumstances,
the thirteen plaintiffs do not fairly represent all of the inhabitants of
the town. Their interest and the interests of some of the others are
diametrically opposed. For this reason this action can not be
maintained.81 (Emphasis supplied)
In the 1974 case of Mathay v. Consolidated Bank and Trust Co., 82 this court affirmed the
dismissal of a complaint captioned as a class suit for failure to comply with the requisite
that the parties who filed the class suit must be sufficiently numerous and representative:
The complaint in the instant case explicitly declared that the
plaintiffs�appellants instituted the �present class suit under Section 12,
Rule 3, of the Rules of Court in behalf of CMI subscribing stockholders�
but did not state the number of said CMI subscribing stockholders so
that the trial court could not infer, much less make sure as explicitly
required by the statutory provision, that the parties actually before it
were sufficiently numerous and representative in order that all
interests concerned might be fully protected, and that it was
impracticable to bring such a large number of parties before the court.
xxxx
Appellants, furthermore, insisted that insufficiency of number in a class
suit was not a ground for dismissal of one action. This Court has,
however, said that where it appeared that no sufficient
representative parties had been joined, the dismissal by the trial court
of the action, despite the contention by plaintiffs that it was a class
suit, was correct.83 (Emphasis supplied)
In Re: Request of the Heirs of the Passengers of Do �a Paz,84 a class suit was filed by 27
named plaintiffs on behalf and in representation of �the approximately 4,000 persons x x
x (who also) are all close relatives and legal heirs of the passengers of the Do�a
Paz.�85 This court distinguished class suits86 from permissive joinder of parties:87
x x x. What makes the situation a proper case for a class suit is the
circumstance that there is only one right or cause of action pertaining
or belonging in common to many persons, not separately or severally
to distinct individuals.
xxxx
The other factor that serves to distinguish the rule on class suits from
that of permissive joinder of parties is, of course, the numerousness of
parties involved in the former. The rule is that for a class suit to be
allowed, it is needful inter alia that the parties be so numerous that it
would be impracticable to bring them all before the court.88
Finding that the case was improperly brought as a class suit, this court concluded that �it
follows that the action may not be maintained by a representative few in behalf of all the
others.�89 Consequently, this court denied the authority to litigate in the form of a class
suit.90
This ruling was again emphasized in Bulig�Bulig Kita Kamag�anak Association v. Sulpicio
Lines, Inc.,91 making the ratio decidendi in Re: Request of the Heirs of the Passengers of
Do�a Paz binding precedent.92 These cases have been cited in a more recent
jurisprudence in its discussion on the need to sufficiently represent all interests for a class
suit to prosper.93
MVRS Publications, Inc. et al. v. Islamic Da�wah Council of the Philippines, Inc. et
al.94 emphasized how adequacy of representation in a class suit is important in fully
protecting the interests of those concerned:
In any case, respondents�lack of cause of action cannot be cured by
the filing of a class suit. As correctly pointed out by Mr. Justice Jose C.
Vitug during the deliberations, �an element of a class suit is the
adequacy of representation. In determining the question of fair and
adequate representation of members of a class, the court must
consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion
of those made parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the ability of the named
 95
party to speak for the rest of the class.
The rules require that courts must make sure that the persons
intervening should be sufficiently numerous to fully protect the
interests of all concerned. In the present controversy, Islamic Da'wah
Council of the Philippines, Inc., seeks in effect to assert the interests
not only of the Muslims in the Philippines but of the whole Muslim
world as well. Private respondents obviously lack the sufficiency of
numbers to represent such a global group; neither have they been able
to demonstrate the identity of their interests with those they seek to
represent. Unless it can be shown that there can be a safe guaranty
that those absent will be adequately represented by those present, a
class suit, given its magnitude in this instance, would be unavailing.95
Class suits require that there is a possibility that those represented can affirm that their
interests are properly raised in a class suit. The general rule must be that they be real and
existing. In constitutional adjudication, this court must approach class suits with caution;
otherwise, future generations or an amorphous class will be bound by a ruling which they
did not participate in.
Not all these elements for a proper class suit are present in the petitions filed in these
cases.
Petitioners James M. Imbong and Lovely�Ann C. Imbong, for themselves and in behalf of
their minor children, Lucia Carlos Imbong and Bernadette Carlos Imbong, and Magnificat
Child Development Center, Inc.96 filed their petition �as parents and as a class suit in
representation of other parents and individuals similarly situated.�97 They alleged that
they are �Catholics who have deeply�held religious beliefs upon which Faith their
conscience is rooted against complying with the mandates of the Act.�98
Four persons and a juridical entity cannot be considered as sufficiently numerous and
representative of the interests of �all other parents and individuals similarly situated.�
Petitioners Alliance for the Family Foundation, Inc. (ALFI), represented by its President,
Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B. Luistro, et
al.99invoked Oposa v. Factoran, Jr. in filing their petition �on behalf of all generations of
Filipinos yet unborn, who are in danger of being deprived of the right to life by R.A. No.
10354.�100
The required common interest in the controversy can neither be determined nor proven
in this case if those to be represented are yet to be born.
It is true that in Oposa v. Factoran, Jr.,101 intergenerational suits were introduced in our
jurisdiction. However, this case must not be abused out of its context. Oposa is a novel
case involving an environmental class suit. This environmental case involved minor
petitioners who filed a complaint for the cancellation of all existing timber license
agreements in the country. They were allowed to sue on behalf of future generations on
the ground of �intergenerational responsibility,�in relation to the constitutional right to a
balanced and healthful ecology.102 The state of our ecology will certainly affect future
generations regardless of ideology, philosophy or standpoints.
On the other hand, those who will only be born in the future may have different views
regarding the various policy approaches on responsible parenthood and reproductive
health. Hence, the commonality of the interest that will justify the presumption that the
legal positions will be the same is not present.
In its petition, Task Force for Family and Life Visayas, Inc.103 alleged that it is �an
association of men and women who have committed themselves to the protection of
family and life, sanctity of marriage x x x.�104 Its members are �Roman Catholics by faith�
and are �spread throughout the Visayan region.�105 The petitioners collectively seek relief
�from the impending threat against their children, their respective families and the entire
Filipino nation, their religious freedom and other constitutional rights they foresee and
make known in this petition.�106
Petitioners, by no stretch of the imagination, cannot be representative of the interests of
�the entire Filipino nation.�Not all Filipinos are Roman Catholics. Not all Filipinos are
from the Visayas. Certainly not all Filipinos have a common interest that will lead to a
common point of view on the constitutionality of the various provisions of the RH law.
Serve Life Cagayan de Oro City, Inc., represented by Dr. Nestor B. Lumicao, M.D. as
President and in his personal capacity, Rosevale Foundation, Inc., represented by Dr.
Rodrigo M. Alenton, M.D. as member of the school board and in his personal capacity,
Rosemarie R. Alenton, Imelda G. Ibarra, CPA, Lovenia P. Naces, Ph.D., Anthony G. Nagac,
Earl Anthony C. Gambe, and Marlon I. Yap also filed a petition consolidated with these
cases.107
The individual petitioners alleged they are medical practitioners, members of the bar,
educators, and various professionals who filed this petition �as parents and as a class suit
in representation of other parents and individuals similarly situated.�108 They are �devout
and practicing Catholics whose religious beliefs find the mandatory provisions of the RH
law obnoxious and unconscionable.�109
 96
The basis for representing Catholics because their religious beliefs find the RH law
obnoxious and unconscionable is not shared by all Catholics. Again, the class is improperly
defined and could not withstand judicial scrutiny. Their views may not be representative
of the entire class they seek to represent.
Spouses Francisco S. Tatad and Maria Fenny C. Tatad and Alan F. Paguia alleged that they
are representing, themselves, their posterity, and the rest of Filipino posterity. 110 They
instituted their action �in their capacity as concerned citizens, taxpayers, parents,
grandparents, biological ancestors of all their descendants, born and unborn, conceived or
not yet conceived, up to their remotest generation in the future within the context of
Filipino posterity under the 1987 Constitution.�111
Three individual petitioners cannot be considered as sufficiently numerous and
representative of the interests �of the rest of Filipino posterity.�There is no showing that
future Filipinos will accept their point of view. No one can be certain of the interest of
Filipinos in the future. No one can be certain that even their descendants will agree with
their position.�Consequently, a common interest on the controversy with future Filipinos
cannot be established.
In fact, petitioners Couples for Christ Foundation, Inc., et al. 112 confirmed the existence of
divergent opinions on the RH law among Filipinos when it stated that �the Filipino people,
of whom majority are Catholics, have a strong interest in the final resolution of the issues
on reproductive health, which has divided the nation for years.�113
Pro�Life Philippines Foundation, Inc., represented by Lorna Melegrito as Executive
Director and in her personal capacity, Joselyn B. Basilio, Robert Z. Cortes, Ariel A.
Crisostomo, Jeremy I. Gatdula, Cristina A. Montes, Raul Antonio A. Nidot, Winston Conrad
B. Padojinog, and Rufino L. Policarpio III also filed a petition.114
The individual petitioners instituted this action �as parents, and as a class suit in
representation of other parents and individuals similarly situated.�115 They alleged that
the RH law is �oppressive, unjust, confiscatory and discriminatory specifically against
herein petitioners �as parents, professionals, and faithful of the Catholic Church.�116
Again, there is no showing that these individual petitioners are sufficiently numerous and
representative of the interests of those they seek to represent.
The rationale for the dismissal of actions in these types of class suits is far from merely
procedural. Since petitioners claim representation, the argument that they bring as well
as the finality of the judgment that will be rendered will bind their principals. An
improperly brought class suit, therefore, will clearly violate the due process rights of all
those in the class. In these cases, certainly the entire Filipino nation, all the descendants
of petitioners, all Catholics, and all the unborn will be bound even though they would
have agreed with respondents or the intervenors.
Being improperly brought as class suits, these petitions should be dismissed.
Besides this infirmity, some of the petitions included the Office of the President as party
respondent.117 Also on this basis, these petitions should be dismissed.
A sitting president cannot be sued.118 This immunity exists during the President�s
incumbency only. The purpose is to preserve the dignity of the office that is necessary for
its operations as well as to prevent any disruption in the conduct of official duties and
functions.119 Without this immunity, a proliferation of suits would derail the focus of the
office from addressing the greater needs of the country to attending each and every case
filed against the sitting President, including the petty and harassment suits.
The doctrine of presidential immunity is not a surrender of the right to demand
accountability from those who hold public office such as the President. The Constitution
enumerates the grounds when a President may be impeached.120 This immunity is also no
longer available to a non�sitting President. After the end of his or her tenure, he or she
can be made criminally and civilly liable in the proper case.121
III
The Right to Life
Petitioners raise the issue of right to life under Article III, Section 1 of the Constitution in
relation to the policy of equal protection of the life of the mother and of the unborn
under Article II, Section 12. In this context, the right to life is viewed as the right to a
corporeal existence.
The constitutional right to life has many dimensions.�Apart from the protection against
harm to one�s corporeal existence, it can also mean the �right to be left alone�.�The
right to life also congeals the autonomy of an individual to provide meaning to his or her
life.�In a sense, it allows him or her sufficient space to determine quality of life.�A law
that mandates informed choice and proper access for reproductive health technologies
should not be presumed to be a threat to the right to life.�It is an affirmative guarantee
to assure the protection of human rights.
The threat to corporeal existence
 97
The policy taken by the law against abortion is clear.�In the fifth paragraph of Section
2,122 the law provides:
The State likewise guarantees universal access to medically
safe, non�abortifac[i]ent, effective, legal, affordable, and quality
reproductive health care services, methods, devices, supplies which do
not prevent the implantation of a fertilized ovum as determined by the
Food and Drug Administration (FDA) and relevant information and
education thereon according to the priority needs of women, children
and other underprivileged sectors x x x. (Emphasis supplied)
Section 3,123
paragraph (d) likewise emphasizes the following as a guiding principle of
implementation:
(d) The provision of ethical and medically safe, legal, accessible,
affordable, non�abortifac[i]ent, effective and quality reproductive
health care services and supplies is essential in the promotion of
people�s right to health, especially those of women, the poor and the
marginalized, and shall be incorporated as a component of basic health
care[.] (Emphasis supplied)
Then, subparagraph (j) of the same section in this law states:
(j) While this Act recognizes that abortion is illegal and punishable by
law, the government shall ensure that all women needing care for
post�abortive complications and all other complications from
pregnancy, labor and delivery and related issues shall be treated and
counseled in a humane, nonjudgmental and compassionate manner in
accordance with law and medical ethics[.] (Emphasis supplied)
Section 9124 of the law provides:
Sec. 9. The Philippine National Drug Formulary System and Family
Planning Supplies. � The National Drug Formulary shall include
hormonal contraceptives, intrauterine devices, injectibles and other
safe, legal, non�abortifac[i]ent and effective family planning products
and supplies. x x x. (Emphasis supplied)
Section 4, paragraph (a) of Republic Act No. 10354 defines abortifacient as:
(a) Abortifacient refers to any drug or device that induces abortion or
the destruction of a fetus inside the mother�s womb or the prevention
of the fertilized ovum to reach and be implanted in the mother�s
womb upon determination of the FDA.
This should have been sufficient to address the contention by petitioners that the law
violates the right to life and that right to life means the right to a corporeal existence.
The ponencia found that the law was �consistent with the Constitution�125 because it
�prohibits any drug or device that induces abortion�126 and because it �prohibits any
drug or device [that prevents] the fertilized ovum to reach and be implanted in the
mother�s womb.�127
When life begins, not an issue.
However, the court cannot make a declaration of when life begins. Such declaration is not
necessary and is a dictum that will unduly confuse future issues.
First, there is, as yet, no actual controversy that can support our deliberation on this
specific issue.
Second, the court cannot rely on the discussion of a few commissioners during the drafting
of the constitution by the Constitutional Commission.
In Civil Liberties Union v. Executive Secretary,128 this court noted:
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been held
that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the Constitution
to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the
 98
words consonant to that reason and calculated to effect that
purpose.129
However, in the same case, this court also said:130
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless
to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention �are of value as
showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from
what appears upon its face.�The proper interpretation therefore
depends more on how it was understood by the people adopting it
than in the framers�s understanding thereof. 131 (Emphasis supplied)
The meaning of constitutional provisions should be determined from a contemporary
reading of the text in relation to the other provisions of the entire document. We must
assume that the authors intended the words to be read by generations who will have to
live with the consequences of the provisions. The authors were not only the members of
the Constitutional Commission but all those who participated in its ratification.
Definitely, the ideas and opinions exchanged by a few of its commissioners should not
be presumed to be the opinions of all of them. The result of the deliberations of the
Commission resulted in a specific text, and it is that specific text�and only that
text�which we must read and construe.
The preamble establishes that the �sovereign Filipino people�continue to �ordain and
promulgate�the Constitution. The principle that �sovereignty resides in the people and
all government authority emanates from them�132 is not hollow. Sovereign authority
cannot be undermined by the ideas of a few Constitutional Commissioners participating in
a forum in 1986 as against the realities that our people have to face in the present.
There is another, more fundamental, reason why reliance on the discussion of the
Constitutional Commissioners should not be accepted as basis for determining the spirit
behind constitutional provisions. The Constitutional Commissioners were not infallible.
Their statements of fact or status or their inferences from such beliefs may be wrong. This
is glaringly true during their discussions of their reasons for supporting the formulation of
Article II, Section 12 of the Constitution.133
It cannot be contended that the exact moment when life begins was a settled matter for
the Constitutional Commissioners. This is just one reading of their discussions.
For Commissioner Bernas, the reason for extending right to life to a fertilized ovum 134 was
to �prevent the Supreme Court from arriving at a x x x conclusion�similar to Roe v.
Wade.135 In the process, he explained his ideas on the beginning of life:
FR. BERNAS: x x x The intent of this addition is to preclude the Supreme
Court from following the United States doctrine which does not begin
to weigh the life of the unborn against that of the mother until the
fetus has reached a viable stage of development. In American doctrine,
during the first six months of pregnancy, the only requirement for
allowing abortion is that it will not be harmful to the mother. It is only
after the sixth month that the life of the fetus begins to be weighed
against the life of the mother.
The innovation does not say that from the first moment the sperm
and the egg shake hands, human life is already present, much less
does it say that at that moment, a soul is infused; nor does the
innovation say that the right to life of the fertilized ovum must prevail
over the life of the mother all the time. All that the innovation says is
that from the moment of fertilization, the ovum should be treated as
life whose worth must be weighed against the life of the woman, not
necessarily saying that they are of equal worth.136
x x x. The Argument in Roe v. Wade is that the important thing is the
privacy of the mother�s womb. If she wants to get rid of that fetus
anytime within the first six months, it is allowed provided it can be
done safely even if there is no medical reason for it. That is the only
thing contemplated in this.137
However, despite Fr. Bernas�statement on the proposed inclusion of �[t]he right to life
extends to the fertilized ovum�in Section 1 of the Bill of Rights, Bishop Bacani stated that
human life already existed at the time of conception:
BISHOP BACANI: The formulation reached by the Committee was
�fertilized ovum,�to precisely define what we meant. And it will be
 99
brought forward in another committee report that the right to life
begins with conception. That is meant to explain what is understood on
the committee report by the word �conception.�The Gentleman was
asking whether this is a human person. That is not the assertion yet of
this section. But what we do assert is this, that this is human life
already. If I may be allowed to read the results of the report by Fr.
Robert Henley, who is also a Jesuit like Fr. Bernas, it seems they are in
all camps. Let me just read this into the record. He says:
Specializing as it does in fetal physiology, Georgetown University,
probably more than almost any other university, is aware of the
biological facts regarding the beginnings of human life.
From the moment of conception a new biological entity exists. The
entity cannot be considered as physically identical with the mother�s
body. To consider the matter broadly, there is no essential difference
between an ovum fertilized within the body and an ovum fertilized
outside the parent�s body or rejected in an egg or emerging
undeveloped, as in marsupials, in an external pouch. To destroy this
entity is to destroy an existing life. Since this life entity is clearly within
the development of the human species, there is obviously nothing
added on a human being. Its destruction is the destruction of human
life. Murder cannot be justified by a legal fiction. 138
Further in the deliberations on this issue, Ms. Felicitas Aquino* propounded some
concerns:
MS. AQUINO: Madam President, before the issue on the right to life is
lost in the interdebate on the vexing question of the U.S. bases, I am
intervening to settle some matters about the matter of the right to life.
I am very much alarmed by the absolutist claim to morality in the
defense of human life, the defense that was raised by Commissioner
Villegas. There is presently a raging debate on the philo�ethical
considerations of the origin or the beginnings of human life that at this
moment, I do not think we are in any position to preempt the debate
and come up with a premature conclusion on the matter. There are still
pressing questions in my mind, such as: Is the biological existence of a
potentiality for life synonymous with human personality? Is viability
synonymous with life? There are at least a dozen theories that attempt
to address themselves to this kind of question. For example, we are
aware of the Thomistic concept of hylomorphism which posits the
complementarity of matter and form. The theory demands that before
human life is assumed, the material body demands a certain measure
of organization and form that makes it capable of receiving a soul. It
operates on the premise that individuality is the basic premise and the
fundamental criterion for human life and human personality and
individuality requires consciousness and self�reflection.
There is another theory which states that human life begins two to
three weeks after conception; that is after the possibility on the
process of twinning the zygote or the recombination of the zygote is
finally ruled out. These are questions that need to be addressed in our
Civil Code. For example, in the context of this discussion, Articles 40
and 41 are settled that personality is determined by birth, and that for
all purposes favorable to it, a conceived baby is considered born but
subject to the conditions of Article 41 which says that personality is
determined by live birth. I would think that Articles 40 and 41 are not
only settled, but are the most practical approach to the raging debate
on the matter of human life. It lays as the criteria for its conclusion the
individual biological criteria, with special emphasis on the physical
separation of the fetus from the mother and the requirements of
viability.
I am alarmed by the way we tend to preempt this kind of discussion by
invoking the claims of the righteousness of morality. These questions
for me are transcendental that we cannot even attempt to address any
conclusion on the matter unless we can address the question without
temerity or without bigotry. Besides, the level of human knowledge on
this debate is so severely restricted that to preempt the debate is, I
guess, to preempt the deliberations and finally the possibility of
agreement on the diverse theories on the matter.139
In response, Mr. Villegas dismissed the concerns and declared that the issue of the
beginning of life is already settled.
MR. VILLEGAS: Madam President, it is precisely because this issue is
transcendental that we have to make also a transcendental
statement. There is no debate among medical scientists that human
life begins at conception, so that is already a settled question. We are
 100
talking about life. As I said, we are not talking about human personality,
neither are we saying that the human person can be decided precisely
by law, nor at what time it will have the right to property and
inheritance. The only right that we are protecting is the right to life at
its beginning, which medical science genetics has already confirmed
as beginning at conception.140 (Emphases supplied)
The Constitutional Commission deliberations show that it is not true that the issue of
when life begins is already a settled matter. There are several other opinions on this
issue. The Constitutional Commissioners adopted the term �conception�rather than
�fertilized ovum.�
New discoveries in reproductive science, particularly the possibility of cloning, provide
basis for the possible significance of viable implantation in the uterus as the �beginning of
life and personhood.�It is at implantation when a group of cells gain the potential of
progressing into a human being without further intervention.141
There are others who say that human life is defined by the presence of an active
brain.142 Without it, there is no human being.143
Another theory is that human life begins when organs and systems have already been
developed and functioning as a whole, consistent with the idea that death happens upon
cessation of organized functions of these organs and systems. 144 Zygote and embryonic
stages are merely transitional phases.145
Others suggest that life begins when there is no more possibility of �twinning.�146
There are also those who do not share the moral value and, therefore, the legal
protection that can be given to a fertilized ovum even assuming that that would be the
beginning of life.
During the Constitutional Commission deliberations, Rev. Rigos pointed out the need to
�consider the sensibilities of other religious groups.�147 He asked:
REV. RIGOS: x x x. But like a few people who spoke this morning, I am a
bit disturbed by the second sentence: �The right to life extends to the
fertilized ovum.�
In discussing this proposed sentence, did the Committee consider the
sensibilities of some religious groups which do not look at the fertilized
ovum as having reached that stage that it can be described as human
life?148
Fr. Bernas answered: �Precisely, we used that word to try to avoid the debate on whether
or not this is already human life.�149
Later, Rev. Rigos asked if the aim of the clause could not be achieved through
legislation.150
Bishop Bacani stated the reason for his belief why the matter could not be left to
legislation. He said:
x x x. We would like to have a constitutional damper already on the
assault to human life at its early stages. And we realized that it can be
possible to more easily change x x x easier to change legislation on
abortion. Hence, we would like to be able to prevent those changes in
the laws on abortion later.151
Rev. Rigos pointed out the differing opinions on the commencement of human life. He
said that �[i]f we constitutionalize the beginning of human life at a stage we call fertilized
ovum, then we are putting a note of the finality to the whole debate.�152 To this, Bishop
Bacani said that there were people from other religions who were against abortion. He
said:
BISHOP BACANI: I would like to remind Reverend Rigos that when we
talk about this, it is not a question of religious boundaries. In fact, let
me just read what is contained in an article given by one of my
researchers. It says that many scholarly Protestant and Jewish leaders
are prominent in the pro�light movement �and they are referring to
the anti�abortion movement. I do not want to put this simply on the
denominational plain, and it is misleading to put it at that level.
xxxx
BISHOP BACANI: Because these are people who are not Catholics �who
are Jewish, Protestants, even atheists � but who are against
abortion. 153
Rev. Rigos clarified that while Bishop Bacani was correct in describing the Protestant
 101
church�s stance against abortion �on the whole,��x x x there is a big segment in the
Protestant church that wishes to make a clear distinction between what we call abortion
and miscarriage.�154
A paper published in the Journal of Medical Ethics written by Cameron and Williamson
summarizes various religious views on life�s beginnings.155 It was asserted that �[t]he
Bible, the Koran, and the Talmud do not actually say when life begins, although each has
been the subject of various interpretations.�156
The traditional Catholic view is that life begins at fertilization.157 However, even �[w]ithin
the Catholic Church, there are differing views.�158 Cameron and Williamson mentioned
subscription �to theories of �delayed�or �mediate�animation�or the infusion of the
soul at points after fertilization.159 There are also arguments that even distinguished
theologians like St. Augustine and St. Thomas claim that a fetus becomes a person only
between the 40th to 80th day from conception and not exactly at fertilization.160
Similar to the traditional Catholic view, Buddhism, Sikhism, and Hinduism believe that life
begins at conception.161
Some Muslim scholars, according to Cameron and Williamson, believe that a fetus gains
soul only in the fourth month of pregnancy or after 120 days. 162 Other Muslims believe
that a six�day embryo is already entitled to protection.163
The view that life begins at fertilization was supported during the debates in the
Constitutional Commission by the idea that a fertilized ovum always develops into a
human life.
Commissioner Ms. Aquino observed:
MS. AQUINO: I cannot. This is very instructive because as the
Commissioner will note, even this Commission cannot settle the
question of whether a fertilized egg has the right to life or not. Those
experts in the field of medicine and theology cannot settle this
question. It is bad enough for us to pre�empt this controversial issue by
constitutionalizing the ovum; it would be doubly tragic for us to provide
for ambiguities which may even disturb settled jurisprudence.164
Mr. Nolledo answered:
MR. NOLLEDO: I do not think there is ambiguity because the fertilized
egg, in the normal course of events, will be developed into a human
being, a fetus, and as long as the normal course of events is
followed. I think that the right to life exists and the Constitution should
recognize that right to life. We do not presume accidents; we do not
presume ambiguities. We presume that as long as it is categorized as a
fertilized ovum, it will ripen into human personality.165 (Emphasis
supplied)
Unfortunately, this may be wrong science.
There are studies that suggest that a fertilized egg, in the normal course of events, does
not develop into a human being. In Benagiano, et al.�s paper entitled Fate of Fertilized
Human Oocytes,166 it was shown that pre�clinical pregnancy wastage is at least 50%.
Some estimate that the chance that pregnancy will proceed to birth may be as low as
about 30%.167 Some causes of this wastage are implantation failure, chromosome or
genetic abnormality, and similar causes. If normalcy is defined by this percentage, then it
is pregnancy wastage that is normal and not spontaneous development until birth. Based
on these, there may be no basis to the presumption that a fertilized ovum will �ripen into
human personality�as Mr. Nolledo suggested.
To highlight the fallibility of the Constitutional Commissioners, one of them argued that a
fertilized ovum is human because it is the only species that has 46 chromosomes.�Thus:
MR. VILLEGAS: x x x. Is it human? Genetics gives an equally categorical
�yes.�At the moment of conception, the nuclei of the ovum and the
sperm rupture. As this happens 23 chromosomes from the ovum
combine with 23 chromosomes of the sperm to form a total of 46
chromosomes. A chromosome count of 46 is found only �and I repeat,
only � in human cells. Therefore, the fertilized ovum is human.
(Emphasis supplied)
Since these questions have been answered affirmatively, we must
conclude that if the fertilized ovum is both alive and human, then, as
night follows day, it must be human life. Its nature is human.168
MR. VILLEGAS: As I explained in the sponsorship speech, it is when the
ovum is fertilized by the sperm that there is human life. Just to repeat:
first, there is obviously life because it starts to nourish itself, it starts to
grow as any living being, and it is human because at the moment of
 102

