Francisco vs.

House of Representatives
(GR 160261, 10 November 2003)
En Banc, Carpio Morales (J): 1 concurs, 3 wrote separate concurring opinions to which 4 concur, 2 wrote
concurring and dissenting separate opinions to which 2 concur.

Facts:

On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved
the Rules of Procedure in Impeachment Porceedings, superceding the previous House Impeachment
Rules approved by the 11th Congress.

On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee
on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).

On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of the
Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high
crimes." The complaint was endorsed by House Representatives, and was referred to the House
Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution.
The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint
was "sufficient in form," but voted to dismiss the same on 22 October 2003 for being insufficient in
substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a
day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was
filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G.
Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House
Resolution. The second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives.
Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the
House of Representatives, et. al., most of which petitions contend that the filing of the second
impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the
Constitution that "[n]o impeachment proceedings shall be initiated against the same official more
than once within a period of one year."

Issue: Whether the power of judicial review extends to those arising from impeachment proceedings.

Held: The Court's power of judicial review is conferred on the judicial branch of the government in Section
1, Article VIII of our present 1987 Constitution. The "moderating power" to "determine the proper allocation
of powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts as a necessary consequence of the judicial power itself,
which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable." As indicated in Angara v. Electoral Commission, judicial review is indeed
an integral component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and insures that
its vast powers are utilized only for the benefit of the people for which it serves. 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.
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.
The major difference between the judicial power of the Philippine Supreme Court and that of the U.S.
Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme
Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as
expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded
definition to include the power to correct any grave abuse of discretion on the part of any government
branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of Representatives over impeachment
proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation, our Constitution, though vesting in the House of Representatives the
exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such
power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the
manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official. The people expressed their will when they instituted the above-mentioned safeguards in the
Constitution. This shows that the Constitution did not intend to leave the matter of impeachment to the
sole discretion of Congress. Instead, it provided for certain well-defined limits, or "judicially discoverable
standards" for determining the validity of the exercise of such discretion, through the power of judicial
review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Finally, there exists no constitutional basis for the contention that the exercise of
judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both
are integral components of the calibrated system of independence and interdependence that insures that
no branch of government act beyond the powers assigned to it by the Constitution.

IN CONSONANCE:

FACTS: Within a period of 1 year, 2 impeachment proceedings were filed against Supreme Court Chief
Justice Hilario Davide. The justiciable controversy in this case was the constitutionality of the subsequent
filing of a second complaint to controvert the rules of impeachment provided for by law.

ISSUE: Whether or not the filing of the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. with the House of Representatives is constitutional, and whether the resolution thereof is a
political question — h; as resulted in a political crisis.

HELD: Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were
approved by the House of Representativesare unconstitutional. Consequently, the second impeachment
complaint against Chief Justice Hilario G. Davide, is barred under paragraph 5, section 3 of Article XI of
the Constitution.

REASONING: In passing over the complex issues arising from the controversy, this Court is ever mindful
of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by
the Constitution to temper the official acts of each of these three branches must be given effect without
destroying their indispensable co-equality. There exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the system of checks and
balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to
defeat another." Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to it bythe
Constitution.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal
reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be
necessary… to initiate impeachment proceedings," this was met by a proposal to delete the line on the
ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a
complaint does.

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the
members of the House of Representatives with the Secretary General of the House, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official within a one year period.

The Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main
issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the
constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions.
Because it is not at all the business of this Court to assert judicial dominance over the other two great
branches of the government.

PABLO C. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON ELECTIONS and

HONORABLE NATIONAL TREASURER, respondents.

MARTIN, J,:

Facts: On 2 September 1976, President Ferdinand E. Marcos issued Presidential Decree 991 calling for
a national referendum on 16 October 1976 for the Citizens Assemblies ("barangays") to resolve, among
other things, the issues of martial law, the interim assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for the exercise by the President of his
present powers.

20 days after or on 22 September 1976, the President issued another related decree, Presidential
Decree 1031, amending the previous Presidential Decree 991, by declaring the provisions of Presidential
Decree 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies)
applicable to the national referendum-plebiscite of 16 October 1976. Quite relevantly, Presidential
Decree 1031 repealed inter alia, Section 4, of Presidential Decree 991.

On the same date of 22 September 1976, the President issued Presidential Decree 1033, stating the
questions to he submitted to the people in the referendum-plebiscite on 16 October 1976. The Decree
recites in its "whereas" clauses that the people's continued opposition to the convening of the interim
National Assembly evinces their desire to have such body abolished and replaced thru a constitutional
amendment, providing for a new interim legislative body, which will be submitted directly to the people in
the referendum-plebiscite of October 16.
The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite. On 27 September 1976, Pablo C. Sanidad and Pablito V. Sanidad,
father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to
declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose
amendments to the Constitution, as well as Presidential Decree 1031, insofar as it directs the
Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled
on 16 October 1976. They contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new Constitution.

As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On 30

September 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was
instituted by Vicente M. Guzman, a delegate to the 1971 Constitutional Convention, asserting that the
power to propose amendments to, or revision of the Constitution during the transition period is expressly
conferred on the interim National Assembly under action 16, Article XVII of the Constitution. Still another
petition for Prohibition with Preliminary Injunction was filed on 5 October 1976 by Raul M. Gonzales, his
son Raul Jr., and Alfredo Salapantan, docketed as L-44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.

Issue: Whether the President may call upon a referendum for the amendment of the Constitution.

Held: Section 1 of Article XVI of the 1973 Constitution on Amendments ordains that "(1) Any amendment
to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of
three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a
vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an election." Section 2
thereof provides that "Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months a after the
approval of such amendment or revision." In the present period of transition, the interim National
Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads "The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with Article Sixteen hereof."

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

The Court in Aquino v. COMELEC, had already settled that the incumbent President is vested with that
prerogative of discretion as to when he shall initially convene the interim National Assembly. The
Constitutional Convention intended to leave to the President the determination of the time when he shall
initially convene the interim National Assembly, consistent with the prevailing conditions of peace and
order in the country. When the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly. The President's decision to defer
the convening of the interim National Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the
people voted against the convening of the interim National Assembly. In the referendum of 24 July 1973,
the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the
interim National Assembly. Again, in the referendum of 27 February 1975, the proposed question of
whether the interim National Assembly shall be initially convened was eliminated, because some of the
members of Congress and delegates of the Constitutional Convention, who were deemed automatically
members of the interim National Assembly, were against its inclusion since in that referendum of January,
1973 the people had already resolved against it. In sensu striciore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that body is not in the usual function of
lawmaking. It is not legislating when engaged in the amending process. Rather, it is exercising a peculiar
power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in
Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory
Provisions (for the interim National Assembly). While ordinarily it is the business of the legislating body to
legislate for the nation by virtue of constitutional conferment, amending of the Constitution is not
legislative in character. In political science a distinction is made between constitutional content of an
organic character and that of a legislative character. The distinction, however, is one of policy, not of law.
Such being the case, approval of the President of any proposed amendment is a misnomer. The
prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation.
The President has nothing to do with proposition or adoption of amendments to the Constitution.