fertilization, the chromosomes that combined in the fertilized ovum instances, protecting the life of the mother is also protecting the life of
are the chromosomes that are uniquely found in human beings and the unborn.173 (Emphasis supplied)
are not found in any other living being. 169(Emphasis supplied)

Again, this is factually wrong.
A person who has Down�s Syndrome may have 47 chromosomes.170 Most persons who
have Turner�s Syndrome are one chromosome short or have 45 chromosomes. 171Persons
with these conditions are no less human than persons with 46 chromosomes. Meanwhile,
there are also known species which have 46 chromosomes other than humans. A Reeves�
Muntjac, for example, has 46 chromosomes.172
Then, there was the claim that the instances when there had to be a choice made
between the life of the mother and the life of the zygote, fetus or child were few.
Mr. Villegas asserted:
Taking care of the mother does not always mean taking care of the zygote, fetus or child.
There are instances wherein in order to protect the life of the mother, the zygote, fetus or
child may have to be sacrificed.
Implantation of the fertilized egg in areas outside the uterus such as the fallopian tube or
ovaries may cause organ rupture and severe loss of blood. To save the mother�s life,
surgical removal174 of the fertilized ovum may be necessary.
Pre�eclampsia/eclampsia or hypertension during pregnancy175 is associated with
increased perinatal mortality. 176 It may also result in other complications such as seizures,
hemorrhage, or liver or kidney complications that may be life�threatening.177 It may
require premature delivery of the child to prevent further complications or when the life
of the mother is already threatened by seizures or other complications.178

MR. VILLEGAS: As I stated in my sponsorship speech, 99 percent of the Meanwhile, pregnant persons who have cancer may have to choose between
cases indicated that taking care of the health of the mother is taking chemotherapy and risking harm to the developing embryo or fetus in her womb or not
care of the child and vice versa. Because of the progress of medical undergoing chemotherapy and risking her life.179
science, the situations when a moral dilemma exists are very, very
few. The intention behind the statement is precisely for the State to The Department of Health estimated that more than a thousand women died in 2009 for
make sure that it protects the life of the pregnant mother. She goes to various causes. It is observed that most of these causes are the same complications that
all sorts of trouble as we have discussed in the provisions on health. caused a moral dilemma between saving the mother and saving the child.180
Protecting the life of the mother, giving her all the necessary social
services will protect the child. So it happens only in very, very few MATERNAL MORTALITY: BY MAIN CAUSE
instances which we mentioned, like ectopic pregnancies when the
fertilized ovum is implanted outside of the uterus. I repeat, medical Number, Rate/1000 Livebirths & Percent Distribution
science has made the situation very, very exceptional.
Philippines, 2009
xxxx
CAUSE Number Rate Percent*
MR. VILLEGAS: Madam President, as I said in response to the question
yesterday of Commissioner Suarez, 99 percent of the cases related to TOTAL 1,599 0.9 100.0
protection of the mother�s health, making sure that she is in the right
working conditions and that she is not subjected to stress, show that 1. Complications related to pregnancy occurring
there are so many things that can endanger the life of the unborn 655 0.4 41.0
in the course of labor, delivery and puerperium
because the health of the mother is not sufficiently cared for. This is
really a prolife provision which emphasizes the fact that in most
2. Hypertension complicating pregnancy, 513 0.3 32.1
 103
childbirth and puerperium
3. Postpartum hemorrhage 286 0.2 17.9
4. Pregnancy with abortive outcome 142 0.1 8.9
5. Hemorrhage in early pregnancy 3 0.0 0.2
*Percent share to total number of maternal deaths
In asserting that there are only a few instances of moral dilemma during pregnancy, Mr.
Villegas insisted on the application of the doctrine of double effect. He stated:
MR. VILLEGAS: x x x. And we said that even in those instances, which I
consider to be less than one percent of the situation, there is a moral
principle which we referred to as the principle of double effect in which
if one has to save the life of the mother in an operation, it is morally
and legally permissible to so operate even if the child will have to be
indirectly sacrificed. There is no murder involved there because one
does not intend the death of the child. One is correcting a medical
aberration of the mother.
xxxx
MR. VILLEGAS: It is the same principle of double effect. If you are not
killing the mother directly, if the operation is to save the child and
there is the indirect effect of the mother�s life being sacrificed, then I
think the principle of double effect also applies.181
The principle of double effect is traceable to Thomas Aquinas in Summa Theologiae.182 It is,
therefore, a Christian principle that may or may not be adopted by all of the members of
the medical community. There are even some who recommend its abandonment.183
A commissioner went on to point out that unwanted children become wanted children in
practically all cases. Thus:
BISHOP BACANI: Madam President, may I comment on the unwanted
babies. I was reading this little book on a study of unwanted
pregnancies and the interesting thing is this: In practically all cases,
unwanted pregnancies became wanted babies. In fact, there were
more unwanted pregnancies that became wanted babies than wanted
pregnancies in the beginning which turned sour. 184
Again, this claim is belied by the fact that there are reportedly, hundreds of children that
are abandoned every year.185 Apparently, abandonment and neglect are the most
common cases of abuse among children, based on statistics. 186 Moreover, statistics shows
that there is an average of 16% unwanted births, according to the 2008 National
Demographic and Health Survey.187
Third, a generalized statement that life begins at fertilization of the ovum
misunderstands the present science relating to the reproduction process.
Reproduction is a complex process whose features we need not tackle absent an actual
controversy.
Framing the issue as an issue of right to life or the right to protection of the unborn from
conception presupposes a prior conclusive scientific determination of the point when life
commenced. It presupposes a conclusive finding as to the beginning of the existence of
the unborn.
The court cannot declare that life begins at fertilization on the basis of a limited set of
sources that may not constitute the consensus among the scientific community.
For the medical bases for the contention that life begins at fertilization some of the
petitioners188 cited medical textbooks and expert opinions. However, some respondents
and respondents�intervenors, also had their own scientific textbooks, journals, and health
organization statements to support their opposite contentions on the difference between
fertilization and conception, and the importance of viability and clear establishment of
pregnancy in determining life.189
We can infer from the existence of differing opinions on this issue that reproduction
involves a complex process.�Each part of this process provides a viable avenue for
contention on the issue of life.
The reproductive process is not always characterized by continuity and spontaneity from
fertilization to birth.
 104
Fertilization happens when a single sperm penetrates the ovum or the egg.190
The body
has a mechanism that prevents �polyspermy�or more than one sperm from penetrating
the egg.191 Failure of this mechanism may cause issues on the viability of the fertilized
egg.192
Fertilization is possible only as long as both the sperm and the ova remain alive. 193 Sperm
have a lifespan of about three to five days inside a woman�s body,194 while an ovum
remains capable of fertilization only about a few hours to a day after ovulation.195 This
means that fertilization can happen only within that specific period of time. No
fertilization within this specific period means that both cells will disintegrate and die.
A fertilized egg stays in the fallopian tube for about three to four days. 196 It undergoes
several cell divisions.197 It reaches the uterus usually in its 16�or 32�cell state.198 At this
point, each cell resulting from the divisions is �totipotent� or may be capable of
developing into an individual.199
A fertilized egg may enter the uterus to undergo further cell division, until it becomes
what is known as a blastocyst, at which stage the cells lose their totipotentiality and start
to differentiate.200 The fertilized egg may also remain in the fallopian tube or proceed to
other organs in the abdomen to undergo the same process.
About a week from ovulation, the fertilized egg starts to implant itself into the uterus 201 or
fallopian tube/other abdominal organs to develop an embryo. The latter case is called
ectopic pregnancy. When this happens, the embryo is not viable and must be surgically
removed to prevent maternal hemorrhage.202 There are times when no surgical removal is
necessary because of spontaneous abortion.203
Around the time that the blastocyst starts embedding itself into the uterus, the hormone,
chorionic gonadotropin, is secreted.204 This hormone is detectable in the mother�s blood
and urine.205 Pregnancy is usually determined by detecting its presence.206 Thus,
pregnancy is detected only after several days from fertilization.
Studies suggest that fertilization does not always proceed to a detectable
pregnancy.207 Fertilization can become undetected because the fertilized ovum becomes
wastage prior to a finding of pregnancy.208
Every instance of cell division or differentiation is crucial in the reproductive process. Each
step is a possible point of error. An error, especially when it involves the genes, is a
possible cause for termination of the reproductive process.209
It is during the first week after fertilization that the greatest losses appear to occur. 210 A
review of literature on the fate of the fertilized egg in the womb estimates that about or
at least 50% of fertilized eggs are wasted or �do[es] not produce a viable offspring.�211
Wastage happens for different and natural reasons, among which are delayed or
erroneous implantation and chromosomal or genetic abnormalities. 212 Apparently, a
delayed implantation of a fertilized egg into the uterus, usually more than 12 days from
fertilization, may reduce or eliminate the chance that pregnancy will proceed. 213 It is
suggested that delayed implantation may be caused by delayed production or relatively
low concentration of the chorionic gonadotropin hormone which leads to the
degeneration of the corpus luteum.214 The corpus luteum produces hormones that are
essential to the maintenance of pregnancy especially during the first months. 215 These
hormones are responsible for the thickening of the uterine muscles and the inhibition of
uterine motility that will prevent the expulsion of the fetus from the womb.216
The huge percentage of losses of pre�implantation zygote provides basis for the
argument that viability is a factor to consider in determining the commencement of life.
These losses are not generally regarded as deaths of loved ones, perhaps because it
occurs naturally and without the knowledge of the woman.
Hence, some217 put greater emphasis on the importance of implantation on this issue than
fertilization.
This value is shared by others including the American College of Obstetricians and
Gynecologists, Code of Federal Regulations, and British Medical Association, among
others.218
The reproductive process may also show that a fertilized egg is different from what it may
become after individuation or cell specialization.
One argument against the belief that human existence begins at fertilization emphasizes
the totipotency of the pre�implantation zygote.
David DeGrazia, for example, argues that while fertilization is necessary for a person�s
existence, it is not sufficient to consider it as a person. 219 At most, the zygote is only a
precursor of a person.220 It was stressed that several days after fertilization, a zygote is not
yet uniquely differentiated.221 Hence, it can still divide into multiple human beings or fuse
with other zygotes to produce a chimera.222 This mere possibility, according to DeGrazia
belies the position that a zygote is identical with the individual or individuals that result
from it.223 DeGrazia states:
 105
Consider the zygote my parents produced in 1961, leading to my birth
in 1962. I am not an identical twin. But that zygote could have split
spontaneously, resulting in identical twins. If it had, presumably I would
not have existed, because it is implausible to identify me with either of
the twins in that counterfactual scenario. If that is right, then the
existence of the zygote my parents produced was not sufficient for my
existence, from which it follows that I am not numerically identical to
that zygote. The very possibility of twinning belies the claim that we
originated at conception.224
Further, as argued by DeGrazia, the mere fact that the cells are still subject to
differentiation or individuation �belies the claim that we originated at
conception.�225 Imputing moral or human status to an undifferentiated zygote means that
a human (in the form of a zygote) dies every time a zygote multiplies to form two
individuals.226 DeGrazia doubts that many would accept the imagined implications of
giving full moral status to a fertilized ovum: 1) Multiple pregnancy is a cause for mourning
because essentially, a life is given up to produce at least two others; 2) There should be
reason to support investments in research for the prevention of multiple pregnancies.227
DeGrazia characterizes a zygote as a single cell or �colony of cells�228 whose functions are
not yet wholly integrated, unlike in a human being.229
It was also emphasized that the potential to undergo a process that would eventually lead
to being a full human being is not equivalent to being a full human being. 230Advancements
in technology point to the possibility of cloning from cells other than the sperm and the
egg. Yet, this does not elevate the status of each cell as in itself a full human
being.231 Thus:
Clearly, the single�cell zygote has the potential to develop in such a
way that eventually produces one of us. (Note: I do not say that the
single�cell zygote has the potential to become one of us �a statement
that would imply numerical identity.) But the importance of this
potential is dubious. Now that we know that mammals can be cloned
from somatic cells �bodily cells other than sperm, eggs, and their
stem�cell precursors �we know that, in principle, each of millions of
cells in your body has the potential to develop into a full human
organism. Surely this confers no particular moral status on your many
individual cells; nor does it suggest that each cell is one of us. Once
again, a full complement of DNA is not enough to make one of us.232
The argument that the use of ordinary body cells does not naturally lead to birth,
according to DeGrazia, finds little weight when statistics of pre�implantation wastage is
considered.233 Statistics does not support the view that fertilization naturally leads to
birth.234 A fertilized egg still has to undergo several processes and meet certain conditions
before it results to implantation or birth.
Further, there are policy dilemmas resulting from the court�s premature determination
of life�s beginnings.
A corollary of the view that life begins at fertilization is that anything that kills or destroys
the fertilized egg is �abortive.�
The beginning of life is a question which can be most competently addressed by scientists
or ethicists. A Supreme Court declaration of a scientific truth amidst lack of consensus
among members of the proper community is dangerous in many contexts. One example is
the occurrence of ectopic pregnancy.
Ectopic pregnancy occurs when the fertilized egg implants into parts or organs other than
the uterus. 235 Ectopic pregnancy usually occurs in the fallopian tube.236 Women who
experience ectopic pregnancy must cause the removal of the developing embryo or she
risks internal bleeding and death.237
Ectopic pregnancy can be treated using drugs or surgery depending on the size of the
embryo and the status of the fallopian tube.238 Smaller pregnancy and the inexistence of
tubal rupture allow treatment through medications.239 Medications will stop pregnancy
growth without the need for removal of the fallopian tube.240
However, there are instances that necessitate surgical removal of the pregnancy,
including the fallopian tube, to prevent harm to the woman.241
In any case, creating an all encompassing definition of life�s beginnings to �equalize�the
protection between the �unborn�and the mother creates a moral dilemma among the
people whether to save the mother from the risk of life�threatening complications or
whether to �save� a fertilized ovum that has no chance of surviving. This is most
especially applicable among those involved such as the mother and the health care
professionals.
Following a declaration in the ponencia that life begins at fertilization, the removal of a
fertilized egg in an ectopic pregnancy must necessarily constitute taking of life. All persons
involved in such removal must necessarily kill a fertilized ovum. A mother or a health care
 106
professional who chooses to remove the embryo to save the mother risks being charged
or stigmatized for that conduct.
Similarly, such all encompassing declaration is dangerous especially when applied to
fertilizations resulting from sexual assault or rape.
There are conflicting versions of the mechanisms of action of emergency conception.
There are publications, for example, that find that a single dose of the most widely used
emergency contraceptive, levonorgestrel (LNG) taken within five days of unprotected sex
would protect a female from unwanted pregnancy by delaying or inhibiting
ovulation.242Petitioners, on the other hand, believe that emergency contraceptives also
prevent the implantation of a fertilized ovum into the uterus. They also cite distinguished
scientific journals such as the Annals of Pharmacotherapy.243
This lack of public consensus coupled with an official declaration from this court that life
begins at fertilization could immobilize a rape victim from immediately obtaining the
necessary emergency medication should she wish to prevent the unwanted pregnancy
while there is still time. It may create ethical pressure on the victim to assume the
repercussions of acts that are not her fault.
Insisting on a determination of when life begins also unnecessarily burdens the ethical
dilemma for assisted reproductive technologies.
Assisted reproductive technologies (ART) refer to �all fertility treatments in which both
eggs and sperm are handled. In general, ART procedures involve surgically removing eggs
from a woman�s ovaries, combining them with sperm in the laboratory, and returning
them to the woman�s body or donating them to another woman. They do NOT include
treatments in which only sperm are handled (i.e. intrauterine�or artificial�insemination)
or procedures in which a woman takes medicine only to stimulate egg production without
the intention of having eggs retrieved.�244 Others include among the ART procedures
intrauterine insemination, in vitro fertilization, sperm donation, egg donation, and
surrogacy or gestational carrier.245 I focus on in vitro fertilization.
In in vitro fertilization, the ovaries are stimulated to produce multiple eggs.246 The
produced eggs are retrieved from the woman�s body for insemination.247 A sufficient
number of healthy embryos are transferred to the woman�s womb after
fertilization.248 Multiple embryos are sometimes transferred to the womb to increase the
chances of pregnancy, in which case, multiple births are likely to happen.249 Unused
healthy embryos may be frozen for later use or for donation. 250 Disposal of embryos is
also an option for some.251
The ethical dilemma arises with respect to the unused embryos. A conflict of interest is
created between the fate of the mother and the fate of the embryos. If life begins at
fertilization, disposal of surplus embryos means disposal of several human lives. At the
same time, a mother or anyone else cannot be forced to conceive a child or donate an
embryo to another.
I believe that when presented with a like but actual case, it should be the parents who
should make the choice whether to use the surplus embryos or to dispose it if allowed by
law.
When exactly life begins is not in issue in this case.
We should avoid this issue because this court lacks the competence to determine
scientific, ethical or philosophical truths. Just as it should not easily accept purported
truths propounded by parties to support their causes for or against reproductive health,
this court should also not so easily dismiss views as �devoid of any legal or scientific
mooring�252 or having been �conceptualized only for convenience by those who had only
population control in mind.�253
The ponencia emphasizes this court�s statement in Continental Steel v. Hon. Accredited
Voluntary Arbiter Allan S. Montano that �a child inside the womb already has
life�.254But Continental Steel involves the issue of whether respondent in that case was
entitled to death and accident insurance claim after his child had been prematurely
delivered at 38 weeks and immediately died.
At 38 weeks, viability is less an issue compared to a fertilized egg. A fertilized egg will still
have to successfully undergo several processes, cell divisions, implantations, and
differentiations for a chance at even developing recognizable fetal tissues. This court said:
Even a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from conception, that
the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the
child being delivered, qualifies as death.255 (Emphasis supplied)
This court was not making a declaration that a fertilized egg already constitutes a child
inside a womb and a declaration as to when life begins. Applied in the context of that case,
this court was merely saying that the 38�week, prematurely born child was already a child
for purposes of the award of the death and accident insurance claim under the Collective
Bargaining Agreement.
 107

IV to determine the scientific validity of the allegations of the petitioners. The FDA is
Section 9 and Abortifacient Effects mandated to examine each and every drug, contraceptive or technology vis�a�vis the
claims made for or against their inclusion.

The petitions, having alleged no actual controversy, also furnish no justification to strike I agree with the ponencia in withholding any blanket pronouncement of any contraceptive
down any portion of Section 9 of Republic Act No. 10354 as unconstitutional.�This absent the exercise of the FDA of its functions under this provision. The FDA is mandated
provides: to ensure the safety and quality of drugs released to the public.256

SEC. 9. The Philippine National Drug Formulary System and Family

Generalizations and exaggerated claims are symptomatic of anguished advocacies. The
Planning Supplies. �The National Drug Formulary shall include
angst that accompany desperate attempts to convince often push well�meaning
hormonal contraceptives, intrauterine devices, injectables and other
advocates to magnify fears that go beyond the reasonable.
safe, legal, non�abortifacient and effective family planning products
and supplies. The Philippine National Drug Formulary System (PNDFS)
The argument that drugs that may be abused should not be made available to the public
shall be observed in selecting drugs including family planning supplies
is perhaps more dangerous to public health than a total ban on contraceptives. It is a
that will be included or removed from the Essential Drugs List (EDL) in
proposed policy that misunderstands the effect of any kind of drug on the human body. It
accordance with existing practice and in consultation with reputable
is, thus, arbitrary and without reason.
medical associations in the Philippines. For the purpose of this Act, any
product or supply included or to be included in the EDL must have a
Drugs aim to affect our bodily processes to achieve a desired outcome. 257 They work by
certification from the FDA that said product and supply is made
targeting and interacting with cell receptors, enzymes and/or other substances in our
available on the condition that it is not to be used as an abortifacient.
body so that the desired change in our chemical processes and/or physiological functions
can be effected.258
These products and supplies shall also be included in the regular
purchase of essential medicines and supplies of all national hospitals:
However, our bodies are complex systems. Targeted receptors and/or enzymes may exist
Provided, further, That the foregoing offices shall not purchase or
in non�target areas.259 They may have structural similarities with non�target receptors
acquire by any means emergency contraceptive pills, postcoital pills,
and/or enzymes. Thus, while drugs in general are designed for a specific purpose, the
abortifacients that will be used for such purpose and their other forms
complexities of our systems allow for a relatively generalized effect. There are unintended
or equivalent. (Emphasis supplied)
effects that are often called the �side effects.�260 This is a property that is not exclusive to
contraceptive drugs. It is a property of drugs in general.
Petitioners argue that the law violates the right to health because allowing general access
to contraceptives by including them in the national drug formulary and in the supplies of Aspirin, for example, is advisable for thromboembolic disorders, stroke or for the
national hospitals means that the citizens are being exposed to several health risks such prevention of cerebrovascular events.261 Abusing the use of aspirin, however, may cause
as different types of cancer, thromboembolytic events, myocardial infarction, and stroke, gastrointestinal bleeding. 262
among others.
Aldomet is a drug usually taken to relieve hypertension.263 When abused, its reported side
Petitioners point to no specific drug or contraceptive. They produce medical journals effects include maladjustments affecting the nervous system, blood, and the liver. Among
which tend to support their justification and ask this court to accept them as gospel the reported reactions are sedation, headache, psychic disturbances, hepatitis, and
truth.�On the other hand, respondents also show journals that support their claims. hemolytic anemia.264

The petitioners misread this provision. Even drinking too much water may cause hyponatremia, which is the low sodium
concentration in the plasma.265
The law specifically grants the Food and Drug Administration (FDA) with the competence
 108

Side effects are expected with every drug from the weakest to the most potent. Their
prescriptions are trade�offs between all the benefits and risks associated with it.�Every
drug should be taken to address the ailment but in a way that minimizes the risk. This is
usually why there are proper dosages and time periods to take medicines. This is also why
some medicines are not dispensed without the proper prescription.
Several drugs are not prescribed when there is pregnancy because of the fetal risks
associated with them. Among these are Xenical (orlistat) used as a nutrition pill, Advil and
any kind of Ibuprofen (during the third trimester) used to manage pain, Testim
(testosteron) given for endocrine disorders, Flagyl (metronidazole) to manage infection,
Crestor (rosuvastatin) to manage cholesterol, Vistaril (hydroxyzine) usually given for
allergic reactions, and many more.266
�[t]he tailored or targeted procurement of drugs by government with the objective of
making available to its own clientele, particularly the lower�income sectors of the society,
the best drugs at the lowest possible cost;�and (5) �people empowerment.�271
One of the steps for inclusion in the drug formulary is to ensure that the drug is of
�acceptable safety, proven efficacy, quality, and purity�.272 Ensuring that health products
are safe, efficient, pure, and of quality is a function of the Food and Drug
Administration.273 Moreover, Republic Act No. 4729 requires that contraceptive drugs and
devices cannot be lawfully dispensed without proper medical prescription.
V
Conscientious Objector

The use of these drugs is appropriately limited so that they cannot have the effect or be
The ponencia proposes to declare the provision relating to the mandatory referral of a
used as abortifacients.�This does not mean, however, that they are, per se, abortifacients.
conscientious objector as unconstitutional because it violates the right to religion.�I also
disagree.
The policy embedded in the law is that the proper use of contraceptives will prevent
unwanted pregnancy and, therefore, also prevent complications related to pregnancy and
The sections involved provides:
delivery.267 The risks of its usage, when proper and guided, can be relatively low
compared to its benefits.268 More specifically, the FDA is most competent in examining
SEC. 7.� Access to Family Planning � All accredited public health
the scientific and medical basis of the beneficial claims and risks of each and every
facilities shall provide a full range of modern family planning methods,
contraceptive. Drugs may or may not be included in the Essential Drugs List, based on the
which shall also include medical consultations, supplies and necessary
FDA�s findings. It is not for this court to jump to conclusions on the basis of the ad hoc
and reasonable procedures for poor and marginalized couples having
presentations of medical journals from the parties.�This finding of fact should be left to
infertility issues who desire to have children: Provided, That family
the proper agency. There is an indefinite scope of possible scenarios precisely because
planning services shall likewise be extended by private health facilities
there was no actual case or controversy brought before this court. If applying the law to
to paying patients with the option to grant free care and services to
even one of these possibilities may render it constitutional, then we should not declare it
indigents, except in the case of non�maternity specialty hospitals and
as unconstitutional.�The doctrine on the presumption of constitutionality must prevail
hospitals owned and operated by a religious group but they have the
when there is no factual basis to invalidate the law.269
option to provide such full range of modern family planning
methods: Provided further, That these hospitals shall immediately
Only safe and effective medicines are included in the drug formulary.�
refer the person seeking such care and services to another health
facility which is conveniently accessible: Provided finally, That the
The inclusion of contraceptives in the national drug formulary is not new. The Philippine
person is not in an emergency condition or serious case as defined in
Drug Formulary: Essential Medicines List, Volume 7, of 2008 already listed it under
Republic Act No. 8344.
�Hormones and Hormone Antagonists.�270