SAMUEL C. OCCENA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE COMMISSION ON

AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the
Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present
Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that
the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding.
To put it at its mildest, such an approach has the arresting charm of novelty – but nothing else. It is in fact
self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would
be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of
constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13
respectively, respondents were required to answer each within ten days from notice. 5 There was a
comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly
argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the
submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for
decision.
It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the
dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and
mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It
then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It
could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that,
as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement
by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court
says is not only entitled to respect but must also be obeyed, a factor for instability was removed.
Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It
is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a
positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and
Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not
only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is
an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal
of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since
then, this Court has invariably applied the present Constitution. The latest case in point is People v.
Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present
Constitution, at least ten cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments
and how it may be exercised. More specifically as to the latter, the extent of the changes that may be
introduced, the number of votes necessary for the validity of a proposal, and the standard required for a
proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged
resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable
provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus:
"The Interim Batasang Pambansa shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as
the interim National Assembly and the regular National Assembly and the Members
thereof." 14One of such powers is precisely that of proposing amendments. The 1973 Constitution in its
Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon
special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with
the Article on Amendments. 15When, therefore, the Interim Batasang Pambansa, upon the call of the
President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such
impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments
embodied in the resolutions now being assailed. It may be observed parenthetically that as far as
petitioner Occena is Concerned, the question of the authority of the Interim Batasang Pambansa
to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same
petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon.
To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the
proposed amendment of Section 7 of Article X of the Constitution extending the retirement of members of
the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a
restoration of the age of retirement provided in the 1935 Constitution and has been intensively and
extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot,
therefore, be said that our people are unaware of the advantages and disadvantages of the proposed
amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so
extensive in character that they go far beyond the limits of the authority conferred on the Interim
Batasang Pambansa as Successor of the Interim National Assembly. For them, what was done was
to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the
Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether
the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an Ideology foreign to the
democratic system, is of no moment; because the same will be submitted to the people for ratification.
Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution.
4. The fact that the present Constitution may be revised and replaced with a new one ...
is no argument against the validity of the law because 'amendment' includes the
'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is
merely amended in part or revised or totally changed would become immaterial the moment the same is
ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American
decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We
are not disposed to deviate from such a principle not only sound in theory but also advantageous in
practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard
for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor.
The language of the Constitution supplies the answer to the above questions. The Interim Batasang
Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a
majority vote is needed. It would be an indefensible proposition to assert that the three-fourth
votes required when it sits as a legislative body applies as well when it has been convened as the
agency through which amendments could be proposed. That is not a requirement as far as a
constitutional convention is concerned. It is not a requirement either when, as in this case,
the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover,
even on the assumption that the requirement of three- fourth votes applies, such extraordinary majority
was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born
citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential
purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime
Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and
Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2
with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper
submission, the question may be viewed not only from the standpoint of the period that must elapse
before the holding of the plebiscite but also from the standpoint of such amendments having been called
to the attention of the people so that it could not plausibly be maintained that they were properly informed
as to the proposed changes. As to the period, the Constitution indicates the way the matter should be
resolved. There is no ambiguity to the applicable provision: "Any amendment to, or
revision of, this Constitution shall be valid when ratified by a majority of the votes cast
in a plebiscite which shall be held not later than three months after the approval of such
amendment or revision." 21 The three resolutions were approved by the Interim Batasang
Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg.
22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the
Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately
informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio,
where the amendment restored to seventy the retirement age of members of the judiciary, the proposed
amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as
well as through the mass media, [ so that ] it cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ.,
concur.

Abad Santos, J., is on leave.

Philippine Bar Association v Comelec

FACTS:

Petitions were filed questioning the validity of BP 883, calling a special election for President and
Vice-President on February 7, 1986.

The law was enacted following the letter of President Marcos to the BP that he was "irrevocably vacating
the position of President effective only when the election is held and after the winner is proclaimed and
qualified as Pres. by taking his oath of office ten days after his proclamation."

The principal ground for the challenge to the validity of the statute was that the conditional resignation of
the President did not create a vacancy required by Article VII, Sec. 9 which authorized the calling of a
special election.

ISSUES:

1. Whether or not BP 883 is unconstitutional.

2. Whether or not the Supreme Court should allow incumbent President Marcos to run on that said
special election. (IF)

HELD:

After deliberating, 7 Justices voted to dismiss. On the other hand, 5 Justices voted to declare the statute
unconstitutional. In accordance with Javellana v. Executive Secretary, of the view that as there were less
than ten votes for declaring BP 883 unconstitutional. The petitions should be dismissed.

On the second issue, it turned out to be a political question. It can only be decided by the people in their
sovereign capacity at the scheduled election. Thus, it is outside the ambit of the courts.

The Court cannot stand in the way of letting the people decide through their ballot, either to the give the
incumbent president a new mandate or elect a new president.

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

CORAZON C. AQUINO, ET AL.

SIRS/MADAMS:

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

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

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

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

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

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court

* The Court was then composed of Teehankee, C.J. and Abad Santos., Melencio-Herrera, Plana, Escolin,
Gutierrez, Jr., Cuevas, Alampay and Patajo, JJ.------------------------------------------

DIGEST

FACTS:
On February 25, 1986, President Corazon Aquino issued Proclamation No. 1 announcing that she and
Vice President Laurel were taking power.
On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government
assumption of power by stating that the "new government was installed through a direct exercise of the
power of the Filipino people assisted by units of the New Armed Forces of the Philippines."

ISSUE:
Whether or not the government of Corazon Aquino is legitimate.

HELD:
Yes. The legitimacy of the Aquino government is not a justiciable matter but belongs to the realm of
politics where only the people are the judge.

 The Court further held that:

 The people have accepted the Aquino government which is in effective control of the entire
country;
 It is not merely a de facto government but in fact and law a de jure government; and
 The community of nations has recognized the legitimacy of the new government.

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

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

The first regular elections for the President and Vice-President under this Constitution shall be held on
the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and
answer the question of the construction and definiteness as to who, among the present incumbent
President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E.
Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief.
More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic,
President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure.

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

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of
the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people
of the Philippines are the judge. And the people have made the judgment; they have accepted the
government of President Corazon C. Aquino which is in effective control of the entire country so that it is
not merely a de facto government but in fact and law a de jure government. Moreover, the community of
nations has recognized the legitimacy of tlie present government. All the eleven members of this Court,
as reorganized, have sworn to uphold the fundamental law of the Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs.
President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the
Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs.
Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can
be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the
incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the
above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,

ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B.

ESGUERRA, in his capacity as OIC Governor of the Province of Rizalrespondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing
them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay
Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay
Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de
la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under
Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1,

1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating
respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1,
1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and
Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the
pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I
among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all
the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on February
8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day, February 9.
1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and
void and that respondents be prohibited from taking over their positions of Barangay Captain and
Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on
June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up
to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC
Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated
on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment is made within a period of one
year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted
provision and not because their term of six years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to
have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the
1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of
the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials.

Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was
validly made during the one-year period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in
the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the
1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant communities.2 Similarly, the 1987
Constitution ensures the autonomy of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined
by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of
six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for
elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as
still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other
executive issuances not inconsistent, with this Constitution shall remain operative until amended,
repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay
Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition
is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners'
positions subject of this Petition. Without costs.

SO ORDERED.

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF

REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs.

COMMISSION ON ELECTIONS, respondent.

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

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

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt
to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the
least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds.
More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of
association are invoked to nullify the act. Thus the question confronting this Court is one of
transcendental significance.

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

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

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

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

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

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

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

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

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In
ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8)
Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880; and a
divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars.
(c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no
treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on
the issue until after the return of the Justices now on official leave."
The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor
Felicisimo Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged
legislation relying primarily on American Supreme Court opinion that warn against curtailment in
whatever guise or form of the cherished freedoms of expression, of assemble and of association, all
embraced in the First Amendment of the United States Constitution. Respondent Commission on
Elections was duly represented by Atty. Ramon Barrios.

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

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

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

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

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

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It

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

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880
as an exercise of the police power of the state, designed to insure a free, orderly and honest election by
regulating "conduct which Congress has determined harmful if unstrained and carried for a long period
before elections it necessarily entails huge expenditures of funds on the part of the candidates,
precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful
consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan
pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised
as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of
association. Would it were as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier
approach. "The case confronts us again with the duty our system places on this Court to say where the
individual's, freedom ends the State's power begins. Choice on that border, now as always delicate, is
perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedoms secured by the First
Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious
intrusions. And it is the character of the right, not of the limitation, which determines what standard
governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the
answer of respondent, militates against a stand minimizing the importance and significance of the alleged
violation of individual rights: "As so construed by us, it has not been made to appear that section 8189,
Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state
or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11Another leading State decision is much more
emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is
not wholly without limitation. Under the guise of regulating elections, the legislature may not deprive a
citizen of the right of trial by jury. A person charged with its violation may not be compelled to give
evidence against himself. If it destroys the right of free speech, it is to that extent void." 12

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

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

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

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

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

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

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

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

Why repression is permissible only when the danger of substantive evil is present is explained by Justice
Branders thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full
discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more speech, not enforced silence." 26 For him
the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to
society." Justice Black would go further. He would require that the substantive evil be "extremely
serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except at those extreme borders
where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The
question in every case is whether the words used in such circumstances and of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree." 29

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

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

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

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

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

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

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

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

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

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

The prohibition of too early nomination of candidates presents a question that is not too formidable in
character. According to the act: "It shall be unlawful for any political party political committee, or political
group to nominate candidates for any elective public officio voted for at large earlier than one hundred
and fifty days immediately preceding an election, and for any other elective public, office earlier than
ninety days immediately preceding an election." 40

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

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

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

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

7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed
on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into
their substance. This on the one hand.
On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral
process. There can be under the circumstances then no outright condemnation of the statute. It could not
be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption
that the constitutional infirmity is apparent from a mere reading thereof.

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

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

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

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

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

The restriction on freedom of assembly as confined to holding political conventions, caucuses,

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

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

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

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

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

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

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

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

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

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

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

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M.
Tañada, appearing before us as amicus curiae. He did clearly explain that such provisions were deemed
by the legislative body to be part and parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and substantive evil of excessive
partisanship, dishonesty and corruption as well as violence that of late has invariably marred election
campaigns and partisan political activities in this country. He did invite our attention likewise to the
well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action,
on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly
repugnant to fundamental rights, be ignored or disregarded.

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

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

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

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

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

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

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

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 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.

(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.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of this special civil action when there is a pending
case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin.
This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the
Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and political instability begs for
judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of
man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition
on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The
COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them to submit within five days their
memoranda or 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.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the registered voters therein.
No amendment under this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

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

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is
dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress provides
for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as
follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of 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.

32
This completes the blanks appearing in the original Committee Report No. 7.

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.

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?

35
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.

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. . .?

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 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:

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.

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

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

60
(5) Delegation to administrative bodies.
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 said petition was merely entered as UND, meaning, undocketed.
That petition was nothing more than a mere scrap of paper, which should not have been dignified by the
Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of
elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law
shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the
right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

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.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Padilla, J., took no part

Lambino vs COMELEC

FACTS:

On 25 August 2006, Lambino et al filed a petition with the COMELEC to hold a plebiscite that will ratify
their initiative petition to change the 1987 Constitution under Section 5(b) and (c)2 and Section 73 of
Republic Act No. 6735 or the Initiative and Referendum Act.

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) and by adding
Article XVIII entitled “Transitory Provisions.” These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government.

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.

The COMELEC denied the petition citing Santiago v. COMELEC declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend the Constitution.

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

HELD:

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 framers of the Constitution intended that the “draft of the proposed constitutional amendment” should
be “ready and shown” to the people “before” they sign such proposal. The framers plainly stated that
“before they sign there is already a draft shown to them.” The framers also “envisioned” that the people
should sign on the proposal itself because the proponents must “prepare that proposal and pass it
around for signature.”

The essence of amendments “directly proposed by the people through initiative upon a petition” is that
the entire proposal on its face is a petition by the people. This means two essential elements must be
present. First, the people must author and thus sign the entire proposal. No agent or representative can
sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to
the people who express their assent by signing such complete proposal in a petition. Thus, an
amendment is “directly proposed by the people through initiative upon a petition” only if the people sign
on a petition that contains the full text of the proposed amendments.

There is no presumption that the proponents observed the constitutional requirements in gathering the
signatures. The proponents bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures – that the petition contained, or incorporated by attachment, the
full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that the
people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature
sheet after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October
2006.

2. 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.

Tolentino v Comelec

FACTS:

The 1971 Constitutional Convention came into being by virtue of two resolutions of the Congress
approved in its capacity as a constituent assembly convened for the purpose of calling a convention to
propose amendments to the Constitution. After election of delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. In the morning of September 28, 1970, the
Convention approved Organic Resolution No. 1 which is entitled as, "A RESOLUTION AMENDING
SECTION 1 OF ARTICLE V OF THE CONSTITUTION SO AS TO LOWER THE VOTING AGE TO 18."
On September 30, 1971, the COMELEC "resolved" to follow the mandate of the Convention, that it will
hold the said plebiscite together with the senatorial elections on November 8, 1971 .

Petitioner, Arturo Tolentino, filed a petition for prohibition, its main thrust being that Organic Resolution
No. 1 and the necessary implementing resolutions subsequently approved have no force and effect as
laws in so far as they provide for the holding of a plebiscite co-incident with the senatorial elections, 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 Article XV Section 1 of the 1935 Constitution, the proposed amendment in question cannot be
presented to the people for ratification separately from each and all other amendments to be drafted and
proposed by the Constitution.

ISSUE:

Whether or not the Organic Resolution No. 1 of the 1971 Constitutional Convention violative to the
Constitution.

HELD:

NO.

All the amendments to be proposed by the same Convention must be submitted to the people in a single
"election" or plebiscite. In order that a plebiscite for the ratification of a Constitutional amendment 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 but as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole.

In the present context, where the Convention has hardly started considering the merits, if not thousands,
of proposals to amend the existing Constitution, to present to the people any single proposal or a few of
them cannot comply with this requirement.

AMELITO R. MUTUC, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
Amelito R. Mutuc in his own behalf.

Romulo C. Felizmena for respondent.