SEC. 23. Prohibited Acts. �The following acts are prohibited:

Contraceptives are included, following five pillars designed to make available affordable,
safe, and effective drugs to the public. These pillars are: (1) �the assurance of the safety,
(a) Any health care service provider, whether public or private, who
efficacy and usefulness of pharmaceutical products through quality control;�(2) �the
shall:
promotion of the rational use of drugs by both the health professionals and the general
public;�(3) �the development of self�reliance in the local pharmaceutical industry;�(4)
 109
xxxx
(3) Refuse to extend quality health care services and information on
account of the person�s marital status, gender, age, religious
convictions, personal circumstances, or nature of work: Provided, That
the conscientious objection of a health care service provider based on
his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking
such care and services to another health care service provider within
the same facility or one which is conveniently accessible: Provided,
further, That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344, which penalizes the refusal of
hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases[.] (Emphasis
supplied)
The patient�s rights
Doctors routinely take an oath implying that the primordial consideration in their services
is the welfare of their patients.�The form of the Physician�s Oath adopted by the World
Medical Association is what is now known as the Declaration of Geneva, to wit:
At the time of being admitted as a member of the medical profession:
I solemnly pledge to consecrate my life to the service of humanity;
I will give to my teachers the respect and gratitude that is their due;
I will practice my profession with conscience and dignity;
The health of my patient will be my first consideration;�
I will respect the secrets that are confided in me, even after the patient
has died;
I will maintain by all means in my power, the honor and the noble
traditions of the medical profession;
My colleagues will be my sisters and brothers;
I will not permit considerations of age, disease or disability, creed,
ethnic origin, gender, nationality, political affiliation, race, sexual
orientation, social standing or any other factor to intervene between
my duty and my patient;
I will maintain the utmost respect for human life;
I will not use my medical knowledge to violate human rights and civil
liberties, even under threat;
I make these promises solemnly, freely and upon my
honor.274 (Emphasis supplied)
Many of those who specialize in the ethics of the health profession emphasize the
possibility of a health service provider inordinately abusing conscientious objection over
the welfare of the patient.�Thus,
Physicians�rights to refuse to participate in medical procedures that
offend their conscience may be incompatible with patients�rights to
receive lawful, medically indicated treatment.�Historically, the goal of
medicine has been to provide care to the sick. The World Medical
Association�s modern variant of the Hippocratic Oath, the Declaration
of Geneva, inspires the graduating physician to pledge that, �The
health of my patient will be my first consideration�.�For many who
enter medicine, the commitment to assist their fellow human beings
and pursue a path of personal salvation through this professional
calling is religiously inspired.�A conflict of interest can arise if the
physician�s religious or other conscientious convictions are in tension
with medically indicated procedures.�The obvious case is therapeutic
abortion, but analogous cases include contraceptive sterilization and
withdrawal of life support from otherwise viable patients.�Physicians
who give priority to their own moral and spiritual convictions over their
patients�need and desire for medically indicated care face a conflict
that needs resolution.
The ethical conflict can be avoided through mutual accommodation;
physicians have the right to decide whom to treat, and patients have
the right to decide from whom they will receive care.�Physicians do
not have the same ethical duties to nonpatients as to patients except in
emergency circumstances.�In all other circumstances, physicians are
 110
at liberty to choose those for whom they will accept the responsibility
of care.�If there are services they will not perform, physicians should
make the fact known to patients for whom they have accepted
responsibility.�Doing so not only saves patients the distress of seeking
those services and being turned down, it also saves physicians from the
dilemma of unfulfilled responsibilities to those whose care they have
agreed to undertake. This arrangement is well understood in medicine;
physicians who notify prospective patients that they are, for instance,
pediatricians, will not be asked to treat those requiring geriatric care,
and geriatricians who do not have to accept patients seeking pediatric
services. More explicit disclosure is required, of course, when
prospective patients may reasonably expect that care will be available
from the specialists they approach. Obstetrician�gynecologies who will
not participate in abortion procedures must make that fact clear before
forming patient�physician relationships.�275
If the first and primordial consideration is the health of her or his patient, then the beliefs
of the service provider even though founded on faith must accommodate the patient�s
right to information. As stated in the Code of Ethics of the Philippine Medical Association:
ARTICLE II
DUTIES OF PHYSICIANS TO THEIR PATIENTS
Section 5. A physician should exercise good faith
and honesty in expressing opinion/s as to the
diagnosis, prognosis, and treatment of a case under
his/her care. A physician shall respect the right of
the patient to refuse medical treatment. Timely
notice of the worsening of the disease should be
given to the patient and/or family. A physician shall
not conceal nor exaggerate the patient�s conditions
except when it is to the latter�s best interest. A
physician shall obtain from the patient a voluntary
informed consent. In case of unconsciousness or in a
state of mental deficiency the informed consent may
be given by a spouse or immediate relatives and in
the absence of both, by the party authorized by an
advanced directive of the patient. Informed consent
in the case of minor should be given by the parents
or guardian, members of the immediate family that
are of legal age. (Emphasis supplied)
If a health care service provider�s religious belief does not allow a certain method of
family planning, then that provider may possibly withhold such information from the
patient. In doing so, the patient is unable to give voluntary informed consent to all
possible procedures that are necessary for her or his care.
The law, in sections 17 and�23 allow accommodation for full care of the patient by
requiring referral.�The patient that seeks health care service from a provider should be
able to put his or her trust on the provider that he or she would be referred to the best
possible option. There is nothing in the law which prevents the referring health care
provider from making known the basis of his or her conscientious objection to an
available procedure which is otherwise scientifically and medically safe and effective.
Between the doctor or health care provider on the one hand and the patient on the other,
it is the patient�s welfare and beliefs which should be primordial.�It is the patient that
needs the care, and the doctor or health care provider should provide that care in a
professional manner.
While providers have a right to their moral beliefs, the right does not
allow health�care providers to violate their professional and legal
obligations to the patient. Policies on health�care provider refusals
should be carefully crafted to maximize the rights of individuals to their
beliefs without extending this �protection� so far that it prevents
patients from getting the medical care or information they need.276
The holding of the majority which declares the mandatory referral systems in Section 17
and Section 23, paragraph (a) (3) as unconstitutional on the basis of the right of religion
of the doctor or health care provider implicitly imposes a religious belief on the patient.
It is in this context that many experts say that:
Religious initiatives to propose, legislate, and enforce laws that protect
denial of care or assistance to patients, (almost invariably women in
need), and bar their right of access to lawful health services, are abuses
of conscientious objection clauses that aggravate public divisiveness
and bring unjustified criticism toward more mainstream religious
beliefs. Physicians who abuse the right to conscientious objection and
 111
fail to refer patients to non�objecting colleagues are not fulfilling
their profession�s covenant with society.277
We must not assume that situations involving the duty to refer cover information or
services that may be objectionable only to a specific religious group. Neither can we
assume, for example, that the situation would always involve an extreme case such that a
patient would seek an abortion.
There are, in fact, many reasons why a patient would seek information or services from a
health professional. To be sure, when we speak of health care services and information
under Section 23(3) of the law, we refer to a �full range of methods, facilities, services
and supplies that contribute to reproductive health and well�being.�278
Considering that the law is yet to be implemented, there are no facts from which this
court can base its ruling on the provision. We cannot and must not speculate.
Conscientious objection and religious objection
There is a difference between objections based on one�s conscience and those based on
one�s religion. Conscience appears to be the broader category. Objections based on
conscience can be unique to the individual�s determination of what is right or wrong
based on ethics or religion. Objections based on religion, on the other hand, imply a set of
beliefs that are canonical to an institution or a movement considered as a religion. Others
share religious belief. Conscientious objection may also include those whose bases are
unique only to the person claiming the exception. One�s conscience may be shaped by
cultural factors other than religion. It is clear that a conscientious objector provision
whose coverage is too broad will allow too many to raise exception and effectively
undermine the purpose sought by the law.279
The duty to refer is also found in Section 7 of the law:
SEC. 7. Access to Family Planning. � All accredited public health
facilities shall provide a full range of modern family planning methods,
which shall also include medical consultations, supplies and necessary
and reasonable procedures for poor and marginal couples having
infertility issues who desire to have children: Provided, That family
planning services shall likewise be extended by private health facilities
to paying patients with the option to grant free care and services to
indigents, except in the case of non�maternity specialty hospitals and
hospitals owned and operated by a religious group, but they have the
option to provide such full range of modern family planning
methods: Provided, further, That these hospitals shall immediately
refer the person seeking such care and services to another health
facility which is conveniently accessible: Provided, finally, That the
person is not in an emergency condition or serious case as defined in
Republic Act No. 8344.
x x x x (Emphasis supplied)
The same considerations for individual health practitioners should apply to private health
institutions. Private health institutions are duty�bound to prioritize the patient�s welfare
and health needs.
Requirements of a challenge based on religion
The constitutional provision invoked by petitioners provides:
Section 5. No law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.280
The provision contains two parts.�The first part is the non�establishment clause.281�This
contains a proscription against the direct or indirect state sponsorship of a religion and is
closely related to another fundamental tenet in the Constitution, which provides:
Section 6. The separation of Church and State shall be inviolable.282
The second part is the free exercise of religion clause. 283 The protection to �religious
profession and worship�is absolute when it comes to one�s belief or opinion. The
balance between compelling state interests and the religious interest must, however, be
struck when the �profession and worship�are expressed in conduct which affect other
individuals, the community or the state. Religious conduct or omissions on the basis of
religious faiths are not absolutely protected.
In Iglesia Ni Cristo v. Court of Appeals,284 this court reiterated the rule that:
 112
x x x the exercise of religious freedom can be regulated by the State
when it will bring about the clear and present danger of some
substantive evil which the State is duty�bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public
morals, or public welfare. A laissez faire policy on the exercise of
religion can be seductive to the liberal mind but history counsels the
Court against its blind adoption as religion is and continues to be a
volatile area of concern in our country today. Across the sea and in our
shore, the bloodiest and bitterest wars fought by men were caused by
irreconcilable religious differences.285
Then in Estrada v. Escritor,286 this court clarified:
Although our constitutional history and interpretation
mandate benevolent neutrality, benevolent neutrality does not mean
that the Court ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and
that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss
a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view for this precisely is the protection
afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion
clauses justify it. While the Court cannot adopt a doctrinal formulation
that can eliminate the difficult questions of judgment in determining
the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue
its interest, the Court can set a doctrine on the ideal towards which
religious clause jurisprudence should be directed. We here lay down
that doctrine that in Philippine jurisdiction, we adopt that benevolent
neutrality approach not only because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed
is the protection of religious liberty �not only for a minority, however
small �not only for a majority, however large �but for each of us�to
the greatest extent possible within flexible constitutional limits.287
The same case also cited the �Lemon test�which states the rules in determining the
constitutionality of laws challenged for violating the non�establishment of religion clause:
First, the statute must have a secular legislative purpose; second, its
primary or principal effect must be one that neither advances nor
inhibits religion; x x x finally, the statute must not foster �an excessive
entanglement with religion.288
However, the application of these standards first requires the existence of an actual case
involving (1) a specific conduct (2) believed to be related to profession or worship (3) in a
specific religion.
The basis for invoking the right to religion is not always clear. For instance, there is no
single definition of religion.
The common dictionary meaning is that it is �an organized system of beliefs, ceremonies,
and rules used to worship a god or a group of gods.�289 Another dictionary meaning is that
�religion may be defined broadly as the human quest for, experience of, and response to
the holy and sacred.�290 An author in a journal on ethics asserts that �religion is the
effective desire to be in right relations to the power manifesting itself in the universe.�291
In Aglipay v. Ruiz,292 this court adopted a bias toward theistic beliefs when it defined
religion �as a profession of faith to an active power that binds and elevates man to his
Creator x x x.�293 But there are beliefs commonly understood to be religious which are
non�theistic. Courts have grappled with the definition of a religion.294
But these could not be issues in this case because there are no actual facts upon which we
could base our adjudication.
None of the petitions allege the conduct claimed to be part of �profession or worship�.
None of the petitions point to how this specific conduct relates to a belief or teaching of a
religion. None of the petitions show how fundamental to the specific religious faith such
conduct is.
In other words, the petitions do not show a specific instance when conscientious
objection was availed of as a result of the exercise of a religion.�In this case, we are asked
to evaluate whether the provision that accommodates conscientious objectors would, in
the future, with unspecified facts, violate the constitutional provision on religious exercise.
 113
Thus, it is also not clear in the ponencia whether the provisions on referral by
conscientious objectors are declared unconstitutional for all religions or only for specific
ones. This is the natural result for speculative cases. This is dangerous constitutional
precedent. If the declaration is for all religions, then this might just result in a violation of
the non�establishment clause. A dominant majoritarian religion is now aided in imposing
its beliefs not only on patients but also on all those who have different faiths.
Conduct which purport to be religious practice and its relationship to the fundamental
tenets of that religion is a question of fact which cannot be part of our judicial notice.
Otherwise, we implicitly establish a religion or manifest a bias towards one in violation of
the clear and absolute separation between church and state.
Contraceptives and Religion
Even the proscription on the use of contraceptives may not clearly be a religious tenet.�
We do not have the competence to assume that it is so.
With respect to the Catholic faith, the comment�in�intervention of De Venecia, et al.
included a history on the Catholic Church�s changing and inconsistent position regarding
contraceptives, and the notion that every conjugal act must be for a procreative purpose.
The intervenors asserted that the notion denouncing sex without procreative intent
cannot be found in the old or new testament. During the church�s existence in the first
few hundred years, the issue of the church was not on the purpose of the conjugal act but
on the specific methods for contraception as some were associated with witchcraft. 295 The
idea that requires the procreative purpose for the sexual act was not originally Christian
but borrowed from pagan Greek Stoics during the early second century:
As James Brundage has pointed out, the immediate source of influence
on Christian writers was the pagan Stoics, whose high ideals for
morality challenged the Christians to copy them or even do better.
Natural law or the law of nature was the basis for these ideals. The
famous Stoic jurist Ulpian supplied to Christian writers their
understanding of natural law. For Ulpian, natural law consisted in the
laws of nature that animals and humans had in common. Among the
domestic animals with which Ulpian was familiar, the female accepted
the male only when she was in heat. So it was the law of nature for
humans and animals alike that sexual intercourse should only take
place for breeding.296 (Emphasis supplied)
The Catholic Church through Pope Paul VI later secretly created a Pontifical Commission
for the Study of Population, Family and Births to recommend whether modern
contraceptive methods could be permitted.297 The commission�s final report concluded,
by two�third votes, that �no natural law proscribed non�reproductive sex and no
doctrinal, scientific, medical, social or other reason existed for the church to continue
prohibiting the use of modern birth control.�298
Despite these findings, two ultraconservative members issued a minority report arguing
that �the Vatican�s authority would be irreparably undermined if it abandoned a position
it had adopted hundreds of years earlier.�299
Consequently, Pope Paul VI issued Humanae Vitae reiterating Pope Pius XI�s 1930
encyclical Casti Connubii on natural law�s proscription against sex without procreative
intent.300 The commission�s creation and its reports were leaked to the public, resulting in
mass protests and defiance within the church.301
Intervenors quoted at length a detailed account of these events surrounding the Casti
Connubii and Humanae Vitae, thus:
Nervous prelates in Rome felt that the pill was just an excuse to
jettison the Vatican�s position on birth control, which was resented
and under siege. The euphoria over new freedoms was part of the
social giddiness that characterized the 1960s, in the church as in the
secular world. It was a time of the sexual revolution, feminism, and
new attitudes toward authority. In this atmosphere, the papal
pronouncements about natural law were brought under closer scrutiny
by natural reason, and they grew flimsier with every look. There was
great fear in the Curia of the Vatican that this mood would invade the
Council Pope John was assembling (as, in fact, it did). The whole matter
of birth control was considered especially endangered, and it would
be fought over strenuously in two Roman arenas, one open and one
Secret. The former battle, carried on in the sessions of the Vatican
Council, reached a kind of stalemate in the conciliar decree on the
church in the modern world, Gaudiumet et Spes. The other battle,
waged in secret by the Pope�s own special commission, led to that
commission�s stunning defeat by the Pope�s own encyclical Humanae
Vitae.302 (Emphasis supplied)
Humanae Vitae
 114
That Pontifical Commission met five times, at first in the fall of 1963 �
six men convening at Louvain. The second meeting (like all subsequent
ones) was in Rome, in the spring of 1964, attended by the thirteen men.
The number was increased to fifteen for a meeting that summer. Up to
this point, no one had presumed to recommend altering the church�s
teaching on contraception. Things changed at the fourth session, held
in the spring of 1965, when the size of the commission jumped up to
fifty�eight, with five women among the thirty�four lay members. An
expert called in for consultation was John T. Noonan, from Notre Dame
in Indiana, whose study of the church�s changing positions on usury
had won scholarly acclaim. He was working on a similar study of
changes in the prohibition of contraception �a book that would appear
just as the commission was disbanded. Noonan opened the members'
eyes to the way that noninfallible papal teaching can develop.
Another eye opener was the result of a questionnaire brought to Rome
by the lay couple Pat and Patty Crowley. They had long been active in
the international Christian Family Movement, and they had surveyed
their members �devout Catholics all �on their experience of the
rhythm method of contraception. They found it far from natural�Since
a woman�s period fluctuates with her health, anxieties, age, and other
influences, establishing the actual infertile period in any cycle required
daily charting of her temperature and close comparative reading of
calendars � and even then the results were not Sure. The most
conscientious catholics, who followed this nervous procedure with
precision, found that it was not certain �which left them in great fear
until the next menstruation (which might not occur). And in this
concentration on the wife�s physical conditions, her psychological
patterns �of fondness, need, crises, travel �had to be ignored or
repressed. The comments of the couples surveyed made riveting
reading in the commission. A husband, a scholar, wrote:
Rhythm destroys the meaning of sex act; it turns it
from a spontaneous expression of spiritual and
physical love into a mere bodily sexual relief; it
makes me obsessed with sex throughout the month;
it seriously endangers my chastity; it has a
noticeable effect upon my disposition toward my
wife and children; it makes necessary my complete
avoidance toward my wife for three weeks at a time.
I have watched a magnificent spiritual and physical
union dissipate and, due to rhythm, turn into a tense
and mutually damaging relationship. Rhythm seems
to be immoral and deeply unnatural. It seems to be
diabolical.
His wife gave her side of the story:
I find myself sullen and resentful of my husband
when the time of sexual relations finally arrives. I
resent his necessarily guarded affection during the
month and I find I cannot respond suddenly. I find,
also, that my subconscious and unguarded thoughts
are inevitably sexual and time consuming. All this in
spite of a great intellectual and emotional
companionship and a generally beautiful marriage
and home life.
The commission was hearing that rhythm made people obsessed with
sex and its mechanics while minority members at the Council were
arguing that rhythm allows people to escape the merely animal urges
and enjoy the serenity of sexuality transcended. The commission was
also hearing from doctors that nature, of course, provides women with
their greatest sexual desire at just the fertile time that rhythm marked
off bounds.
The combined impact of Noonan�s history and the Crowley�s
empirical findings made the commission members �good Catholics all,
chosen for their loyalty to the church �look honestly at the �natural
law�arguments against contraception and see, with a shock, what
flimsy reasoning they had accepted. Sex is for procreation, yes �but
all the time, at each and every act? Eating is for subsistence. But any
food or drink beyond that necessary for sheer subsistence is not
considered mortally sinful. In fact, to reduce to that animal compulsion
would deny symbolic and spiritual meanings in shared meals �the
birthday party, the champagne victory dinner, the wine at Cana, the
Eucharist itself. Integrity of the act? Is it sinful to be nourished
intravenously when that is called for? Does that violate the integrity of
the eating act? The more assembled members looked at the inherited
�wisdom�of the church, the more they saw the questionable roots
 115
from which it grew �the fear and hatred of sex, the feeling that
pleasure in it is a biological bribe to guarantee the race�s perpetuation,
that any use of pleasure beyond that purpose is shameful. This was not
a view derived from scripture or from Christ, but from Seneca and
Augustine.
The commission members, even trained theologians and spiritual
counselors who had spent years expounding the church teachings, felt
they were looking at reality for the first time. A cultivated submission
to the papacy had been, for them, a structure of deceit, keeping them
from honesty with themselves, letting them live within a lie. To their
shared surprise they found they were not only willing to entertain the
idea of the church�s changing, but felt that it had to change on this
matter, that the truth, once seen, could no longer be denied. When
the nineteen theologians on the commission, convened for a separate
vote, were asked whether church teaching could change on
contraception, twelve said yes, seven no (including John Ford, who
had joined the commission at this meeting).
This set off alarm bells in the Vatican. For the next meeting, the last
and the longest, from April to June of 1965, the members of the
commission were demoted to �advisers�(periti) and the commission
itself was constituted of sixteen bishops brought in to issue the final
report. They would listen to those who had done the actual conferring,
and theirs would be the final verdict. Debate before them would be
presided over by Cardinal Ottaviani of the Holy Office. This bringing in
the big guns would have cowed the members in their first sessions. But
things had gone too far for such intimidation now. The Crowleys
brought another survey with them to the showdown, this one of 3,000
Catholics � including 290 devout subscribers to the magazine St.
Anthony�s Messenger �of whom 63 percent said that rhythm had
harmed their marriage and 65 percent said that it did not actually
prevent conception, even when the right procedures were followed
exactly (even neurotically). Dr. Albert Gorres spoke of the self�
censorship Catholics had exercised over themselves �something the
members recognized in their lives when it was pointed out. The Jesuit
priest Josef Fuchs, who had taught Casti Connubii standards for twenty
years, said he was withdrawing his moral textbook and resigning his
teaching post at the Gregorian University in Rome now that he could
no longer uphold what he was asked to profess. The vote of the
theologians who were presenting their findings to the bishops was
now fifteen to four against the claim that conception is intrinsically
evil. The vote of the larger group was thirty to five.
Here was a perfect laboratory test of the idea that contraception is
against nature, as that can be perceived by natural reason alone. These
people were all educated, even expert. They were Catholics in good
standing (they had been chosen on those grounds). They had been
conditioned all their lives to accept the church�s teaching �in fact they
had accepted it in the past. They of all people would entertain the
official case with open minds. They had no malice against church
authorities �most of them had devoted much (if not all) of their lives
to working with them. Most had entered the project either agreeing
with the papal position or thinking that it was unlikely to change. Now
they found themselves agreeing that change was not only necessary
but inevitable. They had trouble imagining how they had ever thought
otherwise. Cardinal Suenens explained how they had been conditioned
to have a double consciousness, to live a lie:
For years theologians have had to come up with
arguments on behalf of a doctrine they were not
allowed to contradict. They had an obligation to
defend the received doctrine, but my guess is they
already had many hesitations about it inside. As
soon as the question was opened up a little, a whole
group of moralists arrived at the position defended
by the majority here. . . The bishops defended the
classical position, but it was imposed on them by
authority. The bishops didn't study the pros and
cons. The received directives, they bowed to them,
and they tried to explain them to their
congregations.
As soon as people began to think independently about the matter, the
whole structure of deceit crumbled at the touch. The past position
could not be sustained, even among these people picked by the
Vatican itself, much less among Catholics not as committed as these
were. And it was absurd to speak of the non�Catholic world as ever
recognizing this �natural law of natural reason.�
The need to face the prospect of change was impressed on the people
 116
in the commission by the arguments of the five theologians
defending Casti Connubii. They reduced their own case to absurdities.
John Ford said that intercourse is not necessary for marital love:
�Conjugal love is above all spiritual (if the love is genuine) and it
requires no specific carnal gesture, much less its repetition in some
determined frequency.�Ford also liked to say that, if the teaching on
sexual activity only for procreation were changed, people could
rnasturbate with impunity. Dr. Gorres quoted the Melchite Patriarch,
Maximos IV, who said in the Council deliberations that priests display a
�celibate psychosis�in the area of sex. ***
The climactic vote of the commission �the one of the sixteen bishops
� was nine to three for changing the church�s position on
contraception, with three abstentions. An agreement had been
reached before the vote was taken to submit only one report for the
commission, but Cardinal Ottaviani and Father Ford, seeing how
things were going, had prepared a document of their own, which
would later be misrepresented as an official minority document. There
was only one official document, the sole one voted on by the bishops
who had authority to report the body�s findings. (Ottaviani was the
one who had brought in these officials, hoping to get the result he
wanted. When he failed to, he ignored his own device.)
The Ford �report�, drawn up with Germain Grisez, said that any change
was inconceivable. This was not because there were rational
arguments against change: �If we could bring forward arguments
which are clear and cogent based on reason alone, it would not be
necessary for our Commission to exist, nor would the present state of
affairs exist in the church.�No, the real reason to keep the teaching
was that it was the teaching: �The Church could not have erred though
so many centuries, even through one century, by imposing under
serious obligations very grave burdens the name of Jesus Christ, if Jesus
Christ did not actually impose these burdens.�As a priest had put it in
earlier debate, if the church sent all those souls to hell, it must keep
maintaining that that is where they are.
This was not an argument that made sense, at this point, to the
commission �to bishops any more than to the theologians or lay
experts. But it was the one argument that, in the end, mattered to
Paul VI. He took advantage of the so�called �minority report�to say
that he could not accept the commission�s findings since there had
been disagreement with it. Nine of the twelve bishops, fifteen of the
nineteen theologians, and thirty of the thirty�five nonepiscopal
members of the commission were not enough for him. Votes on the
decrees in the Council had not been unanimous either, but he did not
call them invalid for that reason. Paul�s real concern was with the
arguments that Ottaviani brought to him after the report was
submitted. He knew what was worrying the Pope, and could play on
that. F.X. Murphy had observed one thing about Paul�s behavior
throughout the meetings of the Council:
The Pope was a man obviously torn by doubts,
tormented by scruples, haunted by thoughts of
perfection, and above all dominated by an
exaggerated concern �some called it an obsession �
about the prestige of his office as Pope. His remarks
on this score at times displayed an almost messianic
fervor, a note missing in the more sedate utterances
of his predecessors. His innumerable statements on
the subject were made on almost every occasion,
from casual week�day audiences of Sunday sermons
from the window of his apartment to the most
solemn gatherings in season and out of season.
Since it was part of the strategy of the [conciliar]
minority to accuse the majority of disloyalty toward
the Holy Father' Paul�s constant harping�in
inevitably caused the majority to think that he
perhaps did share these misgivings, at least to a
certain extent. It was noticed by students of Paul�s
remarks that while he showed an open�mindedness
about almost any other subject, on the single theme
of the papacy his mind remained strangely closed to
analysis.
Those words were written before Humanae Vitae was issued, but they
explain the letter entirely.
The commission members left their work convinced that the pope
could no longer uphold a discredited teaching. When the report was
leaked to the press, Catholics around the world took heart at the signs
of change. So far from upsetting their faith, as the Pope feared, it
heartened them. What would unsettle their faith was what Paul did
 117
next �issue Humanae Vitae, with its reiteration of Casti Connubii�s
ban: ('The church, calling men back to the observance of the natural
law, as interpreted by its constant doctrine, teaches that each and
every marriage act must remain open to the transmission of life.�
Catholics responded with an unparalleled refusal to submit. Polls
registered an instant noncompliance with the encyclical. At a previously
scheduled Catholic festival of devout young Germans at Essen, a
resolution that those attending could not obey the encyclical passed
through a crowd of four thousand with only ninety opposing votes. A
simultaneous poll among German Catholics at large found that 68
percent of them thought the Pope was wrong on contraception. Similar
findings rolled in from around the world.
What were bishops to do? The encyclical itself had ordered them to
explain and enforce the Pope�s decision, along with all priests:
Be the first to give, in the exercise of your ministry,
the example of loyal internal and external obedience
to the teaching authority of the Church. . . it is of the
utmost importance, for peace, of consciences and
for the unity of the Christian People, that in the field
of morals as well as in that of dogma, all should
attend to the magisterium of the Church, and all
should speak the same language.
But for the first time in memory, bishop�s statements, while showing
respect for the encyclical, told believers they could act apart from it if
they felt bound by conscience to do so. The assembly of bishops in the
Netherlands put it most bluntly: �The assembly considers that the
encyclical�s total rejection of contraceptive methods is not convincing
on the basis of the arguments put forward.�other Episcopal panels
were more circumspect, but signaled that they would not consider
those disobedient to the encyclical to be separating themselves from
the sacraments. The Belgian bishops put it this way: �Someone,
however, who is competent in the matter under consideration and
capable of forming a personal and well�founded judgment �which
necessarily presupposes a sufficient amount of knowledge �may, after
serious examination before God, come to other conclusions on certain
points.�In other words: do not treat the Pope�s words lightly, but
follow your conscience after taking a serious look at them. That was
the position taken by bishops in the United States ("the norms of licit
dissent come into play�), Austria, Brazil, Czechoslovakia, Mexico, []
West Germany, Japan, France, Scandinavia, and Switzerland. The
Scandinavian statement was typical:
Should someone, however, for grave and carefully
considered reasons, not feel able to subscribe to the
arguments of the encyclical, he is entitled, as has
been constantly acknowledged, to entertain other
views than those put forward in a non�infallible
declaration of the Church. No one should, therefore,
on account of such diverging opinions along, be
regarded as an inferior Catholic.
The Pope was stunned. He would spend the remaining ten years of his
pontificate as if sleepwalking, unable to understand what had
happened to him, why such open dissent was entertained at the very
top of the episcopate. Four years after the publication of Humanae
Vitae, when the Pope looked �cautious, nervous, anxious, alarmed,�he
deplored the defiance of church teaching in a sermon at Saint Peter�s,
and this was the only explanation he could come up with for the
defiance: �Through some crack in the temple of God, the smoke of
Satan has entered'�He was increasingly melancholy and prone to tears.
Had he opened that crack in the temple of God? Even as a nagging
suspicion this was a terrible burden to bear. It explains the atmosphere
of darkening tragedy that hung about his final years. He would not
issue another encyclical in all those ten years. He was a prisoner of the
Vatican in a way that went beyond his predecessors' confinement there.
He was imprisoned in its structures of deceit. Meanwhile, Father Ford,
who had assisted his fellow Jesuit Gustave Martelet in drawing
up Humanae Vitae under Cardinal Ottaviani�s direction, went back to
the seminary where he had taught moral theology for years and found
that the Jesuit seminarians their refused to take his classes, since they
knew from others in the Order what he had done in Rome. As a result
of what he considered his life�s great coup, his teaching career was
over.303 (Emphasis supplied)
Intervenors even alleged that as early as 1999, �nearly 80% of Catholics believed that a
person could be a good Catholic without obeying the church hierarchy�s teaching on birth
control.�304 They, therefore, put in issue whether the views of petitioners who are
 118
Catholics represent only a very small minority within the church.
We cannot make any judicial determination to declare the Catholic Church �s position on
contraceptives and sex.� This is not the forum to do so and there is no present
controversy�no contraceptive and no individual that has come concretely affected by
the law.
This court must avoid entering into unnecessary entanglements with religion. We are
apt to do this when, without proof, we assume the beliefs of one sect or group within a
church as definitive of their religion. We must not assume at the outset that there might
be homogeneity of belief and practice; otherwise, we contribute to the State �s
endorsement of various forms of fundamentalism.305
It is evident from the account quoted above giving the historical context of the
contraceptives controversy that the Catholic church may have several perspectives and
positions on the matter. If this is so, then any declaration of unconstitutionality on the
basis of the perceived weaknesses in the way conscientious objectors are accommodated
is premature.
VI
Family
There being no actual case or controversy, the petitions also do not provide justification
for this court to declare as unconstitutional Section 23(2)(i) of the RH Law on spousal
consent, and Section 7, paragraph 2 on parental consent. These provisions read:
SEC 23. Prohibited Acts.��The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
shall:
xxxx
(2) Refuse to perform legal and medically�safe reproductive health�
procedures on�any person of legal age on the ground of lack of
consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: Provided, That in case of
disagreement, the decision of the one undergoing the procedure shall
prevail; and
SEC. 7. Access to Family Planning �x x x
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not be
allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is
already a parent or has had a miscarriage.
Spousal Consent
According to petitioners Millennium Saint Foundation, Inc., et al., �while both play equal
roles in procreation, the man or the husband is violated of his right of conjugal decisions
when it is the woman�s decision that will be followed whether to avail of contraceptives
or not.�306
Petitioners Couples for Christ Foundation, Inc., et al. argued that �the [reproductive
health] procedure does not involve only the body of the person undergoing the procedure
[as] it affects the future of the family (in terms of its size or even the presence of children)
as well as the relationship between spouses.�307
The ponencia agreed and discussed how �giving absolute authority to the spouse who
would undergo a procedure, and barring the other spouse from participating in the
decision would drive a wedge between the husband and wife, possibly result in bitter
animosity, and endanger the marriage and the family, all for the sake of reducing the
population.�308 The ponencia cited the constitutional mandate of the state to defend the
�right of spouses to found a family x x x.�309
These provisions of Republic Act No. 10354 do not threaten nor violate any right, even the
right to family.
Section 23(a)(2)(i) applies to a specific situation: when there is
a disagreement between married persons regarding the performance of a �legal and
medically�safe reproductive health procedure.�
The general rule encourages married persons to discuss and make a conjugal decision on
the matter. They are caught in a problem when they disagree. This agreement may fester
and cause problems within their family. The disagreement will not be created by the RH
Law. It will exist factually regardless of the law.�Section 23(a)(2)(i) of the law becomes
 119
available to break this deadlock and privilege the decision of the spouse undergoing the
procedure.
This is logical since the reproductive health procedures involve the body, health and well
being of the one undergoing the procedure.
The marriage may be a social contract but is certainly not a talisman that removes the
possibility of power relationships. Married persons, especially the woman/wife, can still
suffer inequality. Married persons may still experience spousal abuse.
Generally, it will be the woman who will ask to undergo reproductive health procedures.�
The interpretation of the majority therefore affects her control over her body. Rather
than enhance the zones of autonomy of a person even in a married state, the
interpretation of the majority creates the woman�s body as a zone of contestation that
gives the upper hand to the husband.
The majority derives the right to a family from Article XV and reads it in isolation from all
the other provisions of the Constitution. In my view, these rights should be read in
relation to the other provisions.
Article XV reads:
The Family
Section 1. The State recognizes the Filipino family as the foundation of
the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation
of the family and shall be protected by the State.
Section 3. The State shall defend:
(1) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their
development;
(3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the
planning and implementation of policies and programs that affect
them.
The ponencia cites Morfe v. Mutuc310 on the protected zone of marital privacy. This case is
not in point.�It does not apply to a conflict between the spouses.�It applies in declaring
a zone of privacy of spouses vis���vis state action.
Citing Griswold v. Connecticut, the court said:
The Griswold case invalidated a Connecticut statute which made the
use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed �a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees�. So it is likewise in our jurisdiction. The right to privacy as
such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: �The concept of limited
government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This
is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector,
which the state can control Protection of this private sector �
protection, in other words, of the dignity and integrity of the individual
�has become increasingly important as modern society has developed.
All the forces of a technological age �industrialization, urbanization,
and organization �operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society.�311 (Emphasis supplied)
This is one view.�It did not take into consideration the state�s interest in ensuring human
rights and the fundamental equality of women and men.
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The right to a family should be read in relation to several provisions in the Constitution
that guarantee the individual�s control over her or his own person.�Thus, Article III,
Section 1 of the Constitution states:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
This due process clause implies and congeals a person�s right to life. This includes the
individual�s right to existence as well as her or his right to a quality of life of her or his
choosing.�The State is not to sanction a program or an act that deprives the individual of
her or his control over her or his life and body.�The �equal protection�clause in this
provision ensures that individuals, even those that enter into a married state, do not
coexist and suffer under conditions of marital inequality.
Article II elaborates on the positive obligation of the State to the right to life as embodied
in the due process clause in two sections.�Sections 9 and 11 provide:
Section 9. The State shall promote a just and dynamic social order that
will ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.
Section 11. The State values the dignity of every human person
and guarantees full respect for human rights. (Emphasis supplied)
Section 14 of the same article also improves on the goal of equality of men and women.�
While section 1 provides for equal protection of the laws, this section creates a positive
duty on the State as follows:
Section 14.�The State recognizes the role of women in nation�building,
and shall ensure the fundamental equality before the law of women
and men.(Emphasis supplied)
The fundamental equality of women and men, the promotion of an improved quality of
life, and the full respect for human rights do not exist when a spouse is guaranteed
control the other spouse�s decisions respecting the latter�s body.
The autonomy and importance of family should not be privileged over the privacy and
autonomy of a person.�Marriage is not bondage that subordinates the humanity of each
spouse.�No person should be deemed to concede her or his privacy rights and autonomy
upon getting married.312
By declaring Section 23(a)(2)(i) as unconstitutional, the majority interprets the privacy
and autonomy of the family as also providing insulation of patriarchal or sexist practices
from state scrutiny.313This is not what the Constitution intends.
Parental Consent
The ponencia and the majority declared Section 7 of Republic Act No. 10354
unconstitutional for violating the right to privacy as the provision dispensed with the
written parental consent for minors who are already parents or those who have had a
miscarriage to access modern methods of family planning. Justice Reyes in his concurring
and dissenting opinion is also of the view that Section 7 is violative of Article II, Section 12
of the Constitution on the parents�natural and primary right and duty to nurture their
children.
I disagree with both the ponencia and Justice Reyes�views.
In declaring its unconstitutionality, the ponencia stated:
Equally deplorable is the debarment of parental consent in cases where
the minor, who would be undergoing a procedure, is already a parent
or has had a miscarriage. x x x
xxxx
There can be no other interpretation of this provision except that when
a minor is already a parent or has had a miscarriage, the parents
are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the
parental authority is already cut off just because there is a need to
tame population growth.
xxxx
To insist on a rule that interferes with the right of parents to exercise
parental control over their minor�child or the right of the spouses to
mutually decide on matters which very well affect the very purpose of
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marriage, that is, the establishment of conjugal and family life, would
result in the violation of one�s privacy with respect to his family. It
would be dismissive of the unique and strongly�held Filipino tradition
of maintaining close family ties and violative of the recognition the
State affords couples entering into the special contract of marriage
[that they act] as one unit in forming the foundation of the family and
society.314
Justice Reyes, in striking down the exception to the required written parental consent for
minors under Section 7, paragraph 2, also states:
[t]here exists no substantial distinction as between a minor who is
already a parent or has had a miscarriage. There is no cogent reason to
require a written parental consent for a minor who seeks access to
modern family planning methods and dispense with such requirement
if the minor is already a parent or has had a miscarriage. Under the
Family Code, all minors, generally, regardless of his/her circumstances,
are still covered by the parental authority exercised by their parents.
That a minor who is already a parent or has had a miscarriage does not
operate to divest his/her parents of their parental authority; such
circumstances do not emancipate a minor.315
The ponencia, however, clarified that access to information about family planning must
be differentiated from access to reproductive health methods. 316 Further, it said that
there must be an exception with respect to life�threatening cases. In which case, the
minor�s life must be safeguarded regardless of whether there is written parental
consent. 317
This provision has an exceptional application �when minors are already parents or when
the minor has miscarried before. The proviso inserted by the legislature should be
presumed to be based on a well�founded policy consideration with regard to the peculiar
situation of minors who are already parents or those who have experienced miscarriages.
As I have stressed earlier, it has been the policy of the courts in this jurisdiction to:
x x x avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which
enjoins upon each department a becoming respect for the acts of the
other departments. The theory is that as the joint act of Congress and
the President of the Philippines, a law has been carefully studied and
determined to be in accordance with the fundamental law before it
was finally enacted.318
Rather than assume homogenous choices of family relationships on the basis of a
speculative belief relating to �close family ties,�the better part of prudence and wisdom
from this Court would be to consider a more cosmopolitarian reality.� There are
traditional and non�traditional families. Many of these arrangements of family are the
result of free human choices that go through a gamut of emotional conflicts.�Teenage
pregnancy, like many other life defining events, do take their toll on family.�We cannot
speculate�for now�as to how families will deal with these stresses.�We cannot speculate
on why these pregnancies happen.
Those of us who have not and can never go through the actual experience of miscarriage
by a minor, those of us who cannot even imagine the pain and stresses of teenage
pregnancy, should not proceed to make blanket rules on what minors could do in relation
to their parents.�None of us can say that in all cases, all parents can be understanding
and extend sympathy for the minors that are legally under their care. None of us can say
that there are instances when parents would think that the only way to prevent teenage
pregnancy is a tongue lashing or corporeal punishment. We cannot understand reality
only from the eyes of how we want it to be.
Only when we are faced with an actual controversy and when we see the complications of
a real situation will we be able to understand and shape a narrowly tailored exception to
the current rule.�In the meantime, the wisdom of all the members of the House of
Representative, the Senate, and the President have determined that it would be best to
give the minor who is already a parent or has undergone a miscarriage all the leeway to
be able to secure all the reproductive health technologies to prevent her difficulties from
happening again.�We must stay our hand for now.
VII
Separation of Powers
Justice del Castillo is of the view that based on our power to �promulgate rules for the
protection and enforcement of constitutional rights�under Article VIII, Section 5(5) of the
Constitution, we have the power to issue directives to administrative bodies as to �the
proper rules�that they should promulgate in the exercise of the powers granted to
them.319
He cites Echegaray v. Secretary of Justice,320 thus:
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The 1987 Constitution molded an even stronger and more independent such rules of procedure insofar as they adequately protect and enforce
judiciary. Among others, it enhanced the rule making power of this constitutional right. Moreover, the power to disapprove the aforesaid
Court. Its Section 5(5), Article VIII, provides: rules of procedure necessarily includes or implies the power to
approve or modify such rules or, on the one extreme, require that
xxx xxx xxx such rules of procedure be issued when necessary to protect and
enforce constitutional rights. In other words, within and between the
broader power to issue rules for the protection and enforcement of
�Section 5. The Supreme Court shall have the constitutional rights and the narrower power to disapprove the rules
following powers: of procedure of quasi�judicial bodies, there exists penumbras of the
power that the Court may exercise in order to protect and enforce
constitutional rights.
xxx xxx xxx�
xxxx

(5) Promulgate rules concerning the protection and Taken together [with Article VIII, Section 1 of the Constitution], the
enforcement of constitutional rights, pleading, expanded jurisdiction of the Court and the power to issue rules for the
practice and procedure in all courts, the admission protection and enforcement of constitutional rights provide the bases
to the practice of law, the Integrated Bar, and legal for the Court (1) to look into the sufficiency of safeguards in the
assistance to the underprivileged. Such rules shall implementation of the RH Law insofar as it will adversely affect the
provide a simplified and inexpensive procedure for right to life of the unborn, and (2) to issue such orders as are necessary
the speedy disposition of cases, shall be uniform for and essential in order to protect and enforce the constitutional right to
all courts of the same grade, and shall not diminish, life of the unborn. x x x322 (Emphasis supplied)
increase, or modify substantive rights. Rules of
procedure of special courts and quasi�judicial bodies
For this reason, it is suggested that �x x x the Court x x x issue an order:
shall remain effective unless disapproved by the
Supreme Court.�
directing the FDA to formulate the rules of procedure in the screening, evaluation
(1)
and approval of all contraceptives that will be used under the RH Law;
The rule making power of this Court was expanded. This Court for
the first time was given the power to promulgate rules concerning the the rules of procedure shall contain the following minimum requirements of due
(2)
protection and enforcement of constitutional rights. The Court was also process:
granted for the first time the power to disapprove rules of procedure of
special courts and quasi�judicial bodies. x x x321 (a) publication, notice and hearing,

the Solicitor General shall be mandated to represent the unborn and the State�s
(b)
He believes that we have the power to approve or modify such rules or require them to interest in the protection of the life of the unborn,
issue rules for the protection of constitutional rights. He states:
(c) interested parties shall be allowed to intervene,
Viewed in light of the broad power of the Court to issue rules for the
protection and enforcement of constitutional rights, the power to the standard laid down in the Constitution, as adopted under the RH Law, as to
(d) what constitute allowable contraceptives shall be strictly followed, i.e., those
disapprove the rules of procedure of quasi�judicial bodies is significant
in that it implies the power of the Court to look into the sufficiency of which do not harm or destroy the life of the unborn from
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conception/fertilization, Section 5. The Supreme Court shall have the following powers:

(e) in weighing the evidence, all reasonable doubts shall be resolved in favour of
the right to life of the unborn from conception/fertilization, and xxxx

the other requirements of administrative due process, as summarized in Ang

(f) 5. Promulgate rules concerning the protection and enforcement of
Tibay, shall be complied with.
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal
assistance to the under�privileged. Such rules shall provide a
The FDA should be directed to submit these rules of
simplified and inexpensive procedure for the speedy disposition of
procedure within 30 days from receipt of the
cases, shall be uniform for all courts of the same grade, and shall not
Court�s decision, for the Court�s appropriate
diminish, increase, or modify substantive rights. Rules of procedure of
action.323
special courts and quasi�judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphasis supplied)
The issue in Echegaray was whether the Supreme Court has jurisdiction to control the
execution and enforcement of its judgment. The discussion on the expanded powers of
The court�s power to issue rules, including rules concerning the protection and
the Supreme Court in Section 5(5) of Article VIII of the Constitution was made in this
enforcement of constitutional rights, is limited to judicial procedures. We do not have
context. It is not to be taken as justification for the Court to usurp powers vested upon
competence to compel the issuance of administrative procedures. Rules of procedure of
other departments. Thus, after this Court in that case said that �[t]he Court was x x x
quasi�judicial bodies can only be disapproved by the Supreme Court, but not issued,
granted for the first time the power to disapprove rules of procedure of special courts and
modified or approved by it.
quasi�judicial bodies[,]�it continued with the statement:

x x x But most importantly, the 1987 Constitution took away the power
of the Congress to repeal, alter, or supplement rules concerning
pleading, practice and procedure. In fine, the power to promulgate
rules of pleading, practice and procedure is no longer shared by this
Court with the Congress, more so with the Executive. If the manifest
intent of the 1987 Constitution is to strengthen the independence of
the judiciary, it is inutile to urge, as public respondents do, that this
Court has no jurisdiction to control the process of execution of its
decisions, a power conceded to it and which it has exercised since
time immemorial.
To be sure, it is too late in the day for public respondents to assail the
jurisdiction of this Court to control and supervise the implementation
of its decision in the case at bar. x x x324 (Emphasis supplied)
The Constitution vests the executive power upon the President. He or she, and not the
judiciary, exercises the power of control over all executive departments, bureaus and
offices,325 including the Food and Drug Administration. The judiciary has no administrative
power of control or supervision over the Food and Drug Administration.
Insisting that we can impose, modify or alter rules of the Food and Drug Administration is
usurpation of the executive power of control over administrative agencies. It is a violation
of the principle of separation of powers, which recognizes that �[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere.�326 The system of checks and balances only allows us to declare, in
the exercise of our judicial powers, the Food and Drugs Administration�s acts as violative
of the law or as committed with grave abuse of discretion.327 Such power is further limited
by the requirement of actual case or controversy.328
FINAL NOTE

This court�s power to �promulgate rules for the protection and enforcement of
It is not the Supreme Court alone that can give the full substantive meaning of the
constitutional rights�as stated in Article VIII, Section 5(5) of the Constitution must be
provisions of the Constitution. The rules that aid in reshaping social reality as a result of
harmonized with the rest of the provision, which provides:
the invocation and interpretation of constitutional provisions should be the product of the
interrelationship of all constitutional organs.
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This case presents us with an opportunity to clearly define our role. We have the power to
declare the meanings of constitutional text with finality. That does not necessarily mean
that we do not build on the experience of the other departments and organs of
government. We are part of the constitutional design that assures that the sovereign
people�s will is vetted in many ways. Deference to the outcome in legislative and
executive forums when there is no �actual case or controversy�is also our constitutional
duty.
Judicial deference implies that we accept that constitutional role that assures democratic
deliberation to happen in political forums.�It proceeds from an understanding that even
as we labor and strive for wisdom, we will never be the repository of all of it. Our status as
members of this court is likewise no blanket license to impose our individual predilections
and preferences.�Contrary to an esteemed colleague, our privileges do not include such
judicial license.
The judicial temperament is one that accepts that wisdom is better achieved by the
collective interaction of the constitutional bodies. We have no unbounded license to
simply act when we want to.�That judicial temperament ensures the Rule of Law.
The President approved the Responsible Parenthood and Reproductive Health Act of 2012
or Republic Act No. 10354 on December 21, 2012. It now defines the political consensus
within Congress and with the President. The law took five (5) Congresses or not less than
thirteen (13) years to complete.329 Plenary debates in both the House of Representatives
and in the Senate were covered live by public television.
Whole communities were riveted by the debates. Newspaper columnists weighed in with
their ideas. Public forums were filled with heated discussion on the merits and demerits of
every provision. Catholic pulpits were used to express opinion. Various forms of
democratic deliberation and debate translated to political positions of legislators. Many of
these positions were informed by their interpretation of the Constitution and the needs of
their communities.�This, in turn, formed into the present provisions of this law.
The petitioners come to us after having lost the majority in full democratic deliberation in
the halls of Congress. They ask us to read the provisions of the law and the implementing
rules. Without the benefit of an actual controversy regarding conflicting rights arising
from real facts, they ask us to declare various provisions formulated by the legislature as
unconstitutional. In effect, they ask us to continue to reshape the political consensus. In
effect, they ask us to render an advisory opinion, and on that basis, refine the law.
This is not what we do.
Courts act on conflict of rights arising from actual facts and events. We do not resolve
moral, philosophical or even legal issues barren of facts.
Unwanted pregnancies may result in clinical complications and deaths of women during
childbirth,330 of the fetus while inside the womb331 and of infants soon after they are
born.332 Unwanted pregnancies may be the result of lack of knowledge of the
consequences of the sexual act, or it could be due to the lack of information and access to
safe and effective reproductive technologies. The law impliedly accepts that the choice of
intimate relationships is better left to the individual and the influences of their culture,
their family, and their faiths.
The law acknowledges the differential impact of lack of knowledge and access to
reproductive health technologies between the rich and the poor.333 It, therefore, requires
that proper information and access be made more available to those who need it. It
mandates the government to intervene at least in order to provide the right information
and, when requested and without coercion, provide access.
The law assumes that informed choices provide greater chances for a better quality of life
for families. The law actively intervenes so that government itself can provide these
choices so that the quality of life improves. More than corporeal existence, it hopes to
assure human dignity.
I dissent from the majority�s position that we can review the law.�I dissent more
vigorously from the majority�s ruling that some provisions are declared unconstitutional
on the basis of speculative facts. In my view, this law needs to be fully implemented.
Petitioners have come before us driven by their unfailing belief in the moral rightness of
their faith and their causes. Their faith is not to be questioned. Their conviction is solid.�
But these cases are premature.
But, they are not the only ones who may be affected. They cannot speak for everyone.
There are many burdened mothers who can barely feed their children.
There are mothers who have had to undergo abortion whether intended or unintended
because of the unavailability of information and access to contraception should they have
had the right information.
There are mothers who died at childbirth because their pregnancy or their poverty was
not their choice.
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There are impoverished mothers and fathers who helplessly bore the deaths of their
children.

They cannot speak. Because of the dominant morality that surround them, many choose
not to speak.

All bear their own unspeakable reality.�This law may just be the hope that they deserve.

ACCORDINGLY, I vote to DISMISS these petitions. This law, in my view, gives them a
chance. It should be implemented in full.