FERNANDO, J.:

The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the
Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of
respondent Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not
in vain. Nor could it be considering the conceded absence of any express power granted to respondent
by the Constitutional Convention Act to so require and the bar to any such implication arising from any
provision found therein, if deference be paid to the principle that a statute is to be construed consistently
with the fundamental law, which accords the utmost priority to freedom of expression, much more so
when utilized for electoral purposes. On November 3, 1970, the very same day the case was orally
argued, five days after its filing, with the election barely a week away, we issued a minute resolution
granting the writ of prohibition prayed for. This opinion is intended to explain more fully our decision.

In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a
resident of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional
Convention, alleged that respondent Commission on Elections, by a telegram sent to him five days
previously, informed him that his certificate of candidacy was given due course but prohibited him from
using jingles in his mobile units equipped with sound systems and loud speakers, an order which,
according to him, is "violative of [his] constitutional right ... to freedom of speech." 1 There being no plain,
speedy and adequate remedy, according to petitioner, he would seek a writ of prohibition, at the same
time praying for a preliminary injunction. On the very next day, this Court adopted a resolution requiring
respondent Commission on Elections to file an answer not later than November 2, 1970, at the same
time setting the case for hearing for Tuesday November 3, 1970. No preliminary injunction was issued.
There was no denial in the answer filed by respondent on November 2, 1970, of the factual allegations
set forth in the petition, but the justification for the prohibition was premised on a provision of the
Constitutional Convention Act,2which made it unlawful for candidates "to purchase, produce, request or
distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever
nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and
the like, whether of domestic or foreign origin."3 It was its contention that the jingle proposed to be used
by petitioner is the recorded or taped voice of a singer and therefore a tangible propaganda material,
under the above statute subject to confiscation. It prayed that the petition be denied for lack of merit. The
case was argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C.
Felizmena arguing in behalf of respondent.

This Court, after deliberation and taking into account the need for urgency, the election being barely a
week away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition,
setting forth the absence of statutory authority on the part of respondent to impose such a ban in the light
of the doctrine of ejusdem generis as well as the principle that the construction placed on the statute by
respondent Commission on Elections would raise serious doubts about its validity, considering the
infringement of the right of free speech of petitioner. Its concluding portion was worded thus: "Accordingly,
as prayed for, respondent Commission on Elections is permanently restrained and prohibited from
enforcing or implementing or demanding compliance with its aforesaid order banning the use of political
jingles by candidates. This resolution is immediately executory." 4

1. As made clear in our resolution of November 3, 1970, the question before us was one of power.
Respondent Commission on Elections was called upon to justify such a prohibition imposed on petitioner.
To repeat, no such authority was granted by the Constitutional Convention Act. It did contend, however,
that one of its provisions referred to above makes unlawful the distribution of electoral propaganda
gadgets, mention being made of pens, lighters, fans, flashlights, athletic goods or materials, wallets,
bandanas, shirts, hats, matches, and cigarettes, and concluding with the words "and the like." 5 For
respondent Commission, the last three words sufficed to justify such an order. We view the matter
differently. What was done cannot merit our approval under the well-known principle of ejusdem generis,
the general words following any enumeration being applicable only to things of the same kind or class as
those specifically referred to.6 It is quite apparent that what was contemplated in the Act was the
distribution of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the
candidate responsible for its distribution.

The more serious objection, however, to the ruling of respondent Commission was its failure to manifest
fealty to a cardinal principle of construction that a statute should be interpreted to assure its being in
consonance with, rather than repugnant to, any constitutional command or prescription. 7 Thus, certain
Administrative Code provisions were given a "construction which should be more in harmony with the
tenets of the fundamental law."8 The desirability of removing in that fashion the taint of constitutional
infirmity from legislative enactments has always commended itself. The judiciary may even strain the
ordinary meaning of words to avert any collision between what a statute provides and what the
Constitution requires. The objective is to reach an interpretation rendering it free from constitutional
defects. To paraphrase Justice Cardozo, if at all possible, the conclusion reached must avoid not only
that it is unconstitutional, but also grave doubts upon that score. 9

2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a
cardinal precept. The view advanced by him that if the above provision of the Constitutional Convention
Act were to lend itself to the view that the use of the taped jingle could be prohibited, then the challenge
of unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits
an abridgment of free speech or a free press. It has been our constant holding that this preferred freedom
calls all the more for the utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage. What respondent Commission did, in effect, was
to impose censorship on petitioner, an evil against which this constitutional right is directed. Nor could
respondent Commission justify its action by the assertion that petitioner, if he would not resort to taped
jingle, would be free, either by himself or through others, to use his mobile loudspeakers. Precisely, the
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not
perpetuating what is uttered by him through tape or other mechanical contrivances. If this Court were to
sustain respondent Commission, then the effect would hardly be distinguishable from a previous restraint.
That cannot be validly done. It would negate indirectly what the Constitution in express terms assures. 10

3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded
to that which occupies the topmost rung in the legal hierarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must
ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying
the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is
decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of
the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the
Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law.

To be more specific, the competence entrusted to respondent Commission was aptly summed up by the
present Chief Justice thus: "Lastly, as the branch of the executive department — although independent
of the President — to which the Constitution has given the 'exclusive charge' of the 'enforcement and
administration of all laws relative to the conduct of elections,' the power of decision of the Commission is
limited to purely 'administrative questions.'" 11 It has been the constant holding of this Court, as it could
not have been otherwise, that respondent Commission cannot exercise any authority in conflict with or
outside of the law, and there is no higher law than the Constitution. 12Our decisions which liberally
construe its powers are precisely inspired by the thought that only thus may its responsibility under the
Constitution to insure free, orderly and honest elections be adequately fulfilled. 13 There could be no
justification then for lending approval to any ruling or order issuing from respondent Commission, the
effect of which would be to nullify so vital a constitutional right as free speech. Petitioner's case, as was
obvious from the time of its filing, stood on solid footing.

WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is

permanently restrained and prohibited from enforcing or implementing or demanding compliance with its
aforesaid order banning the use of political taped jingles. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo and Villamor, JJ., concur.
Dizon and Makasiar, JJ., are on leave.

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI
WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN
HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA
ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND
REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG,
IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE)
AND INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO
IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE MARINES AND 1ST
LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE
COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.

CRUZ, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the
home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street,
Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a "zona," which was not unlike the feared
practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality,
arresting the persons fingered by a hooded informer, and executing them outright (although the last part
is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire.
No one was hurt as presumably the purpose was merely to warn the intruders and deter them from
entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough.
The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were arrested,
later to be finger-printed, paraffin-tested and photographed over their objection. The military also
inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of
ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to recover the
articles seized from them, to prevent these from being used as evidence against them, and to challenge
their finger-printing, photographing and paraffin-testing as violative of their right against
self-incrimination.4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to
have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court,
Zamboanga City. 5 After receiving the testimonial and documentary evidence of the parties, he submitted
the report and recommendations on which this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that they were taken
without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact
admitted by the respondents, "but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question,
provided as follows:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought to justify their act on
the ground that they were acting under superior orders. 8 There was also the suggestion that the
measure was necessary because of the aggravation of the peace and order problem generated by
the assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners were
suspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. As
eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10

The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of
its protection all classes of men, at all times and under all circumstances. No doctrine, involving more
pernicious consequences, was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government.

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse
the non-observance of the constitutional guaranty against unreasonable searches and seizures. There
was no state of hostilities in the area to justify, assuming it could, the repressions committed therein
against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to
take them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the
conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated
reports that they were stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the
time of the "zona," they were merely suspected of the mayor's slaying and had not in fact even been
investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily
pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been
any less entitled to the protection of the Constitution, which covers both the innocent and the guilty. This
is not to say, of course, that the Constitution coddles criminals. What it does simply signify is that, lacking
the shield of innocence, the guilty need the armor of the Constitution, to protect them, not
from a deserved sentence, but from arbitrary punishment. Every person is entitled to due
process. It is no exaggeration that the basest criminal, ranged against the rest of the people who would
condemn him outright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegal raid, they
certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on them,
especially during those tense and tindery times, to encourage rather than undermine respect for the law,
which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the
military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply
by-passed the civil courts, which had the authority to determine whether or not there was probable cause
to search the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on
their own unauthorized determination of the petitioner's guilt.
The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They
knew where the petitioners were. They had every opportunity to get a search warrant before making the
raid. If they were worried that the weapons inside the compound would be spirited away, they could
have surrounded the premises in the meantime, as a preventive measure. There was absolutely no
reason at all why they should disregard the orderly processes required by the Constitution and instead
insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military
invasion.

Conceding that the search was truly warrantless, might not the search and seizure be nonetheless
considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement
authorities have to do is force their way into any house and then pick up anything they see there on the
ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy
redundancy.

When the respondents could have easily obtained a search warrant from any of the TEN civil courts then
open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered
premises on the verbal order of their superior officers. One cannot just force his way into any man's
house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is
protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's
house is his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may
not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime
about to be committed, being committed, or just committed, what was that crime? There is no
allegation in the record of such a justification. Parenthetically, it may be observed that under the Revised
Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground
therefor as stressed in the recent case of People v. Burgos.14

If follows that as the search of the petitioners' premises was violative of the Constitution, all the
firearms and ammunition taken from the raided compound are inadmissible in evidence in any of
the proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge
Learned Hand observed, "Only in case the prosecution which itself controls the seizing officials, knows
that it cannot profit by their wrong, will the wrong be repressed. 16 Pending determination of the legality of
such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the
corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight
comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice
Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past,
banished with the secret marshals and their covert license to kill without trial. We must be done with
lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be the
first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v.
De Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that there
be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every individual is
entitled to the full protection of the Constitution and the Bill of Rights can stand as a
stolid sentinel for all, the innocent as well as the guilty, including the basest of
criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared
ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence against the
petitioners in any proceedings. However, the said articles shall remain in custodia legis pending the
outcome of the criminal cases that have been or may later be filed against the petitioners.

SO ORDERED.

MANILA PRINCE HOTEL petitioner,

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

BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not
self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and patrimony covered by the protective mantle of the
Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and
Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to
November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will
instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract,
International Marketing/Reservation System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for the Manila Hotel. . . .

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to
November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained.3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of
the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched
the bid price of P44.00 per share tendered by Renong Berhad.4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong
Berhad . . .5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by
the First Division. The case was then set for oral arguments with former Chief Justice Enrique M.
Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that
the Manila Hotel has been identified with the Filipino nation and has practically become a historical
monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of independence and its power and
capacity to release the full potential of the Filipino people.

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it
has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason,
the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share.8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution
is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as
cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents,
while petitioner speaks of the guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the
nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the
shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from
the beginning and not after it had lost in the bidding.

We now resolve. A constitution is a system of fundamental laws for the governance and administration of
a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the
permanent framework of a system of government, assigns to the different departments their respective
powers and duties, and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws must
conform and in accordance with which all private rights must be determined and all public
authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates
any norm of the constitution that law or contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract.

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule would give the legislature discretion to determine when,
or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed implementing
statute. 15

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied
from the tenor of the first and third paragraphs of the same section which undoubtedly are not
self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing
because Congress is still to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation
to regulate and exercise authority over foreign investments within its national jurisdiction, as in
the third paragraph, then a fortiori, by the same logic, the second paragraph can only be
self-executing as it does not by its language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and concessions covering the national
economy and patrimony. A constitutional provision may be self-executing in one part and
non-self-executing in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely statements
of principles and policies, which are basically not self-executing and only placed in the Constitution as
moral incentives to legislation, not as judicially enforceable rights

On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred. And
when our Constitution declares that a right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains —

The patrimony of the Nation that should be conserved and developed refers not only to out rich
natural resources but also to the cultural heritage of out race. It also refers to our intelligence in
arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and
other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage.

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a
City. 37During World War II the hotel was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine
Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves
and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is better
known as the FILIPINO FIRST Policy . . . This provision was never found in previous Constitutions . . . .

Sec. 10, second par., Art. XII15 of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per se
judicially enforceable.

The term "qualified Filipinos" simply means that preference shall be given to those citizens who can
make a viable contribution to the common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an indiscriminate preference would be
counter productive and inimical to the common good.

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be possessed
of proven management expertise in the hotel industry, or it has significant equity ownership in another
hotel company, or it has an overall management and marketing proficiency to successfully operate the
Manila Hotel. 44

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder.
The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after
it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the
"Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere
tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder.
Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the
dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and
other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding
rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that
all laws and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
The argument of respondents that petitioner is now estopped from questioning the sale to
Renong Berhad since petitioner was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails
to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet
matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and
the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of
action.

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The
nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do such
other acts and deeds as may be necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more
on the concept of national patrimony as including within its scope and meaning institutions such as the
Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos.1

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as
such, deserves constitutional protection as to who shall own it and benefit from its operation. This
institution has played an important role in our nation's history, having been the venue of many a historical
event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of
state, dignitaries, celebrities, and others.5

It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L.
Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye
to the welfare of the future generations. In other words, the leaders of today are the trustees of the
patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the
distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization
of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not
make the nationalization of our lands and natural resources a subject of ordinary legislation but of
constitutional enactment"6 To quote further: "Let not our children be mere tenants and trespassers in
their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign
liens and encumbrances".7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer
not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of
the existing order." In the field of public bidding in the acquisition of things that pertain to the national
patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid
of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the
non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino.
The Constitutional preference should give the qualified Filipino an opportunity to match or equal the
higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at
all.

It is true that in this present age of globalization of attitude towards foreign investments in our country,
stress is on the elimination of barriers to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a trend, and make it easy and
even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from
reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In
the hotel industry, for instance, foreign investors have established themselves creditably, such as in the
Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51%
of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S.
Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or
regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel
has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives
its authority from the State, in selling 51% of its share in MHC should be considered an act of the State
subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take
the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the
only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign
bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to
the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly
possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could
trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that
it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar
constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen,
to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on
non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the constitutional
mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the
State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the
bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the
Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be
given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it
over a foreign national corporation.

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

This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado
v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute
(R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino
citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the
preference granted under the statute was held to apply to cases in which Filipino vendors sought the
same stalls occupied by alien vendors in the public markets even if there were available other stalls as
good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of
interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the
right to preference immediately arises."8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in
America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as employment,
contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which
the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is
to give them preferential treatment where they can at least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the
country of the benefit of foreign capital or know-how. We are dealing here not with common trades of
common means of livelihood which are open to aliens in our midst, 11 but with the sale of government
property, which is like the grant of government largess of benefits and concessions covering the national
economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That
at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the
Government. It is being privatized. Privatization should result in the relinquishment of the business in
favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

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

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

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

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at
bar with legal and constitutional issues — and yet I am driven so to speak on the side of history. The
reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of
history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural
aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national goals and
priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining
to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec.
19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987
Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional Commission, p. 608).

MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body
already approved what is known as the Filipino First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this
nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore
be said that a law imbued with the same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil.
1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of
events, customs, usages and practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to
historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed in
the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the
auction block of a purely business transaction, where profits subverts the cherished historical values of
our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words
of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
one must view the flowing , and one must view the flow of both directions. If you look towards the hill from
which the river flows, you see tradition in the form of forceful currents that push the river or people
towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says — "He is always right who suspects that he makes
mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that
the Filipino be first under his Constitution and in his own land.

I vote GRANT the petition.

PUNO, J., dissenting:

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

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila
Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to
51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
the absence of bids at the first public bidding, the block of shares offered for sale was increased from a
maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was
required to "provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was
approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad,
Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic
Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an
international marketing reservation system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any
local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel industry; or

b. Significant equity ownership (i.e. board representation) in another hotel company; or

c. Overall management and marketing expertise to successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide access to the requisite management
expertise and/or international marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM
during working days within the period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization

b. Confidential Information Memorandum: The Manila Hotel Corporation

c. Letter of Invitation. to the Prequalification and Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila Hotel on the date specified in
Section III to allow the Applicant to seek clarifications and further information regarding the guidelines
and procedures. Only those who purchased the prequalification documents will be allowed in this
conference. Attendance to this conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the
Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of
the group, taking into account the contribution of each member to the venture.

3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the criteria set forth below:
a. Business management expertise, track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may deem appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc.,
Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the
Public Bidding without having to undergo the prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the
Registration Office at the date specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a
material consideration for being included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of
stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of
determining the number of shares within the range to bid for. The range is intended to attract bidders with
different preferences and objectives for the operation and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis
for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV.
The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a
sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the
offered purchase price, in a sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be submitted along with the bid in a separate
envelop marked "SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board
resolution which adequately authorizes such representative to bid for and in behalf of the corporation with
full authority to perform such acts necessary or requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture
should submit a Board resolution authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind
the Qualified Bidder.

2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as
Bid Security in the form of:

i. Manager's check or unconditional demand draft payable to the "Government Service Insurance
System" and issued by a reputable banking institution duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less than the required amount.

c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest
earned on the Bid Security will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied
as the downpayment on the Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the
Qualified Bidder is not declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and
execute with GSIS/MHC the Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila
Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after
negotiating and executing the Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila
Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for any other reason.
G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and
supporting requirements. Representatives from the Commission on Audit and COP will be invited to
witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid
Form should be submitted in a sealed envelope marked "OFFICIAL BID."

4. The Qualified Bidder should submit the following documents in another sealed envelope marked
"SUPPORTING BID DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be
submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on
the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The
actual time of submission will also be indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for
the purpose. These boxes will be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed
envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those
who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form
required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately
returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and
the amount of its bid price will be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the
Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or
more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed period; or

b. There is only one (1) bid that is submitted and acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the
Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which
will be distributed to each of the Qualified Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the
maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the
Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross
room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this
fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to
facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether
or not the management fee structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be in accordance wit the
equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will
be given to the Qualified Bidders that submitted the second and third highest bids on the price per
share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:

a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner
must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after
deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft,
payable to the "Government Service Insurance System," issued by a reputable banking institution
licensed to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein,
or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly
reserves the right to require the submission of any additional information from the Applicant as the PBAC
may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call
for a new public bidding under amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline
for the submission of the prequalification documents, the date of the Public Bidding or other pertinent
activities at least three (3) calendar days prior to the respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be
returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by
participating in the Public Bidding, are deemed to have agreed to accept and abide by these results.

7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public
Bidding by the Qualified Bidders who have participated in the Public Bidding.3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS
declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid
price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of
Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos
(P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of
the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's
request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on the
"National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
 xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing provision and
does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the
Manila Hotel Corporation form part of our patrimony as a nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2
of Article XII of the Constitution;

(4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified
Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling
shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign
corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

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

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987
Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the
national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction
and in accordance with its national goals and priorities.

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

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

The second and third paragraphs of Section 10 are different. They are directed to the State and not to
Congress alone which is but one of the three great branches of our government. Their coverage is also
broader for they cover "the national economy and patrimony" and "foreign investments within [the]
national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read
as granting Congress the exclusive power to implement by law the policy of giving preference to qualified
Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their
language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to
refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is
now. The second and the third paragraphs of Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and
State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in
our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole
State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves
the disposition of part of our national patrimony. The records of the Constitutional Commission show that
the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo,
"patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By
this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving
preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The
unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The
value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first
opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans
living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino
craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and
Caucasian travelers and served as the "official guesthouse" of the American Insular Government for
visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth
period. When the Japanese occupied Manila, it served as military headquarters and lodging for the
highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their
last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film
and sports celebrities were housed in the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political
parties. The Hotel has reaped and continues reaping numerous recognitions and awards from
international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and
ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

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

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

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

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential
right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution
only lays down flexible policies and principles which can bent to meet today's manifest needs and
tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living
constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present
and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against
aliens over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always lay down conditions under which business map be
done, for example, qualifications on capital, qualifications on the setting up of other financial structures,
et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving

preference to qualified Filipinos as against Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to
the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to
legislations but all state actions which include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding
rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and
foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares
of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second
chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second
paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for
it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in
the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in
the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and
concessions to foreigners if the act will promote the weal of the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our
State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop
our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our
economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of
the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general
welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing
needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as
time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree
of the right of preference can be given to Filipinos and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at any
given time is addressed to the entire State. While under our constitutional scheme, the right primarily
belongs to Congress as the lawmaking department of our government, other branches of government,
and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits
of their authority, they can act or promulgate rules and regulations defining the degree of this right of
preference in cases where they have to make grants involving the national economy and judicial duty. On
the other hand, our duty is to strike down acts of the state that violate the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we
must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine
the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless
look at the rules and regulations will show that they are silent on the degree of preferential right to be
accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they
do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the
Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand
that we interpret rules to save them from unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and
bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules
inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the
highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No
reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with
the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS
and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did
not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the
rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no
power to extend the latitude and longtitude of the right of preference as defined by the rules. The
parameters of the right of preference depend on galaxy of facts and factors whose determination belongs
to the province of the policy-making branches and agencies of the State. We are duty-bound to respect
that determination even if we differ with the wisdom of their judgment. The right they grant may be little
but we must uphold the grant for as long as the right of preference is not denied. It is only when a State
action amounts to a denial of the right that the Court can come in and strike down the denial as
unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner
was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not
provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that
the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner
cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules
when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he
essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as
possible for the government to maximize its capacity to deliver essential services to our people. This is a
duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are prequalified to insure their
financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties.
This objective will be undermined if we grant petitioner that privilege to know the winning bid and a
chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the
highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto
has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The
Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires
that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws
and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after
writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and
foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can
be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.

Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may
I just add

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is
concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to
win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering
the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority
concedes that there is no law defining the extent or degree of such preference. Specifically, no statute
empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the
absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes
unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and
where no foreigner can win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly,
gravely prejudicial to long-term Filipino interest. It encourages other countries — in the guise of reverse
comity or worse, unabashed retaliation — to discriminate against us in their own jurisdictions by
authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely,
while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their
nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with
absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit
kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term,
self-destructing.

The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution,
the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal.
In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the
foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But
not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more
on the concept of national patrimony as including within its scope and meaning institutions such as the
Manila Hotel.

It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point states:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos.1

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4

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

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer
not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of
the existing order." In the field of public bidding in the acquisition of things that pertain to the national
patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid
of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the
non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino.
The Constitutional preference should give the qualified Filipino an opportunity to match or equal the
higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at
all.

It is true that in this present age of globalization of attitude towards foreign investments in our country,
stress is on the elimination of barriers to foreign trade and investment in the country. While government
agencies, including the courts should re-condition their thinking to such a trend, and make it easy and
even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from
reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In
the hotel industry, for instance, foreign investors have established themselves creditably, such as in the
Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51%
of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national patrimony, including our historical and
cultural heritage in the hands of Filipinos.

VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S.
Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified
Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or
regulated by, an enabling law or a set of rules.

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

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives
its authority from the State, in selling 51% of its share in MHC should be considered an act of the State
subject to the Constitutional mandate.

On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take
the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the
only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign
bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to
the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly
possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could
trigger the right of preference.

It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that
it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar
constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen,
to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on
non-justiciable controversies.

All told, I am constrained to vote for granting the petition.

MENDOZA, J., concurring in the judgment:

I take the view that in the context of the present controversy the only way to enforce the constitutional
mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the
State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the
bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the
Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be
given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it
over a foreign national corporation.

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

This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado
v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute
(R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino
citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the
preference granted under the statute was held to apply to cases in which Filipino vendors sought the
same stalls occupied by alien vendors in the public markets even if there were available other stalls as
good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of
interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the
right to preference immediately arises."8

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

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

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading
competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having
hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be
modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of
an alien could encourage speculation, since all that a Filipino entity would then do would be not to make
a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid,
make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of
the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15
million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity,
after passing the prequalification process, does not submit a bid, he will not be allowed to match the
highest bid of the foreign firm because this is a privilege allowed only to those who have "validly
submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact.

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

TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at
bar with legal and constitutional issues — and yet I am driven so to speak on the side of history. The
reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of
history is worth a volume of logic."

I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural
aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation".

Section 10, Article XII of the 1987 Constitution provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national goals and
priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining
to "Declaration of Principles and State Policies" which ordain —

The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec.
19).

Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987
Constitution Commission proceedings thus:

xxx xxx xxx

MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional Commission, p. 608).

MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body
already approved what is known as the Filipino First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission).

The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this
nationalist policy is articulated in one of the earliest case, this Court said —

The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore
be said that a law imbued with the same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil.
1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of
events, customs, usages and practices. It is actually a product of growth and acceptance by the
collective mores of a race. It is the spirit and soul of a people.

The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to
historic events (too numerous to mention) which shaped our history for almost 84 years.

As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed in
the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the
auction block of a purely business transaction, where profits subverts the cherished historical values of
our people.

As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words
of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
one must view the flowing , and one must view the flow of both directions. If you look towards the hill from
which the river flows, you see tradition in the form of forceful currents that push the river or people
towards the future, and if you look the other way, you progress."

Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.

I grant, of course the men of the law can see the same subject in different lights.

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

I vote GRANT the petition.

PUNO, J., dissenting:

This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic
corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares
of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second
paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila
Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to
51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
the absence of bids at the first public bidding, the block of shares offered for sale was increased from a
maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was
required to "provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was
approved by respondent Committee on Privatization.

In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad,
Malaysian firm with ITT Sheraton as operator, prequalified. 2

The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER

The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic
Partner and will be awarded the Block of Shares:

First — Pass the prequalification process;

Second — Submit the highest bid on a price per share basis for the Block of Shares;

Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995;

xxx xxx xxx

IV GUIDELINES FOR PREQUALIFICATION

A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an
international marketing reservation system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any
local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the
following qualifications:

a. Proven management .expertise in the hotel industry; or

b. Significant equity ownership (i.e. board representation) in another hotel company; or

c. Overall management and marketing expertise to successfully operate the Manila Hotel.

Parties interested in bidding for MHC should be able to provide access to the requisite management
expertise and/or international marketing/reservation system for The Manila Hotel.

xxx xxx xxx

D. PREQUALIFICATION DOCUMENTS

xxx xxx xxx

E. APPLICATION PROCEDURE

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE

The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM
during working days within the period specified in Section III. Each set of documents consists of the
following:

a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization

b. Confidential Information Memorandum: The Manila Hotel Corporation

c. Letter of Invitation. to the Prequalification and Bidding Conference

xxx xxx xxx

4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila Hotel on the date specified in
Section III to allow the Applicant to seek clarifications and further information regarding the guidelines
and procedures. Only those who purchased the prequalification documents will be allowed in this
conference. Attendance to this conference is strongly advised, although the Applicant will not be
penalized if it does not attend.

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the
Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS

1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information
Package and other information available to the PBAC.

2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of
the group, taking into account the contribution of each member to the venture.

3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final.

4. The Applicant shall be evaluated according to the criteria set forth below:

a. Business management expertise, track record, and experience

b. Financial capability.

c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel

5. The PBAC will shortlist such number of Applicants as it may deem appropriate.

6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc.,
Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the
Public Bidding without having to undergo the prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the
Registration Office at the date specified in Section III.

2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a
material consideration for being included in the shortlist is ground for disqualification of the Applicant.

V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING

All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding.

B. BLOCK OF SHARES

A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of
stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of
determining the number of shares within the range to bid for. The range is intended to attract bidders with
different preferences and objectives for the operation and management of The Manila Hotel.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS

1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis
for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).

2. Bids should be in the Philippine currency payable to the GSIS.

3. Bids submitted with an equivalent price per share below the minimum required will not considered.

D. TRANSFER COSTS

xxx xxx xxx

E. OFFICIAL BID FORM

1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV.
The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a
sufficient basis for disqualification.

2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the
offered purchase price, in a sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS

During the Public Bidding, the following documents should be submitted along with the bid in a separate
envelop marked "SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board
resolution which adequately authorizes such representative to bid for and in behalf of the corporation with
full authority to perform such acts necessary or requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture
should submit a Board resolution authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind
the Qualified Bidder.
2. BID SECURITY

a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as
Bid Security in the form of:

i. Manager's check or unconditional demand draft payable to the "Government Service Insurance
System" and issued by a reputable banking institution duly licensed to do business in the Philippines and
acceptable to GSIS; or

ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS.

b. The GSIS will reject a bid if:

i. The bid does not have Bid Security; or

ii. The Bid Security accompanying the bid is for less than the required amount.

c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest
earned on the Bid Security will be for the account of GSIS.

d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied
as the downpayment on the Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the
Qualified Bidder is not declared the Highest Bidder.

f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and
execute with GSIS/MHC the Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila
Hotel.

g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after
negotiating and executing the Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila
Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or

ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or

iii. Consummate the sale of the Block of Shares for any other reason.

G. SUBMISSION OF BIDS

1. The Public Bidding will be held on September 7, 1995 at the following location:

New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and
supporting requirements. Representatives from the Commission on Audit and COP will be invited to
witness the proceedings.

3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid
Form should be submitted in a sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents in another sealed envelope marked
"SUPPORTING BID DOCUMENTS"

a. Written Authority Bid

b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be
submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on
the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.

6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The
actual time of submission will also be indicated by the Secretariat on the face of the two envelopes.

7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for
the purpose. These boxes will be in full view of the invited public.

H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed
envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those
who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form
required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately
returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and
the amount of its bid price will be read publicly as the envelopes are opened.

3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the
Highest Bidder.

4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or
more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.

5. The Public Bidding will be declared a failed bidding in case:

a. No single bid is submitted within the prescribed period; or

b. There is only one (1) bid that is submitted and acceptable to the PBAC.

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the
Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with
GSIS/MHC.

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which
will be distributed to each of the Qualified Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the
maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the
Management Contract are as follows:

a. Basic management fee: Maximum of 2.5% of gross revenues.(1)

b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead
expenses and the basic management fee.

c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross
room revenues.(1) The Applicant should indicate in its Information Package if it is wishes to charge this
fee.

Note (1): As defined in the uniform system of account for hotels.

The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to
facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding.

A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether
or not the management fee structure above is acceptable before submitting their prequalification
documents to GSIS.

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.

2. The order of priority among the interested Qualified Bidders will be in accordance wit the
equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will
be given to the Qualified Bidders that submitted the second and third highest bids on the price per
share basis, respectively, and so on.

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:

a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner
must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after
deducting the Bid Security applied as downpayment.

2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft,
payable to the "Government Service Insurance System," issued by a reputable banking institution
licensed to do business in the Philippines and acceptable to GSIS.

M. GENERAL CONDITIONS

1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein,
or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly
reserves the right to require the submission of any additional information from the Applicant as the PBAC
may deem necessary.

2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call
for a new public bidding under amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.

3. The GSIS reserves the right to reset the date of the prequalification/bidding conference, the deadline
for the submission of the prequalification documents, the date of the Public Bidding or other pertinent
activities at least three (3) calendar days prior to the respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares.

5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be
returned upon request.

6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by
participating in the Public Bidding, are deemed to have agreed to accept and abide by these results.

7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public
Bidding by the Qualified Bidders who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS
declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.

On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid
price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of
Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos
(P33,000,000.00) as bid security.

Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of
the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's
request.

Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995.

Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on the
"National Economy and Patrimony" which provides:

xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

xxx xxx xxx

The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-executing provision and
does not need implementing legislation to carry it into effect;

(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the
Manila Hotel Corporation form part of our patrimony as a nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2
of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified
Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling
shares of the Manila Hotel Corporation;

(5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign
corporation.

Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

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

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987
Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the
national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.

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

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

The second and third paragraphs of Section 10 are different. They are directed to the State and not to
Congress alone which is but one of the three great branches of our government. Their coverage is also
broader for they cover "the national economy and patrimony" and "foreign investments within [the]
national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read
as granting Congress the exclusive power to implement by law the policy of giving preference to qualified
Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their
language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to
refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is
now. The second and the third paragraphs of Section 10, Article XII are thus self-executing.

This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and
State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos." It engrafts the all-important Filipino First policy in
our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole
State without any pause or a half- pause in time.

The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves
the disposition of part of our national patrimony. The records of the Constitutional Commission show that
the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo,
"patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By
this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving
preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The
unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The
value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first
opened on July 4, 1912 as a first-class hotel built by the American Insular Government for Americans
living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino
craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and
Caucasian travelers and served as the "official guesthouse" of the American Insular Government for
visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth
period. When the Japanese occupied Manila, it served as military headquarters and lodging for the
highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their
last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and
Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film
and sports celebrities were housed in the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political
parties. The Hotel has reaped and continues reaping numerous recognitions and awards from
international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and
ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

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

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

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

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential
right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution
only lays down flexible policies and principles which can bent to meet today's manifest needs and
tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living
constitution.

Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present
and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx

THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against
aliens over aliens?

MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always lay down conditions under which business map be
done, for example, qualifications on capital, qualifications on the setting up of other financial structures,
et cetera.

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes.

MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving

preference to qualified Filipinos as against Filipinos who are not qualified.

MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has
accepted the amendment.

xxx xxx xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to
the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to
legislations but all state actions which include applicable rules and regulations adopted by agencies and
instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding
rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and
foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39

Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares
of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second
chance to match the highest bid of Renong Berhad.

With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second
paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for
it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in
the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in
the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and
concessions to foreigners if the act will promote the weal of the nation.

In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our
State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop
our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our
economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of
the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general
welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing
needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as
time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree
of the right of preference can be given to Filipinos and vice verse.

Again, it should be stressed that the right and the duty to determine the degree of this privilege at any
given time is addressed to the entire State. While under our constitutional scheme, the right primarily
belongs to Congress as the lawmaking department of our government, other branches of government,
and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits
of their authority, they can act or promulgate rules and regulations defining the degree of this right of
preference in cases where they have to make grants involving the national economy and judicial duty. On
the other hand, our duty is to strike down acts of the state that violate the policy.

To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we
must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine
the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless
look at the rules and regulations will show that they are silent on the degree of preferential right to be
accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they
do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the
Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand
that we interpret rules to save them from unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and
bidder, as a qualified Pilipino bidder, should be preferred.

It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules
inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the
highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No
reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with
the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS
and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did
not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the
rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no
power to extend the latitude and longtitude of the right of preference as defined by the rules. The
parameters of the right of preference depend on galaxy of facts and factors whose determination belongs
to the province of the policy-making branches and agencies of the State. We are duty-bound to respect
that determination even if we differ with the wisdom of their judgment. The right they grant may be little
but we must uphold the grant for as long as the right of preference is not denied. It is only when a State
action amounts to a denial of the right that the Court can come in and strike down the denial as
unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner
was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not
provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that
the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner
cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules
when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he
essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as
possible for the government to maximize its capacity to deliver essential services to our people. This is a
duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules
are carefully written to attain this objective. Among others, bidders are prequalified to insure their
financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties.
This objective will be undermined if we grant petitioner that privilege to know the winning bid and a
chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the
highest bid in the first bidding.

We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto
has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The
Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires
that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws
and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after
writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and
foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can
be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition.