Republic of the Philippines That as being OIC Governor of the Province of Rizal and in the performance

SUPREME COURT of my duties thereof, I among others, have signed as I did sign the
Manila unnumbered memorandum ordering the replacement of all the barangay
officials of all the barangay(s) in the Municipality of Taytay, Rizal;
EN BANC
That the above cited memorandum dated December 1, 1986 was signed by
me personally on February 8,1987;
G.R. No. 78059 August 31, 1987

That said memorandum was further deciminated (sic) to all concerned the
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
following day, February 9. 1987.
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 Rizal, FURTHER AFFIANT SAYETH NONE.
HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay,
Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,
Pasig, Metro Manila, March 23, 1987.
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

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.
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,
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's
promulgated on March 25, 1986, which provided:
their Reply to respondents' Comment.

SECTION 2. All elective and appointive officials and employees under the
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
1973 Constitution shall continue in office until otherwise provided by
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C.
proclamation or executive order or upon the designation or appointment and
Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of
qualification of their successors, if such appointment is made within a period
Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
of one year from February 25,1986.
Barangay Election Act of 1982.

By reason of the foregoing provision, respondents contend that the terms of office of elective
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated
and appointive officials were abolished and that petitioners continued in office by virtue of the
December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8,
aforequoted provision and not because their term of six years had not yet expired; and that the
1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores,
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6)
Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of
years must be deemed to have been repealed for being inconsistent with the aforequoted
Local Government."
provision of the Provisional Constitution.

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated

Examining the said provision, there should be no question that petitioners, as elective officials
December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro
under the 1973 Constitution, may continue in office but should vacate their positions upon the
V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the
occurrence of any of the events mentioned. 1
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;
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 Separate Opinions
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
TEEHANKEE, CJ., concurring:
ratification by a majority of the votes cast in a plebiscite held for the purpose
and shall supersede all previous Constitutions.
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore,
effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of
the Provisional Constitution must be deemed to have been superseded. Having become
the President of the Philippines, Corazon C. Aquino.
inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to
designate respondents to the elective positions occupied by petitioners.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
Petitioners must now be held to have acquired security of tenure specially considering that the
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on
autonomy of the barangays to ensure their fullest development as self-reliant
that same date.
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 The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
1987 Constitution further provides in part: ratification shall have been ascertained and not at the time the people cast their votes to
approve or reject it." This view was actually proposed at the Constitutional Commission
deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary
Sec. 8. The term of office of elective local officials, except barangay officials,
view that the Constitution "will be effective on the very day of the plebiscite."
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.
The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done
during the date of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino people in adopting the
Constitution when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are
other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

SO ORDERED.

MR. DAVIDE. May I propose the following amendments.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ.,
concur.
On line 2, delete the words "its ratification" and in lieu thereof insert the
following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner FR. BERNAS. Madam President.
Davide is going to propose an additional sentence, the committee would
suggest that we take up first his amendment to the first sentence as
THE PRESIDENT. Commissioner Bernas is recognized.
originally formulated. We are now ready to comment on that proposed
amendment.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the
amendment which makes the effectivity of the new Constitution dependent
The proposed amendment would be to delete the words "its ratification and
upon the proclamation of the President. The effectivity of the Constitution
in lieu thereof insert the words "THE PROCLAMATION BY THE
should commence on the date of the ratification, not on the date of the
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment
proclamation of the President. What is confusing, I think, is what happened
would be: After the word "constitutions," add the words" AND THEIR
in 1976 when the amendments of 1976 were ratified. In that particular case,
AMENDMENTS,"
the reason the amendments of 1976 were effective upon the proclamation
of the President was that the draft presented to the people said that the
The committee accepts the first proposed amendment. However, we regret amendment will be effective upon the proclamation made by the President. I
that we cannot accept the second proposed amendment after the word have a suspicion that was put in there precisely to give the President some
"constitutions" because the committee feels that when we talk of all previous kind of leeway on whether to announce the ratification or not. Therefore, we
Constitutions, necessarily it includes "AND THEIR AMENDMENTS." should not make this dependent on the action of the President since this will
be a manifestation of the act of the people to be done under the supervision
of the COMELEC and it should be the COMELEC who should make the
MR. DAVIDE. With that explanation, l will not insist on the second. But,
announcement that, in fact, the votes show that the Constitution was ratified
Madam President, may I request that I be allowed to read the second
and there should be no need to wait for any proclamation on the part of the
amendment so the Commission would be able to appreciate the change in
President.
the first.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory

MR. MAAMBONG. Yes, Madam President, we can now do that.
questions?

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION

FR. BERNAS. Willingly, Madam President.
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION
OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE
RESULTS OF SUCH PLEBISCITE." MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as
to exactly when the Constitution is supposed to be ratified.
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form of a FR. BERNAS. I would say that the ratification of the Constitution is on the
new sentence would not be exactly necessary and the committee feels that date the votes were supposed to have been cast.
it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam
approved Article on the Executive, there is a provision which says that the
President. We present the Constitution to a plebiscite, the people exercise
President shall make certain that all laws shall be faithfully complied. When
their right to vote, then the votes are canvassed by the Commission on
we approve this first sentence, and it says that there will be a proclamation
Elections. If we delete the suggested amendment which says: "THE
by the President that the Constitution has been ratified, the President will
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
naturally comply with the law in accordance with the provisions in the Article
what would be, in clear terms, the date when the Constitution is supposed to
on the Executive which we have cited. It would be too much to impose on
be ratified or not ratified, as the case may be?
the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the
results shall have been canvassed by the COMELEC. FR. BERNAS. The date would be the casting of the ballots. if the President
were to say that the plebiscite would be held, for instance, on January 19,
1987, then the date for the effectivity of the new Constitution would be
Therefore, the committee regrets that it cannot accept the second sentence
January 19, 1987.
which the Gentleman is proposing, Madam President.

MR. MAAMBONG. In other words, it would not depend on the actual

MR. DAVIDE. I am prepared to withdraw the same on the assumption that
issuance of the results by the Commission on Elections which will be doing
there will be an immediate proclamation of the results by the President.
the canvass? That is immaterial Madam President

MR. MAAMBONG. With that understanding, Madam President.

FR. BERNAS. It would not, Madam President, because "ratification" is the
act of saying "yes" is done when one casts his ballot.
MR. DAVIDE. I will not insist on the second sentence.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would
like to know from the proponent, Commissioner Davide, if he is insisting on
his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because
I cannot subscribe to the view of Commissioner Bernas, that the date of the
ratification is reckoned from the date of the casting of the ballots. That
cannot be the date of reckoning because it is a plebiscite all over the
country. We do not split the moment of casting by each of the voters.
Actually and technically speaking, it would be all right if it would be upon the
announcement of the results of the canvass conducted by the COMELEC or
the results of the plebiscite held all over the country. But it is necessary that
there be a body which will make the formal announcement of the results of
the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the
President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the date
of the ratification of the Constitution The announcement merely confirms the
ratification even if the results are released two or three days after. I think it is
a fundamental principle in political law, even in civil law, because an
announcement is a mere confirmation The act of ratification is the act of
voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm
the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the
same support for Commissioner Bernas, because the canvass thereafter is
merely the mathematical confirmation of what was done during the date of
the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date of
the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to
fix a date for the effectivity of the Constitution. Suppose the announcement
is delayed by, say, 10 days or a month, what happens to the obligations and
rights that accrue upon the approval of the Constitution? So I think we must
have a definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a
necessity for the Commission on Elections to declare the results of the
canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there
be a necessity for the President to make a proclamation of the results of the
canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what
the Commission on Elections says, it would have no effect. I would only add
that when we say that the date of effectivity is on the day of the casting of
the votes, what we mean is that the Constitution takes effect on every single
minute and every single second of that day, because the Civil Code says a
day has 24 hours.So that even if the votes are cast in the morning, the
Constitution is really effective from the previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino
mothers or anybody born on the date of effectivity of the 1973 Constitution,
which is January 17, 1973, are natural-born citizens, no matter what time of
day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is MR. MAAMBONG. Madam President.
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?
THE PRESIDENT. Commissioner Maambong is recognized

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. We will now ask once more Commissioner Davide if he
is insisting on his amendment
MR. MAAMBONG. I thank the Commissioner.
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
MR. GUINGONA. Madam President. the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the following
bodies the Office of the President or the COMELEC will make the formal
THE PRESIDENT. Commissioner Guingona is recognized.
announcement of the results.

MR. GUINGONA. Mention was made about the need for having a definite
MR. RAMA. Madam President, we are now ready to vote on the original
date. I think it is precisely the proposal of Commissioner Bernas which
provision as stated by the committee.
speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the canvassing
by the COMELEC. MR. MAAMBONG. The committee will read again the formulation indicated
in the original committee report as Section 12.
Thank you,
This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and shall
THE PRESIDENT. Commissioner Concepcion is recognized.
supersede all previous Constitutions.

MR. CONCEPCION. Thank you, Madam President.

We ask for a vote, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it

VOTING
the COMELEC or the President, would announce that a majority of the
votes cast on a given date was in favor of the Constitution. And that is the
date when the Constitution takes effect, apart from the fact that the THE PRESIDENT. As many as are in favor, please raise their hand.
provision on the drafting or amendment of the Constitution provides that a (Several Members raised their hands.)
constitution becomes effective upon ratification by a majority of the votes
cast, although I would not say from the very beginning of the date of election
As many as are against, please raise their hand. (No Member raised his
because as of that time it is impossible to determine whether there is a
hand.)
majority. At the end of the day of election or plebiscite, the determination is
made as of that time-the majority of the votes cast in a plebiscite held on
such and such a date. So that is the time when the new Constitution will be The results show 35 votes in favor and none against; Section 12 is
considered ratified and, therefore, effective. approved. 2

THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of
Commissioner Davide and I support the view of Commissioner Bernas and
the others because the ratification of the Constitution is on the date the
people, by a majority vote, have cast their votes in favor of the Constitution.
Even in civil law, if there is a contract, say, between an agent and a third
person and that contract is confirmed or ratified by the principal, the validity
does not begin on the date of ratification but it retroacts from the date the
contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date
that the people have cast their affirmative votes in favor of the Constitution.
The Court next holds as a consequence of its declaration at bar that the Constitution took effect
on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the
1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2,
1987, absent any saying clause to the contrary in the Transitory Article of the Constitution,
respondent OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement of
petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors
could no longer produce any legal force and effect. While the Provisional Constitution provided
for a one-year period expiring on March 25, 1987 within which the power of replacement could
be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of
the Constitution. Had the intention of the framers of the Constitution been otherwise, they would
have so provided for in the Transitory Article, as indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the
incumbent President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers by the incumbent
President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some
seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by)
the President on February 2, 1987 . . . could be open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior
endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be
stated for the record that the reported date of the appointments, February 2, 1987, is incorrect.
The official records of the Court show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or
before January 31, 1987.3 (Similarly, the records of the Department of Justice likewise show that
the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since
February 2, 1987, no appointments to the Judiciary have been extended by the President,
pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly
declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling
effect than the tones of thunder. She has written another persuasive opinion, and I am delighted
to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and
Bayas cases, where I submitted that the local OICs may no longer be summarily replaced,
having acquired security of tenure under the new Constitution. Our difference is that whereas I
would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was
ratified. I yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:
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.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or
not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the
new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the
same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the purpose and shall
supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For
it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of
the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed
acts that would have been valid under the Provisional Constitution but would otherwise have
been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended
on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as
follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy, Such
appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as
the amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on
January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino
People of the Constitution Proposed by the 1971 Constitutional Convention," was issued,
although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April
17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was
so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite called for the purpose and,
except as herein provided, shall supersede the Constitution of nineteen-
hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming
the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in
this certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-
17, 1976 and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by a majority of the votes cast
in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the
votes cast in the plebiscite held for the purpose, but not later than three
months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when
approved by a majority of the votes cast in an election/plebiscite at which it
is submitted to the people for their ratification pursuant to Section 2 of
Article XVI of the Constitution, as amended.

[t]he above-quoted amendment has been duly ratified by a majority of the That a Constitution or amendments thereto take effect upon proclamation of their ratification and
votes cast in the plebiscite held, together with the election for local officials, not at the time of the plebiscite is a view that is not peculiar to the Marcos era.
on January 30, 1980, and that said amendment is hereby declared to take
effect immediately.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress)
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution
amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim makes no mention of a retroactive application.
its ratification.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the 11, 1987, at Malacanang Palace:
Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa
Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The
... that the Constitution of the Republic of the Philippines adopted by the
Proclamation, in declaring the said amendments duly approved, further declared them
Constitutional Commission of 1986, including the Ordinance appended
"[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in
thereto, has been duly ratified by the Filipino people and is therefore
this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular
effective and in full force and effect. 4
Session, Sitting as a Constituent Assembly, which parented these amendments, the same:

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no
. . .shall become valid as part of the Constitution when approved by a
other time.
majority of the votes cast in a plebiscite to be held pursuant to Section 2,
Article XVI of the Constitution.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated,
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
the remark was said in passing-we did not resolve the case on account of a categorical holding
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three,
its re-examination.
Two, and One, and to Appropriate Funds Therefore," provides, as follows:

I am therefore of the opinion, consistent with the views expressed above, that the challenged
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
proclaim the result of the plebiscite using the certificates submitted to it, duly
force.
authenticated and certified by the Board of Canvassers of each province or
city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of
January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
Separate Opinions originally formulated. We are now ready to comment on that proposed
amendment.
TEEHANKEE, CJ., concurring:
The proposed amendment would be to delete the words "its ratification and
in lieu thereof insert the words "THE PROCLAMATION BY THE
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect
PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment
on February 2, 1987, the date that the plebiscite for its ratification was held or whether it took
would be: After the word "constitutions," add the words" AND THEIR
effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of
AMENDMENTS,"
the President of the Philippines, Corazon C. Aquino.

The committee accepts the first proposed amendment. However, we regret

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the
that we cannot accept the second proposed amendment after the word
provision of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately
"constitutions" because the committee feels that when we talk of all previous
upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on
that same date.
MR. DAVIDE. With that explanation, l will not insist on the second. But,
Madam President, may I request that I be allowed to read the second
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
amendment so the Commission would be able to appreciate the change in
ratification shall have been ascertained and not at the time the people cast their votes to
the first.
approve or reject it." This view was actually proposed at the Constitutional Commission
deliberations, but was withdrawn by its proponent in the face of the "overwhelming" contrary
view that the Constitution "will be effective on the very day of the plebiscite." MR. MAAMBONG. Yes, Madam President, we can now do that.

The record of the proceedings and debates of the Constitutional Commission fully supports the
Court's judgment. It shows that the clear, unequivocal and express intent of the Constitutional
Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of
ratification is the act of voting by the people. So that is the date of the ratification" and that "the
canvass thereafter [of the votes] is merely the mathematical confirmation of what was done
during the date of the plebiscite and the proclamation of the President is merely the official
confirmatory declaration of an act which was actually done by the Filipino people in adopting the
Constitution when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original
formulation of the committee as indicated in Section 12, unless there are
other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION
SHALL BE MADE WITHIN FIVE DAYS FOLLOWING THE COMPLETION
OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE
RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman,
the committee feels that the second proposed amendment in the form of a
new sentence would not be exactly necessary and the committee feels that
it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the
President shall make certain that all laws shall be faithfully complied. When
we approve this first sentence, and it says that there will be a proclamation
by the President that the Constitution has been ratified, the President will
naturally comply with the law in accordance with the provisions in the Article
on the Executive which we have cited. It would be too much to impose on
the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the
results shall have been canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence
which the Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that

On line 2, delete the words "its ratification" and in lieu thereof insert the
there will be an immediate proclamation of the results by the President.
following-. "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED." And on the last line, after "constitutions," add the
following: "AND THEIR AMENDMENTS." MR. MAAMBONG. With that understanding, Madam President.

MR. MAAMBONG. Just a moment, Madam President. If Commissioner MR. DAVIDE. I will not insist on the second sentence.
Davide is going to propose an additional sentence, the committee would
suggest that we take up first his amendment to the first sentence as
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized. FR. BERNAS. Yes, Madam President.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the MR. MAAMBONG. With that statement of Commissioner Bernas, we would
amendment which makes the effectivity of the new Constitution dependent like to know from the proponent, Commissioner Davide, if he is insisting on
upon the proclamation of the President. The effectivity of the Constitution his amendment.
should commence on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think, is what happened
MR. DAVIDE. Madam President, I am insisting on the amendment because
in 1976 when the amendments of 1976 were ratified. In that particular case,
I cannot subscribe to the view of Commissioner Bernas, that the date of the
the reason the amendments of 1976 were effective upon the proclamation
ratification is reckoned from the date of the casting of the ballots. That
of the President was that the draft presented to the people said that the
cannot be the date of reckoning because it is a plebiscite all over the
amendment will be effective upon the proclamation made by the President. I
country. We do not split the moment of casting by each of the voters.
have a suspicion that was put in there precisely to give the President some
Actually and technically speaking, it would be all right if it would be upon the
kind of leeway on whether to announce the ratification or not. Therefore, we
announcement of the results of the canvass conducted by the COMELEC or
should not make this dependent on the action of the President since this will
the results of the plebiscite held all over the country. But it is necessary that
be a manifestation of the act of the people to be done under the supervision
there be a body which will make the formal announcement of the results of
of the COMELEC and it should be the COMELEC who should make the
the plebiscite. So it is either the President or the COMELEC itself upon the
announcement that, in fact, the votes show that the Constitution was ratified
completion of the canvass of the results of the plebiscite, and I opted for the
and there should be no need to wait for any proclamation on the part of the
President.
President.

xxx xxx xxx

MR. MAAMBONG. Would the Gentleman answer a few clarificatory
questions?
MR. NOLLEDO. Madam President.
FR. BERNAS. Willingly, Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as
to exactly when the Constitution is supposed to be ratified. MR. NOLLEDO. Thank you, Madam President. I beg to disagree with
Commissioner Davide. I support the stand of Commissioner Bernas
because it is really the date of the casting of the "yes" votes that is the date
FR. BERNAS. I would say that the ratification of the Constitution is on the
of the ratification of the Constitution The announcement merely confirms the
date the votes were supposed to have been cast.
ratification even if the results are released two or three days after. I think it is
a fundamental principle in political law, even in civil law, because an
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam announcement is a mere confirmation The act of ratification is the act of
President. We present the Constitution to a plebiscite, the people exercise voting by the people. So that is the date of the ratification. If there should be
their right to vote, then the votes are canvassed by the Commission on any need for presidential proclamation, that proclamation will merely confirm
Elections. If we delete the suggested amendment which says: "THE the act of ratification.
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED,"
what would be, in clear terms, the date when the Constitution is supposed to
Thank you, Madam President.
be ratified or not ratified, as the case may be?

THE PRESIDENT. Does Commissioner Regalado want to contribute?

FR. BERNAS. The date would be the casting of the ballots. if the President
were to say that the plebiscite would be held, for instance, on January 19,
1987, then the date for the effectivity of the new Constitution would be MR. REGALADO. Madam President, I was precisely going to state the
January 19, 1987. same support for Commissioner Bernas, because the canvass thereafter is
merely the mathematical confirmation of what was done during the date of
the plebiscite and the proclamation of the President is merely the official
MR. MAAMBONG. In other words, it would not depend on the actual
confirmatory declaration of an act which was actually done by the Filipino
issuance of the results by the Commission on Elections which will be doing
people in adopting the Constitution when they cast their votes on the date of
the canvass? That is immaterial Madam President
the plebiscite.

FR. BERNAS. It would not, Madam President, because "ratification" is the

MR. LERUM. Madam President, may I be recognized.
act of saying "yes" is done when one casts his ballot.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam
President?
MR. LERUM. I am in favor of the Davide amendment because we have to
fix a date for the effectivity of the Constitution. Suppose the announcement
is delayed by, say, 10 days or a month, what happens to the obligations and
rights that accrue upon the approval of the Constitution? So I think we must
have a definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a
necessity for the Commission on Elections to declare the results of the
canvass?
FR. BERNAS. There would be because it is the Commission on Elections
which makes the official announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the
Commision on Elections has declared the results of the canvass, will there
be a necessity for the President to make a proclamation of the results of the
canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the
proclamation whether the Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President
would be immaterial because under the law, the administration of all
election laws is under an independent Commission on Elections. It is the
Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the
proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what
the Commission on Elections says, it would have no effect. I would only add
that when we say that the date of effectivity is on the day of the casting of
the votes, what we mean is that the Constitution takes effect on every single
minute and every single second of that day, because the Civil Code says a
day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really
effective from the previous midnight. So that when we adopted the new rule
on citizenship, the children of Filipino mothers or anybody born on the date
of effectivity of the 1973 Constitution, which is January 17, 1973, are
natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is
the publication of the results of the canvass by the COMELEC retroacts to
the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite
date. I think it is precisely the proposal of Commissioner Bernas which
speaks of the date (of ratification that would have a definite date,
because there would be no definite date if we depend upon the canvassing
by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it
the COMELEC or the President, would announce that a majority of the
votes cast on a given date was in favor of the Constitution. And that is the
date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a
constitution becomes effective upon ratification by a majority of the votes
cast, although I would not say from the very beginning of the date of election
because as of that time it is impossible to determine whether there is a
majority. At the end of the day of election or plebiscite, the determination is
made as of that time-the majority of the votes cast in a plebiscite held on
such and such a date. So that is the time when the new Constitution will be
considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of
Commissioner Davide and I support the view of Commissioner Bernas and
the others because the ratification of the Constitution is on the date the
people, by a majority vote, have cast their votes in favor of the Constitution.
Even in civil law, if there is a contract, say, between an agent and a third
person and that contract is confirmed or ratified by the principal, the validity
does not begin on the date of ratification but it retroacts from the date the
contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date
that the people have cast their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
 MR. MAAMBONG. We will now ask once more Commissioner Davide if he
is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of
the opinion that it will be effective on the very day of the plebiscite, I
am withdrawing my amendment on the assumption that any of the following
bodies the Office of the President or the COMELEC will make the formal
announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original
provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated
in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and shall
supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand.
(Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his
hand.)
The results show 35 votes in favor and none against; Section 12 is
approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect
on the date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional
Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the
1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2,
1987, absent any saying clause to the contrary in the Transitory Article of the Constitution,
respondent OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement of
petitioners by respondent OIC Governor's designation on February 8, 1987 of their successors
could no longer produce any legal force and effect. While the Provisional Constitution provided
for a one-year period expiring on March 25, 1987 within which the power of replacement could
be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of
the Constitution. Had the intention of the framers of the Constitution been otherwise, they would
have so provided for in the Transitory Article, as indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the
incumbent President and Vice-President to noon of June 30, 1992 for purposes of
synchronization of elections, the continued exercise of legislative powers by the incumbent
President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some
seven Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by)
the President on February 2, 1987 . . . could be open to serious questions," in view of the
provisions of Sections 8 (1) and 9, Article VIII of the Constitution which require prior
endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be
stated for the record that the reported date of the appointments, February 2, 1987, is incorrect.
The official records of the Court show that the appointments of the seven Court of Appeals
Justices were transmitted to this Court on February 1, 1987 and they were all appointed on or
before January 31, 1987.3 (Similarly, the records of the Department of Justice likewise show that
the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since
February 2, 1987, no appointments to the Judiciary have been extended by the President,
pending the constitution of the Judicial and Bar Council, indicating that the Chief Executive has
likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly
declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling
effect than the tones of thunder. She has written another persuasive opinion, and I am delighted
to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and
Bayas cases, where I submitted that the local OICs may no longer be summarily replaced,
having acquired security of tenure under the new Constitution. Our difference is that whereas I
would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was
ratified. I yield to that better view and agree with her ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional
Constitution with respect to the tenure of government functionaries, as follows:
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.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or
not that cut-off period began on February 2, 1987, the date of the plebiscite held to approve the
new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the
same was proclaimed ratified pursuant to Proclamation No. 58 of the President of the
Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the purpose and shall
supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall
have been ascertained, and not at the time the people cast their votes to approve or reject it. For
it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of
the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed
acts that would have been valid under the Provisional Constitution but would otherwise have
been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended
on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as
follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex oficio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy, Such
appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as
the amendments thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on
January 17, 1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino
People of the Constitution Proposed by the 1971 Constitutional Convention," was issued,
although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date further to April
17, 1973, the date our decision in Javellana v. Executive Secretary, 3 became final. And this was
so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite called for the purpose and,
except as herein provided, shall supersede the Constitution of nineteen-
hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming
the ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in
this certificate as duly ratified by the Filipino people in the referendum — plebiscite held Oct. 16-
17, 1976 and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall
have proclaimed that they have been ratified by a majority of the votes cast
in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the
Ratification by the Filipino People of the Amendments of Section 7, Article X of the Constitution"
(lengthening the terms of office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the
votes cast in the plebiscite held, together with the election for local officials,
on January 30, 1980, and that said amendment is hereby declared to take
effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed
amendment shall take effect on the date the incumbent President/Prime Minister shall proclaim
its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the
Plebiscite of April 7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa
Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The
Proclamation, in declaring the said amendments duly approved, further declared them
"[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in
this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular
Session, Sitting as a Constituent Assembly, which parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a
majority of the votes cast in a plebiscite to be held pursuant to Section 2,
Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for
Ratification or Rejection, the Amendment to the Constitution of the Philippines, Proposed by the
Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three,
Two, and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and
proclaim the result of the plebiscite using the certificates submitted to it, duly
authenticated and certified by the Board of Canvassers of each province or
city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of
January 27, 1984, of the Amendments to the Constitution Embodied in Batasang Pambansa
Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this
Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9,
Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the
Philippines shall proclaim that they have been ratified by a majority of the
votes cast in the plebiscite held for the purpose, but not later than three
months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election/plebiscite at which it is submitted to the people for their ratification
pursuant to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and
not at the time of the plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite
called pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress)
adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution
makes no mention of a retroactive application. Accordingly, when the incumbent President (Mrs.
Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the
Constitutional Commission of 1986, including the Ordinance appended
thereto, has been duly ratified by the Filipino people and is therefore
effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no
other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new
Charter was ratified on February 2, 1987, does not in any way weaken this dissent. As I stated,
the remark was said in passing-we did not resolve the case on account of a categorical holding
that the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for
its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged
dismissals done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in
force.
[G.R. No. 122156. February 3, 1997.]
MANILA PRINCE HOTEL, Petitioner, v. GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION
and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, Respondents.
SYLLABUS
1. POLITICAL LAW; CONSTITUTION; DEFINED. — 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.
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.
2. ID.; ID.; DEEMED WRITTEN IN EVERY STATUTE AND CONTRACT. — 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. 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.
3. ID.; ID.; CONSIDERED SELF-EXECUTING RATHER THAN NON-SELF-EXECUTING.
— 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. (Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10)
4. ID.; ID.; SELF-EXECUTING PROVISIONS; LEGISLATURE NOT PRECLUDED FROM
ENACTING LAWS ENFORCING PROVISIONS. — Quite apparently, Sec. 10, second
par., of Art. XII is couched in such a way as not to make it appear that it is non-
self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the constitutional provision so long
as the contemplated statute squares with the Constitution. Minor details may be left
to the legislature without the self-executing nature of constitutional provisions. The
omission from a constitution of any express provision for a remedy for enforcing a
right or liability is not necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the constitution does not
necessarily exhaust legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional right and make
it more available. Subsequent legislation however does not necessarily mean that
the subject constitutional provision is not, by itself, fully enforceable.
5. ID.; ID.; ID.; A PROVISION MAY BE SELF-EXECUTING IN ONE PART AND NON-
SELF-EXECUTING IN ANOTHER. — 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. 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.
6. ID.; ID.; NATIONAL PATRIMONY; PROVISION ON PREFERENCE TO QUALIFIED
FILIPINOS, SELF-EXECUTING. — Sec. 10, second par., Art. XII 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.
7. ID.; ID.; ID.; INCLUDES THE NATIONAL, RESOURCES AND CULTURAL,
HERITAGE. — 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.
8. ID.; ID.; ID.; MANILA HOTEL CORPORATION, EMBRACED THEREIN; FILIPINO
FIRST POLICY PROVISION, APPLICABLE IN SALES OF HOTEL STOCKS. — 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.
9. ID.; STATE; SALE BY THE GSIS OF 51% OF ITS SHARE IN MANILA HOTEL CORP.,
A STATE ACTION, SUBJECT TO CONSTITUTIONAL COMMAND. — In constitutional
jurisprudence, the acts of persons distinct from the government are considered
"state action" covered by the Constitution (1) when the activity it engages in is a"
public function", (2) when the government is so-significantly involved with the
private actor as to make the government responsible for his action; and. (3) when
the government has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes under the
second and third categories of "state action." Without doubt therefore the
transaction, although entered into by respondent GSIS, is in fact a transaction of
the State and therefore subject to the constitutional command.
10. ID.; CONSTITUTION; WHEN THE CONSTITUTION ADDRESSES THE STATE, IT
REFERS TO BOTH PEOPLE AND GOVERNMENT. — When the Constitution addresses
the State it refers not only to the people but also to the government as elements of
the State. After all, government is composed of three (3) divisions of power —
legislative, executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed among
others to the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
11. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; SALE
OF STOCKS OF MANILA HOTEL CORPORATION BY THE GSIS; FILIPINOS ALLOWED
TO MATCH THE BID OF FOREIGN ENTITY. — In the instant case, where a foreign
firm submits the highest bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be
allowed to match the bid of the foreign entity. And if the Filipino matches the bid of
a foreign firm the award should go to the Filipino. It must be so if we are to give life
and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while
this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
12. REMEDIAL LAW; ACTIONS; FOREIGN BIDDERS WITHOUT CAUSE OF ACTION
AGAINST GSIS BEFORE ACCEPTANCE OF BID. — 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.
13. ID.; SPECIAL CIVIL ACTION, CERTIORARI; FAILURE OF THE GSIS TO EXECUTE
CORRESPONDING DOCUMENTS WHERE PETITIONER HAD MATCHED THE BID PRICE
BY FOREIGN BIDDER, A GRAVE ABUSE OF DISCRETION. — Since petitioner has
already matched the bid price tendered by Renong Berhad pursuant to the bidding
rules, respondent GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary agreements and documents to
effect the sale in accordance not only with the bidding guidelines and procedures
but with the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of
discretion.
14. ID.; SUPREME COURT; DUTY BOUND TO MAKE SURE THAT CONTRACTS DO NOT
VIOLATE THE CONSTITUTION OR THE LAWS. — While it is no business of the Court
to intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that they
do not violate the Constitution or the laws, or are not adopted or implemented with
grave abuse of discretion amounting to lack or excess of jurisdiction. It will never
shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism.
Indeed, the Court will always defer to the Constitution in the proper governance of a
free society; after all, there is nothing so sacrosanct in any economic policy as to
draw itself beyond judicial review when the Constitution is involved.
PADILLA, J., concurring opinion:chanrob1es virtual 1aw library
1. POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION, CONSTRUED. —
A study 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 the 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.
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. 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.
2. ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL PATRIMONY. — 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.
3. ID.; ID.; PREFERENCE TO QUALIFIED FILIPINOS; APPLIED TO SALES OF SHARE
OF STOCKS OF MANILA HOTEL. — "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. 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., separate opinion:chanrob1es virtual 1aw library
1. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PROVISION GIVING
PREFERENCE TO QUALIFIED FILIPINOS, SELF-EXECUTORY. — 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" 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.
2. ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL HERITAGE OF THE COUNTRY;
MANILA HOTEL, EMBRACED THEREIN. — 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.
3. ADMINISTRATIVE LAW; GOVERNMENT SERVICE INSURANCE SYSTEM; SALE OF
ITS SHARE IN MANILA HOTEL CORPORATION, AN ACT OF THE STATE;
CONSTITUTIONAL REQUIREMENT SHOULD BE COMPLIED WITH. — 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.
4. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO
QUALIFIED FILIPINOS; DOES NOT REFER TO ALLOWING QUALIFIED FILIPINOS TO
MATCH FOREIGN BID. — 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 practical 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 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.
MENDOZA, J., separate opinion:chanrob1es virtual 1aw library
POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO
QUALIFIED FILIPINOS; FILIPINO BIDDERS SHOULD BE ALLOWED TO EQUAL BID OF
FOREIGN FIRM IN SALE OF STOCKS OF MANILA HOTEL CORPORATION. — 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"
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 or 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 or 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," so
that if 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. 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.
TORRES, JR., J., separate opinion:chanrob1es virtual 1aw library
POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; MANILA HOTEL,
EMBRACED WITHIN THE MEANING THEREOF; SALE OF ITS STOCKS SHOULD BE
LIMITED TO QUALIFIED FILIPINOS. — Section 10, Article XII of the 1987
Constitution 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
controlled by Filipinos." (Sec. 19), Interestingly, the matter of giving preference to
"qualified Filipinos" was one of the highlights in the 1987 Constitution Commission
proceedings. The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973
Constitution. I subscribe to the view that history, culture, heritage, and tradition 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. The history of the Manila
Hotel should not be placed in the auction block of a purely business transaction,
where profit subverts the cherished historical values of our people. The Filipino
should be first under his Constitution and in his own land.
PUNO, J., dissenting opinion:chanrob1es virtual 1aw library
1. POLITICAL LAW; CONSTITUTION; AS A RULE PROVISIONS THEREOF ARE SELF-
EXECUTING. — A Constitution provides the guiding policies and principles upon
which is built the substantial foundation and general framework of the law and
government. As a rule, its provisions are deemed self-executing and can be
enforced without further legislative action. Some of its provisions, however, can be
implemented only through appropriate laws enacted by the Legislature, hence not
self-executing. Courts as a rule consider the provisions of the Constitution as self-
executing, rather than as requiring future legislation for their enforcement. 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. Suffused with wisdom of the ages is the
unyielding rule that legislative actions may give breath to constitutional rights but
congressional inaction should not suffocate them.
2. ID.; ID.; PROVISIONS ARE NOT SELF-EXECUTING WHERE IT MERELY
ANNOUNCES A POLICY AND EMPOWERS THE LEGISLATURE TO ENACT LAWS TO
CARRY THE POLICY INTO EFFECT. — 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.
3. ID.; ID.; FIRST PARAGRAPH OF SECTION 10, ARTICLE 12 NOT SELF-EXECUTING.
— The first paragraph directs Congress to reserve certain areas of investments in
the country to Filipino citizens or to corporations sixty per cent 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.
4. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS UNDER
PARAGRAPHS 2 AND 3 OF SECTION 10, ARTICLE 12, SELF-EXECUTING. — 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.
5. ID.; ID.; ID.; MANILA HOTEL CORPORATION, PART OF THE NATIONAL
PATRIMONY. — 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. 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.
6. ID.; STATE; GSIS, EMBRACED WITHIN THE MEANING THEREOF. — 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. The funds are held in
trust for a distinct purpose which cannot be disposed of indifferently. 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. Excess
funds, however, are allowed to be invested in business and other ventures for the
benefit of the employees. 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 and the Commission on Audit. As a state-owned and controlled
corporation, it is skin-bound to adhere to the policies spelled out in the Constitution
especially those designed to promote the general welfare of the people. One of
these policies is the Filipino First policy which the people elevated as a constitutional
command.
7. ID.; CONSTITUTION; PROVISIONS THEREOF DEEMED INCLUDED IN ALL
LEGISLATIONS AND ALL STATE ACTIONS. — 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.
8. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; STATE
NOT PROHIBITED FROM GRANTING RIGHTS TO FOREIGN FIRM IN THE ABSENCE OF
QUALIFIED FILIPINOS. — 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.
9. ID.; ID.; ID.; ID.; CASE AT BAR. — The right of preference of petitioner arises
only if it tied the bid of Renong Berhad. In that instance, all things stand equal, and
petitioner, as a qualified Filipino 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 a 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 the block of shares . . ." No reason
has arisen that will prevent the award to Renong Berhad. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as a qualified
Filipino the privilege to match the higher bid of a foreigner. What the rules did not
grant, petitioner cannot demand. Our sympathies 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. 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.
10. REMEDIAL LAW; ACTIONS; ESTOPPEL; PARTY ESTOPPED FROM ASSAILING THE
WINNING BID OF FOREIGN FIRM FROM BEING AWARE OF THE RULES AND
REGULATIONS OF THE BIDDINGS IT AGREED TO RESPECT. — 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
after 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 the essence of bidding.
PANGANIBAN, J., separate dissenting opinion:chanrob1es virtual 1aw library
POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; PREFERENCE TO
QUALIFIED FILIPINOS; LOSING FILIPINO NOT GIVEN RIGHT TO EQUAL THE
HIGHEST FOREIGN BID. — 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! Aside from being prohibited by the Constitution, such
judicial legislation is short-sighted and, viewed properly, gravely prejudicial to long-
term Filipino interests. 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.
DECISION
BELLOSILLO, J.:
The Filipino 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 invoked 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:chanrob1es virtual 1aw library
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 Berhard 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. To all intents and
purposes, it has become a part of the national patrimony. 6 Petitioner also argues
that since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly covered by
the term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7
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.chanrobles
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.
Fourth, the reliance by petitioner on par. V., subpar. J. 1, of the bidding rules which
provides 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, is misplaced. Respondents postulate that the
privilege of submitting a matching bid has not yet arisen since it only takes place if
for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong Berhad could
still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law. Similarly, the petition for mandamus should fail as petitioner has
no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
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.
Admittedly, some constitutions are merely declarations of policies and principles.
Their provisions command the legislature to enact laws and carry out the purposes
of the framers who merely establish an outline of government providing for the
different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens. 12 A provision which lays down a
general principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to the
legislature for action. 13
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive codes
of laws intended to operate directly upon the people in a manner similar to that of
statutory enactments, and the function of constitutional conventions has evolved
into one more like that of a legislative body. Hence, unless it is expressly provided
that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. 14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that —
. . . 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 argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission —
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of "PREFERENCE" is given to "QUALIFIED
FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-vis
Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question 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 or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
"QUALIFIED" because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et cetera
(Emphasis supplied by respondents).
MR RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes. 16
Quite apparently, Sec. 10, second par., of Art. XII is couched in such a way as not
to make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without the self-executing
nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation
to facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the
right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability is
not necessarily an indication that it was not intended to be self-executing. The rule
is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available.
17 Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.
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 — are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of constitutional provisions on
personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in
nation-building, 23 the promotion of social justice, 24 and the values of education.
25 Tolentino v. Secretary of Finance 26 refers to constitutional provisions on social
justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato
29 cites provisions on the promotion of general welfare, 30 the sanctity of family
life, 31 the vital role of the youth in nation-building 32 and the promotion of total
human liberation and development. 33 A reading of these provisions indeed clearly
shows that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that they are
only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII 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 our rich natural resources but also to the cultural heritage of our 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.
While it was restrictively an American hotel when it first opened in 1912, it
immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has
since then become the venue of various significant events which have shaped
Philippine history. It was called the Cultural Center of the 1930’s. It was the site of
the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government it plays host to dignitaries
and official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart
and Memory of a City. 37 During 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 for 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
The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by Filipinos.
This is very clear from the proceedings of the 1986 Constitutional Commission —
THE PRESIDENT.
Commissioner Davide is recognized.
MR. DAVIDE.
I would like to introduce an amendment to the Nolledo amendment. And the
amendment would consist in substituting the words "QUALIFIED FILIPINOS" with
the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS."cralaw virtua1aw library
x x x
MR. MONSOD.
Madam President, apparently the proponent is agreeable, but we have to raise a
question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE.
The Nolledo amendment would refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
MR. MONSOD.
At least 60 percent, Madam President.
MR. DAVIDE. MR. FOZ.

Is that the intention? If the foreigner is more qualified in some aspects than the Filipino enterprise, will
the Filipino still be preferred?
MR MONSOD.
MR. NOLLEDO.
Yes, because, in fact, we would be limiting it if we say that the preference should
only be 100-percent Filipino. The answer is "yes."cralaw virtua1aw library

MR. DAVIDE. MR. FOZ.

I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to Thank you. 41
individuals and not to juridical personalities or entities.
Expounding further on the Filipino First Policy provision Commissioner Nolledo
MR. MONSOD. continues —

We agree, Madam President. 39 MR NOLLEDO.

x x x Yes, Madam President. Instead of "MUST," it will be "SHALL — THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." This embodies the so-called "Filipino
First" policy. That means that Filipinos should be given preference in the grant of
MR. RODRIGO. concessions, privileges and rights covering the national patrimony. 42

Before we vote, may I request that the amendment be read again.
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 or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus —
MR. FOZ.
The exchange of views in the sessions of the Constitutional Commission regarding
the subject provision was still further clarified by Commissioner Nolledo 43 —
"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. . . .
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 counterproductive
and inimical to the common good.

Madam President, I would like to request Commissioner Nolledo to please restate
his amendment so that I can ask a question.
MR. NOLLEDO.
"IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."cralaw virtua1aw library
MR. FOZ.
In connection with that amendment, if a foreign enterprise is qualified and a Filipino
enterprise is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO.
Obviously.
In the granting of economic rights, privileges, and concessions, when a choice has
to be made between a "qualified foreigner" and a "qualified Filipino," the latter shall
be chosen over the former."cralaw virtua1aw library
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
The penchant to try to whittle away the mandate of the Constitution by arguing that
the subject provision is not self-executory and requires implementing legislation is
quite disturbing. The attempt to violate a clear constitutional provision — by the
government itself — is only too distressing. To adopt such a line of reasoning is to
renounce the duty to ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact
further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt —
The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts — provided that there are discoverable
legal standards for executive action. When the executive acts, it must be guided by
its own understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by
a constitutional command. That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
personality. This argument again is at best specious. It is undisputed that the sale
of 51% of the MHC could only be carried out with the prior approval of the State
acting through respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the
acts of persons distinct from the government are considered "state action" covered
by the Constitution (1) when the activity it engages in is a "public function;" (2)
when the government is so-significantly involved with the private actor as to make
the government responsible for his action; and, (3) when the government has
approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore
subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also
to the government as elements of the State. After all, government is composed of
three (3) divisions of power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the three
(3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the
State.
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.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to 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. 47
Certainly, the constitutional mandate itself is reason enough not to award the block
of shares immediately to the foreign bidder notwithstanding its submission of a
higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason
than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to the Filipino First
Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the
basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood to
be always open to public scrutiny. These are given factors which investors must
consider when venturing into business in a foreign jurisdiction. Any person therefore
desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum
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.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced; so must it be enforced. This Court as the ultimate guardian
of the Constitution will never shun, under any reasonable circumstance, the duty of
upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages
and welcomes more business opportunities but avowedly sanctions the preference
for Filipinos whenever such preference is ordained by the Constitution. The position
of the Court on this matter could have not been more appropriately articulated by
Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic progress and development
. . . in connection with a temporary injunction issued by the Court’s First Division
against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that that injunction "again
demonstrates that the Philippine legal system can be a major obstacle to doing
business here."cralaw virtua1aw library
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk
that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national pride and dignity. For
the Constitution enshrines higher and nobler non-material values. Indeed, the Court
will always defer to the Constitution in the proper governance of a free society; after
all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
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 laudable, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to
be sold to the highest bidder solely for the sake of privatization. We are not talking
about an ordinary piece of property in a commercial district. We are talking about a
historic relic that has hosted many of the most important events in the short history
of the Philippines as a nation. We are talking about a hotel where heads of states
would prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an authentic
repository of twentieth century Philippine history and culture. In this sense, it has
become truly a reflection of the Filipino soul — a place with a history of grandeur; a
most historical setting that has played a part in the shaping of a country.
51chanroblesvirtuallawlibrary:red
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia
— to a total stranger. For, indeed, the conveyance of this epic exponent of the
Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nation’s soul for some pieces of
foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos if Manila Hotel — and all that it
stands for — is sold to a non-Filipino? How much of national pride will vanish if the
nation’s cultural heritage is entrusted to a foreign entity? On the other hand, how
much dignity will be preserved and realized if the national patrimony is safekept in
the hands of a qualified, zealous and well-meaning Filipino? This is the plain and
simple meaning of the Filipino First Policy provision of the Philippine Constitution.
And this Court, heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and protect the
sanctity of the Constitution.
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 agreements and documents to
effect the sale, to issue the necessary clearances and to do such other acts and
deeds as may be necessary for the purpose.
SO ORDERED
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ.,
concur.
Separate Opinions
PADILLA, J., concurring:chanrob1es virtual 1aw library
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:jgc:chanrobles.com.ph
"x x x
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 1) consisting of land, sea, and air. 2 A study 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 the 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:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
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 practical 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 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 times is seen to,
instead, be the refuge for bureaucratic inadequacies which create the perception
that it even takes on non-justiciable controversies.chanroblesvirtual|awlibrary
All told, I am constrained to vote for granting the Petition.
MENDOZA, J., concurring:chanrob1es virtual 1aw library
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
or 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 or
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 if 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. Cuaderno 4 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 or 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 or benefits. In the words of Art. XII, sec. 10,
we are dealing here with "rights, privileges 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 pre-qualification 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 the 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 minimum bid required (P36.67 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 pre-
qualification 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., concurring:chanrob1es virtual 1aw library
Constancy in law is not an attribute of a judicious mind. I say this as we are
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."cralaw virtua1aw library
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."cralaw virtua1aw library
Section 10, Article XII of the 1987 Constitution provides :chanrob1es virtual 1aw
library
x x x
"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."cralaw virtua1aw library
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 controlled 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:jgc:chanrobles.com.ph
"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, 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:jgc:chanrobles.com.ph
"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 shall 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 not reneged on this nationalist policy is articulated in one of the
earliest cases, 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. v. Hernandez, Et Al., 101 Phil. 1155)."cralaw
virtua1aw library
I subscribe to the view that history, culture, heritage, and tradition 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 largesse which have given rise to the 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 profit 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 philosopher Salvador de Madarriaga, (tradition) is
"more of a river than a stone, it keeps flowing, and one must view the flow in 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; if
you look the other way, you progress."cralaw virtua1aw library
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, that 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 is first under his
Constitution and in his own land.
I vote to GRANT the petition.
PUNO, J., dissenting:chanrob1es virtual 1aw library
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 requisite management expertise and/or international marketing/reservation system
offered for sale was increased from a maximum of 30% to 51%. Also, the winning for The Manila Hotel.
bidder, or the eventual "strategic partner" of the GSIS was required to "provide
management expertise and/or an international marketing/reservation system, and x x x
financial support to strengthen the profitability and performance of the Manila
Hotel." 1 The proposal was approved by respondent Committee on Privatization.
D. PREQUALIFICATION DOCUMENTS
In July 1995, a conference was held where pre-qualification documents and the
bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a
x x x
domestic corporation, and Renong Berhad, a Malaysian firm with ITT Sheraton as
operator, pre-qualified. 2
E. APPLICATION PROCEDURE
The bidding rules and procedures entitled "Guidelines and Procedures: Second Pre-
qualification and Public Bidding of the MHC Privatization"
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
provide:jgc:chanrobles.com.ph
The prequalification documents can be secured at the Registration Office between
"I. INTRODUCTION AND HIGHLIGHTS
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:chanrob1es virtual 1aw library
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC
The party that accomplishes the steps set forth below will be declared the Winning
Privatization
Bidder/Strategic Partner and will be awarded the Block of Shares:chanrob1es virtual
1aw library
b. Confidential Information Memorandum: The Manila Hotel Corporation
First — Pass the prequalification process;
c. Letter of Invitation to the Prequalification and Bidding Conference
Second — Submit the highest bid on a price per share basis for the Block of Shares;
x x x
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995.
4. PREQUALIFICATION AND BIDDING CONFERENCE
x x x
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
IV. GUIDELINES FOR PREQUALIFICATION
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
A. PARTIES WHO MAY APPLY FOR PREQUALIFICATION
not attend.
The Winning Bidder/Strategic Partner will be expected to provide management
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
expertise and/or an international marketing reservation, and financial support to
strengthen the profitability and performance of The Manila Hotel. In this context,
The Applicant should submit 5 sets of the prequalification documents (1 original set
the GSIS is inviting to the prequalification process any local and/or foreign
plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during
corporation, consortium/joint venture or juridical entity with at least one of the
working days within the period specified in Section III.
following qualifications:chanrob1es virtual 1aw library
F. PREQUALIFICATION PROCESS
a. Proven management expertise in the hotel industry; or
1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based
b. Significant equity ownership (i.e. board representation) in another hotel
on the Information Package and other information available to the PBAC.
company; or
2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the
c. Overall management and marketing expertise to successfully operate the Manila
overall qualifications of the group, taking into account the contribution of each
Hotel.
member to the venture
Parties interested in bidding for MHC should be able to provide access to the
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:chanrob1es virtual 1aw library
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 a member whose
qualification was a material consideration for being included in the shortlist is a
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
x x x
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."cralaw virtua1aw library
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be submitted along with
the bid in a separate envelop marked "SUPPORTING DOCUMENTS" :chanrob1es
virtual 1aw library
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:chanrob1es virtual 1aw library
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 :chanrob1es virtual 1aw library
i. The bid does not have a 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 or other types of contract
specified by the Highest Bidder in its strategic plan for The Manila Hotel, fails or
refuses to:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
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."cralaw virtua1aw library
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:chanrob1es virtual
1aw library
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:chanrob1es virtual 1aw library
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 :chanrob1es
virtual 1aw library
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
with the equivalent price per share of their respective bids in the 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:chanrob1es virtual 1aw library
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 from 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:jgc:chanrobles.com.ph
"x x x
In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.
x x x"
The vital issues can be summed up as follows:chanrob1es virtual 1aw library
(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
inaction 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 recognized 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 and 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:chanroblesvirtuallawlibrary
"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."cralaw
virtua1aw library
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, 28 where 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
travelling 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 486, "he 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."cralaw
virtua1aw library
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. 35 Excess
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 a state-owned and controlled
corporation, it is skin-bound to adhere to the policies spelled out in the Constitution
especially those designed to promote 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 the 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 be 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 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:jgc:chanrobles.com.ph
"x x x
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 may be done, for example, qualifications on capital, qualifications or
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.
x x x"
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-Filipino 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
versa.
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 respondents
Committee on 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 a 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 Renong Berhad. In that
instance, all things stand equal, and petitioner, as a qualified Filipino 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 a 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 the block of shares . .
." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
a 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 the privilege to match the higher bid of a
foreigner. What the rules did not grant, petitioner cannot demand. Our sympathies
may be with petitioner but the court has no power to extend the latitude and
longitude of the right of preference as defined by the rules. The parameters of the
right of preference depend on a 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 qualified Filipino bidder can match
the winning bid after 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 the 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 the 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 and our decision should be in sync with this 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 foreigners.
I vote to dismiss the petition.
PANGANIBAN, J., dissenting:chanrob1es virtual 1aw library
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice
Reynato S. Puno, may I just add:chanrob1es virtual 1aw library
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 legislation is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino interests. 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 absolutely no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit kingdoms have
long ago found out that unfairness, greed and isolation are self-defeating and in the
long-term, self-destructing.chanroblesvirtuallawlibrary:red
The moral lesson here is simple: Do not do unto others what you do not want others
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.
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-
ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-
HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR
PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR.,
JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO
YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO,
GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN
CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO
AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR.,
JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY
EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE
ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA,
EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO,
MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU
RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT
SENATE, respondents. CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

x---------------------------------------------------------x x---------------------------------------------------------x

G.R. No. 160342 November 10, 2003 G.R. No. 160370 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED FR. RANHILIO CALLANGAN AQUINO, petitioner,
BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS vs.
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
PROFESSION, petitioners, HOUSE OF REPRESENTATIVES, respondents.
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
x---------------------------------------------------------x
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.
G.R. No. 160376 November 10, 2003
x---------------------------------------------------------x
NILO A. MALANYAON, petitioner,
vs.
G.R. No. 160343 November 10, 2003
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION
OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
INTEGRATED BAR OF THE PHILIPPINES, petitioner, JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS
vs. OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER VENECIA, respondents.
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE
x---------------------------------------------------------x
SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.
G.R. No. 160392 November 10, 2003
x---------------------------------------------------------x
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,
vs.
G.R. No. 160360 November 10, 2003
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
CLARO B. FLORES, petitioner, DRILON, respondents.
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
x---------------------------------------------------------x
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

G.R. No. 160397 November 10, 2003

x---------------------------------------------------------x

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO

G.R. No. 160365 November 10, 2003
G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
x---------------------------------------------------------x
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES G.R. No. 160403 November 10, 2003
AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE
PHILIPPINES, petitioners,
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF vs.
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY
OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional powers
where the Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint against
Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
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.
Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be
recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more
than once within a period of one year.
 (6) The Senate shall have the sole power to try and decide all cases of impeachment.
such verified complaint or resolution of
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
impeachment with the Secretary General.
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of
two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from RULE V Section 17. Bar Against Initiation Of
office and disqualification to hold any office under the Republic of the Philippines, but Impeachment Proceedings. – Within a
the party convicted shall nevertheless be liable and subject to prosecution, trial, and period of one (1) year from the date
BAR AGAINST IMPEACHMENT
punishment according to law. impeachment proceedings are deemed
initiated as provided in Section 16 hereof, no
Section 14. Scope of Bar. – No impeachment impeachment proceedings, as such, can be
(8) The Congress shall promulgate its rules on impeachment to effectively carry out proceedings shall be initiated against the same initiated against the same official. (Italics in
the purpose of this section. (Emphasis and underscoring supplied) official more than once within the period of one the original; emphasis and underscoring
(1) year. supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
these two Congresses' House Impeachment Rules are shown in the following tabulation: 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)." 3

11TH CONGRESS RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating Impeachment. –
Impeachment shall be initiated only by a verified
complaint for impeachment filed by any Member
of the House of Representatives or by any
citizen upon a resolution of endorsement by any
Member thereof or by a verified complaint or
resolution of impeachment filed by at least one-
third (1/3) of all the Members of the House.
12TH CONGRESS NEW RULES On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
RULE V other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice
on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS AGAINST
THE SAME OFFICIAL Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
Section 16. – Impeachment Proceedings
days, and referred to the proper Committee within three session days thereafter. The
Deemed Initiated. – In cases where a
Committee, after hearing, and by a majority vote of all its Members, shall submit its
Member of the House files a verified
report to the House within sixty session days from such referral, together with the
complaint of impeachment or a citizen files a
corresponding resolution. The resolution shall be calendared for consideration by the
verified complaint that is endorsed by a
House within ten session days from receipt thereof.
Member of the House through a resolution of
endorsement against an impeachable officer,
impeachment proceedings against such The House Committee on Justice ruled on October 13, 2003 that the first impeachment
official are deemed initiated on the day the complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
Committee on Justice finds that the verified insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
complaint and/or resolution against such the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
official, as the case may be, is sufficient in
substance, or on the date the House votes to
overturn or affirm the finding of the said Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
Committee that the verified complaint and/orOctober 23, 2003, a day11after the House Committee on Justice voted to dismiss it, the second
resolution, as the case may be, is not impeachment complaint was filed with the Secretary General of the House12 by
sufficient in substance. Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
In cases where a verified complaint or a second impeachment complaint was accompanied by a "Resolution of
resolution of impeachment is filed or Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House
endorsed, as the case may be, by at least of Representatives.13
one-third (1/3) of the Members of the
House, impeachment proceedings are
deemed initiated at the time of the filing of Thus arose the instant petitions 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 obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
proceedings shall be initiated against the same official more than once within a period of one allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
year." that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
and agents to desist from conducting any proceedings or to act on the impeachment complaint.
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
12th Congress,"14 posits that his right to bring an impeachment complaint against then taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of of the second impeachment complaint involves paramount public interest and pray that Sections
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing Impeachment be declared null and void.
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records of
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
the House of Representatives, and to promulgate rules which are consistent with the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
proceeding with the second impeachment complaint.
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
of the House Impeachment Rules be declared unconstitutional and that the House of
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
Representatives be permanently enjoined from proceeding with the second impeachment
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
complaint.
trial.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
Prohibition that the House Impeachment Rules be declared unconstitutional.
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
writ of prohibition enjoining Congress from conducting further proceedings on said second for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
impeachment complaint. citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
declare as unconstitutional the second impeachment complaint and the acts of respondent
he has locus standi to bring petitions of this nature in the cases of Chavez v.
House of Representatives in interfering with the fiscal matters of the Judiciary.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition
for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of
unhampered operation of the Supreme Court and its officials in discharging their duties in
Representatives from drafting, adopting, approving and transmitting to the Senate the second
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
Articles of Impeachment to the Senate.
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
impeachment complaint, were "absolutely without any legal power to do so, as they acted
petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
therefrom be declared null and void.
the Chief Justice to disburse the (JDF)."

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was
put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C.
De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the Articles of Impeachment,
which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II
Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can
invoke it; on what issues and at what time; and whether it should be exercised by this
Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section
3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This 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:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of
the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and
perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject
to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of
this moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period of more
than one and a half centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided
for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act
of the legislature, but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive and legislative
departments of the government.24 (Italics in the original; emphasis and underscoring
supplied)
As pointed out by Justice Laurel, this "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 courts25 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."26
Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of
the United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms
and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that courts,
as well as other departments, are bound by that instrument.28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 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. x x x 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.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them." 33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience
during martial law. As a matter of fact, it has some antecedents in the past, but the
role of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the operation and effect of
martial law failed because the government set up the defense of political question.
And the Supreme Court said: "Well, since it is political, we have no authority to pass
upon it." The Committee on the Judiciary feels that this was not a proper solution
of the questions involved. It did not merely request an encroachment upon the
rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words, the
 judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. Thus
these are the cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular provision
and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect
that purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame
Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary task
in constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.41 (Emphasis and underscoring
supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated
a provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2,
they permitted, if not willed, that said provision should function to the full extent
of its substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered
alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of
the instrument. Sections bearing on a particular subject should be considered
and interpreted together as to effectuate the whole purpose of the Constitution
and one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which may
make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of
the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as
said proceedings are powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional convention "are of value as showing
the views of the individual members, and as indicating the reasons for their votes, but
they give us no light as to the views of the large majority who did not talk, much less of
the mass of our fellow citizens whose votes at the polls gave that instrument the force
of fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review. 47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of review
in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check and
restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case
of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
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,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 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.
Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."56
But did not the people also express 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 in the language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support
of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of 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. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled
that confirmation by the National Assembly of the election of any member, irrespective of
whether his election is contested, is not essential before such member-elect may discharge the
duties and enjoy the privileges of a member of the National Assembly.
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."67 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.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) Standing is a special concern in constitutional law because in some cases suits are
the issue of constitutionality must be the very lis mota of the case. brought not by parties who have been personally injured by the operation of a law or
by official action taken, but by concerned citizens, taxpayers or voters who actually
sue in the public interest. Hence the question in standing is whether such parties have
x x x Even then, this power of judicial review is limited to actual cases and
"alleged such a personal stake in the outcome of the controversy as to assure that
controversies to be exercised after full opportunity of argument by the parties, and
concrete adverseness which sharpens the presentation of issues upon which the court
limited further to the constitutional question raised or the very lis mota presented. Any
so largely depends for illumination of difficult constitutional questions."
attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions of wisdom, justice or expediency of xxx
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
On the other hand, the question as to "real party in interest" is whether he is "the party
Constitution but also because the judiciary in the determination of actual cases and
who would be benefited or injured by the judgment, or the 'party entitled to the avails
controversies must reflect the wisdom and justice of the people as expressed through
of the suit.'"76 (Citations omitted)
their representatives in the executive and legislative departments of the
government.68 (Italics in the original)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
Standing
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
Locus standi or legal standing or has been defined as a personal and substantial interest in the and members of the bar and of the legal profession – which were supposedly violated by the
case such that the party has sustained or will sustain direct injury as a result of the governmental alleged unconstitutional acts of the House of Representatives.
act that is being challenged. The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
sharpens the presentation of issues upon which the court depends for illumination of difficult
requirements have been met have been given standing by this Court.
constitutional questions.69

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
must be direct and personal. He must be able to show, not only that the law or any government
have standing since only the Chief Justice has sustained and will sustain direct personal
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
contends.
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of
involving paramount public interest70 and transcendental importance,71 and that procedural personal interest.
matters are subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the
illegally disbursed, or that public money is being deflected to any improper purpose, or that there
U.P. College of Law is of the same opinion, citing transcendental importance and the well-
is a wastage of public funds through the enforcement of an invalid or unconstitutional
entrenched rule exception that, when the real party in interest is unable to vindicate his rights by
law.79 Before he can invoke the power of judicial review, however, he must specifically prove that
seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot
he has sufficient interest in preventing the illegal expenditure of money raised by taxation and
himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.
that he would sustain a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common to all members of the
There is, however, a difference between the rule on real-party-in-interest and the rule on public.80
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
distinguish it from real party-in-interest.
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial
of the Chief Justice will necessarily involve the expenditure of public funds.
The difference between the rule on standing and real party in interest has been noted
by authorities thus: "It is important to note . . . that standing because of its
As for a legislator, he is allowed to sue to question the validity of any official action which he
constitutional and public policy underpinnings, is very different from questions relating
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
to whether a particular plaintiff is the real party in interest or has capacity to sue.
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
Although all three requirements are directed towards ensuring that only certain parties
vested by the Constitution in his office.83
can maintain an action, standing restrictions require a partial consideration of the
merits, as well as broader policy concerns relating to the proper role of the judiciary in
certain areas.
While an association has legal personality to represent its members,84 especially when it is Representatives is successful," this Court found the requisites for intervention had been
composed of substantial taxpayers and the outcome will affect their vital interests, 85 the mere complied with.
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
which deserve the attention of this Court in view of their seriousness, novelty and weight as
raise the additional issue of whether or not the second impeachment complaint against the Chief
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
Justice is valid and based on any of the grounds prescribed by the Constitution.
issues presented by it.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and taxpayers, however, their petition will
stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised.90 Applying these determinants, this Court
is satisfied that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public. 91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to
allege any interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria,
et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to
Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging
that "they will suffer if this insidious scheme of the minority members of the House of
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is
"being extracted and spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected to
any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to
clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture." 96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged in
an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.
The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief
Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with definitiveness
on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as
said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the
Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
98
In the leading case of Tanada v. Cuenco, Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of
the Government." It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies. 101 Even in
the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether
the 1973 Constitution was ratified, hence, in force, this Court shunted the political question
doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that
the judiciary is the weakest among the three major branches of the service. Since the legislature
holds the purse and the executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience which, after all,
reflects the will of God, and is the most powerful of all other powers without exception. x x x And
so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience
during martial law. As a matter of fact, it has some antecedents in the past, but
the role of the judiciary during the deposed regime was marred considerably by
the circumstance that in a number of cases against the government, which then
had no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the authority of courts
to order the release of political detainees, and other matters related to the
operation and effect of martial law failed because the government set up the
defense of political question. And the Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The Committee on the Judiciary feels that
this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. I am sure
the members of the Bar are familiar with this situation. But for the benefit of the
Members of the Commission who are not lawyers, allow me to explain. I will start with
a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of
Justice, if I am not mistaken. Martial law was announced on September 22, although
the proclamation was dated September 21. The obvious reason for the delay in its
publication was that the administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was announced on September
22, the media hardly published anything about it. In fact, the media could not publish
any story not only because our main writers were already incarcerated, but also
because those who succeeded them in their jobs were under mortal threat of being
the object of wrath of the ruling party. The 1971 Constitutional Convention had begun
on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had
barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention,
dozens of them, were picked up. One of them was our very own colleague,
Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by
representatives of Malacañang. In 17 days, they finished what the delegates to the
1971 Constitutional Convention had been unable to accomplish for about 14 months.
The draft of the 1973 Constitution was presented to the President around December
1, 1972, whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree which prohibited
discussions, much less public discussions of certain matters of public concern. The
purpose was presumably to allow a free discussion on the draft of the Constitution on
which a plebiscite was to be held sometime in January 1973. If I may use a word
famous by our colleague, Commissioner Ople, during the interregnum, however, the
draft of the Constitution was analyzed and criticized with such a telling effect that
Malacañang felt the danger of its approval. So, the President suspended indefinitely
the holding of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to be
submitted in the referendum were not announced until the eve of its scheduled
beginning, under the supposed supervision not of the Commission on Elections, but of
what was then designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with proposed
answers thereto, suggesting that it was unnecessary to hold a plebiscite because the
answers given in the referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the
holding of the referendum be suspended. When the motion was being heard before
the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the
President declaring that the new Constitution was already in force because the
overwhelming majority of the votes cast in the referendum favored the Constitution.
Immediately after the departure of the Minister of Justice, I proceeded to the session
room where the case was being heard. I then informed the Court and the parties the
presidential proclamation declaring that the 1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and
void. The main defense put up by the government was that the issue was a political
question and that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the
vast majority ratified the draft of the Constitution. Note that all members of the
Supreme Court were residents of Manila, but none of them had been notified of any
referendum in their respective places of residence, much less did they participate in
the alleged referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the
members of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference
between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of "political question"
was set up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was
clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced
the following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable.
There are rights which are guaranteed by law but cannot be enforced by a judiciary
party. In a decided case, a husband complained that his wife was unwilling to perform
her duties as a wife. The Court said: "We can tell your wife what her duties as such
are and that she is bound to comply with them, but we cannot force her physically to
discharge her main marital duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual compulsion would be
highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another
important function. The powers of government are generally considered divided
into three branches: the Legislative, the Executive and the Judiciary. Each one
is supreme within its own sphere and independent of the others. Because of
that supremacy power to determine whether a given law is valid or not is vested
in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original;
emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power
is not vested in the Supreme Court alone but also in other lower courts as may
be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the duty to
decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political
question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion,
amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do
away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens
the scope of judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "(t)he political question
doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to
this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the
principle in appropriate cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from resolving it
under the expanded jurisdiction conferred upon us that now covers, in proper cases,
even the political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for questioning adherence to a political
 decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by
the 12th Congress are unconstitutional for violating the provisions of Section 3, Article
XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article
XI of the Constitution.
The first issue goes into the merits of the second impeachment complaint over which
this Court has no jurisdiction. More importantly, any discussion of this issue would
require this Court to make a determination of what constitutes an impeachable
offense. Such a determination is a purely political question which the Constitution has
left to the sound discretion of the legislation. Such an intent is clear from the
deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a
governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some
other ground upon which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for consideration until a case
arises in which a decision upon such question will be unavoidable.116 [Emphasis
and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by the
proper party, and the resolution of the question is unavoidably necessary to the
decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and
is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of
the remaining substantial issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for
a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c)
a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on
the independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry
is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in
aid of legislation in accordance with its duly published rules of procedure" and that
"the rights of persons appearing in or affected by such inquiries shall be respected." It
follows then that the right rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not be compelled to testify against
one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro,
Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4),
Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the Articles
of Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution
of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution of impeachment" was not
filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the
abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of
the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office, the
public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit
to pass upon the merits of their varied contentions. For this reason, they expect [him] to be
fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose disqualification was not
sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn
of the participation of its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by
no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet
the Constitution provides no scheme or mode for settling such unusual situations or
for the substitution of Senators designated to the Tribunal whose disqualification may
be sought. Litigants in such situations must simply place their trust and hopes of
vindication in the fairness and sense of justice of the Members of the Tribunal.
Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate
Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case
before said Tribunal. Every Member of the Tribunal may, as his conscience dictates,
refrain from participating in the resolution of a case where he sincerely feels that his
personal interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the Constitution, the Senate
Electoral Tribunal cannot legally function as such, absent its entire membership of
Senators and that no amendment of its Rules can confer on the three Justices-
Members alone the power of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of
them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as
established by the fundamental law. Disqualification of a judge is a deprivation of his
judicial power. And if that judge is the one designated by the Constitution to exercise
the jurisdiction of his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the deprivation of the judicial
power of the court itself. It affects the very heart of judicial independence. The
proposed mass disqualification, if sanctioned and ordered, would leave the Court no
alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only
in the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented
by the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be
decided on either of two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide only the latter.
Appeals from the highest court of a state challenging its decision of a question under
the Federal Constitution are frequently dismissed because the judgment can be
sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who
fails to show that he is injured by its operation. Among the many applications of this
rule, none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
 challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that this Court will
first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of
the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the
statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing
and humiliating and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official. 137 Intervenor Soriano
echoes this argument by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and erode public confidence and
faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not
regarded as settled until the Supreme Court has passed upon the constitutionality of
the act involved, the judgment has not only juridical effects but also political
consequences. Those political consequences may follow even where the Court fails to
grant the petitioner's prayer to nullify an act for lack of the necessary number of votes.
Frequently, failure to act explicitly, one way or the other, itself constitutes a decision
for the respondent and validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-
existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of
men excludes the exercise of broad discretionary powers by those acting under its
authority. Under this system, [public officers] are guided by the Rule of Law, and ought
"to protect and enforce it without fear or favor," resist encroachments by governments,
political parties, or even the interference of their own personal beliefs. 142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16
and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished
in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of
Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3)
by at least 1/3 of all the members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of impeachment proceedings against
the same officials could not have been violated as the impeachment complaint against Chief
Justice Davide and seven Associate Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
and (5) of the Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts
consisting of a beginning, a middle and an end. The end is the transmittal of the
articles of impeachment to the Senate. The middle consists of those deliberative
moments leading to the formulation of the articles of impeachment. The beginning or
the initiation is the filing of the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The language is
recognition that initiation happened earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many
proposals and, I think, these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment
This amendment proposed by Commissioner Maambong was clarified and accepted by the
proceedings starting with initiation, action of the Speaker committee action,
Committee on the Accountability of Public Officers.144
calendaring of report, voting on the report, transmittal referral to the Senate,
trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make
of record my thinking that we do not really initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I have pointed out earlier, was that
the initiation starts with the filing of the complaint. And what is actually done on
the floor is that the committee resolution containing the Articles of
Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite
examples in the case of the impeachment proceedings of President Richard Nixon
wherein the Committee on the Judiciary submitted the recommendation, the
resolution, and the Articles of Impeachment to the body, and it was the body who
approved the resolution. It is not the body which initiates it. It only approves or
disapproves the resolution. So, on that score, probably the Committee on Style
could help in rearranging these words because we have to be very technical about
this. I have been bringing with me The Rules of the House of Representatives of the
U.S. Congress. The Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that
on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to
initiate impeachment proceedings" and the comma (,) and insert on line 19 after the
word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of
the verified complaint and every resolution to impeach always carries with it the
Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are
mentioned on line 25 in the case of the direct filing of a verified compliant of one-third
of all the Members of the House. I will mention again, Madam President, that my
amendment will not vary the substance in any way. It is only in keeping with the
uniform procedure of the House of Representatives of the United States Congress.
Thank you, Madam President.143 (Italics in the original; emphasis and udnerscoring
supplied)
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting
the phrase "to initiate impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the vote of one-third
of the House in a resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a verified complaint under Section
3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate
all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists
of several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote
of one-third of all the members. If at least one third of all the Members upholds the complaint,
Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the
House "initiates an impeachment case." It is at this point that an impeachable public official is
successfully impeached. That is, he or she is successfully charged with an impeachment "case"
before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for
action. This is the initiating step which triggers the series of steps that follow.
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.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary
to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of
the impeachment complaint coupled with Congress' taking initial action of said complaint.
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.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment
proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself
affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment
by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of
Article XI since the rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because
of the latter's balanced perspectives and disinterestedness. 148
Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as
he stressed that in the Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of
power if we assume jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable impediment against the
interposition of judicial power on cases involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to
view the issues before the Court. It is in Ballin where the US Supreme Court first
defined the boundaries of the power of the judiciary to review congressional rules. It
held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall
be noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is
as to the validity of this rule, and not what methods the Speaker may of his own
motion resort to for determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the journal. Neither do the
advantages or disadvantages, the wisdom or folly, of such a rule present any matters
for judicial consideration. With the courts the question is only one of power. The
Constitution empowers each house to determine its rules of proceedings. It may
not by its rules ignore constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the mode or method of
proceedings established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some
other way would be better, more accurate, or even more just. It is no objection to the
validity of a rule that a different one has been prescribed and in force for a length of
time. The power to make rules is not one which once exercised is exhausted. It is a
continuous power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other body or
tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined
by the Court and it was found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental right; and (3) its method
had a reasonable relationship with the result sought to be attained. By examining Rule
XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the
principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to
categorically reject the political question defense when its interposition will
cover up abuse of power. For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." This power is new and was not granted to our courts in the 1935 and
1972 Constitutions. It was not also xeroxed from the US Constitution or any
foreign state constitution. The CONCOM granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of
state power were shielded from judicial scrutiny by the misuse of the political
question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the
Executive and the Legislative departments of government. 155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a
branch or instrumentality of government or any of its officials done with grave
abuse of discretion amounting to lack or excess of jurisdiction. Rightly or
wrongly, the Constitution has elongated the checking powers of this Court against the
other branches of government despite their more democratic character, the President
and the legislators being elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government' constitutes the capstone of the efforts of the Constitutional Commission
to upgrade the powers of this court vis-à-vis the other branches of government. This
provision was dictated by our experience under martial law which taught us that a
stronger and more independent judiciary is needed to abort abuses in government. x x
x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining
what it cannot do; under the 1987 Constitution, there is a shift in stress – this
Court is mandated to approach constitutional violations not by finding out what
it should not do but what it must do. The Court must discharge this solemn duty by
not resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters
of our power to review violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we refuse to exercise
this new power or if we wield it with timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that has increasingly emboldened other
branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel
provision stretching the latitude of judicial power is distinctly Filipino and its
interpretation should not be depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original
emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice, the initial action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in
the foregoing manner, another may not be filed against the same official within a one year period
following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith – offered
suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have
a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full of
all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial
review over an issue whose resolution precisely called for the construction or interpretation of a
provision of the fundamental law of the land. What lies in here is an issue of a genuine
constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.
This 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. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these petitions just because it
is the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted
to no other than the Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this crucible
of a democratic process, if only to discover that it can resolve differences without the use of
force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment
Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
G.R. No. L-32432. September 11, 1970.]
MANUEL B. IMBONG, petitioner, vs. JAIME FERRER, as Chairman of
the Comelec, LINO M. PATAJO and CESAR MIRAFLOR, as members
thereof, respondents.
[G.R. No. L-32443. September 11, 1970.]
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN
AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M.
GONZALES, petitioner, vs. COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A.
Torres and Guillermo C. Nakar for respondents.
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici
curiae.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONAL CONVENTION; RA. 6132,
CONSTITUTIONAL. — The constitutionality of the enactment of R.A. 6132 by Congress
must be upheld for the following reasons: 1) Congress, acting as Constituent Assembly
pursuant to Article XV of the Constitution, has authority to propose constitutional
amendments or call a convention for the purpose by 3/4 votes of each house in joint session
assembled but voting separately; 2) Such grant includes all other powers essential to the
effective exercise of the principal power by necessary implication; 3) Implementing details
are within the authority of Congress not only as a Constituent Assembly but also in the
exercise of its comprehensive legislative power so long as it does not contravene any
provision of the Constitution; and 4) Congress as a legislative body may thus enact
necessary implementing legislation to fill in the gaps which Congress as a Constituent
Assembly omitted.
2. ID.; ID.; ID.; APPORTIONMENT OF DELEGATES. — Unlike in the
apportionment of representative districts, the Constitution does not expressly or impliedly
require such apportionment of delegates to the convention on the basis of population in each
congressional district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for each congressional district or for each province, for reasons of
economy and to avoid having an unwieldy convention. If the framers of the present
Constitution wanted the apportionment of delegates to be based on the number of inhabitants
in each representative district, they would have done so in so many words as they did in
relation to the apportionment of the representative districts. The apportionment provided for
in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein; for
it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly
expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be
apportioned among the existing representative districts according to the number of their
respective inhabitants, but fixing a minimum of at least two delegates for a representative
district.
3. ID.; ID.; ID.; ID.; ABSOLUTE PROPORTIONAL REPRESENTATION NOT
REQUIRED. — That the lone and small congressional district of Batanes, may be over-
represented, because it is allotted two delegates by R.A. 6132 despite the fact that it has a
population very much less than several other congressional districts, each of which is also
allotted only two delegates, and therefore under-represented vis-a-vis Batanes alone, does
not vitiate the apportionment as not affecting proportional representation. Absolute
proportional apportionment is not required and is not possible when based on the number of
inhabitants, for the population census cannot be accurate nor complete, dependent as it is
on the diligence of the census takers aggravated by the constant movement of population,
as well as daily death and birth. It is enough that the basis employed is reasonable and the
resulting apportionment is substantially proportional.
4. ID.; ID.; ID.; ID.; NOT UNREASONABLE. — While there may be other formulas
for a reasonable apportionment, considering the evidence submitted to Congress by the
Bureau of Census and Statistics, We are not prepared to rule that the computation formula
adopted by Congress for proportional representation as directed in Res. No. 4 is
unreasonable and that the apportionment provided in R.A. 6132 does not constitute a
substantially proportional representation.
5. ID.; APPORTIONMENT OF CONGRESSIONAL DISTRICTS; ABSOLUTE
REPRESENTATION CANNOT BE EFFECTED, SECTION 5 ARTICLE VI, CONSTITUTION.
— The impossibility of absolute proportional representation is recognized by
the Constitution itself when it directs that the apportionment of congressional districts among
the various provinces shall be "as nearly as may be according to their respective inhabitants,
but each province shall have at least one member." The employment of the phrase "as nearly
as may be according to their respective inhabitants" emphasizes the fact that the human
mind can only approximate a reasonable apportionment but cannot affect an absolutely
proportional representation with mathematical precision or exactitude.
6. ID.; PUBLIC OFFICE; NO INHERENT RIGHT TO PUBLIC OFFICE. — That a
citizen does not have any inherent nor natural right to a public office, is axiomatic under our
Constitutional system. The State, through its Constitution or legislative body, can create an
office and define the qualifications and disqualifications therefor as well as impose inhibitions
on a public officer. Consequently, only those with qualifications and who do not fall under any
constitutional or statutory inhibition can be validly elected or appointed to a public office.
7. ID.; CON-CON; DISQUALIFICATION OF ELECTED DELEGATES FROM
PUBLIC OFFICE; SECTION 5. — Section 5 of R.A. 6132 disqualifies any elected delegate
from running "for any public office in any election" or from assuming "any appointive office or
position in any branch of the government until after the final adjournment of the Constitutional
Convention." The obvious reason for the questioned inhibition is to immunize the delegates
from the perverting influence of self-interest, party interest or vested interest and to insure
that he dedicates all his time to performing solely, in the interest of the nation, his high and
well nigh sacred function of formulating the supreme law of the land, which may endure for
generations and which cannot easily be changed like an ordinary statute.
8. ID.; ID.; SECTION 5 of RA. 6132; REASON. — With the disqualification
embodied in Section 5, the delegate will not utilize his position as a bargaining leverage for
concessions in the form of an elective or appointive office as long as the convention has not
finally adjourned. The appointing authority may, by his appointing power, entice votes for his
own proposals. Not love of self, but love of country must always motivate his actuations as
delegate, otherwise the several provisions of the new Constitution may only satisfy individual
or special interests subversive of the welfare of the general citizenry.
 9. ID.; ID.; ID.; CONSTITUTIONAL. — Thus, the challenged disqualification
prescribed in Section 5 of R.A. 6132 is a valid limitation on the right to public office pursuant
to state police power as it is reasonable and not arbitrary.
10. ID.; ID.; ID.; DISCRIMINATION AGAINST DELEGATES; CONSTITUTIONAL.
— The discrimination under Sec. 5 against delegates is constitutional since it is based upon
substantial distinction which makes for real differences. The function of delegate is more far-
reaching and its effects more enduring than that of any ordinary legislator or any other public
officer. A delegate shapes the fundamental law of the land which delineates the essential
nature of the government, its basic organization and powers, defines the liberties of the
people, and controls all other laws. Unlike ordinary statutes, constitutional amendments
cannot be changed in one or two years. No other public officer possesses such a power, not
even the members of Congress unless they themselves propose constitutional amendments
when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The
classification, therefore, is neither whimsical nor repugnant to the sense of justice of the
community.
11. ID.; ID.; ID.; GERMANE TO PURPOSES OF THE LAW. — The inhibition under
Section 5 of R.A. 6132 is relevant t the object of the law, which is to insure that the proposed
amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.
12. ID.; GUARANTEE OF DUE PROCESS AND OTHER RIGHTS NOT
ABSOLUTE. — This Court ruled last year that the guarantees of due process, equal
protection of the laws, peaceful assembly, free expression, and the right of association are
neither absolute nor illimitable rights; they are always subject to the pervasive and dominant
police power of the State and may be lawfully abridged to serve appropriate and important
public interest.
13. ID.; CONSTITUTIONAL CONVENTION; SECTION 5, PARAGRAPH I R.A..
6132; BAN AGAINST POLITICAL PARTIES. — The ban against all political parties or
organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or
organization support or assistance, whether material, moral, or emotional or otherwise.
14. ID.; ID.; ID.; ACTS PERMITTED. — The very Sec. 8(a) in its provisos permits
the candidate to utilize in his campaign the help of the members of his family within the fourth
civil degree of consanguinity or affinity, and a campaign staff composed of not more than one
for every ten precincts in his district. It allows the full exercise of his freedom of expression
and his right to peaceful assembly, because he cannot be denied any permit to hold a public
meeting on the pretext that the provision of said section may or will be violated. The right of
a member of any political party or association to support him or oppose his opponent is
preserved as long as such member acts individually. The very party or organization to which
he may belong or which may be in sympathy with his cause or program or reforms, is
guaranteed the right to disseminate information about, or to arouse public interest in, or to
advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.
15. ID.; ID.; ID.; PARTISAN ACTIVITY, CONSTITUTIONAL. — Even if partisan
activity consists of (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 for propaganda. for or against any
candidate or party; and (c) giving, soliciting or receiving contributions for election campaign
either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was
still affirmed as constitutional by six members of this Court, which could not "ignore . . . the
legislative declaration that its enactment was in response to a serious substantive evil
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 reality of the situation."
16. ID.; ID.; ID.; ID.; PURPOSE. — The primary purpose of the prohibition in par.
1 of Sec. 8(a) of R.A. 6132 then is to avert the clear and present danger of another
substantive evil, the denial of the equal protection of the laws. The candidates must depend
on their individual merits and not on the support of political parties or organizations. This
position is further strengthened by the principle that the guarantee of social justice under Sec.
V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political
rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs.
Rural Progress Administration (84 Phil. 847, 852).
17. ID.; ID.; ID.; ID.; VALID LIMITATION ON FREEDOM OF ASSOCIATION AND
EXPRESSION. — While it may be true that a party's support of a candidate is not wrong per
se, it is equally true that Congress in the exercise of its broad lawmaking authority can declare
certain acts as mala prohibita when justified by the exigencies of the times. One such act is
the party or organization support proscribed in Sec. 8(a), which ban is a valid limitation on
the freedom of association as well as free expression for the reasons aforestated.
18. ID.; ID.; ID.; ID.; EQUAL PROTECTION OF THE LAW NOT SUBVERTED IN
INSTANT CASE. — The equal protection of the laws is not unduly subverted in par. 1 of Sec.
8(a) because it does not create any hostile discrimination against any party or group nor does
it confer undue favor or privilege on an individual. The discrimination applies to all
organizations, whether political parties or social, civic, religious or professional associations.
The ban is germane to the objectives of the law, which are to avert the debasement of the
electoral process and to attain real equality of chances among individual candidates and
thereby make real the guarantee of equal protection of the laws.
19. ID.; ID.; ID.; BAN AGAINST POLITICAL PARTIES, EXPLAINED. — Political
parties and the other organized groups have built-in advantages because of their machinery
and other facilities, which, the individual candidate who is without any organization support
does not have. The ban on political parties is germane to the objectives of the law of averting
the debasement of the electoral process for it assures the candidates equal protection of the
laws by according them equality of chances. Under this provision, the poor candidate has an
even chance as against the rich candidate.
20. ID.; ID.; ID.; BAN AGAINST CIVIC ASSOCIATIONS, EXPLAINED. — It is no
argument that the civic and religious organization machinery is not as effective as that of
political parties, for it still has that much built-in advantage as against the individual candidate
without similar support. Furthermore, these civic, religious and professional organizations
may band together to support a candidate who advocates reforms which they believe are
imperative. The civic associations other than political parties cannot with reason insist that
they should be exempted from the ban; because then by such exemption they would be free
to utilize the facilities of the campaign machinery's which they are denying to the political
parties. Whenever an organization engages in a political activity, as in this campaign for
election of delegates to the Constitutional Convention, to that extent it partakes of the nature
of a political organization.
21. ID.; ID.; ID.; FREEDOM OF SPEECH AND ASSEMBLY NOT
TRANSGRESSED IN INSTANT CASE. — The freedom of association also implies the liberty
not to associate or join with others nor join any existing organization. A person may run
independently on his own merits without need of catering to a political party or any other
association for support. And he, as much as the candidate whose candidacy does not evoke
sympathy from any political party or organized group, must be afforded equal chances.
FERNANDO, J., concurring and dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTIONAL CONVENTION; CANDIDATES
FOR DELEGATES THERETO; QUALIFICATIONS; BAN ON POLITICAL AND OTHER
ORGANIZATIONS; VIOLATION OF CONSTITUTIONAL PROVISION ON RIGHT TO FORM
ASSOCIATION. — It is difficult to reconcile the decision reached insofar as the aforesaid ban
on political parties and civic, professional and other organizations is concerned with the
explicit provision that the freedom to form associations or societies for purposes not contrary
to law shall not be abridged. The right of an individual to join others of a like persuasion to
pursue common objectives and to engage in activities is embraced within if not actually
encouraged by the regime of liberty ordained by the Constitution.
2. ID.; ID.; ID.; ID.; ID.; AMENDMENT PROPER. — I find merit in the plea of
petitioners to annul Sec. 8(a) R.A. 6132 regarding the ban on political parties and civic,
professional and other organizations. The constitutional provisions, more specifically the right
to form associations. is prohibited by said Sec. 8(a) R.A. No 6132. The infirmity of this ban is
thus apparent on its face.
3. ID.; ID.; ID.; ID.; ID.; INVALID. — The final proviso in Sec. 8(a) R.A. No.
6132 forbids any construction that would in any wise "impair or abridge the freedom of civic,
political, religious, professional, trade organization or organized groups of whatever nature
to disseminate information about, or arouse public interest in, the forthcoming Constitutional
Convention, or to advocate constitutional reforms, programs, policies or proposals for
amendment of the present Constitution, and no prohibition contained herein shall limit or
curtail the right of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention." It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the constitutional guarantees of
freedom of expression and freedom of association falls short of according full respect to what
is thus commanded by the fundamental law, as they are precluded by the very same Act from
giving aid or support precisely to the very individuals who can carry out whatever
constitutional reforms, programs, policies or proposals for amendment they might advocate.
As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and
fortified.
4. ID.; ID.; ID.; ID.; ID.; NO CLEAR AND PRESENT DANGER OF EVIL
PARTISANSHIP. — The assumption would appear to be that there is a clear and present
danger of grave substantive evil of partisanship running not unless political parties are thus
restrained. It would appear though that what prompted such a ban is to assure that the
present majority party would not continue to play its dominant rule in the political life of the
nation. This is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and
1965, the presidency was won by the opposition candidates. The national election for
senators alone of 1951 was a complete sweep of the field by the minority party. The result of
the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people
can make their wishes prevail. There is thus no assurance that the mere identification with
party labels would automatically insure the success of a candidacy.
5. ID.; ID.; ID.; ID.; ID.; POLITICAL ACTIVITY. — It is not easy to yield assent to
the proposition that on a matter so essentially political as the amendment or revision of an
existing Constitution, political parties or political groups are to be denied the opportunity of
launching the candidacy of their choice. It is to carry the essential process of making the
government responsive to the will of the people and that changes, if desired, may be attained
by peaceful means, one step farther to recognize and to implement the right of every political
group to select the candidates who, by their election, could translate into actuality their hopes
for the fundamental law that the times demand.
6. ID.; ID.; ID.; ID.; ID.; POLITICAL ACTIVITY OF ASSOCIATIONS ESSENTIAL.
— It could very well happen then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to
be accomplished to guard against the evil of party spirit prevailing could very well be doomed
to futility. The high hopes entertained by the articulate and vocal groups of young people,
intellectuals and workers, may not be realized. The result would be that this unorthodox and
novel provision could assume the character of a tease, an illusion like a magnificent bequest
in the pauper's will.
7. ID.; ID.; ID.; ID.; ID.; CASE OF GONZALES VS. COMELEC DISTINGUISHED
FROM INSTANT CASE. — What survived the test of constitutional validity in the case
of Gonzales vs. Comelec is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office voted for at large earlier
than 150 days immediately preceding elections and for any other public office earlier than 90
days immediately preceding such election. The challenged provision in the two instant
petitions however, goes much farther. Political parties or any other organization or organized
group are precluded from selecting and supporting candidates for delegates to
the Constitutional Convention. This is to enter a forbidden domain, Congress trespassing on
a field rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude
that our previous decision in Gonzales vs. Comelec which already was indicative of the
cautious and hesitant approach to lending its approval to what otherwise are invasions of
vital constitutional safeguards to freedoms or belief, of expression, and of association lends
support to the decision reached by the minority insofar as this challenged provision is
concerned.
BARREDO, J., concurring and dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTIONAL COVENTION; CANDIDATES
FOR DELEGATES THERETO; BAN AGAINST POLITICAL PARTIES AND OTHER
ORGANIZATIONS. — While the reasons adduced in the ban on political parties to nominate
and support their own candidates may be reasonable the same do not obtain with respect to
nonpolitical organizations which is a deceptive device to preserve the built-in advantages of
political parties while crippling completely the other kinds of associations. To equalize the
campaigning forces the ban should be imposed only against political parties considering that
the activities and manners of operation of said party made necessary the imposition thereof.
Notwithstanding R.A. 6132 regarding the methods of campaign nor its provisions intended to
minimize participation of political parties in the process of voting, counting of votes and
canvassing of the results, a candidate without or little political party connections cannot
overcome the advantages of candidates more or less connected with political parties as long
as the right to form other associations and the right of these associations to campaign for
their candidates are denied.
2. ID.; ID.; ID.; ID.; ADVERSE EFFECT ON RIGHT OF SUFFRAGE. — The right
of suffrage which is the corner stone of any democracy like ours is meaningless when the
right to campaign in any election therein is unreasonably and unnecessarily curtailed,
restrained or hampered, as is being done under the statute in dispute.
3. ID.; ID.; ID.; ID.; BAN AGAINST POLITICAL PARTIES SEPARATE FROM
THAT AGAINST OTHER ASSOCIATIONS. — Contrary to that of the majority, that as Section
8(a) stands and taking into account its genesis, the ban against political parties is separable
from that against other associations within the contemplation of Section 21 of the Act which
expressly refers to the separability of the application thereof to any "persons, groups or
circumstances."
DECISION
MAKASIAR, J p:
These two separate but related petitions for declaratory relief were filed pursuant
to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both
members of the Bar, taxpayers and interested in running as candidates for delegates to
the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132, claiming
during the oral argument that it prejudices their rights as such candidates. After the Solicitor
General had filed answers in behalf the respondents, hearings were held at which the
petitioners and the amici curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino,
Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent
Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among
others called for a Constitutional Convention to propose constitutional amendments to be
composed of two delegates from each representative district who shall have the same
qualifications as those of Congressmen, to be elected on the second Tuesday of November,
1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of
that year, Congress, acting as a legislative body, enacted Republic Act No.
4914 implementing the aforesaid Resolution No. 2 and practically restating in toto the
provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed
Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by providing
that the convention "shall be composed of 320 delegates apportioned among the existing
representative districts according to the number of their respective inhabitants: Provided, that
a representative district shall be entitled to at least two delegates, who shall have the same
qualifications as those required of members of the House of Representatives, " 1 "and that
any other details relating to the specific apportionment of delegates, election of delegates to,
and the holding of, the Constitutional Convention shall be embodied in an implementing
legislation: Provided, that it shall not be inconsistent with the provisions of this Resolution.
"2
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act
No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as the
particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B.
Imbong impugns the constitutionality of only par. 1 of Sec. 8 (a) of said R.A. No.
6132 practically on the same grounds advanced by petitioner Gonzales.
I recognized in Sec. 8 of Res. No. 2 as amended by Res. No. 4.
The validity of Sec. 4 of R.A. No. 6132, which considers all public officers and
employees, whether elective or appointive, including members of the Armed Forces of the
Philippines, as well as officers and employees of corporations or enterprises of the
government, as resigned from the date of the filing of their certificates of candidacy, was
recently sustained by this Court, on the grounds, inter alia, that the same is merely an
application of and in consonance with the prohibition in Sec. 2 of Art. XII of
the Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No.
6132 was upheld. 4
II
Without first considering the validity of its specific provisions, we sustain the
constitutionality of the enactment of R.A. No. 6132 by Congress acting as a legislative body
in the exercise of its broad lawmaking authority, and not as a Constituent Assembly, because
— Unlike in the apportionment of representative districts, the Constitution does not
1. Congress, when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, has full and plenary
authority to propose Constitutional amendments or to call a
convention for the purpose, by a three-fourths vote of each House
in joint session assembled but voting separately. Resolutions
Nos. 2 and 4 calling for a constitutional convention were passed
by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of
such plenary authority to call a constitutional convention includes,
by virtue of the doctrine of necessary implication, all other powers
essential to the effective exercise of the principal power granted,
such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as
appropriation of funds to meet the expenses for the election of
delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4
already embody the above-mentioned details, except the
appropriation of funds.
3. While the authority to call a constitutional
convention is vested by the present Constitution solely and
exclusively in Congress acting as a Constituent Assembly, the
power to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A. No.
6132, does not exclusively pertain to Congress acting as a
Constituent Assembly. Such implementing details are matters
within the competence of Congress in the exercise of its
comprehensive legislative power, which power encompasses all
matters not expressly or by necessary implication withdrawn or
removed by the Constitution from the ambit of legislative action.
And as long as such statutory details do not clash with any
specific provision of the Constitution, they are valid.
4. Consequently, when Congress, acting as a
Constituent Assembly, omits to provide for such implementing
details after calling a constitutional convention, Congress, acting
as a legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly
5. The fact that a bill providing for such implementing
details may be vetoed by the President is no argument against
conceding such power in Congress as a legislative body nor
present any difficulty; for it is not irremediable as Congress can
override the Presidential veto or Congress can reconvene as a
Constituent Assembly and adopt a resolution prescribing the
required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates
is not in accordance with proportional representation and therefore violates
the Constitution and the intent of the law itself, without pinpointing any specific provision of
the Constitution with which it collides.
expressly or impliedly require such apportionment of delegates to the convention on the basis
of population in each congressional district. Congress, sitting as a Constituent Assembly,
may constitutionally allocate one delegate for each congressional district or for each
province, for reasons of economy and to avoid having an unwieldy convention. If the framers
of the present Constitution wanted the apportionment of delegates to the convention to be
based on the number of inhabitants in each representative district, they would have done so
in so many words as they did in relation to the apportionment of the representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict
with its own intent expressed therein; for it merely obeyed and implemented the intent of
Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which
provides that the 320 delegates should be apportioned among the existing representative
districts according to the number of their respective inhabitants, but fixing a minimum of at
least two delegates for a representative district. The presumption is that the factual predicate,
the latest available official population census, for such apportionment was presented to
Congress, which, accordingly employed a formula for the necessary computation to effect
the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez
which is now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based
its apportionment of the delegates on the 1970 official preliminary population census taken
by the Bureau of Census and Statistics from May 6 to June 30, 1970; and that Congress
adopted the formula to effect a reasonable apportionment of delegates. The Director of the
Bureau of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970,
stated that "on the basis of the preliminary count of the population, we have computed the
distribution of delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines
5 to 32 and p. 3 line 12), which is a fair and an equitable method of distributing the delegates
pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon
your request at the session of the Senate-House Conference Committee meeting last night,
we are submitting herewith the results of the computation on the basis of the above-stated
method."
Even if such latest census were a preliminary census, the same could still be a
valid basis for such apportionment. 6 The fact that the lone and small congressional district
of Batanes, may be over-represented, because it is allotted two delegates by R.A. No.
6132 despite the fact that it has a population very much less than several other congressional
districts, each of which is also allotted only two delegates, and therefore under-represented
vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional
representation. Absolute proportional apportionment is not required and is not possible when
based on the number of inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers, aggravated by the
constant movement of population, as well as daily death and birth. It is enough that the basis
employed is reasonable and the resulting apportionment is substantially proportional.
Resolution No. 4 fixed a minimum of two delegates for a congressional district.
While there may be other formulas for a reasonable apportionment, considering
the evidence submitted to Congress by the Bureau of Census and Statistics, we are not
prepared to rule that the computation formula adopted by Congress for proportional
representation as directed in Res. No. 4 is unreasonable and that the apportionment provided
in R.A. No. 6132 does not constitute a substantially proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law, which
was nullified as unconstitutional, granted more representatives to a province with less
population than the provinces with more inhabitants. Such is not the case here, where under
Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the
number of delegates accorded other provinces with more population. The present petitions
therefore do not present facts which fit the mould of the doctrine in the case of Macias, et al.
vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by
the Constitution itself when it directs that the apportionment of congressional districts among
the various provinces shall be "as nearly as may be according to their respective
inhabitants, but each province shall have at least one member" (Sec. 5, Art. VI, Phil. Const.,
italics supplied). The employment of the phrase "as nearly as may be according to their
respective inhabitants" emphasizes the fact that the human mind can only approximate a
reasonable apportionment but cannot effect an absolutely proportional representation with
mathematical precision or exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of
liberty without due process of law and denies the equal protection of the laws. Said Sec. 5
disqualifies any elected delegate from running "for any public office in any election" or from
assuming "any appointive office or position in any branch of the government until after the
final adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is
axiomatic under our constitutional system. The State through its Constitution or legislative
body, can create an office and define the qualifications and disqualifications therefor as well
as impose inhibitions on a public officer. Consequently, only those with qualifications and
who do not fall under any constitutional or statutory inhibition can be validly elected or
appointed to a public office. The obvious reason for the questioned inhibition, is to immunize
the delegates from the perverting influence of self-interest, party interest or vested interest
and to insure that he dedicates all his time to performing solely in the interest of the nation
his high and well-nigh sacred function of formulating the supreme law of the land, which may
endure for generations and which cannot easily be changed like an ordinary statute. With the
disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining
leverage for concessions in the form of an elective or appointive office as long as the
convention has not finally adjourned. The appointing authority may, by his appointing power,
entice votes for his own proposals. Not love for self, but love for country must always motivate
his actuations as delegate; otherwise the several provisions of the new Constitution may only
satisfy individual or special interests, subversive of the welfare of the general citizenry. It
should be stressed that the disqualification is not permanent but only temporary — only to
continue until the final adjournment of the convention which may not extend beyond one year.
The convention that framed the present Constitution finished its task in approximately seven
months — from July 30, 1934 to February 8, 1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the time for which he was
elected, from being appointed to any civil office which may have been created or the
emolument whereof shall have been increased while he was a member of the Congress.
(Sec. 16, Art VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the
challenged disqualification, temporary in nature, is to compel the elected delegates to serve
in full their term as such and to devote all their time to the convention, pursuant to their
representation and commitment to the people; otherwise, his seat in the convention will be
vacant and his constituents will be deprived of a voice in the convention. The inhibition is
likewise "designed to prevent popular political figures from controlling elections or positions.
Also it is a brake on the appointing power, to curtail the latter's desire to 'raid' the convention
of 'talents' or attempt to control the convention." (p. 10, Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid
limitation on the right to public office pursuant to state police power as it is reasonable and
not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional
Convention is likewise constitutional; for it is based on a substantial distinction which makes
for real differences, is germane to the purposes of the law, and applies to all members of the
same class. 7 The function of a delegate is more far-reaching and its effect more enduring
than that of any ordinary legislator or any other public officer. A delegate shapes the
fundamental law of the land which delineates the essential nature of the government, its basic
organization and powers, defines the liberties of the people, and controls all other laws.
Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years.
No other public officer possesses such a power, not even the members of Congress unless
they themselves propose constitutional amendments when acting as a Constituent Assembly
pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical nor
repugnant to the sense of justice of the community.
 As heretofore intimated, the inhibition is relevant to the object of the law, which is
to insure that the proposed amendments are meaningful to the masses of our people and not
designed for the enhancement of selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who will
be elected on the second Tuesday of November, 1970.
V A of R.A. No. 4880, thus:
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as
violative of the constitutional guarantees of due process, equal protection of the laws,
freedom of expression, freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of
the laws, peaceful assembly, free expression, and the right of association are neither
absolute nor illimitable rights; they are always subject to the pervasive and dominant police
power of the State and may be lawfully abridged to serve appropriate and important public
interests. 8
In said Gonzales vs. Comelec case, the Court applied the clear and present
danger test to determine whether a statute which trenches upon the aforesaid constitutional
guarantees, is a legitimate exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention.
(a) from representing, or
(b) allowing himself to be represented as
being a candidate of any political party or any other
organization; and
2. any political party, political group, political committee,
civic, religious, professional or other organizations or organized
group of whatever nature from.
(a) intervening in the nomination of any such
candidate or in the filing of his certificate, or
(b) from giving aid or support directly or
indirectly, material or otherwise, favorable to or against
his campaign for election.
The ban against all political parties or organized groups of whatever nature
contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance,
whether material, moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits
the candidate to utilize in his campaign the help of the members of his family within the fourth
civil degree of consanguinity or affinity, and a campaign staff composed of not more than one
for every ten precincts in his district. It allows the full exercise of his freedom of expression
and his right to peaceful assembly, because he cannot be denied any permit to hold a public
meeting on the pretext that the provision of said section may or will be violated. The right of
a member of any political party or association to support him or oppose his opponent is
preserved as long as such member acts individually. The very party or organization to which
he may belong or which may be in sympathy with his cause or program of reforms, is
guaranteed the right to disseminate information about, or to arouse public interest in, or to
advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.
It is therefore patent that the restriction contained in Sec. 8 (a) is so narrow that
the basic constitutional rights themselves remain substantially intact and inviolate. And it is
therefore a valid infringement of the aforesaid constitutional guarantees invoked by
petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously
sustained the validity of the limitation on the period for nomination of candidates in Sec. 50-
"The prohibition of too early nomination of candidates
presents a question that is not too formidable in character.
According to the act: 'It shall be unlawful for any political party,
political committee, or political group to nominate candidates for
any elective public office voted for at large earlier than one
hundred and fifty days immediately preceding an election, and for
any other elective public office earlier than ninety days
immediately preceding an election.
"The right of association is 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 its validity. We do so
unanimously." 10
In said Gonzales vs. Comelec case, this Court likewise held that the period for the
conduct of an election campaign or partisan political activity may be limited without offending
the aforementioned constitutional guarantees as the same is designed also to prevent a
"clear and present danger of a substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations,
clubs, committees or other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving
contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and
(c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this
Court, which could not "ignore . . . the legislative declaration that its enactment was in
response to a serious substantive evil 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 reality of the situation." 12 ;
Likewise, because four members dissented, this Court in said case of Gonzales
vs. Comelec, supra, failed to muster the required eight votes to declare as unconstitutional
the limitation on the period for (a) making speeches, announcements or commentaries or
holding interviews for or against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (c) directly or indirectly
soliciting votes and/or undertaking any campaign or propaganda for or against any candidate
or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists today and is
one of the major compelling interests that moved Congress into prescribing the total ban
contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales
vs. Comelec case, this Court gave "due recognition to the legislative concern to cleanse, and
if possible, render spotless, the electoral process," 14 impressed as it was by the explanation
made by the author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae,
"that such provisions were deemed by the legislative body to be part and parcel of the
necessary and appropriate response not merely to a clear and present danger but to the
actual existence of a grave and substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has marred election campaigns and partisan
political activities in this country. He did invite our attention likewise to the well-settled doctrine
that in the choice of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless
clearly repugnant to fundamental rights, be ignored or disregarded." 15
But aside from the clear and imminent danger of the debasement of the electoral
process, as conceded by Senator Pelaez, the basic motivation, according to Senate Majority
Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment
embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection
of the laws by according them equality of chances. 16 The primary purpose of the prohibition
then is also to avert the clear and present danger of another substantive evil, the denial of
the equal protection of the laws. The candidates must depend on their individual merits and
not on the support of political parties or organizations. Senator Tolentino and Senator
Salonga emphasized that under this provision, the poor candidate has an even chance as
against the rich candidate. We are not prepared to disagree with them, because such a
conclusion, predicated as it is on empirical logic, finds support in our recent political history
and experience. Both Senators stressed that the independent candidate who wins in the
election against a candidate of the major political parties, is a rare phenomenon in this
country and the victory of an independent candidate mainly rests on his ability to match the
resources, financial and otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the guarantee of social
justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity,
equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in
the case Guido vs. Rural Progress Administration. 17
While it may be true that a party's support of a candidate is not wrong per se, it is
equally true that Congress in the exercise of its broad law-making authority can declare
certain acts as mala prohibita when justified by the exigencies of the times. One such act is
the party or organization support proscribed in Sec. 8(a), which ban is a valid limitation on
the freedom of association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better attained by
banning all organization support." 18
The questioned par. 1 of Sec. 8(a) likewise can easily pass the balancing-of-
interest test. 19
In the apt words of the Solicitor General:
"It is to be noted that right now the nation is on the
threshold of rewriting its Constitution in a hopeful endeavor to find
a solution to the grave economic, social and political problems
besetting the country. Instead of directly proposing the
amendments, Congress has chosen to call a Constitutional
Convention which shall have the task of fashioning a document
that shall embody the aspirations and ideals of the people.
Because what is to be amended is the fundamental law of the
land, it is indispensable that the Constitutional Convention be
composed of delegates truly representative of the people's will.
Public welfare demands that the delegates should speak for the
entire nation, and their voices be not those of a particular
segment of the citizenry, or of a particular class or group of
people, be they religious, political, civic or professional in
character. Senator Pelaez, Chairman of the Senate Committee
on Codes and Constitutional Amendments, eloquently stated that
'the function of a constitution is not to represent any one interest
or set of interests, not to favor one group at the expense or
disadvantage of the candidates — but to encompass all the
interests that exist within our society and to blend them into one
harmonious and balanced whole. For the constitutional system
means, not the predominance of interests, but the harmonious
balancing thereof.'
"So that the purpose for calling the Constitutional
Convention will not be defeated or frustrated, it is necessary that
the delegates thereto be independent, beholden to no one but to
God, country and conscience."
xxx xxx xxx
"The evil, therefore, which the law seeks to prevent lies
in the election of delegates who, because they have been chosen
with the aid and resources of organizations, cannot be expected
to be sufficiently representative of the people. Such delegates
could very well be the spokesmen of narrow political, religious or
economic interest and not of the great majority of the people." 20
We likewise concur with the Solicitor General that the equal protection of the laws
is not unduly subverted in par. 1 of Sec. 8(a); because it does not create any hostile
discrimination against any party or group nor does it confer undue favor or privilege on an
individual as heretofore stated. The discrimination applies to all organizations, whether
political parties or social, civic, religious, or professional associations. The ban is germane to
the objectives of the law, which are to avert the debasement of the electoral process and to
attain real equality of chances among individual candidates and thereby make real the
guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in advantages
because of their machinery and other facilities, which, the individual candidate who is without
any organization support, does not have. The fact that the other civic or religious
organizations cannot have a campaign machinery as efficient as that of a political party, does
not vary the situation; because it still has that much built-in advantage as against the
individual candidate without similar support. Moreover, these civic, religious and professional
organization may band together to support common candidates, who advocate the reforms
that these organizations champion and believe are imperative. This is admitted by petitioner
Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition
as Annex "D," wherein the Senator stated that his own "Timawa" group had agreed with the
Liberal Party in Iloilo to support petitioner Gonzales and two others as their candidates for
the convention, which organized support is nullified by the questioned ban. Senator Ganzon
stressed that "without the group moving and working in joint collective effort" they cannot
"exercise effective control and supervision over our leaders — the Women's League, the
area commanders, etc."; but with their joining with the LP's they "could have presented a
solid front with very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason insist that they
should be exempted from the ban; because then by such exemption they would be free to
utilize the facilities of the campaign machineries which they are denying to the political
parties. Whenever an organization engages is a political activity, as in this campaign for
election of delegates to the Constitutional Convention, to that extent it partakes of the nature
of a political organization. This, despite the fact that the Constitution and by-laws of such
civic, religious or professional associations usually prohibit the association from engaging in
partisan political activity or supporting any candidate for an elective office. Hence, they must
likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with
others or join any existing organization. A person may run independently on his own merits
 without need of catering to a political party or any other association for support. And he, as
much as the candidate whose candidacy does not evoke sympathy from any political party
or organized group, must be afforded equal chances. As emphasized by Senators Tolentino
and Salonga, this ban is to assure equal chances to a candidate with talent and imbued with
patriotism as well as nobility of purpose, so that the country can utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of Senator Tañada
for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep
concern for the preservation of our civil liberties enshrined in the Bill of Rights, We are not
persuaded to entertain the belief that the challenged ban transcends the limits of
constitutional invasion of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No.
6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared
unconstitutional. Without costs.
Reyes, J.B.L., and Castro, JJ., concur.
Concepcion, C.J., concurred with Mr. Justice Fernando as certified by Mr. Justice
J.B.L. Reyes.
Dizon, J., voted in favor of the opinion of Mr. Justice Makasiar as certified by Mr.
Justice J.B.L. Reyes.
Makalintal, J., concurs in the result.
Zaldivar, J., concurs with the separate opinion of Mr. Justice Fernando in so far as
it relates to Sec. 8(a), par. 1 of Republic Act 6132 and reserves his vote in so far as other
questions raised in the two cases are concerned.
Fernando, J., concurs and dissents in a separate opinion.
Barredo, J., dissents in a separate opinion.
Villamor, J., concurs with the separate opinion of Mr. Justice Fernando.
Teehankee, J., is on official leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in scope,
persuasive in character and lucid in expression, has much to recommend it. On the whole, I
concur. I find difficulty, however, in accepting the conclusion that there is no basis for the
challenge hurled against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being a candidate of any
political party or any other organization, and no political party, political group, political
committee, civic, religious, professional, or other organization or organized group of whatever
nature shall intervene in the nomination of any such candidate or in the filing of his certificate
of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or
against his campaign for election: . . ." 1 It is with regret then that I dissent from that portion
of the decision.
1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on
political parties and civic, professional and other organizations is concerned with the explicit
provision that the freedom to form associations or societies for purposes not contrary to law
shall not be abridged. 2 The right of an individual to join others of a like persuasion to pursue
common objectives and to engage in activities is embraced within if not actually encouraged
by the regime of liberty ordained by the Constitution. This particular freedom has an
indigenous cast, its origin being traceable 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, in a 1963 article, 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." 3 Such is indeed the case, for five years
earlier the American Supreme Court had already declared: "It is beyond debate that freedom
to engage in association for the advancement of beliefs and ideas is an inseparable aspect
of the 'liberty' [embraced in] freedom of speech." 4
Not long after, in 1965, Justice Douglas as spokesman for the American Supreme
Court could elaborate further on the scope of the right of association as including "the right
to express one's attitudes or philosophies by membership in a group or by affiliation with it or
by other lawful means. Association in that context is a form of expression of opinion; and
while it is not expressly included in the First Amendment its existence is necessary in making
the express guarantees fully meaningful." 5 Thus is further vitalized freedom of expression
which, for Justice Laurel, is at once the instrument "and the guarantee and the bright
consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the indispensable
condition of nearly every other form of freedom." 7
2. It is in the light of the above fundamental postulates that I find merit in the plea
of petitioners to annul the challenged provision. There is much to be said for the point
emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that
there is nothing unlawful in a candidate for delegate to the Convention representing or
allowing himself to be represented as such of any political party or any other organization as
well as of such political party, political group, political committee, civic, religious, professional
or other organization or organized group intervening in his nomination, in the filing of his
certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise,
favorable to or against his campaign for election as such delegate. I find the conclusion
inescapable, therefore, that what the constitutional provisions in question allow more
specifically the right to form associations, is prohibited. The infirmity of this ban is thus
apparent on its face.
There is, to my mind, another avenue of approach that leads to the same
conclusion. The final proviso in the same section of the Act forbids any construction that
would in any wise "impair or abridge the freedom of civic, political, religious, professional,
trade organizations or organized groups of whatever nature to disseminate information about,
or arouse public interest in, the forthcoming Constitutional Convention, or to advocate
constitutional reforms, programs, policies or proposals for amendment of the present
Constitution, and no prohibition contained herein shall limit or curtail the right of their
members, as long as they act individually, to support or oppose any candidate for delegate
to the Constitutional Convention." 8 It is regrettable that such an explicit recognition of what
cannot be forbidden consistently with the constitutional guarantees of freedom of expression
and freedom of association falls short of according full respect to what is thus commanded
by the fundamental law, as they are precluded by the very same Act from giving aid or support
precisely to the very individuals who can carry out whatever constitutional reforms, programs,
policies or proposals for amendment they might advocate. As thus viewed, the conviction I
entertain as to its lack of validity is further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear and present danger of
a substantive evil that would justify a limitation on such cherished freedoms. Reference has
been made to Gonzales v. Commission on Elections. 9 As repression is permissible only
when the danger of substantive evil is present is explained by Justice Brandeis thus: . . . the
evil apprehended is to 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.' 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.' 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.' It received its original formulation from Holmes. Thus: 'The question in every case is
whether the words used in such circumstances are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.'" 10 The majority of the Court would find the
existence of a clear and present danger of debasing the electoral process. With due respect,
I find myself unable to share such a view.
The assumption would appear to be that there is a clear and present danger of a
grave substantive evil of partisanship running riot unless political parties are thus restrained.
There would be a sacrifice then of the national interest involved. The Convention might not
be able to live up to the high hopes entertained for an improvement of the fundamental law.
It would appear though that what prompted such a ban is to assure that the present majority
party would not continue to play its dominant role in the political life of the nation. The thought
is entertained that otherwise, we will not have a Convention truly responsive to the needs of
the hour and of the future insofar as they may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections of 1946,
1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in
national elections for senators alone, that of 1951, to mention only one instance, saw a
complete sweep of the field by the then minority party. It would be unjustifiable, so I am led
to believe, to assume that inevitably the prevailing dominant political party would continue its
ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in 1967
indicate unmistakably that the people can, if so minded, make their wishes prevail. There is
thus no assurance that the mere identification with party labels would automatically insure
the success of a candidacy. Even if it be assumed that to guard against the evils of party
spirit carried to excess, such a ban is called for, still no such danger is presented by allowing
civil, professional or any other organization or organized group of whatever nature to field its
own candidates or give aid or support, directly or indirectly material or otherwise, to anyone
running for the Convention. From such a source, no such misgivings or apprehension need
arise. Nor is the fear that organizations could hastily be assembled or put up to camouflage
their true colors as satellites of the political parties be valid. The electorate can see through
such schemes and can emphatically register its reaction. There is, moreover, the further
safeguard that whatever work the Convention may propose is ultimately subject to popular
ratification.
For me then the danger of a substantive evil is neither clear nor present. What
causes me grave concern is that to guard against such undesirable eventuality, which may
not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A
desirable end cannot be coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so essentially
political as the amendment or revision of an existing Constitution, political parties or political
groups are to be denied the opportunity of launching the candidacy of their choice. Well has
it been said by Chief Justice Hughes: "The greater the importance of safeguarding the
community from incitements to the overthrow of our institutions by force and violence, the
more imperative is the need to preserve inviolate the constitutional rights of free speech, free
press and free assembly in order to maintain the opportunity for free political discussion, to
the end that government may be responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the security of the Republic, the
very foundation of constitutional government." 11 It is to carry this essential process one step
farther to recognize and to implement the right of every political party or group to select the
candidates who, by their election, could translate into actuality their hopes for the
fundamental law that the times demand. Moreover, is it not in keeping with the rights to
intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles
to organized civic groups making their influence felt in the task of constitution framing, the
result of which has momentuous implications for the nation? What is decisive of this aspect
of the matter is not the character of the association or organized group as such but the
essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested in Congress
to attain a desirable goal. Nor can it be successfully argued that the judiciary should display
reluctance in extending sympathy and understanding to such legislative determination. This
is merely to stress that however worthwhile the objective, the Constitution must still be paid
deference. Moreover, it may not be altogether unrealistic to consider the practical effects of
the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or
other organization or organized group is concerned, but not necessarily so in the case of
political party, political group or political committee. There is the commendable admission by
Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their
individual capacity, could continue to assert their influence. It could very well happen, then,
in not a few cases, assuming the strength of political parties, that a candidate thus favored is
sure of emerging the victor. What is thus sought to be accomplished to guard against the evil
of party spirit prevailing could very well be doomed to futility. The high hopes entertained by
the articulate and vocal groups of young people, intellectuals and workers, may not be
realized. The result would be that this unorthodox and novel provision could assume the
character of a tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a
radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the
judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a
problem of gravity when the probability of its success may be assumed. It is an entirely
different matter to cut down the exercise of what otherwise are undeniable constitutional
rights when, as in this case, the outcome might belie expectations. Considering the well-
settled principle that even though the governmental process be legitimate and substantial,
they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end
can be narrow]y achieved, I am far from being persuaded that to preclude political parties or
other groups or associations from lending aid and support to the candidates of men in whom
they can repose their trust is consistent with the constitutional rights of freedom of association
and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be
offensive to constitutional standards, magnified by the probability that the result would be the
failure and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that the
holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by
the majority sustaining the validity of this challenged provision. What survived the test of
constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition
for any political party, political committee or political group to nominate candidates for any
elective public office voted for at large earlier than 150 days immediately preceding election
and for any other public office earlier than 90 days immediately preceding such election. 13 A
corollary to the above limitation, the provision making it 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 above periods successfully hurdled the constitutional test, although the
restrictions as to the making of speeches, announcements or commentaries or holding
interviews for or against the election of any party or candidate for public office or the
publishing or distributing of campaign literature or materials or the solicitation or undertaking
any campaign or propaganda for or against any candidate or party, directly or indirectly,
survived by the narrow margin of one vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster
the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign
or partisan political activity would limit or restrict the formation of organizations, associations,
 clubs, committees or other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda for or against a party or candidate or the giving,
soliciting, or receiving a contribution for election campaign purposes, either directly or
indirectly as well as the holding of political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies, with a similar end in view, only five members of
this Court, a minority thereof voted for their unconstitutionality. What emerges clearly, then,
is that definite acts short of preventing the political parties from the choice of their candidates
and thereafter working for them in effect were considered by this Court as not violative of the
constitutional freedoms of speech, of press, of assembly and of association.
The challenged provision in these two petitions, however, goes much farther.
Political parties or any other organization or organized group are precluded from selecting
and supporting candidates for delegates to the Constitutional Convention. To my mind, this
is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to
be within the sphere of liberty. Thus, I am unable to conclude that our previous decision
in Gonzales v. Commission on Elections which already was indicative of the cautious and
hesitant judicial approach to lending its approval to what otherwise are invasions of vital
constitutional safeguards to freedoms of belief, of expression, and of association lends
support to the decision reached by the majority insofar as this challenged provision is
concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I am
authorized to state that the Chief Justice is in agreement with the views herein expressed.
BARREDO, J.: concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence with the
majority, to sustain the validity of the provisions of Republic Act 6132 impugned by petitioners
in these cases, except Section 4 and the portion of Section 8(a) referring to political parties.
As regards Section 4, I reiterate my separate opinion in the cases of Subido and others. (G.R.
Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the considerations which
make the restraint on the freedoms of association, assembly and speech involved in the ban
on political parties to nominate and support their own candidates, reasonable and within the
limits of the Constitution do not obtain when it comes to civic or non-political organizations.
As I see it, the said ban, insofar as civic or non-political organizations are concerned, is a
deceptive device to preserve the built-in advantages of political parties while at the same
time crippling completely the other kinds of associations. The only way to accomplish the
purported objective of the law of equalizing the forces that will campaign on behalf of the
candidates to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties and/or some
of their members have made necessary the imposition thereof. Under the resulting set up
embodied in the provision in question, the individual candidates who have never had any
political party connections or very little of it would be at an obvious disadvantage unless they
are allowed to seek and use the aid of civic organizations. Neither the elaborate provisions
of Republic Act 6132 regarding methods of campaign nor its other provisions intended to
minimize the participation of political parties in the electoral processes of voting, counting of
the votes and canvassing of the results can overcome the advantages of candidates more or
less connected with political parties, particularly the major and established ones, as long as
the right to form other associations and the right of these associations to campaign for their
candidates are denied, considering particularly the shortness of the time that is left between
now and election day.
The issues involved in the coming elections are grave and fundamental ones that
are bound to affect the lives, rights and liberties of all the people of this country most
effectively, pervasively and permanently. The only insurance of the people against political
parties which may be inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny them this right is to stifle
the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular
candidates in an organized way, similarly as in the use of platforms by political parties, cannot
have any chance of support and final adoption. Both men and issues are important, but
unrelated to each other, each of them alone is insignificant, and the only way to relate them
is by organization. Precisely because the issues in this election of candidates are of
paramount importance second to none, it is imperative that all of the freedoms enshrined in
the constitution should have the ampliest recognition for those who are minded to actively
battle for them and any attempt to curtail them would endanger the very purposes for which
a new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao vs.
Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that
the right of suffrage which is the cornerstone of any democracy like ours is meaningless when
the right to campaign in any election therein is unreasonably and unnecessarily curtailed,
restrained or hampered, as is being done under the statute in dispute.
It is, of course, understood that this opinion is based on my considered view,
contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis,
the ban against political parties is separable from that against other associations within the
contemplation of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few days.
||| (Imbong v. Ferrer, G.R. No. L-32432, L-32443, [September 11, 1970], 146 PHIL 30-67)
[G.R. No. 174153. October 25, 2006.]
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS, petitioners, vs.
THE COMMISSION ON ELECTIONS, respondent.
ALTERNATIVE LAW GROUPS, INC., intervenor.
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL
L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., intervenors.
ATTY. PETE QUIRINO QUADRA, intervenor.
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-
Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo
Lesaca, KILUSANG MAYO UNO represented by its Secretary General
Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr.
Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its
Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S
PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU
represented by Chairperson Eleanor de Guzman, LEAGUE OF PROVINCE CHAPTERS, intervenors.
FILIPINO STUDENTS represented by Chair Vencer Crisostomo
Palabay, JOJO PINEDA of the League of Concerned Professionals
and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and
Against Charter Change, DR. REGINALD PAMUGAS of Health Action
SENATORS SERGIO R. OSMEÑA III, JAMBY MADRIGAL, JINGGOY
for Human Rights, intervenors.
ESTRADA, ALFREDO S. LIM and PANFILO LACSON, intervenors.

LORETA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
THERESA HONTIVEROS-BARAQUEL, intervenors.
PILIPINO, intervenors.

LUWALHATI RIACASA ANTONINO, intervenor.

[G.R. No. 174299. October 25, 2006.]

ARTURO M. DE CASTRO, intervenor.
TRADE UNION CONGRESS OF THE PHILIPPINES, intervenor.
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.
SAGUISAG, petitioners, vs. COMMISSION ON ELECTIONS,
represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A.
TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO
NICODEMO T. FERRER, and John Doe and Peter Doe, respondents.

LUWALHATI RICASA ANTONINO, intervenor.

DECISION
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON,
FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, intervenors. CARPIO, J p:

The Case
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
BAYA, intervenors. These are consolidated petitions on the Resolution dated 31 August 2006 of
the Commission on Elections ("COMELEC") denying due course to an initiative petition to
amend the 1987 Constitution.
PHILIPPINE TRANSPORT AND GENERAL WORKERS Antecedent Facts
ORGANIZATION (PTGWO) and MR. VICTORINO F.
BALAIS, intervenors. On 15 February 2006, petitioners in G.R. No. 174153, namely Raul
L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups 1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to
SENATE OF THE PHILIPPINES, represented by its President, hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) 2 and Section
MANUEL VILLAR, JR., intervenor. 7 3 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters, with each
SULONG BAYAN MOVEMENT FOUNDATION, INC., intervenor. 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.
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.
The Lambino Group's initiative petition changes the 1987 Constitution by
LAT, ANTONIO L. SALVADOR, and RANDALL
modifying Sections 1-7 of Article VI (Legislative Department) 4 and Sections 1-4 of Article VII
TABAYOYONG, intervenors.
(Executive Department) 5 and by adding Article XVIII entitled "Transitory
Provisions." 6 These proposed changes will shift the present Bicameral-Presidential system
to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after
due publication of their petition, the COMELEC should submit the following proposition in a
plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI
AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with
the COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions)
of their initiative. 7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to
the Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling
in Santiago v. Commission on Elections 8 declaring RA 6735 inadequate to implement
the initiative clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs
of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to
compel the COMELEC to give due course to their initiative petition. The Lambino Group
contends that the COMELEC committed grave abuse of discretion in denying due course to
their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group
claims that Santiago binds only the parties to that case, and their petition deserves
cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited in
contempt for the COMELEC's verification of signatures and for "entertaining"
the Lambino Group's petition despite the permanent injunction in Santiago. The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined
causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling.
The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as
temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors 10 uniformly hold the
view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the
other hand, the opposing intervenors 11 hold the contrary view and maintain that Santiago is
a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's
standing to file the petition; (2) the validity of the signature gathering and verification process;
(3) the Lambino Group's compliance with the minimum requirement for the percentage of
voters supporting an initiative petition under Section 2, Article XVII of the 1987
Constitution; 12 (4) the nature of the proposed changes as revisions and not mere
amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5)
the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting
initiative petitions to only one subject. ACETIa
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties' memoranda, the Court considered the case submitted for
resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a
people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the Constitution;
and
3. Whether the COMELEC committed grave abuse of discretion in denying due
course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of
the Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based
alone on the Lambino Group's glaring failure to comply with the basic requirements of
the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is
attributable to the Commission on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of
the Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision
that allows a people's initiative to propose amendments to the Constitution. This section
states:
Sec. 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered
voters of which every legislative district must be represented by at least
three per centum of the registered voters therein. . . . . (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of
an amendment "directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some
voters want to propose a constitutional amendment. Is the draft of the
proposed constitutional amendment ready to be shown to the
people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft is
ready and shown to them before they sign. Now, who prepares the
draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is
already a draft shown to them and they are asked whether or not
they want to propose this constitutional amendment.
 MR. SUAREZ: As it is envisioned, any Filipino can prepare
that proposal and pass it around for signature. 13 (Emphasis
supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before" they sign
such proposal. The framers plainly stated that "before they sign there is already a draft
shown to them." The framers also "envisioned" that the people should sign on the
proposal itself because the proponents must "prepare that proposal and pass it around
for signature."
The essence of amendments "directly proposed by the people through
initiative upon a petition" is that the entire proposal on its face is a petition by the
people. This means two essential elements must be present. First, the people must author
and thus sign the entire proposal. No agent or representative can sign on their behalf.
Second, as an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such complete
proposal in a petition. Thus, an amendment is "directly proposed by the people through
initiative upon a petition" only if the people sign on a petition that contains the full text
of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such attachment.
This is an assurance that every one of the several millions of signatories to the petition had
seen the full text of the proposed amendments before signing. Otherwise, it is physically
impossible, given the time constraint, to prove that every one of the millions of signatories
had seen the full text of the proposed amendments before signing.
The framers of the Constitution directly borrowed 14 the concept of people's
initiative from the United States where various State constitutions incorporate an initiative
clause. In almost all States 15 which allow initiative petitions, the unbending requirement
is that the people must first see the full text of the proposed amendments before they
sign to signify their assent, and that the people must sign on an initiative petition that
contains the full text of the proposed amendments. 16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme
Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the
person supplying the signature has not first seen what it is that he
or she is signing. Further, and more importantly, loose interpretation of
the subscription requirement can pose a significant potential for fraud. A
person permitted to describe orally the contents of an initiative petition to
a potential signer, without the signer having actually examined the
petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that
might not be to the signer's liking. This danger seems particularly
acute when, in this case, the person giving the description is the
drafter of the petition, who obviously has a vested interest in seeing
that it gets the requisite signatures to qualify for the
ballot. 17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury, 18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments
by initiative commonly are described in similar terms. . . . (The purpose
of the full text requirement is to provide sufficient information so
that registered voters can intelligently evaluate whether to sign the
initiative petition."); . . . (publication of full text of amended constitutional
provision required because it is "essential for the elector to have . . . the
section which is proposed to be added to or subtracted from. If he is to
vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and
effect of that which is proposed" and failure to do so is "deceptive and misleading" which
renders the initiative void. 19
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. However, the deliberations of the
framers of our Constitution clearly show that the framers intended to adopt the relevant
American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people must
first see the full text of the proposed amendments before they sign, and that the people
must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No.
6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires
that the people must sign the "petition . . . as signatories." cADTSH
The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public officials. The
proponents are not disinterested parties who can impartially explain the advantages and
disadvantages of the proposed amendments to the people. The proponents present
favorably their proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of proving that
they complied with the constitutional requirements in gathering the signatures — that the
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 20 after the oral arguments of 26 September 2006
when they filed their Memorandum on 11 October 2006. The signature sheet with this Court
during the oral arguments was the signature sheet attached 21 to the opposition in
intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce below the
signature sheet in full:
Province: City/Municipality: No. of
Verified
Legislative District: Barangay: Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII
AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO
ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature
herein which shall form part of the petition for initiative to amend the Constitution signifies
my support for the filing thereof.

present petition. However, the "Official Website of the Union of Local Authorities of the
Philippines" 22 has posted the full text of Resolution No. 2006-02, which provides:
There is not a single word, phrase, or sentence of text of
the Lambino Group's proposed changes in the signature sheet. Neither does the
signature sheet state that the text of the proposed changes is attached to it. Petitioner
Atty. Raul Lambino admitted this during the oral arguments before this Court on 26
September 2006.
The signature sheet merely asks a question whether the people approve a shift
from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The
signature sheet does not show to the people the draft of the proposed changes before
they are asked to sign the signature sheet. Clearly, the signature sheet is not
the "petition" that the framers of the Constitution envisioned when they formulated the
initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering
from February to August 2006, the Lambino Group circulated, together with the signature
sheets, printed copies of the Lambino Group's draft petition which they later filed on 25
August 2006 with the COMELEC. When asked if his group also circulated the draft of
their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially
replied that they circulated both. However, Atty. Lambino changed his answer and stated that
what his group circulated was the draft of the 30 August 2006 amended petition, not the draft
of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006
amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended]
Petition in my personal capacity as a registered voter, for and on behalf
of the Union of Local Authorities of the Philippines, as shown by
ULAP Resolution No. 2006-02 hereto attached, and as representative
of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE
PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE
THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE
OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities
of the Philippines (ULAP) to adopt a common stand on the approach to
support the proposals of the People's
Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms as embodied in the ULAP Joint Declaration for
Constitutional Reforms signed by the members of the ULAP and the
majority coalition of the House of Representatives in Manila Hotel
sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter
Change created by Her Excellency to recommend amendments to
the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional
members and the failure of Congress to amend the Constitution as a
constituent assembly, ULAP has unanimously agreed to pursue the
constitutional reform agenda through People's Initiative and Referendum
without prejudice to other pragmatic means to pursue the same;
 WHEREFORE, BE IT RESOLVED AS IT IS HEREBY
RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF
LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE
(SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING
THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special
meeting held on 14 January 2006 at the Century Park Hotel,
Manila. 23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to
prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with
the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission 24 are vastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed
with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory Provisions.
The proposed revisions have profound impact on the Judiciary and the National Patrimony
provisions of the existing Constitution, provisions that the Lambino Group's proposed
changes do not touch. The Lambino Group's proposed changes purport to affect only Articles
VI and VII of the existing Constitution, including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that
ULAP or the Lambino Group caused the circulation of the draft petition, together with the
signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP
Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated
the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does
not refer at all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC,
the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that
the proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory
Provisions were inaccurately stated and failed to correctly reflect their
proposed amendments. AaDSEC
The Lambino Group did not allege that they were amending the petition because the
amended petition was what they had shown to the people during the February to August
2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25
August 2006 "inaccurately stated and failed to correctly reflect their proposed
amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of the draft
petition together with the signature sheets. Likewise, the Lambino Group did not allege in
their present petition before this Court that they circulated printed copies of the draft petition
together with the signature sheets. The signature sheets do not also contain any indication
that the draft petition is attached to, or circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that
the Lambino Group first claimed that they circulated the "petition for initiative filed with
the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there
is not (sic) fraud, a signer who did not read the measure attached to
a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act." [82 C.J.S. S128h.
Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered
voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to
have understood the proposition contained in the petition. (Emphasis
supplied)
The Lambino Group's statement that they circulated to the people "the petition
for initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain
the text of the proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to mention the amended
petition. This contradicts what Atty. Lambino finally stated during the oral arguments that
what they circulated was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a
signer who did not read the measure attached to a referendum petition cannot question
his signature on the ground that he did not understand the nature of the act."
The Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes requires that
the proposed change must be attached to the petition. The same authority
the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must
be incorporated with, or attached to, the initiative petition signed by the people. In the present
initiative, the Lambino Group's proposed changes were not incorporated with, or attached to,
the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug
from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the petition or
amended petition they filed later with the COMELEC. The Lambino Group are less than
candid with this Court in their belated claim that they printed and circulated, together with the
signature sheets, the petition or amended petition. Nevertheless,
even assuming the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating only very limited
copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed
only 100,000 copies of the draft petition they filed more than six months later with
the COMELEC. Atty. Lambino added that he also asked other supporters to print
additional copies of the draft petition but he could not state with certainty how many
additional copies the other supporters printed. Atty. Lambino could only assure this
Court of the printing of 100,000 copies because he himself caused the printing of these
100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October
2006, the Lambino Group expressly admit that "petitioner Lambino initiated the
printing and reproduction of 100,000 copies of the petition for initiative . . . ." 25 This
admission binds the Lambino Group and establishes beyond any doubt that
the Lambino Group failed to show the full text of the proposed changes to the great
majority of the people who signed the signature sheets.
 Thus, of the 6.3 million signatories, only 100,000 signatories could have received
with certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each signature
sheet, only 100,000 signature sheets could have circulated with the petition. Each signature
sheet contains space for ten signatures. Assuming ten people signed each of these 100,000
signature sheets with the attached petition, the maximum number of people who saw the
petition before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible
for all or a great majority of the 6.3 million signatories to have seen the petition before they
signed the signature sheets. The inescapable conclusion is that the Lambino Group
failed to show to the 6.3 million signatories the full text of the proposed changes. If
ever, not more than one million signatories saw the petition before they signed the signature
sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment with an
indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted
this during the oral arguments, and this admission binds the Lambino Group. This fact
is also obvious from a mere reading of the signature sheet. This omission is fatal. The
failure to so include the text of the proposed changes in the signature sheets renders the
initiative void for non-compliance with the constitutional requirement that the amendment
must be "directly proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature
sheets did not see the full text of the proposed changes before signing. They could not have
known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely; 26
2. The interim Parliament can continue to function indefinitely until its members,
who are almost all the present members of Congress, decide to call for
new parliamentary elections. Thus, the members of the interim
Parliament will determine the expiration of their own term of
office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or
revisions to the Constitution. 28
These three specific amendments are not stated or even indicated in
the Lambino Group's signature sheets. The people who signed the signature sheets had no
idea that they were proposing these amendments. These three proposed changes are highly
controversial. The people could not have inferred or divined these proposed changes merely
from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the elections for the
regular Parliament would be held during the 2007 local elections if the proposed
changes were ratified before the 2007 local elections. However, the text of the
proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the
election of the members of Parliament, which shall be synchronized
and held simultaneously with the election of all local government
officials. . . . . (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that
the elections for the regular Parliament shall be held simultaneously with the
local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of all local
government officials." This would have insured that the elections for the regular Parliament
would be held in the next local elections following the ratification of the proposed changes.
However, the absence of the word "next" allows the interim Parliament to schedule
the elections for the regular Parliament simultaneously with any future
local elections. CDISAc
Thus, the members of the interim Parliament will decide the expiration of their own
term of office. This allows incumbent members of the House of Representatives to hold office
beyond their current three-year term of office, and possibly even beyond the five-year term
of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who signed
the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories,
and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition
that contains the full text of the proposed amendments to avoid fraud or misrepresentation.
In the present initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the signature sheets did not
contain the full text of the proposed changes. The result is a grand deception on the 6.3
million signatories who were led to believe that the proposed changes would require the
holding in 2007 of elections for the regular Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong bureaucracy.
(Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and
the Court and the people should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives
outlaws this as logrolling — when the initiative petition incorporates an unrelated subject
matter in the same petition. This puts the people in a dilemma since they can answer only
either yes or no to the entire proposition, forcing them to sign a petition that effectively
contains two propositions, one of which they may find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone, 29 the
Supreme Court of Florida declared:
Combining multiple propositions into one proposal
constitutes "logrolling," which, if our judicial responsibility is to
mean anything, we cannot permit. The very broadness of the proposed
amendment amounts to logrolling because the electorate cannot know
what it is voting on — the amendment's proponents' simplistic explanation
reveals only the tip of the iceberg. . . . . The ballot must give the
 electorate fair notice of the proposed amendment being voted on. . . . .
The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect
and effect and violates the requirement that proposed amendments
embrace only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine, 30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud"
in logrolling:
Whenever a bill becomes law through the initiative process, all
of the problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage,
and there is a greater opportunity for "inadvertence, stealth and
fraud" in the enactment-by-initiative process. The drafters of an
initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions,
when communicating to the public. . . . Indeed, initiative promoters
typically use simplistic advertising to present their initiative to
potential petition-signers and eventual voters. Many voters will never
read the full text of the initiative before the election. More importantly,
there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from
the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a constituent
assembly. The people who signed the signature sheets could not have known that their
signatures would be used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from ratification
of the proposed changes, or before the May 2007 elections. In the absence of the
proposed Section 4(4), the interim Parliament has the discretion whether to amend or
revise again the Constitution. With the proposed Section 4(4), the initiative proponents
want the interim Parliament mandated to immediately amend or revise again
the Constitution.
However, the signature sheets do not explain the reason for this rush in amending
or revising again so soon the Constitution. The signature sheets do not also explain what
specific amendments or revisions the initiative proponents want the interim Parliament to
make, and why there is a need for such further amendments or revisions. The people are
again left in the dark to fathom the nature and effect of the proposed changes.
Certainly, such an initiative is not "directly proposed by the people" because the people do
not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended
petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall
be members of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if
the interim Parliament does not schedule elections for the regular Parliament by 30 June
2010. However, there is no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007, three years earlier
than that of half of the present Senators. Thus, all the present members of the House will
remain members of the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will
come only from the present members of the House of Representatives to the exclusion of
the present Senators.
The signature sheets do not explain this discrimination against the Senators. The
6.3 million people who signed the signature sheets could not have known that their
signatures would be used to discriminate against the Senators. They could not have
known that their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and can operate
as a gigantic fraud on the people. That is why the Constitution requires that an initiative
must be "directly proposed by the people . . . in a petition" — meaning that the people
must sign on a petition that contains the full text of the proposed amendments. On so vital an
issue as amending the nation's fundamental law, the writing of the text of the proposed
amendments cannot be hidden from the people under a general or special power of
attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the members of this
Court do not personally know the people who sign the petition. However, this trust
emanates from a fundamental assumption: the full text of the proposed amendment is
first shown to the people before they sign the petition, not after they have signed the
petition.
In short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that
the initiative must be "directly proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing
Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of
the Constitution and not to its revision. In contrast, Congress or a constitutional convention
can propose both amendments and revisions to the Constitution. Article XVII of
the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members, or CcTIDH
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative . . . . (Emphasis
supplied)
Article XVII of the Constitution speaks of three modes of amending
the Constitution. The first mode is through Congress upon three-fourths vote of all its
Members. The second mode is through a constitutional convention. The third mode is through
a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII,
referring to the third mode, applies only to "[A]mendments to this Constitution." This
distinction was intentional as shown by the following deliberations of the
Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of
the Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative. This is
now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the
last plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent
of the registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. This proposal was suggested on the theory that this matter
of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should be limited to
amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or
Revision. . . . .
xxx xxx xxx
MS. AQUINO: [I] am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ: We would be amenable except that, as we
clarified a while ago, this process of initiative is limited to the matter
of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was
attempting to distinguish the coverage of modes (a) and (b) in
Section 1 to include the process of revision; whereas, the process
of initiation to amend, which is given to the public, would only apply
to amendments?
MR. SUAREZ: That is right. Those were the terms
envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam
President.
xxx xxx xxx
MR. MAAMBONG: My first question: Commissioner
Davide's proposed amendment on line 1 refers to "amendments."
Does it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative is
concerned, it can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you. 31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between "amendment" and "revision" of the Constitution. The
framers intended, and wrote, that only Congress or a constitutional convention may propose
revisions to the Constitution. The framers intended, and wrote, that a people's initiative
may propose only amendments to the Constitution. Where the intent and language of
the Constitution clearly withhold from the people the power to propose revisions to
the Constitution, the people cannot propose revisions even as they are empowered to
propose amendments.
This has been the consistent ruling of state supreme courts in the United States.
Thus, in McFadden v. Jordan, 32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment
to the Constitution . . . applies only to the proposing and the
adopting or rejecting of 'laws and amendments to the Constitution'
and does not purport to extend to a constitutional revision. . . . . It is
thus clear that a revision of the Constitution may be accomplished only
through ratification by the people of a revised constitution proposed by a
convention called for that purpose as outlined hereinabove. Consequently
if the scope of the proposed initiative measure (hereinafter termed 'the
measure') now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected,
then the measure may not properly be submitted to the electorate until
and unless it is first agreed upon by a constitutional convention, and the
writ sought by petitioner should issue. . . . . (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling: 33
It is well established that when a constitution specifies the
manner in which it may be amended or revised, it can be altered by those
who favor amendments, revision, or other change only through the use of
one of the specified means. The constitution itself recognizes that there is
a difference between an amendment and a revision; and it is obvious
from an examination of the measure here in question that it is not an
amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large
part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, . . .
and submitted to the 1963 Legislative Assembly. It failed to receive in the
Assembly the two-third's majority vote of both houses required by Article
XVII, Section 2, and hence failed of adoption, . . . .
While differing from that document in material respects, the
measure sponsored by the plaintiffs is, nevertheless, a thorough
overhauling of the present constitution . . . .
To call it an amendment is a misnomer.
 Whether it be a revision or a new constitution, it is not such a
measure as can be submitted to the people through the initiative. If a
revision, it is subject to the requirements of Article XVII, Section 2(1); if a
new constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. . . . .
Similarly, in this jurisdiction there can be no dispute that a people's initiative can
only propose amendments to the Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures,
cannot justify a deviation from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364: 34
It is a fundamental principle that a constitution can only be
revised or amended in the manner prescribed by the instrument
itself, and that any attempt to revise a constitution in a manner other
than the one provided in the instrument is almost invariably treated
as extra-constitutional and revolutionary. . . . . "While it is universally
conceded that the people are sovereign and that they have power to
adopt a constitution and to change their own work at will, they must, in
doing so, act in an orderly manner and according to the settled principles
of constitutional law. And where the people, in adopting a constitution,
have prescribed the method by which the people may alter or amend it,
an attempt to change the fundamental law in violation of the self-imposed
restrictions, is unconstitutional." . . . . (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk
from its solemn oath and duty to insure compliance with the clear command of
the Constitution — that a people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the
present petition should be dismissed for being outside the scope of Section 2, Article XVII of
the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described the
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a
permanent and abiding nature, and the provisions contained therein
for its revision indicate the will of the people that the underlying
principles upon which it rests, as well as the substantial entirety of
the instrument, shall be of a like permanent and abiding nature. On the
other hand, the significance of the term "amendment" implies such an
addition or change within the lines of the original instrument as will effect
an improvement, or better carry out the purpose for which it was
framed. 35 (Emphasis supplied) CDISAc
Revision broadly implies a change that alters a basic principle in
the constitution, like altering the principle of separation of powers or the system of checks-
and-balances. There is also revision if the change alters the substantial entirety of
the constitution, as when the change affects substantial provisions of
the constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision generally
affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to
the constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the proposed
change is "so extensive in its provisions as to change directly the 'substantial entirety' of
the constitution by the deletion or alteration of numerous existing provisions." 36 The court
examines only the number of provisions affected and does not consider the degree of the
change.
The qualitative test inquires into the qualitative effects of the proposed change in
the constitution. The main inquiry is whether the change will "accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a revision." 37 Whether
there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a
change in the nature of [the] basic governmental plan" includes "change in its fundamental
framework or the fundamental powers of its Branches." 38 A change in the nature of the basic
governmental plan also includes changes that "jeopardize the traditional form of government
and the system of check and balances." 39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is
a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed
changes overhaul two articles — Article VI on the Legislature and Article VII on the Executive
— affecting a total of 105 provisions in the entire Constitution. 40 Qualitatively, the proposed
changes alter substantially the basic plan of government, from presidential to parliamentary,
and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when
the three great co-equal branches of government in the present Constitution are reduced into
two. This alters the separation of powers in the Constitution. A shift from the present
Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of
the Constitution. Merging the legislative and executive branches is a radical change in the
structure of government.
The abolition alone of the Office of the President as the locus of Executive Power
alters the separation of powers and thus constitutes a revision of the Constitution. Likewise,
the abolition alone of one chamber of Congress alters the system of checks-and-balances
within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a revision, not a
mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of government as set forth
in the Constitution. Father Joaquin Bernas, S.J., a leading member of the
Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an amendment
is to improve specific parts or to add new provisions deemed necessary
to meet new conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In revision,
however, the guiding original intention and plan contemplates a re-
examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a
switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire
constitutional structure. So would a switch from a bicameral system
to a unicameral system be because of its effect on other important
provisions of the Constitution. 41 (Emphasis supplied)
In Adams v. Gunter, 42 an initiative petition proposed the amendment of the
Florida State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the] proposed
amendment would . . . affect several other provisions of [the] Constitution." The Supreme
Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled
as follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not only
many other provisions of the Constitution but provides for a change
in the form of the legislative branch of government, which has been
in existence in the United States Congress and in all of the states of the
nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only
radically change the whole pattern of government in this state and
tear apart the whole fabric of the Constitution, but would even affect
the physical facilities necessary to carry on government.
xxx xxx xxx
We conclude with the observation that if such proposed
amendment were adopted by the people at the General Election and if
the Legislature at its next session should fail to submit further
amendments to revise and clarify the numerous inconsistencies and
conflicts which would result, or if after submission of appropriate
amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would
obtain from an amendment, for instance, of Section 1 of Article V, to
provide for only a Supreme Court and Circuit Courts-and there could be
other examples too numerous to detail. These examples point unerringly
to the answer.
The purpose of the long and arduous work of the hundreds of
men and women and many sessions of the Legislature in bringing about
the Constitution of 1968 was to eliminate inconsistencies and conflicts
and to give the State a workable, accordant, homogenous and up-to-date
document. All of this could disappear very quickly if we were to hold that it
could be amended in the manner proposed in the initiative petition
here. 43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative departments. The
initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral legislature.
In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo J.
Callejo, Sr. 44 There is no doubt that the Lambino Group's present initiative seeks far more
radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group posits that when
a deliberative body drafts and proposes changes to the Constitution, substantive changes
are called "revisions" because members of the deliberative body work full-time on the
changes. However, the same substantive changes, when proposed through an initiative, are
called "amendments" because the changes are made by ordinary people who do not
make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and "revision" when it
speaks of legislators and constitutional delegates, while the same
provisions expressly provide only for "amendment" when it speaks of the
people. It would seem that the apparent distinction is based on the actual
experience of the people, that on one hand the common people in
general are not expected to work full-time on the matter of correcting
the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional
convention delegates are expected to work full-time on the same matter
because that is their occupation, profession or vocation. Thus, the
difference between the words "revision" and "amendment" pertain
only to the process or procedure of coming up with the corrections,
for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between
"amendment" and "revision" cannot reasonably be in the substance
or extent of the correction. . . . . (Underlining in the original; boldfacing
supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention
had drafted the same proposed changes that the Lambino Group wrote in the present
initiative, the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in the present initiative
constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the proposed
changes, the changes are merely amendments to the Constitution. The Lambino Group
trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of
the Constitution contradict the Lambino Group's theory. Where the intent of the framers and
the language of the Constitution are clear and plainly stated, courts do not deviate from such
categorical intent and language. 45 Any theory espousing a construction contrary to such
intent and language deserves scant consideration. More so, if such theory wreaks havoc by
creating inconsistencies in the form of government established in the Constitution. Such a
theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution,
only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a
proposed change involving a radical structural change in government does not constitute a
revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling, 46 the
Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to
changes to the constitution proposed by initiative. His theory is that
Article XVII, section 2 merely provides a procedure by which the
legislature can propose a revision of the constitution, but it does not
affect proposed revisions initiated by the people. AcaEDC
Plaintiffs argue that the proposed ballot measure constitutes a
wholesale change to the constitution that cannot be enacted through the
initiative process. They assert that the distinction between amendment
and revision is determined by reviewing the scope and subject matter of
the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure
proposes far reaching changes outside the lines of the original
instrument, including profound impacts on existing fundamental rights and
radical restructuring of the government's relationship with a defined group
of citizens. Plaintiffs assert that, because the proposed ballot measure
 "will refashion the most basic principles of Oregon constitutional law," the
trial court correctly held that it violated Article XVII, section 2, and cannot
appear on the ballot without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section
2(1), does not prohibit revisions instituted by initiative. In Holmes v.
Appling, . . ., the Supreme Court concluded that a revision of
the constitution may not be accomplished by initiative, because of the
provisions of Article XVII, section 2. After reviewing Article XVII, section1,
relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section
1, authorizes the use of the initiative as a means of amending
the Oregon Constitution, but it contains no similar sanction for
its use as a means of revising the constitution." . . . .
It then reviewed Article XVII, section 2, relating to revisions,
and said: "It is the only section of the constitution which provides the
means for constitutional revision and it excludes the idea that an
individual, through the initiative, may place such a measure before the
electorate." . . . .
Accordingly, we reject Mabon's argument that Article XVII,
section 2, does not apply to constitutional revisions proposed by
initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express
intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the spectrum,
colors fuse and difficulties arise in determining whether there is an amendment or revision.
The present initiative is indisputably located at the far end of the red spectrum where revision
begins. The present initiative seeks a radical overhaul of the existing separation of powers
among the three co-equal departments of government, requiring far-reaching amendments
in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without
affecting any other section or article, the change may generally be considered an amendment
and not a revision. For example, a change reducing the voting age from 18 years to 15
years 47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of
mass media companies from 100 percent to 60 percent is an amendment and not a
revision. 48 Also, a change requiring a college degree as an additional qualification for election
to the Presidency is an amendment and not a revision. 49
The changes in these examples do not entail any modification of sections or
articles of the Constitution other than the specific provision being amended. These changes
do not also affect the structure of government or the system of checks-and-balances among
or within the three branches. These three examples are located at the far green end of the
spectrum, opposite the far red end where the revision sought by the present petition is
located.
However, there can be no fixed rule on whether a change is an amendment or a
revision. A change in a single word of one sentence of the Constitution may be a revision
and not an amendment. For example, the substitution of the word "republican" with
"monarchic" or "theocratic" in Section 1, Article II 50 of the Constitution radically overhauls
the entire structure of government and the fundamental ideological basis of the Constitution.
Thus, each specific change will have to be examined case-by-case, depending on how it
affects other provisions, as well as how it affects the structure of government, the carefully
crafted system of checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of
a constitution, a deliberative body with recorded proceedings is best suited to undertake
a revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed
and identifiable deliberative bodies or recorded proceedings, to undertake only amendments
and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2, 3, 4, 5,
6 and 7 of Article VI of the 1987 Constitution which shall hereby be
amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially
as Section 2, ad seriatim up to 26, unless they are inconsistent with
the Parliamentary system of government, in which case, they shall
be amended to conform with a unicameral parliamentary form of
government; . . . . (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to construction of
constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions
turns on its head this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with a unicameral
parliamentary form of government." The effect is to freeze the two irreconcilable provisions
until the earlier one "shall be amended," which requires a future separate constitutional
amendment.
Realizing the absurdity of the need for such an amendment, petitioner
Atty. Lambino readily conceded during the oral arguments that the requirement of a future
amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory
construction so that the later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a
provision in the proposed changes. The inconsistency is between a provision in Article VI of
the 1987 Constitution and the "Parliamentary system of government," and the
inconsistency shall be resolved in favor of a "unicameral parliamentary form of
government."
Now, what "unicameral parliamentary form of government" do
the Lambino Group's proposed changes refer to — the Bangladeshi, Singaporean, Israeli, or
New Zealand models, which are among the few countries with unicameral parliaments?
The proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government — the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the
people who signed the signature sheets realize that they were adopting the Bangladeshi,
Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of
the Constitution but only for amendments. A shift from the present Bicameral-Presidential to
a Unicameral-Parliamentary system requires harmonizing several provisions in many articles
of the Constitution. Revision of the Constitution through a people's initiative will only result in
gross absurdities in the Constitution.
 In sum, there is no doubt whatsoever that the Lambino Group's initiative is a
revision and not an amendment. Thus, the present initiative is void and unconstitutional
because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's
initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a
people's initiative to amend the Constitution. There is no need to revisit this Court's ruling
in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution. An affirmation or
reversal of Santiago will not change the outcome of the present petition. Thus, this Court
must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with
the requirements of the Constitution to implement the initiative clause on amendments to
the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute
if the case before the Court can be resolved on some other grounds. Such avoidance is a
logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds. 51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result here because
the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative,
the present initiative must first comply with Section 2, Article XVII of the Constitution even
before complying with RA 6735. IATSHE
Even then, the present initiative violates Section 5(b) of RA 6735 which requires
that the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA
6735 requires that the people must sign the "petition . . . as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended
petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In
the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million
signatories, merely attached the signature sheets to the petition and amended petition. Thus,
the petition and amended petition filed with the COMELEC did not even comply with the basic
requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA
6735 stating, "No petition embracing more than one (1) subject shall be submitted to
the electorate; . . . ." The proposed Section 4(4) of the Transitory Provisions, mandating the
interim Parliament to propose further amendments or revisions to the Constitution, is a
subject matter totally unrelated to the shift in the form of government. Since the present
initiative embraces more than one subject matter, RA 6735 prohibits submission of the
initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's
initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing
the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en
banc merely followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC. 52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave
abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by PIRMA therein,
it appearing that it only complied with the dispositions in the Decisions of
this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the Constitution by
cavalierly amending or revising it in blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of the day. If
this Court allows today a cavalier change in the Constitution outside the constitutionally
prescribed modes, tomorrow the new dominant political group that comes will demand its
own set of changes in the same cavalier and unconstitutional fashion. A revolving-door
constitution does not augur well for the rule of law in this country.
An overwhelming majority — 16,622,111 voters comprising 76.3 percent of the
total votes cast 53 — approved our Constitution in a national plebiscite held on 11 February
1987. That approval is the unmistakable voice of the people, the full expression of the
people's sovereign will. That approval included the prescribed modes for amending or
revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by
the Lambino Group, can change our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they ratified the Constitution. The
alternative is an extra-constitutional change, which means subverting the people's
sovereign will and discarding the Constitution. This is one act the Court cannot and
should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform
its solemn duty to defend and protect the Constitution, which embodies the real sovereign
will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in
the Constitution itself. Otherwise, the Constitution — the people's fundamental covenant that
provides enduring stability to our society — becomes easily susceptible to manipulative
changes by political groups gathering signatures through false promises. Then,
the Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However,
the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that "ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms."
The Lambino Group thus admits that their "people's" initiative is an "unqualified support to
the agenda" of the incumbent President to change the Constitution. This forewarns the Court
to be wary of incantations of "people's voice" or "sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution.
The Constitution, which embodies the people's sovereign will, is the bible of this Court. This
Court exists to defend and protect the Constitution. To allow this constitutionally infirm
initiative, propelled by deceptively gathered signatures, to alter basic principles in
the Constitution is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
||| (Lambino v. Commission on Elections, G.R. Nos. 174153 & 174299, [October 25, 2006], 536
PHIL 1-364)
[G.R. No. 127325. March 19, 1997.]
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS,
JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI),
INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
Roco Bunag Kapunan & Migallos for movant Raul S. Roco.
Rene V . Sarmiento and R.A.V . Saguisag for movants DIK & MABINI.
Pete Quirino Quadra for respondents Sps. Alberto & Carmen Pedrosa.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC'S
FAILURE TO ACT ON MOTION TO DISMISS AND ITS INSISTENCE TO HOLD ON TO THE
PETITION RENDERED RIPE AND VIABLE THE PETITION UNDER SECTION 2 OF RULE
65 OF THE RULES OF COURT. — 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. . . It must be recalled that intervenor Roco filed with the COMELEC a motion
to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition. The COMELEC made no ruling thereon evidently because
after having heard the arguments of Delfin and the oppositors at the hearing on 12 December
1996, it required them to submit within five days their memoranda or oppositions/memoranda.
The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold onto
the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of
the Rules of Court.
2. ID.; ID.; THE COURT MAY BRUSH ASIDE TECHNICALITIES OF
PROCEDURE IN CASES OF TRANSCENDENTAL IMPORTANCE. — The Court may brush
aside technicalities of procedure in cases of transcendental importance. As we stated
in Kilosbayan, Inc. v. Guingona, Jr.: 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.
3. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS; PROVISION ON THE RIGHT OF THE PEOPLE TO DIRECTLY PROPOSE
AMENDMENTS TO THE CONSTITUTION, NOT SELF-EXECUTORY. — Section 2 of Article
XVII of the Constitution is not self-executory. In his book, 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.
4. ID.; ID.; ID.; R.A. 6735; INTENDED TO COVER INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. — 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 Representatives on the
basis of two House Bills referred to it, viz., (a) House Bill No. 497, which dealt with the
initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and
(b) House Bill No. 988, which dealt with the subject matter of House Bill No. 497, as well as
with initiative and referendum under Section 3 of Article XVII of the Constitution. Senate Bill
No. 17 solely, dealt with initiative and referendum concerning ordinances or resolutions of
local government units. The Bicameral Conference Committee consolidated Senate Bill No.
17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate and by the House of Representatives. This approved bill is now R.A. No.
6735.
5. ID.; ID.; ID.; ID.; CONGRESS, INVESTED WITH THE POWER TO PROVIDE
FOR THE RULES IMPLEMENTING THE EXERCISE OF THE RIGHT. — There is, of course,
no other better way for Congress to implement the exercise of the right than through the
passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2
of Article XVII then reading: "The Congress shall by law provide for the implementation of the
exercise of this right 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."
6. ID.; ID.; ID.; ID.; NOT IN FULL COMPLIANCE WITH THE POWER AND DUTY
OF CONGRESS TO PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THE
RIGHT. — 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 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."' . .
. 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, a statement of the proposed law sought to be enacted, approve 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. . . . 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. . . . 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."
7. ID.; ID.; ID.; ID.; SUBTITLING OF THE ACT, NOT ACCURATE. — 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, (2) that portion of Section 1] (Indirect Initiative) referring
to indirect initiative with the legislative bodies of local governments, 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.
8. ID.; ID.; ID.; ID.; SECTION 18 ON AUTHORITY OF COURTS UNDER
SUBTITLE ON LOCAL INITIATIVE AND REFERENDUM, MISPLACED. — Section
18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced,
since the provision therein applies to both national and local initiative and referendum.
9. ID.; ID.; ID.; ID.; FAILED TO GIVE SPECIAL ATTENTION ON THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION WHICH IS MORE
IMPORTANT BEING THE PARAMOUNT SYSTEM OF INITIATIVE. — 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. Upon the other hand, as to initiative on amendments to
the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions the
word "Constitution" in Section 2. (b) defines "initiative on the Constitution" and includes it in
the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as
the process by which the proposition, in an initiative on the Constitution may be approved or
rejected by the people., (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition. There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the system
of initiative on amendments to the Constitution by merely paying it a reluctant lip service.
10. ID.; ID.; ID.; ID.; ARGUMENT THAT INITIATIVE ON AMENDMENTS TO
THE CONSTITUTION IS SUBSUMED UNDER SUBTITLE ON NATIONAL INITIATIVE AND
REFERENDUM, NOT ACCEPTABLE. — 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.
11. ID.; ID.; ID.; ID.; COMELEC DOES NOT HAVE THE POWER TO VALIDLY
PROMULGATE RULES AND REGULATIONS TO IMPLEMENT THE EXERCISE OF THE
RIGHT OF THE PEOPLE TO DIRECTLY PROPOSE AMENDMENTS TO
THE CONSTITUTION UNDER R.A. 6735. — 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.
12. ID.; ID.; ID.; ID.; DELFIN PETITION, DEFECTIVE BECAUSE IT DOES NOT
CONTAIN THE SIGNATURES OF THE REQUIRED NUMBER OF VOTERS. — 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.
13. ID.; ID.; ID.; ID.; DELFIN PETITION, NOTHING MORE THAN A MERE SCRAP
OF PAPER. — 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. . . . 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.
14. POLITICAL LAW; LEGISLATIVE DEPARTMENT ; DELEGATION OF
POWER; WHAT HAS BEEN DELEGATED CANNOT BE DELEGATED; EXCEPTIONS
THEREOF. — The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim: potestas delegata non delegari potest. The recognized
exceptions to the rule are as follows: (1) Delegation of tariff powers to the President under
Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency powers to the
President under Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people
at large; (4) Delegation to local governments; and (5) Delegation to administrative bodies.
15. ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION; SUFFICIENT
STANDARD; CONSTRUED; R.A. 6735 MISERABLY FAILED TO SATISFY BOTH
REQUIREMENTS. — In every case of permissible delegation, there must be a showing that
the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth
therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes
a standard — the limits of which are sufficiently determinate and determinable — to which
the delegate must conform in the performance of his functions. A sufficient standard is one
which defines legislative policy, marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances under which the legislative command
is to be effected. 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.
PUNO, J., concurring and dissenting:
1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS: R.A. 6735; SUFFICIENTLY IMPLEMENTS THE RIGHTS OF THE PEOPLE TO
INITIATE AMENDMENTS TO THE CONSTITUTION THRU INITIATIVE. — I submit
that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to
the Constitution thru initiative. . . . We need not torture the text of said law to reach the
conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is
replete with references to this prerogative of the people. First, the policy statement declares:
"Sec. 2. Statement of 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 and guaranteed." Second, the law defines "initiative" as "the power of the
people to propose amendments to the Constitution or to propose and enact
legislations through an election called for the purpose," and "plebiscite" as "the electoral
process by which an initiative on the Constitution is approved or rejected by the people."
Third, the law provides the requirements for a petition for initiative to amend the Constitution.
Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of registered voters as signatories, of
which every legislative district must be represented by at least three per centum (3%) of the
registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised
only after five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter." Finally, R.A. No. 6735 fixes the effectivity date of the amendment.
Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a
majority of the votes cast in the plebiscite shall become effective as to the day of the
plebiscite."
2. ID.; ID.; ID.; ID.; SUFFICIENTLY STATES THE POLICY AND STANDARDS TO
GUIDE THE COMELEC IN PROMULGATING THE IMPLEMENTING RULES AND
REGULATIONS OF THE LAW; CASE AT BAR. — R.A. No. 6735 sufficiently states
the policy and the standards to guide the COMELEC in promulgating the law's implementing
rules and regulations of the law. . . . In the case at bar, the policy and the standards are
bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not
written by our legislators in invisible ink. The policy and standards can also be found in no
less than Section 2, Article XVII of the Constitution on Amendments or Revisions. There is
thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in
other cases we have upheld as adequate more general standards such as "simplicity and
dignity," "public interest," "public welfare," "interest of law and order," "justice and equity,"
"adequate and efficient instruction," "public safety," "public policy," "greater national interest,
"protect the local consumer by stabilizing and subsidizing domestic pump rates," and
"promote simplicity, economy and efficiency in government." A due regard and respect to the
legislature, a co-equal and coordinate branch of government, should counsel this Court to
refrain from refusing to effectuate laws unless they are clearly unconstitutional.
3. ID.; ID.; ID.; ID.; COMELEC RESOLUTION NO. 2300 MERELY PROVIDES
THE PROCEDURE TO EFFECTUATE THE POLICY OF R.A. 6735, HENCE, DID NOT
VIOLATE THE RULES ON VALID DELEGATION. — In enacting R.A. No. 6735, it cannot be
said that Congress totally transferred its power to enact the law implementing people's
initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it
merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the
people's initiative to amend the Constitution. The debates in the
Constitutional Commission make it clear that the rules of procedure to enforce the people's
initiative can be delegated. . . . The prohibition against the legislature is to impair the
substantive right of the people to initiate amendments to the Constitution. It is not, however,
prohibited from legislating the procedure to enforce the people's right of initiative or to
delegate it to another body like the COMELEC with proper standard.
4. ID.; ID.; ID.; ID.; ARGUMENT ON LACK OF SUB-TITLE ON PEOPLE'S
INITIATIVE TO AMEND THE CONSTITUTION, SHOULD BE GIVEN THE WEIGHT OF
HELIUM. — The argument that R.A. No. 6735 does not include people's initiative to amend
the Constitution simply because it lacks a sub-title on the subject should be given the weight
of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles,
chapters and sections of a statute may be consulted in aid of interpretation, but inferences
drawn therefrom are entitled to very little weight, and they can never control the plain terms
of the enacting clauses.
5. ID.; ID.; ID.; ID.; ID.; LAPSES IN R.A. 6735 ARE TO BE EXPECTED, FOR
LAWS ARE NOT ALWAYS WRITTEN IN IMPECCABLE ENGLISH. — It is unfortunate that
the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent
which it itself concedes is to implement people's initiative to propose amendments to
the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant
to the Policy thrust of Section 2 and that the statute's subtitling is not accurate. These lapses
are to be expected for laws are not always written in impeccable English. Rightly,
the Constitution does not require our legislators to be word-smiths with the ability to write bills
with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has
always been our good policy not to refuse to effectuate the intent of a law on the ground that
it is badly written. As the distinguished Vicente Francisco reminds us: "Many laws contain
words which have not been used accurately. But the use of inapt or inaccurate language or
words, will not vitiate the statute if the legislative intention can be ascertained. The same is
equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such
expressions and words will be construed as carrying the meaning the legislature intended
that they bear, although such a construction necessitates a departure from the literal meaning
of the words used."
6. ID.; ID.; ID.; ID.; PETITION AGAINST RESPONDENTS PEDROSAS SHOULD
BE DISMISSED BECAUSE IT STATES NO CAUSE OF ACTION. — The petition should be
dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly
baseless. The records show that the case at bar started when respondent Delfin alone and
by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits
of Elective Officials by People's Initiative. The Pedrosas did not join the petition. . . .
Petitioners sued the COMELEC, Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their
capacities as founding members of the People's Initiative for Reform, Modernization and
Action (PIRMA). The suit is an original action for prohibition with prayer for temporary
restraining order and/or writ of preliminary injunction. The petition on its face states no cause
of action against the Pedrosas. The only allegation against the Pedrosas is that they are
founding members of the PIRMA which proposes to undertake the signature drive for
people's initiative to amend the Constitution.
7 ID.; ID.; ID.; ID.; SOLICITATION OF SIGNATURES IS A RIGHT GUARANTEED
IN BLACK AND WHITE BY SECTION 2 OF ARTICLE XVII OF THE CONSTITUTION.
— One need not draw a picture to impart the proposition that in soliciting signatures to start
a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal
act. Their solicitation of signatures is a right guaranteed in black and white by Section 2 of
Article XVII of the Constitution which provides that ". . . amendments to this Constitution may
likewise be directly proposed by the people through initiative . . . ." This right springs from the
principle proclaimed in Section 1, Article II of the Constitution that in a democratic and
republican state "sovereignty resides in the people and all government authority emanates
from them." The Pedrosas are part of the people and their voice is part of the voice of the
people. They may constitute but a particle of our sovereignty but no power can trivialize them
for sovereignty is indivisible.
8. ID.; ID.; ID.; RESPONDENTS' RIGHT OF SOLICITING SIGNATURES TO
AMEND THE CONSTITUTION, CANNOT BE ABRIDGED WITHOUT ANY IFS AND BUTS.
— Section 16 of Article XIII of the Constitution provides: "The right of the people and their
organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall by law, facilitate the
establishment of adequate consultation mechanisms." This is another novel provision of
the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting
signatures to amend the Constitution, the Pedrosas are participating in the political decision-
making process of our people. The Constitution says their right cannot be abridged without
any ifs and buts. We cannot put a question mark on their right.
9. ID.; ID.; ID.; RESPONDENTS' CAMPAIGN TO AMEND
THE CONSTITUTION IS AN EXERCISE OF THEIR FREEDOM OF SPEECH AND
EXPRESSION AND THEIR RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF
GRIEVANCES. — The Pedrosas' campaign to amend the Constitution is an exercise of their
freedom of speech and expression. We have memorialized this universal right in all our
fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated
and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other
important rights of our people. Undeniably, freedom speech enervates the essence of the
democratic creed of think and let think. For this reason, the Constitution encourages speech
even if it protects the speechless.
10. ID.; ID.; ID.; RESPONDENTS, RIGHT TO SOLICIT SIGNATURES TO START
A PEOPLE'S INITIATIVE TO AMEND THE CONSTITUTION DOES NOT DEPEND ON ANY
LAW. — It is thus evident that the right of the Pedrosas to solicit signatures to start a people's
initiative to amend the Constitution does not depend on any law, much less on R.A. No.
6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an
undesirable status quo. To be sure, there are no irrepealable laws just as there are no
irrepealable Constitutions. Change is the predicate of progress and we should not fear
change. Mankind has long recognized the truism that the only constant in life is change and
so should the majority.
11. STATUTORY CONSTRUCTION; INTENT OF THE LEGISLATURE; THE
INTENT OF R.A. 6735 IS TO IMPLEMENT THE PEOPLE'S INITIATIVE TO AMEND
THE CONSTITUTION. — Our effort to discover the meaning of R.A. No. 6735 should start
with the search of the intent of our lawmakers. A knowledge of this intent is critical for the
intent of the legislature is the law and the controlling factor in its interpretation. Stated
otherwise, intent is the essence of the law, the spirit which gives life to its enactment. . .
. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative
to amend the Constitution, it is our bounden duty to interpret the law as it was intended by
the legislature. We have ruled that once intent is ascertained, it must be enforced even if it
may not be consistent with the strict letter of the law and this ruling is as old as the mountain.
We have also held that where a law is susceptible of more than one interpretation, that
interpretation which will most tend to effectuate the manifest intent of the legislature will be
adopted. The text of R.A. No. 6735 should therefore be reasonably construed to effectuate
its intent to implement the people's initiative to amend the Constitution. . . . All said, it is
difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit
of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly
disregards the rule cast in concrete that the letter of the law is its body but its spirit is its soul.
12. POLITICAL LAW; LEGISLATIVE DEPARTMENT; DELEGATION OF POWER;
SUFFICIENT STANDARD; PURPOSE THEREOF. — Former Justice Isagani A. Cruz
similarly elucidated that "a sufficient standard is intended to map out the boundaries of the
delegates' authority by defining the legislative policy and indicating the circumstances under
which it is to be pursued and effected. The purpose of the sufficient standard is to prevent
a total transference of legislative power from the lawmaking body to the delegate."
13. ID.; ID.; ID.; THE COURT HAS PRUDENTIALLY REFRAINED FROM
INVALIDATING ADMINISTRATIVE RULES ON THE GROUND OF LACK OF ADEQUATE
STANDARD. — A survey of our case law will show that this Court has prudentially refrained
from invalidating administrative rules on the ground of lack of adequate legislative standard
to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself
does not expressly pinpoint the standard, the courts will bend backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional infirmity.
VITUG, J., separate opinion:
1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS; R.A. 6735; DELFIN PETITION, UTTERLY DEFICIENT. — The Delfin petition
is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition
would rather have much of its burden passed on, in effect, to the COMELEC. The petition
would require COMELEC to schedule "signature gathering all over the country," to cause the
necessary publication of the petition "in newspapers of general and local circulation," and to
instruct "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.
2. ID.; ID.; ID.; TEMPORARY RESTRAINING ORDER ISSUED BY THE COURT
SHOULD BE HELD TO COVER ONLY THE DELFIN PETITION. — The TRO earlier issued
by the Court which, consequentially, is made permanent under the ponencia should be held
to cover only the Delfin petition and must not be so understood as having intended or
contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is
clearly implicit in the constitutional mandate on people initiative.
FRANCISCO, J., dissenting and concurring:
1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS; R.A. 6735; AMPLY COVERS AN INITIATIVE ON THE CONSTITUTION.
— Republic Act No. 6735, otherwise known as "The Initiative and Referendum Act" amply
covers an initiative on the Constitution. In its definition of terms, Republic Act No.
6735 defines initiative as "the power of the people to propose amendments to
the constitution or to propose and enact legislations through an election called for the
purpose." The same section, in enumerating the three systems of initiative, included in
"initiative on the constitution which refers to a petition proposing amendments to
the constitution." Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral
process by which an initiative on the constitution is approved or rejected by the people." And
as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly
enumerates the following: "A petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of the registered voters as signatories, of
which every legislative distinct must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the constitution may be exercised only after five (5)
years from the ratification of 1987 Constitution and only once every five years thereafter."
These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative.
"A legal provision," the Court has previously said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having
no effect whatsoever thereon". . . . Clearly then, Republic Act No. 6735 covers an
initiative on the constitution. Any other construction as what petitioners foist upon the Court
constitute a betrayal of the intent and spirit behind the enactment.
2. ID.; ID.; ID.; ID.; COMELEC CANNOT TAKE ANY ACTION ON DELFIN
PETITION BECAUSE IT IS UNACCOMPANIED BY THE REQUIRED PERCENTAGE OF
REGISTERED VOTERS; CASE AT BAR. — I agree with the ponencia that
the Commission on Elections, at present, cannot take any action (such as those contained in
the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1 ])
indicative of its having already assumed jurisdiction over private respondents' petition. This
is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of
procurement of the required percentage of registered voters at the time the petition for
initiative is filed, is a jurisdictional requirement. Here private respondents' petition is
unaccompanied by the required signatures. This defect notwithstanding, it is without
prejudice to the refiling of their petition once compliance with the required percentage is
satisfactorily shown by private respondents. In the absence, therefore, of an appropriate
petition before the Commission on Elections, any determination of whether private
respondents' proposal constitutes an amendment or revision is premature.
3. STATUTORY CONSTRUCTION; EVERY PART OF THE STATUTE MUST BE
INTERPRETED WITH REFERENCE TO THE CONTEXT. — It is a rule that every part of the
statute must be interpreted with reference to the context, i.e., that every part of the statute
must be construed together with the other parts and kept subservient to the general intent of
the whole enactment. Thus, the provisions of Republic Act No. 6735 may not be interpreted
in isolation. The legislative intent behind every law is to be extracted from the statute as a
whole.
PANGANIBAN, J., concurring and dissenting:
1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR
REVISIONS; R.A. 6735; TAKEN TOGETHER AND INTERPRETED PROPERLY,
THE CONSTITUTION, R.A. 6735 AND COMELEC RESOLUTION 2300 ARE SUFFICIENT
TO IMPLEMENT CONSTITUTIONAL INITIATIVES. — While R.A. 6735 may not be a perfect
law it was — as the majority openly concedes — intended by the legislature to cover and, I
respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution. I completely agree with the inspired and inspiring opinions of
Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco
law on initiative, sufficiently implements the right of the people to initiate amendments to
the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly
consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan
Authority vs. Commission on Elections, that "provisions for initiative . . . are (to be) liberally
construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters
of the rights granted thereby'; and in Garcia vs. Comelec, that any effort to trivialize the
effectiveness of people's initiatives ought to be rejected."
2. ID.; ID.; ID .; ID.; MAJORITY'S POSITION ALL TOO SWEEPING AND ALL TOO
EXTREMIST. — I find the majority's position all too sweeping and all too extremist. It is
equivalent to burning the whole house to exterminate the rats, and to killing the patient to
relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we
should not thereby preempt any future effort to exercise the right of initiative correctly and
judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a
ban against its proper use. Indeed, there is a right way to do the right thing at the right time
and for the right reason.
3. ID.; ID.; ID.; ID.; COMELEC CANNOT ENTERTAIN ANY PETITION IN THE
ABSENCE OF THE REQUIRED NUMBER OF SIGNATURES. — Until and unless an
initiatory petition can show the required number of signatures — in this case, 12% of all the
registered voters in the Philippines with at least 3% in every legislative district — no public
funds may be spent and no government resources may be used in an initiative to amend
the Constitution. Verily, the Comelec cannot even entertain any petition absent such
signatures.
4. ID.; ID.; ID.; ID.; WISELY EMPOWERED
THE COMMISSION ON ELECTIONS TO PROMULGATE RULES AND REGULATIONS. —
No law can completely and absolutely cover all administrative details. In recognition of
this, R.A. 6735 wisely empowered the Commission on Elections "to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act." And pursuant
thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by
its very words, was promulgated "to govern the conduct of initiative on the Constitution and
initiative and referendum on national and local laws," not by the
incumbent Commission on Elections by one then composed of Acting Chairperson Haydee
B. Yorac, Comms. Alfredo E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama
and Magdara B. Dimaampao. All of these Commissioners who signed resolution 2300 have
retired from the Commission, and thus we cannot ascribe any vile motive unto them, other
than an honest, sincere and exemplary effort to give life to a cherished right of our people.
5. ID.; ID.; ID.; ID.; THE COURT HAS NO POWER TO RESTRAIN ANYONE
FROM EXERCISING THEIR RIGHT OF INITIATIVE. — The Court has no power to restrain
them from exercising their right of initiative. The right to propose amendments to
the Constitution is really a species of the right of free speech and free assembly. And
certainly, it would be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may
disagree with what you say, but I will defend to the death your right to say it." After all, freedom
is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the
thought that we hate."
DECISION
DAVIDE, JR., J p:
The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose amendments to
the Constitution through the system of initiative under Section 2 of Article XVII of the 1987
Constitution. Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars before the drafting
of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original
proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of
the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under
the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision
of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all
its members and (2) by a constitutional convention. 4 For this and the other reasons hereafter
discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter,
Delfin Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached
"Petition for Initiative on the 1987 Constitution, in newspapers of
general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing
signing stations at the time and on the dates designated for the
purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative, 6 a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other volunteers
intend to exercise the power to directly propose amendments to the Constitution granted
under Section 2, Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be established all over
the country, with the assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the Movement and other volunteers
can gather signatures, it is necessary that the time and dates to be designated for the purpose
be first fixed in an order to be issued by the COMELEC; and that to adequately inform the
people of the electoral process involved, it is likewise necessary that the said order, as well
as the Petition on which the signatures shall be affixed, be published in newspapers of
general and local circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI, 7 Section 4 of Article VII, 8 and Section 8 of Article X 9 of
the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF
ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of registered
voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-
037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing
Delfin "to cause the publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal, proposed constitutional
amendment, and the signature form), and the notice of hearing in three (3) daily newspapers
of general circulation at his own expense" not later than 9 December 1996; and (b) setting the
case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with
his two other lawyers and representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day,
filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition
properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action
for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend
the Constitution can only be implemented by law to be passed by
Congress. No such law has been passed; in fact, Senate Bill No. 1290
entitled An Act Prescribing and Regulating Constitutional 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
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. cdtai
(6) Finally, Congress has not yet appropriated funds for people's
initiative; neither the COMELEC nor any other government department,
agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the people's
initiative spearheaded by PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of the initiative itself.
Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayer's and legislator's
suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course
of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a temporary
restraining order, effective immediately and continuing until further orders, enjoining public
respondent COMELEC from proceeding with the Delfin Petition, and private respondents
Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty. Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO
THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY
MILLION (P180,000,000.00)" IF THE COMELEC GRANTS THE
PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC."
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION
OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and
TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS
ONLY ON THE SIGNATURE GATHERING WHICH BY
LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE
 HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS . COMELEC, ET . AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS
THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT
NO. 6735;
5. COMELEC RESOLUTION NO.
2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP.
ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO.
125416 WHERE THE HONORABLE COURT SAID:
"THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES
AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL
NO. 1290 CONTAINS A PROVISION DELEGATING TO
THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS
ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF
OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS
ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION
OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE
DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT
SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL.
CONSTITUTION, BY JOAQUIN G. BERNAS, SJ.).
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 maintain 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, SJ., 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 in 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. cdt
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.
I Court may brush aside technicalities of procedure in cases of transcendental importance. As
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
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."
This completes the blanks appearing in the original Committee
Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:
FR. BERNAS.
Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at
least 10 percent, there are no details in the provision on how to
carry this out. Do we understand therefore that we are leaving
this matter to the legislature?
MR. SUAREZ.
That is right, Madam President.
FR. BERNAS.
And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing
law on this, this will not operate?
MR. SUAREZ.
That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would
have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years
from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise
of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly
can come up with the appropriate rules governing the exercise
of this power.
FR. BERNAS.
Since the matter is left to the legislature — the details on how
this is to be carried out — is it possible that, in effect, what will
be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude
that possibility?
MR. SUAREZ.
No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment,
maybe individually or collectively, if it fails to muster the three-
fourths vote in order to constitute itself as a constituent assembly
and submit that proposal to the people for ratification through the
process of an initiative.
xxx xxx xxx
MS. AQUINO.
Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend
the Constitution?
MR. SUAREZ.
That is absolutely correct, Madam President.
MS. AQUINO.
I fully concur with the underlying precept of the proposal in terms
of institutionalizing popular participation in the drafting of
the Constitution or in the amendment thereof, but I would have a
lot of difficulties in terms of accepting the draft of Section 2, as
written. Would the sponsor agree with me that in the hierarchy
of legal mandate, constituent power has primacy over all other
legal mandates?
 MR. SUAREZ.
The Commissioner is right, Madam President.
MS. AQUINO.
And would the sponsor agree with me that in the hierarchy of
legal values, the Constitution is source of all legal mandates and
that therefore we require a great deal of circumspection in the
drafting and in the amendments of the Constitution?
MR. SUAREZ.
That proposition is nondebatable.
MS. AQUINO.
Such that in order to underscore the primacy of constituent
power we have a separate article in the Constitution that would
specifically cover the process and the modes of amending
the Constitution?
MR. SUAREZ.
That is right, Madam President.
MS. AQUINO.
Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending
the Constitution by people's initiative?
MR. SUAREZ.
The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate
into this provision the mechanics that would adequately cover all
the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND — not to REVISE — the Constitution; thus:
MR. SUAREZ.
. . . This proposal was suggested on the theory that this matter
of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1.
The committee members felt that this system of initiative should
not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO.
In which case, I am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate section as
if it were a self-executing provision?
MR. SUAREZ.
We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO.
In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process
of revision; whereas the process of initiation to amend, which is
given to the public, would only apply to amendments?
MR. SUAREZ.
That is right. Those were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE.
Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
xxx xxx xxx
MR. DAVIDE.
Madam President, I have modified the proposed amendment
after taking into account the modifications submitted by the
sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now
read as follows:
"SEC. 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 the word "revision" as defined by Commissioner Padilla when he
amendment. 36 made the distinction between the words "amendments" and
"revision"?
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. MR. DAVIDE.
Thus:
No, it does not, because "amendments" and "revision" should be
MR. ROMULO. covered by Section 1. So insofar as initiative is concerned, it can
only relate to "amendments" not "revision." 38
Under Commissioner Davide's amendment, is it possible for the
legislature to set forth certain procedures to carry out the Commissioner Davide further emphasized that the process of proposing
initiative . . .? amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE.
MR. DAVIDE.
It can.
A distinction has to be made that under this proposal, what is
xxx xxx xxx involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
MR. ROMULO. Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to
But the Commissioner's amendment does not prevent the
submit the issue of calling a constitutional convention, a majority
legislature from asking another body to set the proposition in
of the National Assembly is required, the import being that the
proper form.
process of amendment must be made more rigorous and difficult
MR. DAVIDE. than probably initiating an ordinary legislation or putting an end
to a law proposed by the National Assembly by way of a
The Commissioner is correct. In other words, the implementation referendum. I cannot agree to reducing the requirement
of this particular right would be subject to legislation, provided approved by the Committee on the Legislative because it would
the legislature cannot determine anymore the percentage of the require another voting by the Committee, and the voting as
requirement. precisely based on a requirement of 10 percent. Perhaps, I
might present such a proposal, by way of an amendment, when
MR. ROMULO. the Commission shall take up the Article on the Legislative
or on the National Assembly on plenary sessions. 39
But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation. 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,
MR. DAVIDE. reads as follows:
As long as it will not destroy the substantive right to initiate. In MR. DAVIDE.
other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here. Thank you Madam President. Section 2, as amended, reads as
follows: "AMENDMENT TO THIS CONSTITUTION MAY
MR. ROMULO. LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST
In that provision of the Constitution can the procedures which I TWELVE PERCENT OF THE TOTAL NUMBER OF
have discussed be legislated? REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
MR. DAVIDE.
PERCENT OF THE REGISTERED VOTERS THEREOF. NO
Yes. 37 AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
Commissioner Davide also reaffirmed that his modified amendment strictly RATIFICATION OF THIS CONSTITUTION NOR OFTENER
confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus: THAN ONCE EVERY FIVE YEARS THEREAFTER.

MR. DAVIDE. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR

THE IMPLEMENTATION OF THE EXERCISE OF THIS
With pleasure, Madam President. RIGHT. 40
MR. MAAMBONG. The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986. 41 Thereafter, upon his motion for
My first question: Commissioner Davide's proposed reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section
amendment on line 1 refers to "amendment." Does it not cover
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: cda
(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. R.A. No. 6735 thus delivered a humiliating blow to the system
of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments
to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot
be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may
be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in
a Latin maxim:potestas delegata non delegari potest. 59 The recognized exceptions to the
rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2)
of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of legislative authority
under no. 5 above. However, in every case of permissible delegation, there must be a
showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself,
setting forth therein the policy to be executed, carried out, or implemented by the delegate;
and (b) fixes a standard — the limits of which are sufficiently determinate and determinable
— to which the delegate must conform in the performance of his functions. 61 A sufficient
standard is one which defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO
THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have that power
under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C
of the Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b)
a law where subordinate legislation is authorized and which satisfies the "completeness" and
the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or that it has
validly vested upon the COMELEC the power of subordinate legislation and
that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of the total
number of registered voters of which every legislative district is represented by at least 3%
of the registered voters therein. The Delfin Petition does not contain signatures of the
required number of voters. Delfin himself admits that he has not yet gathered signatures and
that the purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing.
The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue
through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district; 64 (3) to assist, through its election registrars, in
the establishment of signature stations; 65 and (4) to verify, through its election registrars,
the signatures on the basis of the registry list of voters, voters' affidavits, and voters'
identification cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No.
6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of
by the COMELEC. The respondent Commission must have known that the petition does not
fall under any of the actions or proceedings under the COMELEC Rules of Procedure or
under Resolution No. 2300, for which reason it did not assign to the petition a docket number.
Hence, the 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. cdll
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.
||| (Defensor Santiago v. Commission on Elections, G.R. No. 127325, [March 19, 1997], 336
PHIL 848-930)
[G.R. No. L-44640. October 12, 1976.]
PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON
ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
[G.R. No. L-44684. October 12, 1976.]
VICENTE M. GUZMAN, petitioner, vs. COMMISSION
ELECTIONS, respondents.
[G.R. No. L-44714. October 12, 1976.]
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioner, vs. HONORABLE COMMISSION ON
ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
DECISION
MARTIN, J p:
The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose amendments
to the present Constitution in the absence of the interim National Assembly which has not
been convened. LibLex
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree
No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things, the issues of martial law, the 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. 1
Twenty days after or on September 22, 1976, the President issued another related
decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991,
by declaring the provisions of Presidential Decree No. 229 providing for the manner of voting
and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed inter alia, Section 4, of Presidential Decree No. 991, the full text of which
(Section 4) is quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions to be submitted to the people in the referendum-
plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's
continued opposition to the convening of the 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 questions ask, to wit:
"(1) Do your want martial law to be continued?
(2) Whether or not you want martial law to be continued, do
you approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the effect of
a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an
interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise provided
by law, shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation, those
who shall not be less than eighteen years of age elected by their
respective sectors, and those chosen by the incumbent President from
the members of the Cabinet. Regional representatives shall be
apportioned among the regions in accordance with the number of their
respective inhabitants and on the basis of a uniform and progressive
ratio while the sectors shall be determined by law. The number of
representatives from each region or sector and the, manner of their
election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same
powers and its members shall have the same functions, responsibilities,
rights, privileges, and disqualifications as the interim National Assembly
and the regular National Assembly and the members thereof. However,
it shall not exercise the power provided in Article VIII, Section 14(1)
of the Constitution.
3. The incumbent President of the Philippines shall, within 30
days from the election and selection of the members, convene the
interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to exercise
all his powers even after the interim Batasang Pambansa is organized
and ready to discharge its functions and likewise he shall continue to
exercise his powers and prerogatives under the nineteen hundred and
thirty five. Constitution and the powers vested in the President and the
Prime Minister under this Constitution.
 4. The President (Prime Minister) and his Cabinet shall
exercise all the powers and functions, and discharge the responsibilities
of the regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime Minister)
may prescribe. The President (Prime Minister) if he so desires may
appoint a Deputy Prime Minister or as many Deputy Prime Ministers as
he may deem necessary.
5. The incumbent President shall continue to exercise
legislative powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for
any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or
letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as
presently constituted but their functions, powers, and composition may
be altered by law.
Referenda conducted thru the barangays and under the
supervision of the Commission on Elections may be called at any time
the government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any
of these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by a
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father
and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin
the Commission on Elections from holding and conducting the Referendum Plebiscite on
October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as Presidential Decree No.
1031, insofar as it directs the Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant
to the incumbent President to exercise the constituent power to propose amendments to
the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections. The Solicitor General principally maintains that petitioners have
no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this
Court; at this state of the transition period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971
Constitutional Convention, asserting that the power to propose amendments to, or revision
of the Constitution during the transition period is expressly conferred on the interim National
Assembly under action 16, Article XVII of the Constitution. 3
Still another petition for Prohibition with Preliminary Injunction was filed on October
5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L-44714, to restrain the implementation of Presidential Decrees relative to the
forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent assembly to propose
amendments to the Constitution; a referendum-plebiscite is untenable under
the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a
short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing 15-year olds to vote
would amount to an amendment of the Constitution, which confines the right of suffrage to
those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo
C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional
premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the
valid source of a statute — Presidential Decrees are of such nature — may be contested by
one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners
as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees appropriating said funds.
Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the
same or not. 7 For the present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees are predicated may be
inquired into.
2. The Solicitor General would consider the question at bar as a pure political one,
lying outside the domain of judicial review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8 This is especially true in cases where
the power of the Presidency to initiate the amending process by proposals of amendments,
a function normally exercised by the legislature, is seriously doubted. Under the terms of
the 1973 Constitution, the power to propose amendments to the Constitution resides in
the interim National Assembly during the period of transition (Sec. 15, Transitory Provisions).
After that period, and the regular National Assembly in its active session, the power to
propose amendments becomes ipso facto the prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been
followed. Rather than calling the interim National Assembly to constitute itself into a
constituent assembly, the incumbent President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential Decree 1033 to the people in a
Referendum-Plebiscite on October 16. Unavoidably, the regularity of the procedure for
amendments, written in lambent words in the very Constitution sought to be amended, raises
a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which
commonly purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the competence of this
Court to pass upon. Section 2 (2) Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement, or law shall be heard and
decided by the Supreme Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten Members. . . .." The
Supreme Court has the last word in the construction not only of treaties and statutes, but also
of the Constitution itself. 9 The amending, like all other powers organized in the Constitution,
is in form a delegated and hence a limited power, so that the Supreme Court is vested with
that authority to determine whether that power has been discharged within its limits. LLpr
Political questions are neatly associated with the wisdom, not the legality of a
particular act. Where the vortex of the controversy refers to the legality or validity of the
contested act, that matter is definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in proposing amendments
to the Constitution, but his constitutional authority to perform such act or to assume the power
of a constituent assembly. Whether the amending process confers on the President that
power to propose amendments is therefore a downright justiciable question. Should the
contrary be found, the actuation of the President would merely he a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was valid
or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-
justiciability, that the question of the President's authority to propose amendments and the
regularity of the procedure adopted for submission of the proposals to the people ultimately
lie in the judgment of the latter. A clear Descartes fallacy of vicious circle. Is it not that the
people themselves, by their sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in 1973? Whether, therefore,
that constitutional provision has been followed or not is indisputably a proper subject of
inquiry, not by the people themselves — of course — who exercise no power of judicial
review, but by the Supreme Court in whom the people themselves vested that power, a power
which includes the competence to determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry must be done a priori not a
posteriori, i.e., before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court on prior constitutional cases underline
the preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to
the Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the
Republic of the Philippines proposed by the 1971 Constitutional Convention and
appropriating funds therefor, "is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently, in the Ratification
Cases 12 involving the issue of whether or not the validity of Presidential Proclamation No.
1102, "announcing the Ratification by the Filipino people of the Constitution proposed by the
1971 Constitutional Convention," partakes of the nature of a political question, the affirmative
stand of the Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, "(T)hus, in the
aforementioned plebiscite cases, We rejected the theory of the respondents therein that the
question-whether Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not,
was not a proper subject of judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a justiciable one. With identical
unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual bases of
the Presidential proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in Varcelon vs. Baker
and Montenegro vs. Castañeda, insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales vs. Commission on Elections, the political-question thereby
adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs.
Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are, however, substantially
the same as those given in support of the political question theory advanced in said habeas
corpus and plebiscite cases, which were carefully considered by this Court and found by it to
be legally unsound and constitutionally untenable. As consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
"SECTION 1. (1) Any amendment to, or revision of,
this Constitution may be proposed by the National Assembly upon a
vote of three-fourths of all its Members, or by a constitutional
convention.
(2) The National Assembly may, by a vote of two-thirds of all
its Members, call a constitutional convention or, by a majority vote of all
its Members, submit the question of calling such a convention to the
electorate in an election.
SECTION 2. Any amendment to, or revision of,
this Constitution shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not later than three months 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:
"SECTION 15. The interim National Assembly, upon special
call by the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such amendments
shall take effect when ratified in accordance with Article Sixteen hereof."
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of 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.
2. This Court in Aquino v. COMELEC, 14 had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially convene
the interim National Assembly. Speaking for the majority opinion in that case, Justice
Makasiar said: "The Constitutional Convention intended to leave to the President the
determination of the time when he shall initially convene the interim National Assembly,
consistent with the prevailing conditions of peace and order in the country." Concurring,
Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen
the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were
aware of the fact that under the same, the incumbent President was given the discretion as
to when he could convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately',
made by Delegate Pimentel (V), was rejected." 15 The President's decision to defer the
convening of the interim National Assembly soon found support from the people themselves.
In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was
submitted, the people voted against the convening of the interim National Assembly. In the
referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their
sovereign will to withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of
Congress and delegates of the Constitutional Convention, who were deemed automatically
members of the interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.
3. 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. 16 Rather, it is exercising a peculiar
power bestowed upon it by the fundamental charter itself. In the Philippines, that power is
provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in
Section 15 of the Transitory Provisions (for the 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. 17 Such being the
case, approval of the President of any proposed amendment is a misnomer. 18 The
prerogative of the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of amendments
to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government — the Philippines is
a crisis government today — are more or less concentrated in the President. 20 According
to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency
is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers.
In most free states it has generally been regarded as Imperative that the total power of the
government be parceled out among three mutually independent branches — executive,
legislature, and judiciary. It is believed to be distructive of constitutionalism if any one branch
should exercise any two or more types of power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of
tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it may form an insurmountable
barrier to a decisive emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must work together in
unanimity of purpose and action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more necessary will be their
fusion in time of crisis." This is evident in a comparison of the crisis potentialities of the cabinet
and presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be
to confidently expected. As a result, cabinet is more easily established and more trustworthy
than presidential dictatorship. The power of the state in crisis must not only be concentrated
and expanded; it must also be freed from the normal system of constitutional and legal
limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in the meeting of special exigencies
for which the legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restraints" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in times of martial law is now a
conceded valid act. That sun clear authority of the President is saddled on Section 3 (pars.
1 and 2) of the Transitory Provisions, thus: 23
"The incumbent President of the Philippines shall initially
convene the interim National Assembly and shall preside over its
sessions until the interim Speaker shall have been elected. He shall
continue to exercise his powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the powers vested in the
President and the Prime Minister under this Constitution until he calls
upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective
powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part
of the law of the land, and shall remain valid, binding, and effective even
after lifting of martial law or the ratification of this Constitution, unless
modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly."
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that
the Constitutional Convention, while giving to the President the discretion when to call the
interim National Assembly to session, and knowing that it may not be convened soon, would
create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the
lawmaking powers, there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of time. The separation of executive
— and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis
government. The steady increase in executive power is not too much a cause for worry as
the steady increase in the magnitude and complexity of the problems the President has been
called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis — a. crisis greater than war. In short,
while conventional constitutional law just confines the President's power as Commander-in-
Chief to the direction of the operation of the national forces, yet the facts of our political,
social, and economic disturbances had convincingly shown that in meeting the same,
indefinite power should be attributed to the President to take emergency measures. 25
IV
Authority of the incumbent
President to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to
the interim National Assembly during the transition period. However, the initial convening of
that Assembly is a matter fully addressed to the judgment of the incumbent President. And,
in the exercise of that judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National Assembly upon special
call by the President (Sec. 15 of the Transitory Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to call the interim National Assembly. Would it
then be within the bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution, which
is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say
that the President has converted his office into a constituent assembly of that nature normally
constituted by the legislature. Rather, with the interim National Assembly not convened and
only the Presidency and the Supreme Court in operation, the urges of absolute necessity
render it imperative upon the President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its very constitution, the
Supreme Court possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machinery at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant voices of the people reigns
supreme. After all, constituent assemblies or constitutional conventions, like the President
now, are mere agents of the people. 26
2. The President's action is not a unilateral move. As early as the referendums of
January 1973 and February 1975, the people had already rejected the calling of
the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3
sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the
people is for the abolition of the interim National Assembly. Other issues concerned the lifting
of martial law and amendments to the Constitution. 27 The national organizations of
Sangguniang Bayan presently proposed to settle the issues of martial law,
the interim Assembly, its replacement, the period of its existence, the length of the period for
the exercise by the President of its present powers in a referendum to be held on October
16. 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of
September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the Constitution, including the
issue of martial law. 29 Similarly, the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to the people on October 16. All the
foregoing led the President to initiate the proposal of amendments to the Constitution and
the subsequent issuance of Presidential Decree No. 1033 on September 22, 1976 submitting
the questions (proposed amendments) to the people in the National Referendum-Plebiscite
on October 16.
V constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are
The People as Sovereign.
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily
seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people
and all government authority emanates from them. 30 In its fourth meaning, Savigny would
treat "people" as "that particular organized assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely, the people, is sovereign. 32 In consequence,
the people may thus write into the Constitution their convictions on any subject they choose
in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the
Constitution "is an experiment, as all life is an experiment." 34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a self-
limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed amendments, as
earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite expresses
but the option of the people themselves implemented only by the authority of the President.
Indeed, it may well be said that the amending process is a sovereign act, although the
authority to initiate the same and the procedure to be followed reside somehow in a particular
body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question — (1) Do you
want martial law to be continued? — is a referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the Government to reach the larger mass of
the people so that their true pulse may be felt to guide the President in pursuing his program
for a New Order. For the succeeding question on the proposed amendments, only those of
voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be
the votes of those 18 years old and above which will have valid bearing on the results. The
fact that the voting populace are simultaneously asked to answer the referendum question
and the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and submitting
to them for ratification of proposed constitutional amendments. The fear of commingled votes
(15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes
for every barangay center, one containing the ballots of voters fifteen years of age and under
eighteen, and another containing the ballots of voters eighteen years of age and
above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall
be counted ahead of the ballots of voters eighteen years and above contained in another
ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of assessing public
reaction to the given issues submitted to the people for their consideration, the calling of
which is derived from or within the totality of the executive power of the President. 39 It is
participated in by all citizens from the age of fifteen, regardless of whether or not they are
illiterates, feeble-minded, or ex-convicts. 40 A "plebiscite," on the other hand, involves the
eighteen years of age or over, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months preceding the
election." 41 Literacy, property, or any other substantive requirement is not imposed. It is
generally associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII
Freedoms of expression and
assembly not disturbed.
1. There appears to be no valid basis for the claim that the regime of martial
law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, "is impressed with a mild
character" recorded no State imposition for a muffled voice. To be sure, there are restraints
of the individual liberty, but on certain grounds no total suppression of that liberty is aimed
at. The machinery for the referendum-plebiscite on October 16 recognizes all the embracing
freedoms of expression and assembly. The President himself had announced that he would
not countenance any suppression of dissenting views on the issues, as he is not interested
in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and
clear their adverse views on the proposed amendments and even on the valid ratification of
the 1973 Constitution, which is already a settled matter. 43 Even government employees
have been held by the Civil Service Commission free to participate in public discussion and
even campaign for their stand on the referendum-plebiscite issues. 44
 VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too
short for free debates or discussions on the referendum-plebiscite issues. The questions are
not new. They are the issues of the day. The people have been living with them since the
proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the
same issue of martial law. That notwithstanding, the contested brief period for discussion is
not without counterparts in previous plebiscites for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for
the publication in three consecutive issues of the Official Gazette of the women's suffrage
amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act
No. 34). The constitutional amendment to append as ordinance the complicated Tydings-
Kocialskowski was published in only three consecutive issues of the Official Gazette for 10
days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional
amendments providing for the bicameral Congress, the re-election of the President and Vice-
President, and the creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com. Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive issues of the Official
Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to
the specific date when the plebiscite shall be held, but simply states that it "shall be held not
later than three months after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of submission involves "an
appraisal of a great variety of relevant conditions, political, social and economic," which "are
essentially political and not justiciable." The constituent body or in the instant cases, the
President, may fix the time within which the people may act. This is because, first, proposal
and ratification are not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity therefor that amendments
are to be proposed, the reasonable implication being that when proposed, they are to be
considered and disposed of the presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In the words of
Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment
and the felt needs of today, and that, if not ratified early while that sentiment may fairly be
supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless
a second time proposed by [proper body]." 48
IN RESUME
The three issues are:
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
2. During the present stage of the transition period, and under the environmental
circumstances now obtaining, does the President possess power to propose amendments
to the Constitution as well as set up the required machinery and prescribe the procedure for
the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Muñoz Palma,
Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed
is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while
Associate Justices Teehankee and Muñoz Palma voted in the negative. Associate Justice
Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59
SCRA 183), specifically dissents from the proposition that there is concentration of powers
in the Executive during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however, that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance of this Court.
Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice
Concepcion in Gonzales vs. COMELEC (21 SCRA 774). Associate Justices Teehankee and
Muñoz Palma hold that precinding from the President's lack of authority to exercise the
constituent power to propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling cases of Gonzales,
supra and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Muñoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J., concurs in the result.
Separate Opinions
CASTRO, C.J., concurring:
From the challenge as formulated in the three petitions at bar and the grounds
advanced by the Solicitor General in opposition thereto, as well as the arguments adduced
by the counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues
readily project themselves as the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential
Decrees Nos. 991, 1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and
under the environmental circumstances now obtaining, does the
President possess power to propose amendments to the Constitution as
well as set up the required machinery and Prescribe the procedure for
the ratification of his proposals by the people?
(3) Is the submission to the people of the proposed
amendments within the time frame allowed therefor a sufficient and
proper submission?
 I prescribed or imposed by the Constitution — would be set at naught."
First Issue
The threshold question is not at all one of first impression. Specifically on the
matter of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78
Phil. 1), inceptively announced the dictum that —
"Proposal to amend the Constitution is a highly political
function performed by the Congress in its sovereign legislative capacity
and committed to its charge by the Constitution itself. The exercise of
this power is even independent of any intervention by the Chief
Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for
judicial inquiry into the validity of a proposal than into that of a
ratification."
In time, however, the validity of the said pronouncement was eroded. In the assessment of
the Court itself —
"The force of this precedent has been weakened, however, by
Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs.
Cuenco (L-2581, March 4 and 14, 1949), Tañada vs. Cuenco (L-10520,
February 28, 1957), and Macias vs. Commission on Elections (L-18684,
September 14, 1961).
xxx xxx xxx
"In short, the issue whether or not a Resolution of Congress
— acting as a constituent assembly — violates the Constitution is
essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken
in Mabanag vs. Lopez Vito (supra), the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point."
(Gonzales vs. Commission on Elections, et al, L-28196, November 9,
1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed
when, in Javellana vs. Executive Secretary, et al. (L-36142, March 31, 1973, 50 SCRA 30),
six members of the Court concurred in the view that the question of whether the 1973
Constitution was ratified in accordance with the provisions of Article XV (Amendments) of
the 1935 Constitution is inherently and essentially justiciable.
As elucidated therein, with extensive quotations from Tañada vs. Cuenco (103
Phil. 1051) —
"'. . . the term 'political question' connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of policy in
matters concerning the government of a State, as a body politic. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of
the government.' It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure.'
"Accordingly, when the grant of power is qualified, conditional
or subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations respected,
is justiciable or non-political, the crux of the problem being one
of legality or validity of the contested act, not its wisdom. Otherwise,
said qualifications, conditions or limitations — particularly those
(Javellana vs. Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional validity
of the presidential acts of proposing amendments to the Constitution and of calling a
referendum-plebiscite for the ratification of the proposals made. Evidently, the question does
not concern itself with the wisdom of the exercise of the authority claimed or of the specific
amendments proposed. Instead the inquiry vel non is focused solely on the existence of the
said power in the President — a question purely of legality determinable thru interpretation
and construction of the letter and spirit of the Constitution by the Court as the final arbiter in
the delineation of constitutional boundaries and the allocation of constitutional powers. LLpr
For the Court to shun cognizance of the challenge herein presented, especially in
these parlous years, would be to abdicate its constitutional powers, shirk its constitutional
responsibility, and deny the people their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented both
here and elsewhere. Its solution, I believe, can be found and unraveled only by a critical
assessment of the existing legal order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the
proposition that, normally or under normal conditions, a Constitution may be amended only
in accord with the procedure set forth therein. Hence, if there be any such prescription for the
amendatory process — as invariable there is because one of the essential parts of
a Constitution is the so-called "constitution of sovereignty" which comprises the provision or
provisions on the modes in accordance with which formal changes in the fundamental law
may be effected — the same would ordinarily be the controlling criterion for the validity of the
amendments sought.
Unfortunately, however, during the present transition period of our political
development, no express provision is extant in the Constitution regarding the agency or
agent by whom and the procedure by which amendments thereto may be proposed and
ratified — a fact overlooked by those who challenge the validity of the presidential acts in the
premises. This is so because there are at least two distinctly perceptible stages in the
transition from the old system of government under the 1935 Constitution to the new one
established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the Interim National Assembly is convened by the incumbent
President and the interim President and the interim Prime Minister are chosen (Article XVII,
Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation's political life
was recognized by the Court in Aquino vs. Commission on Elections, et al. (L-40004, January
31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the
President was in duty bound to convene the interim National Assembly soon after the
Constitution took effect.
The second stage embraces the period from the date the interim National
Assembly is convened to the date the Government described in Articles VII to IX of the
Constitution is inaugurated, following the election of the members of the regular National
Assembly (Article XVII, Section 1) and the election of the regular President and Prime
Minister. This is as it should be because it is recognized that the President has been accorded
the discretion to determine when he shall initially convene the interim National Assembly,
and his decision to defer the convocation thereof has found overwhelming support by the
sovereign people in two previous referenda, thereby giving reality to an interregnum between
the effectivity of the Constitution and the initial convocation of the interim National Assembly,
which interregnum, as aforesaid, constitutes the first stage in the transition period. LexLib
Against this factual backdrop, it is readily discernible that neither of the two sets of
provisions embodied in the Constitution on the amendatory process applied during the
said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides —
"Sec. 15. The interim National Assembly, upon special call by
the interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall take
effect when ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim Prime Minister"
limits the application thereof to the second stage of the transition period, i.e., after
the interim National Assembly shall have been convened and the interim Prime Minister shall
have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit —
"SECTION 1. (1) Any amendment to, or revision of,
this Constitution may be proposed by the National Assembly upon a
vote of 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.
"SEC. 2. Any amendment to, or revision of,
this Constitution shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not later than three months after
the approval of such amendment or revision."
unequivocally contemplate amendments after the regular Government shall have become
fully operative, referring as they do to the National Assembly which will come Into being only
at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether
amendments to the Constitution may be effected during the aforesaid first stage and, if in the
affirmative, by whom and in what manner such amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an ideal Constitution. Not being
a mere declaration of the traditions of a nation but more the embodiment of a people's hopes
and aspirations, its strictures are not unalterable. They are, instead, dynamic precepts
intended to keep in stride with and attuned to the living social organism they seek to fashion
and govern. If it is conceded that "the political or philosophical aphorism of one generation is
doubted by the next and entirely discarded by the third," then a Constitution must be able to
adjust to the changing needs and demands of society so that the latter may survive, progress
and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at present
— which is understandably the most critical — the need for change may be most pressing
and imperative, and to disavow the existence of the right to amend the Constitution would be
sheer political heresy. Such view would deny the people a mechanism for effecting peaceful
change, and belie the organic conception of the Constitution by depriving it of its means of
growth. Such a result obviously could not have been intended by the framers of the
fundamental law. LLpr
It seems, however, that the happenstance that the first period would come to pass
before the convocation of the interim National Assembly was not anticipated, hence, the
omission of an express mandate to govern the said situation in so far as amendments are
concerned. But such omission through inadvertence should not, because it cannot, negate
the sovereign power of the people to amend the fundamental charter that governs their lives
and their future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious mode of
amending the Constitution during the transition period. For, while under Article XVI thereof,
proposals for amendment may be made directly by the regular National Assembly by a vote
of at least three-fourths of all its members, under Section 15 of Article XVII, a bare majority
vote of all the members of the interim National Assembly would suffice for the purpose. The
relaxation and the disparity in the vote requirement are revealing. They can only signify a
recognition of the need to facilitate the adoption of amendments during the second state of
the transition period so that the interim National Assembly will be able, in a manner of
speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and
provide for changed or changing circumstances before the establishment of the regular
Government. In this context, therefore, it is inutile speculation to assume that the
Constitution was intended to render impotent or bar the effectuation of needful change at an
even more critical period — the first stage. With greater reason, therefore, must the right and
power to amend the Constitution during the first stage of the transition period be upheld,
albeit within its express and implied constraints. cdphil
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only by convening
the interim National Assembly. That is to say and require that the said stage must first be
brought to an end before any amendment may be proposed and ratified. Settled
jurisprudence does not square with such a proposition. As aptly noted in Aquino vs.
Commission on Elections, et al., supra, the framers of the Constitution set no deadline for
the convening of the interim National Assembly because they could not have foreseen how
long the crises which impelled the proclamation and justify the continued state of martial
law would last. Indeed, the framers committed to the sound judgment or the President the
determination of the time when the interim National Assembly should be convoked. That
judgment is not subject to judicial review, save possibly to determine whether arbitrariness
has infected such exercise; absent such a taint, the matter is solely in the keeping of the
President. To thus contend that only by convening the interim Nation Assembly may the
Constitution be amended at this. time would effectively override the judgment vested in the
President, even in default of any showing that in not convoking the interim National Assembly
he has acted arbitrarily or gravely abused his discretion. Furthermore, to sustain such a
contention would not only negate the mandate so resoundingly expressed by the people in
two national referenda against the immediate convening of the interim National Assembly,
but as well deride the President has exercised the legislative power to issue proclamations,
orders decrees and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening
developments, the logical query that compels itself for resolution is: By whom, then, may
proposals for the amendment of the Constitution be made and in what manner may said
proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confused with legislative power in general because the prerogative to propose amendments
to the Constitution is not in any sense embraced within the ambit of ordinary law-making.
Hence, there is much to recommend the proposition that, in default of an express grant
thereof, the legislature — traditionally the delegated repository thereof — may not claim it
under a general grant of legislative authority. In the same vein, neither would it be altogether
unassailable to say that because by constitutional tradition and express allocation the
constituent power under the Constitution is located in the law-making agency and at this
stage of the transition period the law-making authority is firmly recognized as being lodged
in the President, the said constituent power should now logically be in the hands of the
President, who may thus exercise it in place of the interim National Assembly. Instead, as
pointed out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the
Constitution or to propose amendments thereto
 ". . . is part of the inherent powers of the people — as the
reposition of sovereignty in a republican state, such as ours — to make,
and, hence, to amend their own Fundamental Law."
As such it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown that the
people, inadvertently or otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it follows of necessity that the
same remains with them for them to exercise in the manner they see fit and through the
agency they choose. And, even if it were conceded that — as it is reputedly the rule in some
jurisdictions — a delegation of the constituent authority amounts to a complete divestiture
from the people of the power delegated which they may not thereafter unilaterally reclaim
from the delegate, there would he no violence done to such rule, assuming it to be applicable
here, inasmuch as that power, under the environmental circumstances adverted to, has not
been delegated to anyone in the first place. The constituent power during the first stage of
the transition period belongs to and remains with the people, and accordingly may be
exercised by them — how and when — at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious immorality" of
the unabashed manner by which the delegates to the Constitutional Convention virtually
legislated themselves into office as ipso facto members of the interim National Assembly by
the mere fiat of voting for the transitory provisions of the Constitution, and the stark reality
that the unwieldy political monstrosity that the interim Assembly portended to be would have
proven to be a veritable drain on the meager financial resources of a nation struggling for
survival, have unequivocally put their foot down, as it were, on the convocation thereof. But
this patently salutary decision of the people proved to be double-edged. It likewise bound the
political machinery of the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with the ensuing dilemma,
the people understandably agitated for a solution. Through consultations in the barangays
and sanggunian assemblies, the instrumentalities through which the people's voice is
articulated in the unique system of participatory democracy in the country today, the
underpinnings for the hastening of the return to constitutional normalcy quickly evolved into
an overwhelming sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe will be an appropriate
agency to eventually take over the law-making power and thus pave the way for the early
lifting of martial rule. In pursuit of this sentiment, and to translate its constraints into concrete
action, the Pambansang Katipunan ng mga Barangay, the Pambansang Katipunan ng mga
Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
and finally the Batasang Bayan, to a man and as one voice, have come forward with definitive
proposals for the amendment of the Constitution, and, choosing the President — the only
political arm of the State at this time through which that decision could be implemented and
the end in view attained — as their spokesman, proposed the amendments under challenge
in the cases at bar. llcd
In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendum-plebiscite are
factually not of the President; they are directly those of the people themselves speaking thru
their authorized instrumentalities. The President merely formalized the said proposals
in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in
the people and it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the Government during
the present stage of the transition period of our political development, the conclusion is
ineluctable that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether
or not the President is vested with constituent power — as it does not appear necessary to
do so in the premises — the proposals here challenged, being acts of the sovereign people
no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only
because the President, in exercising said authority, has acted as a mere alter ego of the
people who made the proposals, but likewise because the said authority is legislative in
nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission
of the proposed amendments for ratification from the standpoint of time. The thesis cannot
be disputed that a fair submission presupposes an adequate time lapse to enable the people
to be sufficiently enlightened on the merits or demerits of the amendments presented for their
ratification or rejection. However, circumstances there are which unmistakably demonstrated
that the desideratum is met. Even if the proposal appear to have been formalized only upon
the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually
the crystallization of sentiments that for so long have preoccupied the minds of the people
and their authorized representatives, from the very lowest level of the political hierarchy
Hence, unlike proposals emanating from a legislative body, the same cannot but be said to
have been mulled over, pondered upon, debated, discussed and sufficiently understood by
the great masses of the nation long before they ripened into formal proposals.
Besides, it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973 Constitution was submitted to the people for ratification, an all-
out campaign, in which all the delegates of the Constitutional Convention reportedly
participated, was launched to acquaint the people with the ramifications and working of the
new system of government sought to be inaugurated thereunder. It may thus well be
assumed that the people in general have since acquired, in the very least, a working
knowledge of the entirety of the Constitution. The changes now proposed — the most
substantial of which being merely the replacement of the interim National Assembly with
another legislative arm for the Government during the transition period until the regular
National Assembly shall have been constituted — do not appear to be of such complexity as
to require considerable time to be brought home to the full understanding of the people. And,
in fact, the massive and wide-ranging informational and educational campaign to this end
has been and still is in full swing, with all the media, the barangays, the civic and sectoral
groups, and even the religious all over the land in active and often enthusiastic if not frenetic
involvement.
Indeed, when the people cast their votes on October 16, a negative vote could very
well mean an understanding of the proposals which they reject; while an affirmative vote
could equally be indicative of such understanding and/or an abiding credence in the fidelity
with which the President has kept the trust they have confided to him as President and
administrator of martial rule.
IV
Conclusion
It is thus my considered view that no question viable for this Court to pass judgment
upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections, 1 continuing with the epochal resolution in Javellana v. Executive
Secretary, 2 and followed successively in three crucial decisions, Aquino v. Ponce
Enrile, 3 Aquino v. Commission on Elections, 4 and Aquino v. Military
Commission, 5 manifest to the same degree the delicate and awesome character of the
function of judicial review. While previous rulings supply guidance and enlightenment, care
is to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the
urgencies of the times. It is inappropriate to resolve the complex problems of a critical period
without full awareness of the consequences that flow from whatever decision is reached.
Jural norms must be read in the context of social facts. There is need therefore of adjusting
inherited principles to new needs. For law, much more so constitutional law, is simultaneously
a reflection of and a force in the society that it controls. No quality then can be more desirable
in constitutional adjudication than that intellectual and imaginative insight which goes into the
heart of the matter. The judiciary must survey things as they are in the light of what they must
become. It must inquire into the specific problem posed not only in terms of the teaching of
the past but also of the emerging political and legal theory, especially so under a leadership
notable for its innovative approach to social problems and the vigor of its implementation.
This, on the one side. It must equally be borne in mind through that this Court must ever be
conscious of the risk inherent in its being considered as a mere subservient instrument of
government policy, however admittedly salutary or desirable. There is still the need to
demonstrate that the conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm followed, the
conclusion reached being that the three petitions be dismissed. I am in agreement. It is with
regret however that based on my reading of past decisions, both Philippine and American,
and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from
the proposition set forth in the able and scholarly opinion of Justice Martin that there is
concentration of power in the President during a crisis government. Consequently, I cannot
see my way clear to accepting the view that the authority to propose amendments is not open
to question. At the very least, serious doubts could be entertained on the matter. cdll
1. With due respect then, I have to dissociate myself from my brethren who would
rule that governmental powers in a crisis government, following Rossiter, "are more or less
concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino
v. Ponce Enrile 6 leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines supplied by our
past decisions to point the way to what I did consider the appropriate response to the basic
issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only
in the latter portion of my opinion that reference was made to United States Supreme Court
pronouncements on martial law, at the most persuasive in character and rather few in number
"due no doubt to the absence in the American Constitution of any provision concerning it." 7 It
was understandable then that it was only after the landmark Ex parte Milligan case, that
commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal at that, to the
subject. 8 It was next set forth that in the works on American constitutional law published in
this century especially after the leading cases of Sterling v. Constantin and Duncan v.
Kahanamoku, "there was a fuller treatment of the question of martial law." 9 While it is the
formulation of Willoughby that for me is most acceptable, my opinion did take note that
another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So-
called martial law, except in occupied territory of an enemy, is merely the calling in of the aid
of military forces by the executive, who is charged with the enforcement of the law, with or
without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The
right to call out the military forces to maintain order and enforce the law is simply part of the
police power. It is only justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessary to meet the exigency, including the arrest, or in extreme
cases the killing of those who create the disorder or oppose the authorities. When the
exigency is over the members of the military forces are criminally and civilly liable for acts
done beyond the scope of reasonable necessity. When honestly and reasonably coping with
a situation of insurrection or riot a member of the military forces cannot be made liable for his
acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's
concept of martial law, stress was laid on his being "partial to the claims of liberty." 12 This
is evident in the explicit statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial law whereby military law
is substituted for civil law. So-called declarations of martial law are, indeed, often made but
their legal effect goes no further than to warn citizens that the military powers have been
called upon by the executive to assist him in the maintenance of law and order, and that,
while the emergency lasts, they must, upon pain of arrest and punishment not commit any
acts which will in any way render more difficult the restoration of order and the enforcement
of law. Some of the authorities stating substantially this doctrine are quoted in the footnote
below." 13 Nor did I stop there. The words of Willis were likewise cited: "Martial law proper,
that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil
law, but is rather an aid to the execution of civil law. Declarations of martial law go no further
than to warn citizens that the executive has called upon the military power to assist him in
the maintenance of law and order. While martial law is in force, no new powers are given to
the executive and no civil rights of the individual, other than the writ of habeas corpus, are
suspended. The relations between the citizen and his state are unchanged." 14
The conclusion reached by me as to the state of American federal law on the
question of martial law was expressed thus: "It is readily evident that even when Milligan
supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy
of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were
otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz,
whose treatise is the latest to be published, has this summary of what he considers the
present state of American law: 'The Milligan and Duncan cases show plainly that martial
law is the public law of necessity. Necessity alone calls it forth; necessity justifies its exercise;
and necessity measures the extent and degree to which it may be employed. It is, the high
Court has affirmed, an unbending rule of law that the exercise of military power, where the
rights of the citizen are concerned, may never be pushed beyond what the exigency requires.
If martial law rule survives the necessity on which alone it rests, for even a single minute, it
becomes a mere exercise of lawless violence.' Further: 'Sterling v. Constantin is of basic
importance. Before it, a number of decisions, including one by the highest Court, went on the
theory that the executive had a free hand in taking martial-law measures. Under them, it has
been widely supposed that a martial-law proclamation was so far conclusive that any action
taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits
these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling
v. Constantin, where martial law measures impinge upon personal or property rights -
normally beyond the scope of military power, whose intervention is lawful only because an
abnormal situation has made it necessary — the executive's ipse dixit is not of itself
conclusive of the necessity.'" 15
There was likewise an effort on my part to show what for me is the legal effect
of martial law being expressly provided for in the Constitution rather than being solely
predicated on the common law power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that
the basis for the declaration of martial law in the Philippines is not mere necessity but an
explicit constitutional provision. On the other hand, Milligan, which furnished the foundation
for Sterling and Duncan had its roots in the English common law. There is pertinence
therefore in ascertaining its significance under that system. According to the noted English
author, Dicey: 'Martial law,' in the proper sense of that term, in which it means the suspension
of ordinary law and the temporary government of a country or parts of it by military tribunals,
is unknown to the law of England. We have nothing equivalent to what is called in France the
"Declaration of the State of Siege," under which the authority ordinarily vested in the civil
power for the maintenance of order and police passes entirely to the army (autorite militaire).
This is an unmistakable proof of the permanent supremacy of the law under our constitution.'
There was this qualification: 'Martial law is sometimes employed as a name for the common
law right of the Crown and its servants to repel force by force in the case of invasion,
insurrection, riot, or generally of any violent resistance to the law, This right, or power, is
essential to the very existence of orderly government, and is most assuredly recognized in
the most ample manner by the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown has the right to put down
breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called
a 'servant of the government,' such for example as a policeman, or a person in no way
connected with the administration, not only has the right, but is, as a matter of legal duty,
bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are
the persons who, as being specially employed in the maintenance of order, are most
generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take
their part in the suppression of riots." 16
Commitment to such an approach results in my inability to subscribe to the belief
that martial law in terms of what is provided both in the 1935 and the present Constitution,
affords sufficient justification for the concentration of powers in the Executive during periods
of crisis. The better view, considering the juristic theory on which our fundamental law rests
is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are
not merely cherished American institutions; they are indispensable to our government." 17 If
there has been no observance of such a cardinal concept at the present, it is due to the fact
that before the former Congress could meet in regular session anew, the present
Constitution was adopted, abolishing it and providing for an interim National Assembly, which
has not been convened. 18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial
rule as "a device designed for use in the crisis of invasion or rebellion. It may be most
precisely defined as an extension of military government to the civilian population, the
substitution of the will of a military commander for the will of the people's elected
government." 19 Since, for me at least, the Rossiter characterization of martial law has in it
more of the common law connotation, less than duly mindful of the jural effects of its inclusion
in the Constitution itself as a legitimate device for coping with emergency conditions in times
of grave danger, but always subject to attendant limitations in accordance with the
fundamental postulate of a charter's supremacy, I felt justified in concluding: "Happily for the
Philippines, the declaration of martial law lends itself to the interpretation that the Burdick,
Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess
relevance. It cannot be said that the martial rule concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our Constitution.
What is undeniable is that President Marcos has repeatedly maintained that Proclamation
No. 1081 was precisely based on the Constitution and that the validity of acts taken
thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring,
persuaded as I am likewise that the view of Rossiter is opposed to the fundamental concept
of our polity, which puts a premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion has to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections,
penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-
Chief and enforcer or administrator of martial law, the incumbent President of the Philippines
can promulgate proclamations, orders and decrees during the period of Martial Law essential
to the security and preservation of the Republic, to the defense of the political and social
liberties of the people and to the institution of reforms to prevent the resurgence of rebellion
or insurrection or secession or the threat thereof as well as to meet the impact of a worldwide
recession, inflation or economic crisis which presently threatens all nations including highly
developed countries." 21 To that extent, Rossiter's view, mainly relied upon, now possesses
juristic significance in this jurisdiction. What, for me at least, gives cause for concern is that
with the opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further
incursion into the corpus of the law, with the invocation of the view expressed in the last
chapter of his work, approving the "concentration of governmental power in a democracy [as]
a corrective to the crisis inefficiencies inherent in the doctrine of the separation of
powers." 22 It is to the credit of the late Professor Rossiter as an objective scholar that in the
very same last chapter, just three pages later, he touched explicitly on the undesirable aspect
of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A
declaration of martial law or the passage of an enabling act is a step which must always be
feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they function and a too conscious
employment of powers and methods long ago outlawed as destructive of constitutional
government. Executive legislation, state control of popular liberties, military courts, and
arbitrary executive action were governmental features attacked by the men who fought for
freedom not because they were inefficient or unsuccessful, but because they were dangerous
and oppressive. The reinstitution of any of these features is a perilous matter, a step to be
taken only when the dangers to a free state will be greater if the dictatorial institution is not
adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the view
of those of my brethren who would accord recognition to the Rossiter concept of
concentration of governmental power in the Executive during periods of crisis. This is not to
lose sight of the undeniable fact that in this country through the zeal, vigor, and energy
lavished on projects conducive to the general welfare, considerable progress has been
achieved under martial rule. A fair summary may be found in a recent address of the First
Lady before the delegates to the 1976 International Monetary Fund-World Bank Joint Annual
Meeting: "The wonder is that so much has been done in so brief a time. Since September
1972, when President Marcos established the crisis government, peace and order have been
restored in a country once avoided as one of the most unsafe in the world. We have liberated
millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24 Further, she said: "A dynamic economy has replaced
a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation,
now travels the broad expressways of friendship and constructive interaction with the whole
world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our
own salvation, the Filipino has re-discovered the well-springs of his strength and resiliency.
As Filipinos, we have found our true identity. And having broken our crisis of identity, we are
no longer apologetic and afraid." 25 The very idea of a crisis, however, signifies a transitory,
certainly not a permanent, state of things. President Marcos accordingly has not been
hesitant in giving utterance to his conviction that full implementation of the modified
parliamentary system under the present Constitution should not be further delayed. The full
restoration of civilian rule can thus be expected. That is more in accord with the imperatives
of a constitutional order. It should not go unnoticed either that the President has referred to
the present regime as one of "constitutional authoritarianism." That has a less objectionable
ring, authority being more identified with the idea of law, as based on right, the very antithesis
of naked force, which to the popular mind is associated with dictatorship, even if referred to
as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion
of the Court, while no doubt a partisan of a strong Presidency, was not averse to constitutional
restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition
of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if
not altogether accurately, defined as one in which the ordinary law, as administered by the
ordinary courts, is superseded for the time being by the will of a military commander. It follows
that, when martial law is instituted under national authority, it rests ultimately on the will of
the President of the United States in his capacity as Commander-in-Chief. It should be added
at once, nevertheless, that the subject is one in which the record of actual practice fails often
to support the niceties of theory. Thus, the employment of the military arm in the enforcement
of the civil law does not invariably, or even usually, involve martial law in the strict sense, for,
as was noted in the preceding section, soldiers are often placed simply at the disposal and
direction of the civil authorities as a kind of supplementary police, or posse comitatus; on the
other hand by reason of the discretion that the civil authorities themselves are apt to vest in
the military in any emergency requiring its assistance, the line between such an employment
of the military and a regime of martial law is frequently any but a hard and fast one. And partly
because of these ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other into the situation
just described, in which the civil authority remains theoretically in control although dependent
on military aid. Finally, there is the situation that obtained throughout the North during the
Civil War, when the privilege of the writ of habeas corpus was suspended as to certain
classes of suspects, although other characteristics of martial law were generally absent." 26
 It is by virtue of the above considerations that, with due respect to the opinion of
my brethren, I cannot yield assent to the Rossiter view of concentration of governmental
powers in the Executive during martial law.
5. There is necessity then, for me at least, that the specific question raised in all
three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so.
The basic issue posed concerns the boundaries of the power of the President during this
period of martial law, more precisely whether it covers proposing amendments to the
Constitution. There is the further qualification if the stand of respondents be taken into
account that the interim National Assembly has not been convened and is not likely to be
called into session in deference to the wishes of the people as expressed in three previous
referenda. It is the ruling of the majority that the answer be in the affirmative, such authority
being well within the area of presidential competence. Again I find myself unable to join
readily in that conviction. It does seem to me that the metes and bounds of the executive
domain, while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the
principle that underlies Aquino v. Commission on Elections as to the validity of the exercise
of the legislative prerogative by the President as long as the interim National Assembly is not
convened. For me, the stage of certitude has not been reached. I cannot simply ignore the
vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence
of any constituent power on the part of the President, the express provision of the
Constitution conferring it on the interim National Assembly. 27 The learned advocacy
reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P.
Mendoza 28 failed to erase the grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during this period of transition with
the interim lawmaking body not called into session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will explain why.
The way, for me, is beset with obstacles. In the first place, such an approach would
lose sight of the distinction between matters legislative and constituent. That is implicit in the
treatise on the 1935 Constitution by Justices Malcolm and Laurel. 29 In their
casebook 30 published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between
constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was
quite explicit. Thus: "If there had been no express provision in the Constitution granting
Congress the power to propose amendments, it would be outside its authority to assume that
power. Congress may not claim it under the general grant of legislative power for such grant
does not carry with it the right 'to erect the state, institute the form of its government,' which
is considered a function inherent in the people. Congressional law-making authority is limited
to the power of approving the laws 'of civil conduct relating to the details and particulars of
the government instituted,' the government established by the people." 32 If that distinction
he preserved, then for me the aforecited Aquino decision does not reach the heart of the
matter.
Nor is this all. In the main opinion of Justice Makasiar as well as that of the then
Justice, now Chief Justice, Castro, support for the ruling that the President cannot he deemed
as devoid of legislative power during this transition stage is supplied by implications from
explicit constitutional provisions. 33 That is not the case with the power to propose
amendments. It is solely the interim National Assembly that is mentioned. That is the barrier
that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than
registering a dissent on this point, it is solely because of the consideration, possessed of
weight and significance, that there may be indeed in this far-from-quiescent and static period
a need for amendments. I do not feel confident therefore that a negative vote on my part
would be warranted. What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the barangays on this
matter, is that as noted in both qualified concurrences by Justices Teehankee and Muñoz
Palma in Aquino, as far as the legislative and appropriation powers are concerned is the
necessity that unless such authority be recognized, there may be paralyzation of
governmental activities. While not squarely applicable, such an approach has, to my mind, a
persuasive quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle that judicial
review goes no further than to checking clear infractions of the fundamental law, except in
the field of human rights where a much greater vigilance is required. That is to make of the
Constitution a pathway to rather than a barrier against a desirable objective. As shown by my
concurring and dissenting opinion in Tolentino v. Commission on Elections, 34 a pre-martial
law decision, the fundamental postulate that sovereignty resides in the people 35 exerts a
compelling force requiring the judiciary to refrain as much as possible from denying the
people the opportunity to make known their wishes on matters of the utmost import for the
life of the nation, Constitutional amendments fall in that category. I am fortified in that
conviction by the teaching of persuasive American decisions. 36
There is reinforcement to such a conclusion from retired Chief Justice
Concepcion's concurring and dissenting opinion in Aytona v. Castillo, 37 which I consider
applicable to the present situation. These are his words: "It is well settled that the granting of
writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to
be exercised on equitable principles, and that said writs should be issued when the right to
the relief is clear . . .. " 38 As he noted in his ponencia in the later case of Gonzales v.
Hechanova, 39 an action for prohibition, while petitioner was sustained in his stand, no
injunction was issued. This was evident in the dispositive portion where judgment was
rendered "declaring that respondent Executive Secretary had and has no power to authorize
the importation in question; that he exceeded his jurisdiction in granting said authority; that
said importation is not sanctioned by law and is contrary to its provisions; and that, for lack
of the requisite majority, the injunction prayed for must be and is, accordingly,
denied." 40 With the illumination thus supplied, it does not necessarily follow that even a
dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly
this is not to belittle in any way the action taken by petitioners in filing these suits. That, for
me, is commendable. It attests to their belief in the rule of law. Even if their contention as to
lack of presidential power be accepted in their entirety, however, there is still discretion that
may be exercised on the matter, prohibition being an equitable remedy. There are, for me,
potent considerations that argue against acceding to the plea. With the prospect of
the interimNational Assembly being convened being dim, if not non-existent, if only because
of the results in three previous referenda, there would be no constitutional agency other than
the Executive who could propose amendments, which, as noted, may urgently press for
adoption. Of even greater weight, to my mind, is the pronouncement by the President that
this plebiscite is intended not only to solve a constitutional anomaly with the country devoid
of a legislative body but also to provide the machinery by which the termination of martial
law could be hastened. That is a consummation devoutly to be wished. That does militate
strongly against the stand of petitioners. The obstruction they would pose may be fraught
with pernicious consequences. LLjur
It may not be amiss to refer anew to what I deem the cardinal character of the jural
postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty
resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter
in my dissent in Javellana v. The Executive Secretary 41 and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their keeping. The role of
leadership is not to be minimized. It is crucial; it is of the essence. Nonetheless, it is their will,
if given expression in a manner sanctioned by law and with due care that there he no mistake
in its appraisal, that should be controlling. There is all the more reason then to encourage
their participation in the power process. That is to make the regime truly democratic.
Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would
interpret Laski, 43 Corwin, 44 Lerner, 45 Bryn-Jones, 46 and McIver. 47
 7. There is reassurance in the thought that this Court has affirmed its commitment
to the principle that the amending process gives rise to a justiciable rather than a political
question. So it has been since the leading case of Gonzales v. Commission on
Elections. 48 It has since then been followed in Tolentino v. Commission on
Elections, 49 Planas v. Commission On Elections, 50 and lastly, in Javellana v. The
Executive Secretary. 51 This Court did not heed the vigorous plea of the Solicitor General to
resurrect the political question doctrine announced in Mabanag v. Lopes Vito. 52 This is not
to deny that the federal rule in the United States as set forth in the leading case of Coleman
v. Miller, 53 a 1939 decision, and relatively recent State court decisions, supply ammunition
to such a contention. 54 That may be the case in the United States, but certainly not in this
jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these
words in the valedictory address before the 1934-35 Constitutional Convention by the
illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times
place more confidence in instrumentalities of the State other than those directly chosen by
them for the exercise of their sovereignty." 55 It can be said with truth, therefore, that there
has invariably been a judicial predisposition to activism rather than self-restraint. The thinking
all these years has been that it goes to the heart of constitutionalism. It may be said that this
Court has shunned the role of a mere interpreter; it did exercise at times creative power. It
has to that extent participated in the molding of policy. It has always recognized that in the
large and undefined field of constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail
against the pressure of political forces if they are bent in other directions, it does not follow
that it should not contribute its thinking to the extent that it can. It has been asked, it will
continue to be asked, to decide momentous questions at each critical stage of this nation's
life.
There must be, however, this caveat. Judicial activism gives rise to difficulties in
an era of transformation and change. A society in flux calls for dynamism in the law, which
must be responsive to the social forces at work. It cannot remain static. It must be sensitive
to life. This Court then must avoid the rigidity of legal ideas. It must resist the temptation of
wallowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has
to have a feel for the complexities of the times. This is not to discount the risk that it may be
swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing;
it cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce
the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a
splintered society. It should strive to be a factor for unity under a rule of law. There must be,
on its part, awareness of the truth that a new juridical age born before its appointed time may
be the cause of unprecedented travail that may not end at birth. It is by virtue of such
considerations that I did strive for a confluence of principle and practicality. I must confess
that I did approach the matter with some misgivings and certainly without any illusion of
omniscience. I am comforted by the thought that immortality does not inhere in judicial
opinions. LexLib
8. I am thus led by my studies on the subject of constitutional law and, much more
so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression
to views not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am
the first to recognize the worth of the social and economic reforms so needed by the troubled
present that have been introduced and implemented. There is no thought then of minimizing,
much less of refusing to concede, the considerable progress that has been made and the
benefits that have been achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the fundamental principle of
popular sovereignty, which, to be meaningful however, requires both freedom in its
manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that
a distinction was made between two aspects of the coming poll, the referendum and the
plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino
v. Commission on Elections, 56 full respect for free speech and press, free assembly and
free association. There should be no thought of branding the opposition as the enemy and
the expression of its views as anathema. Dissent, it is fortunate to note, has been
encouraged. It has not been identified with disloyalty. That ought to be the case, and not
solely due to presidential decrees. Constructive criticism is to be welcomed not so much
because of the right to be heard but because there may be something worth hearing. That is
to ensure a true ferment of ideas, an interplay of knowledgeable minds. There are though
well-defined limits. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. What i mean to stress is that except on a showing of
clear and present danger, there must be respect for the traditional liberties that make a
society truly free. cdphil
TEEHANKEE, J., dissenting:
I. On the merits: I dissent from the majority's dismissal of the petitions for lack of
merit and vote to grant the petitions for the following reasons and considerations:
1. It is undisputed that neither the 1935 Constitution nor the 1973
Constitution grants to the incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for ratification in a plebiscite.
The 1935 Constitution expressly vests the constituent power in Congress, by a
three-fourths vote of all its members, to propose amendments or call a constitutional
convention for the purpose. 1
The 1973 Constitution expressly vests the constituent power in the regular
National Assembly to propose amendments (by a three-fourths vote of all its members) or
"call a constitutional convention" (by a two-thirds vote of all its members) or "submit the
question of calling such convention to the electorate in an election" (by a majority vote of all
its members). 2
The transitory provisions of the 1973 Constitution expressly vest the constituent
power during the period of transition in the interim National Assembly "upon special call by
the interim Prime Minister (the incumbent President 3 ). by a majority vote of all its members
(to) propose amendments." 4
Since the Constitution provides for the organization of the essential departments
of government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees 5 proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the
case at bar. In therein declaring null and void the acts of the 1971 Constitutional Convention
and of the Comelec in calling a plebiscite with the general elections scheduled for November
8, 1971 for the purpose of submitting for the people's ratification an advance amendment
reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and
injunction against the holding of the plebiscite, this Court speaking through Mr. Justice
Barredo ruled that
— The Constitutional provisions on amendments 6 "dealing with the procedure or
manner of amending the fundamental law are binding upon the Convention and the other
departments of the government, (and) are no less binding upon the people"; 7
— "As long as any amendment is formulated and submitted under the aegis of the
present Charter, any proposal for such amendment which is not in conformity with the letter,
spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this
Court"; 8
9 and
 — Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendment and the manner of its submission to the
people for ratification or rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution itself", 10 i.e. the mandatory
requirements of the amending process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it
is clear that where the proposed amendments are violative of the Constitutional mandate on
the amending process not merely for being a "partial amendment" of a
"temporary or provisional character" (as in Tolentino) but more so for not being proposed
and approved by the department vested by the Constitution with the constituent power to do
so, and hence transgressing the substantive provision that it is only the interim National
Assembly, upon special call of the interim Prime Minister, by a majority vote of all its members
that may propose the amendments, the Court must declare the amendment proposals null
and void.
4. This is so because the Constitution is a "superior paramount law, unchangeable
by ordinary means" 11 but only by the particular mode and manner prescribed therein by the
people. As stressed by Cooley, "by the Constitution which they establish, (the people) not
only tie up the hands of their official agencies but their own hands as well; and neither the
officers of the State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law". 12
The vesting of the constituent power to propose amendments in the legislative
body (the regular National Assembly or the interim National Assembly during the transition
period) or in a constitutional contention called for the purpose is in accordance with universal
practice. "From the very necessity of the case" Cooley points out "amendments to an
existing constitution, or entire revisions of it, must be prepared and matured by some body
of representatives chosen for the purpose. It is obviously impossible for the whole people to
meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode
by which an expression of their will can be obtained, except by asking it upon the single point
of assent or disapproval." This body of representatives vested with the constituent power
"submits the result of their deliberations" and "puts in proper form the questions of
amendment upon which the people are to pass" — for ratification or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in denying reconsideration, in paraphrase of the late Claro M.
Recto, declared that "let those who would put aside, invoking grounds at best controversial,
any mandate of the fundamental law purportedly in order to attain some laudable objective
bear in mind that someday somehow others with purportedly more laudable objectives may
take advantage of the precedent and continue the destruction of the Constitution, making
those who laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in
his dissenting opinion in the Ratification cases 14 that "we will be opening the gates for a
similar disregard to the Constitution in the future. What I mean is that if this Court now
declares that a new Constitution is now in force because the members of the citizens
assemblies had approved said new Constitution, although that approval was not in
accordance with the procedure and the requirements prescribed in the 1935 Constitution, it
can happen again in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the law, and then said
proposed amendments is submitted to the people in any manner and what will matter is that
a basis is claimed that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to so overrule) to
accept the proposed; amendments as valid notwithstanding their being 'not in conformity with
the letter, spirit and intent of the provision of the Charter for effecting amendments" on the
reasoning that "If the President has been legitimately discharging the legislative functions of
the interim National Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative functions." 15
In the earlier leading case of Gonzales vs. Comelec 16 , this Court speaking
through now retired Chief Justice Roberto Concepcion, pointed out that "Indeed, the power
to amend the Constitution or to propose amendments thereto is not included in the general
grant of legislative powers to Congress" 17 or to the National Assembly. 18 Where it not for
the express grant in the Transitory Provisions of the constituent power to the interim National
Assembly, the interim National Assembly could not claim the power under the general grant
of legislative power during the transition period.
The majority's ruling in the Referendum cases 19 that the Transitory Provisions in
section 3(2) recognized the existence of the authority to legislate in favor of the incumbent
President during the period of martial law manifestly cannot be stretched to encompass the
constituent power as expressly vested in the interim National Assembly in derogation of the
allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of the
settled maxims of constitutional law, 20 the constituent power has been lodged by the
sovereign power of the people with the interim National Assembly during the transition period
and there it must remain as the sole constitutional agency until the Constitution itself is
changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmark case of Angara
vs. Electoral Commission 21 "(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not provided for
a mechanism by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should be in any
living Constitution". LLpr
7. Neither is the justification of "constitutional impasse" tenable. The sentiment of
the people against the convening of the interim National Assembly and to have no elections
for "at least seven (7) years" concededly could not amend the Constitution insofar as the
interim National Assembly is concerned (since it admittedly came into existence
"immediately" upon the proclamation of ratification of the 1973 Constitution), much less
remove the constituent power from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum cases 22 , "(W)hile
it has been advanced that the decision to defer the initial convocation of the interim National
Assembly was supported by the results of the referendum in January, 1973 when the people
voted against the convening of the interim National Assembly for at least seven years, such
sentiment cannot be given any legal force and effect in the light of the State's admission at
the hearing that such referendums are merely consultative and cannot amend the
Constitution or any provision which call for the 'immediate existence' and 'initial convening of
the interim National Assembly to 'give priority to measures for the orderly transition from the
presidential to the parliamentary system' and the other urgent measures enumerated in
section 5 thereof".
While the people reportedly expressed their mandate against the convening of the
interim National Assembly to discharge its legislative tasks during the period of transition
under martial law, they certainly had no opportunity and did not express themselves against
convening the interim National Assembly to discharge the consistent power to propose
amendments likewise vested in it by the people's official mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions proposed by the
sanggunian and barangay national executive committees for the referendum was the
convening of the interim National Assembly. 23
It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the President), the members of the cabinet, and the security
council" and that the barangays felt, notwithstanding the previous referenda on the convening
of the interim National Assembly that "it is time to again ask the people's opinion of this
matter." 24
8. If proposals for constitutional amendments are now deemed necessary to be
discussed and adopted for submittal to the people, strict adherence with the mandatory
requirements of the amending process as provided in the Constitution must be complied with.
This means, under the teaching of Tolentino that the proposed amendments must validly
come from the constitutional agency vested with the constituent power to do so, namely, the
interim National Assembly, and not from the executive power as vested in the Prime Minister
(the incumbent President) with the assistance of the Cabinet 25 from whom such power has
been withheld.
It will not do to contend that these proposals represent the voice of the people for
as was aptly stated by Cooley "The voice of the people, acting in their sovereign capacity,
can be of legal force only when expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution. . . .." 26
The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest order (and
directly elected by the people to speak their voice) is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts" and ruled that
the constitutional article on the amending process "is nothing more than a part of the
Constitution thus ordained by the people. Hence, in construing said section, We must read it
as if the people had said, 'The Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for ratification only in the manner herein
provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should not be
undertaken with the same ease and facility in changing an ordinary
legislation. Constitution making is the most valued power, second to none, of the people in
a constitutional democracy such as the one our founding fathers have chosen for this nation,
and which we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives
of all the people within the country and those subject to its sovereignty, every degree of care
is taken in preparing and drafting it. A constitution worthy of the people for which it is intended
must not be prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with as much care and
deliberation;" and that "written constitutions are supposed to be designed so as to last for
some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations and conditions, more or less stringent, made
so by the people themselves, in regard to the process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent
power to proposed amendments is the only way to fulfill the express mandate of the
Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting aside of a Comelec resolution banning the use of political taped jingles by candidates
for Constitutional Convention delegates in the special 1970 elections, "the concept of the
Constitution as the fundamental law. setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest functionary, is a postulate of our
system of government. That is to 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."
This is but to give meaning to the plain and clear mandate of section 15 of the
Transitory Provisions (which allows of no other interpretation) that during the stage of
transition the interim National Assembly alone exercises the constituent power to propose
amendments, upon special call therefor. This is reinforced by the fact that the cited section
does not grant to the interim National Assembly the same power granted to the regular
National Assembly of calling a constitutional convention, thus expressing the will of the
Convention (and presumably of the people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the interim National Assembly
alone would discharge the task and no constitutional convention could be called for the
purpose.
As to the alleged costs involved in convening the interim National Assembly to
propose amendments, among them its own abolition, (P24 million annually in salaries alone
for its 400 members at P60,000.00 per annum per member, assuming that its deliberations
could last for one year), suffice it to recall this Court's pronouncement in Tolentino (in
rejecting a similar argument on the costs of holding a plebiscite separately from the general
elections for elective officials) that "it is a matter of public knowledge that bigger amounts
have been spent or thrown to waste for many lesser objectives. . . . Surely, the amount of
seventeen million pesos or even more is not too much a price to pay for fealty and loyalty
to the Constitution . . ." 30 and that "while the financial costs of a separate plebiscite may be
high, it can never be as much as the dangers involved in disregarding clear mandate of the
Constitution, no matter how laudable the objective" and "no consideration of financial costs
shall deter Us from adherence to the requirements of the Constitution". 31
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis -a crisis greater than war") 32 cited by the
majority opinion as justifying the concentration of powers in the President, and the recognition
now of his exercising the constituent power to propose amendments to the Fundamental Law
"as agent for and in behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33* , former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and should not create
power. "In our democracy the hope and survival of the nation lie in the wisdom and unselfish
patriotism of all officials and in their faithful adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12, as
stressed by the writer in his separate opinion in the Referendum Cases, 34 "is a verbatim
reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the
imposition of martial law only 'in case of invasion, insurrection or rebellion, or imminent
danger thereof, when the public safety requires it' and hence the use of the legislative power
or more accurately 'military power' under martial rule is limited to such necessary measures
as will safeguard the Republic and suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the
majority in the Referendum Cases to be the recognition or warrant for the exercise of
legislative power by the President during the period of martial law is but a transitory provision.
Together with the martial law clause, they constitute hut two provisions which are not to be
considered in isolation from the Constitution but as mere integral parts thereof which must
be harmonized consistently with the entire Constitution.
 As Cooley restated the rule: "effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to conflict, the courts
must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make some words idle and nugatory.
"This rule is applicable with special force to written constitutions, in which the
people will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little as
possible to implication. It is scarcely conceivable that a case can arise where a court would
be justified in declaring any portion of a written constitution nugatory because of ambiguity.
One part may qualify another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is not to be allowed to
defeat another, if by any reasonable construction the two can be made to stand together." 36
The transcendental constituent power to propose and approve amendments to the
Constitution as well as set up the machinery and prescribe the procedure for the ratification
of his proposals has been withheld from the President (Prime Minister) as sole repository of
the Executive Power, presumably in view of the immense powers already vested in him
by the Constitution but just as importantly, because by the very nature of the constituent
power, such amendments proposals have to be prepared, deliberated and matured by a
deliberative assembly of representatives such as the interim National Assembly and hence
may not be antithetical entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the election of the
1971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power (Congress or the
Constitutional Convention) really determine the amendments to the Constitution since the
proposals were invariably ratified by the people, 37 thus: "although the people have
Convention, such power is not, in view of the circumstances attending its exercise, as
effective as one might otherwise think; that, despite the requisite ratification by the people,
the actual contents of our fundamental law will really be determined by the Convention; that
accordingly the people should exercise the greatest possible degree of circumspection in the
election of delegates thereto . . .". 38
12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive, Legislative and
Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain
the Republic against the dangers that threaten it Such premise imposes constraints and
limitations. For the martial law regime fulfills the constitutional purpose only if, by reason
of martial law measures, the Republic is preserved. If by reason of such measures the
Republic is so transformed that it is changed in its nature and becomes a State other than
republican, then martial law is a failure; worse, martial law would have become the enemy of
the Republic rather than its defender and preserver." 40
II. On the question of the Court's jurisdiction to pass upon the constitutionality of
the questioned presidential decrees: let it be underscored that the Court has long set at rest
the question.
The trail was blazed for the Court since the benchmark case of Angara vs.
Electoral commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's
"climactic phrase" that "we must never forget that it is a Constitution we are expounding" and
declared the Court's "solemn and sacred" constitutional obligation of judicial review and laid
down the doctrine that the Philippine Constitution as "a definition of the powers of
government" placed upon the judiciary the great burden of "determining the nature, scope
and extent of such powers" and stressed that "when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments. but
only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and guarantees to them".
At the same time, the Court likewise adhered to the constitutional tenet that political
questions, i.e. questions which are intended by the Constitutional and relevant laws to
be conclusively determined by the " political", i.e. elective, branches of government (namely,
the Executive and the Legislative) are outside the Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required
constitutional majority), the Court has since consistently ruled that when proposing and
approving amendments to the Constitution, the members of Congress, acting as a
constituent assembly or the members of the Constitutional Convention elected directly for
the purpose "do not have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary
to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon
the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently
political character of treaty-making power". 44
As amplified by former Chief Justice Conception in Javellana vs. Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications or conditions have
been met, or the limitations respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions and limitations-particularly those prescribed or imposed by the
Constitution-would be set at naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non-justiciable, since as stressed
even in Javellana, the issue of validity of the President's proclamation of ratification of
the 1973 Constitution presented a justiciable and non-political question.
Stated otherwise, the question of whether the Legislative acting as a constituent
assembly or the Constitutional Convention called for the purpose, in proposing amendments
to the people for ratification followed the constitutional procedure and requirements on the
amending process is perforce a justiciable question and does not raise a political question of
policy or wisdom of the proposed amendments, which if properly submitted, are reserved for
the people's decision.
The substantive question presented in the case at bar of whether the President
may legally exercise the constituent power vested in the interim National Assembly (which
has not been granted to his office) and propose constitutional amendments is prominently a
justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social disquietude or
political excitement, the great landmarks of the Constitution are apt to be forgotten or marred,
if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a political
question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writer's view of the nullity of the
questioned decrees for lack of authority on the President's part to exercise the constituent
power, I hold that the doctrine of fair and proper submission first enunciated by a simple
majority of six Justices in Gonzales and subsequently officially adopted by the required
constitutional two-thirds majority of the Court in Tolentino is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino, where "the proposed amendment in
question is expressly saddled with reservations which naturally impair, in great measure, its
very essence as a proposed constitutional amendment" and where "the way the proposal is
worded, read together with the reservations tacked to it by the Convention thru Section 3 of
the questioned resolution, it is too much of a speculation to assume what exactly the
amendment would really amount to in the end. All in all, as already pointed out in our
discussion of movants' first ground, if this kind of amendment is allowed, the Philippines will
appear before the world to be in the absurd position of being the only country with
a constitution containing a provision so ephemeral no one knows until when it will be actually
in force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck
down by this Court which ruled that "in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per
se as well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole," and that there was no proper submission "wherein the people are in the
dark as to frame of reference they can base their judgment on".
2. The now Chief Justice and Mr. Justice Makasiar with two other
member 46 graphically pointed out in their joint separate opinion that the solitary question
"would seem to be uncomplicated and innocuous. But it is one of life's verities that things
which appear to be simple may turn out not to be so simple after all". 47
They further expressed "essential agreement" with Mr. Justice Conrado V.
Sanchez' separate opinion in Gonzales "on the minimum requirements that must be met in
order that there can be a proper submission to the people of a proposed constitutional
amendment" which reads thus:
". . . we take the view that the words 'submitted to the people
for their ratification', if constrained in the light of the nature of the
Constitution a fundamental charter that is legislation direct from the
people, an expression of their sovereign will — is that it can only be
amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must
be fairly laid before the people for their blessing or spurning. The people
are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions,
compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the
incubus of extraneous or possibly insidious influences. We believe the
word 'submitted' can only mean that the government, within its maximum
capabilities, should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be understood
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as
intended by the framers of the Constitution. What the Constitution in
effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its
structural framework to enlighten the people, educate them with respect
to their act of ratification or rejection. For, as we have earlier stated, one
thing is submission and another is ratification. There must be fair
submission, intelligent, consent or rejection. If with all these safeguards
the people still approve the amendment no matter how prejudicial it is to
them, then so be it. For the people decree their own fate." 48
Justice Sanchez therein ended the passage with an apt citation that ". . . The great
men who builded the structure of our state in this respect had the mental vision of a
good Constitution voiced by Judge Cooley, who has said 'A good Constitution should be
beyond the reach of temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not to the whim of the
people, or the thought evolved in excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in
government are to be feared unless the benefit is certain. As Montaign says: 'All great
mutations shake and disorder a state. Good does not necessarily succeed evil: another evil
may succeed and a worse.'" 49
Justice Sanchez thus stated the rule that has been adopted by the Court
in Tolentino that there is no proper submission "if the people are not sufficiently informed of
the amendments to be voted upon, to conscientiously deliberate thereon, to express their
will in a genuine manner. . . .." 50
3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications reported in the
daily newspapers, it is manifest that there is no proper submission of the proposed
amendments.
Nine (9) proposed constitutional amendments were officially proposed and made
known as per Presidential Decree No. 1033 dated September 22, 1976 for submittal at the
"referendum-plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-
year and under 18-year-olds are enjoined to vote 51 notwithstanding their lack of qualification
under Article VI of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest
order, was reported by the newspapers last October 3 to have observed that "there is no
urgency in approving the proposed amendments to the Constitution and suggested that the
question regarding charter changes be modified instead of asking the people to vote on
hurriedly prepared amendments". He further pointed out that "apart from lacking the
parliamentary style in the body of the Constitution, they do not indicate what particular
provisions are being repealed or amended". 52
As of this writing, October 11, 1976, the papers today reported his seven-page
analysis questioning among others the proposed granting of dual legislative powers to both
the President and the Batasang Pambansa and remarking that "This dual legislative authority
can give rise to confusion and serious constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's consideration
of the proposed amendments, there can be no proper submission because the proposed
amendments are not in proper form and violate the cardinal rule of amendments of
written constitutions that the specific provisions of the Constitution being repealed or
amended as well as how the specific provisions as amended would read, should be clearly
stated in careful and measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform the people of the
amendments for conscientious deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that the
principal thrust of the proposals is to substitute the interim National Assembly with an interim
Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the
whole context of the 1973 Constitution proper would be affected and grave amendments and
modifications thereof would apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim Batasang
Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld
from the interim Batasang Pambansa;
Under Amendment No. 3, notwithstanding the convening of the interim Batasang
Pambansa within 30 days from the election and selection of the members (for which there is
no fixed date) the incumbent President apparently becomes a regular President and Prime
Minister (not ad interim);
 Under Amendment No. 4, the disqualifications imposed on members of the Cabinet
in the Constitution such as the prohibition against the holding of more than one office in the
government including government-owned or controlled corporations would appear to be
eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative
powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the
President and the interim Batasang Pambansa as well as the regular National Assembly, as
pointed out by Senator Tolentino, with the President continuing to exercise legislative powers
in case of "grave emergency or a threat or imminence thereof" (without definition of terms)
or when said Assemblies "fail or are unable to act adequately on any matter for any reason
that in his judgment requires immediate action", thus radically affecting provisions of the
Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be
constitutionalized, although their functions, powers and composition may be altered by law.
Referendums (which are not authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave consequences, as
acknowledged at the hearing, that amendments to the Constitution may thereafter be
effected by referendum, rather than by the rigid and strict amending process provided
presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the
unspecified provisions of the Constitution "not inconsistent with any of these amendments"
shall continue in full force and effect; and
Under Amendment No. 9, the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast.
It has likewise been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon separately but on an "all or
nothing" basis.
5. Whether the people can normally express their will in a genuine manner and
with due circumspection on the proposed amendments amidst the constraints of martial
law is yet another question. That a period of free debate and discussion has to be declared
of itself shows the limitations on free debate and discussion. The facilities for free debate and
discussion over the mass media, print and otherwise are wanting. The President himself is
reported to have observed the timidity of the media under martial law and to have directed
the press to air the views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing model of
conscientious deliberation, as our youth analyzes the issues "which will affect generations
yet to come" and urge the people to "mull over the pros and cons very carefully", as follows:
"THE REFERENDUM ISSUES
"On October 16, the people may be asked to decide on two
important national issues — the creation of a new legislative body and
the lifting of martial law.
"On the first issue, it is almost sure that the interim National
Assembly will not be convened, primarily because of its membership.
Majority of the members of the defunct Congress, who are mandated
by the Constitution to become members of the interim National
Assembly, have gained so widespread a notoriety that the mere mention
of Congress conjures the image of a den of thieves who are out to fool
the people most of the time. Among the three branches of government,
it was the most discredited. In fact, upon the declaration of martial law,
some people were heard to mutter that a 'regime that has finally put an
end to such congressional shenanigans could not be all that bad.'
"A substitute legislative body is contemplated to help the
President in promulgating laws, and perhaps minimize the issuance of
ill-drafted decrees which necessitate constant amendments. But care
should be taken that this new legislative body would not become a mere
rubber stamp akin to those of other totalitarian countries. It should he
given real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have with
regard to the proposed legislative body is that of abolishing it in case
'there is a need to do so'. As to what would occasion such a need, only
the President himself can determine. This would afford the Chief
Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.
"On the matter of lifting martial law, the people have
expressed ambivalent attitudes. Some of them, remembering the turmoil
that prevailed before the declaration of martial law, have expressed the
fear that its lifting might precipitate the revival of the abuses of the past,
and provide an occasion for evil elements to resurface with their usual
tricks. Others say that it is about time martial law was lifted, since the
peace and order situation has already stabilized and the economy
seems to have been perked up.
"The regime of martial law has been with us for four years
now. No doubt, martial law has initially secured some reforms for the
country. The people were quite willing to participate in the new
experiment, thrilled by the novelty of it all. After the euphoria, however,
the people seem to have gone back to the old ways, with the exception
that some of our freedoms were taken away, and an authoritarian regime
established.
"We must bear in mind that martial law was envisioned only to
cope with an existing national crisis. It was not meant to be availed of for
a long period of time, otherwise it would undermine our adherence to a
democratic form of government. In the words of the Constitution, martial
law shall only be declared in times of 'rebellion, insurrection invasion, or
imminent danger thereof, when the public safety requires it'. Since we
no longer suffer from internal disturbances of a gargantuan scale, it is
about time we seriously rethink the 'necessity' of prolonging the martial
law regime. If we justify the continuance of martial law by economic or
other reasons other than the foregoing constitutional grounds, then our
faith in the Constitution might be questioned. Even without martial law,
the incumbent Chief Executive still holds vast powers under the
Constitution. After all, the gains of the New Society can be secured
without sacrificing the freedom of our people. If the converse is true, then
we might have to conclude that the Filipinos deserve a dictatorial form
of government. The referendum results will show whether the people
themselves have adopted this sad conclusion.
"The response of the people to the foregoing issues will affect
generations yet to come, so they should mull over the pros and cons
very carefully."
6. This opinion is written in the same spirit as the President's exhortations on the
first anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain
firm and stable" so that it may "guide the people", and that we "remain steadfast on the rule
of law and the Constitution" as he recalled his rejection of the "exercise (of) power that can
be identified merely with a revolutionary government" that makes its own law, thus:
". . . Whoever he may be and whatever position he may
happen to have, whether in government or outside government, it is
absolutely necessary now that we look solemnly and perceptively
into the Constitution and try to discover for ourselves what our role is in
the successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let all
of us then pass away as a pace in the development of our country, but
let the Constitution remain firm and stable and let institutions grow in
strength from day to day, from achievement to achievement, and so long
as that Constitution stands, whoever may the man in power be, whatever
may his purpose be, that Constitution will guide the people and no man,
however, powerful he may be, will dare to destroy and wreck the
foundation of such a Constitution.
"These are the reasons why I personally, having
proclaimed martial law, having been often induced to exercise power
that can be identified merely with a revolutionary government, have
remained steadfast on the rule of law and the Constitution." 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to the
Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept
invitations to act as resource speakers under Section 5 of Presidential Decree No. 991, as
amended, as well as to take sides in discussions and debates on the referendum-plebiscite
questions under Section 7 of the same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Muñoz Palma had
dissented from the majority resolution, with all due respect, on the ground that the non-
participation of judges in such public discussions and debates on the referendum-plebiscite
questions would preserve the traditional non-involvement of the judiciary in public
discussions of controversial issues. This is essential for the maintenance and enhancement
of the people's faith and confidence in the judiciary. The questions of the validity of the
scheduled referendum-plebiscite and of whether there is proper submission of the proposed
amendments were precisely subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate
might blemish the image and independence of the judiciary. Aside from the fact that the fixing
of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of
insecurity of their tenure in office still pends, litigants and their relatives and friends as well
as a good sector of the public would be hesitant to air views contrary to that of the Judge.
Justices Makasiar and Muñoz Palma who share these views have agreed that we
make them of record here, since we understand that the permission given in the resolution
is nevertheless addressed to the personal decision and conscience of each judge, and these
views may be of some guidance to them.
BARREDO, J., concurring:
While I am in full agreement with the majority of my brethren that the herein
petitions should he dismissed, as in fact I vote for their dismissal, I deem it imperative that I
should state separately the considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who
I have doubts as to whether or not I should have taken part in the consideration and resolution
of these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the
land for me to leave unmentioned the circumstances which have given cause, I presume, for
others to feel apprehensive that my participation in these proceedings might detract from that
degree of faith in the impartiality that the Court's judgment herein should ordinarily command.
In a way, it can be said, of course, that I am the one most responsible for such a rather
problematical situation, and it is precisely for this reason that I have decided to begin this
opinion with a discussion of why I have not inhibited myself, trusting most confidently that
what I have to say will be taken in the same spirit of good faith, sincerity and purity of purpose
in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents of
the official report of the Executive Committee of the Katipunan ng mga Sanggunian submitted
to the Katipunan itself about the proceedings held on August 14, 1976. It is stated in that
public document that:
"THE ISSUE WITH REGARDS TO THE CONVENING OF A
LEGISLATIVE body came out when the President expressed his desire
to share his powers with other people.
Aware of this, a five-man Committee members of
the Philippine Constitution Association (PHILCONSA) headed by
Supreme Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa'
which would help the President in the performance of his legislative
functions. The proposed new body will take the place of the interim
National Assembly which is considered not practical to convene at this
time considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's
42,000 barangay assemblies on August 1 suggested that the people be
consulted on a proposal to create a new legislative body to replace the
interim assembly provided for by the Constitution. The suggestion of the
barangay units was made through their national association,
Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z.
Petines. She said that the people have shown in at least six instances
including in the two past referenda that they are against the convening
of the interim National Assembly. She also said that since the people
had ruled out the calling of such assembly and that they have once
proposed that the President create instead the Sangguniang Pambansa
or a legislative advisory body, then the proposal to create a new
legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering
42,000 units like their elder counterparts in the Katipunan ng mga
Barangay also asserted their own right to be heard on whatever plans
are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was
held to discuss matters pertaining to the stand of the PKB with regards
to the convening of a new legislative body. The stand of the PKB is to
create a legislative advisory council in place of the old assembly. Two
days after, August 8, the Kabataang Barangay held a symposium and
made a stand which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their
respective localities to discuss more intelligently the proposal to create
a new legislative body was made by various urban and rural
Sangguniang Bayans.
Numerous requests made by some members coming from 75
provincial and 61 city SB assemblies, were forwarded to the Department
of Local Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Roño
granted the request by convening the 91 member National Executive
Committee of the Pambansang Katipunan ng mga Sanggunian on
 August 14 which was held at Session Hall, Quezon City. Invited also to
participate were 13 Regional Federation Presidents each coming from
the PKB and the PKKB."
Actually, the extent of my active participation in the events and deliberations that
have culminated in the holding of the proposed referendum-plebiscite on October 16, 1976,
which petitioners are here seeking to enjoin, has been more substantial and meaningful than
the above report imparts. Most importantly, aside from being probably the first person to
publicly articulate the need for the creation of an interim legislative body to take the place of
the interim National Assembly provided for in the Transitory Provisions of the Constitution,
as suggested in the above report, I might say that I was the one most vehement and
persistent in publicly advocating and urging the authorities concerned to directly submit to
the people in a plebiscite whatever amendments of the Constitution might be considered
necessary for the establishment of such substitute interim legislature. In the aforementioned
session of the Executive Committee of the Katipunan, I discoursed on the indispensability of
a new interim legislative body as the initial step towards the early lifting of martial law and on
the fundamental considerations why in our present situation a constitutional convention
would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral
Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain
terms the plan to call a constitutional convention. I reiterated the same views on September
7, 1976 at the initial conference called by the Comelec in the course of the information and
educational campaign it was enjoined to conduct on the subject. And looking back at the
subsequent developments up to September 22, 1976, when the Batasang Bayan approved
and the President signed the now impugned Presidential Decree No. 1033, it is but human
for me to want to believe that to a certain extent my strong criticisms and resolute stand
against any other alternative procedure of amending the Constitution for the purpose
intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative for
all I have done, was not altogether mine alone. The truth of the matter is that throughout the
four years of this martial law government, it has always been my faith, as a result of casual
and occasional exchanges of thought with President Marcos, that when the appropriate time
does come, the President would somehow make it known that in his judgment, the situation
has already so improved as to permit the implementation, if gradual, of the constitutionally
envisioned evolution of our government from its present state to a parliamentary one.
Naturally, this would inevitably involve the establishment of a legislative body to replace the
abortive interim National Assembly. I have kept tract of all the public and private
pronouncements of the President, and it was the result of my reading thereof that furnished
the immediate basis for my virtually precipitating, in one way or another, the materialization
of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the
President's own attitude on the matter that made it opportune for me to articulate my own
feelings and ideas as to how the nation can move meaningfully towards normalization and to
publicly raise the issues that have been ventilated by the parties in the instant cases. LLpr
I would not be human, if I did not consider myself privileged in having been afforded
by Divine Providence the opportunity to contribute a modest share in the formulation of the
steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am certain
every true Filipino is anxiously looking forward to that eventuality. And if for having voiced
the sentiments of our people, where others would have preferred to be comfortably silent,
and if for having made public what every Filipino must have been feeling in his heart all these
years, I should be singled out as entertaining such preconceived opinions regarding the
issues before the Court in the cases at bar as to preclude me from taking part in their
disposition, I can only say that I do not believe there is any other Filipino in and out of the
Court today who is not equally situated as I am.
The matters that concern the Court in the instant petitions to not involve merely the
individual interests of any single person or group of persons. Besides, the stakes in these
cases affect everyone commonly, not individually. The current of history that has passed
through the whole country in the wake of martial law has swept all of us, sparing none, and
the problem of national survival and of restoring democratic institutions and ideals is seeking
solution in the minds of all of us. That I have preferred to discuss publicly my own thoughts
on the matter cannot mean that my colleagues in the Court have been indifferent and
apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our own
preconceived ideas and notions in respect to the situation that confronts the country. To be
sure, our votes and opinions in the major political cases in the recent past should more or
less indicate our respective basic positions relevant to the issues now before Us. Certainly,
contending counsels cannot be entirely in the dark in this regard. I feel that it must have been
precisely because of such awareness that despite my known public participation in the
discussion of the question herein involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have never allowed
my preconceptions and personal inclinations to affect the objectivity needed in the resolution
of any judicial question before the Court. I feel I have always been able to appreciate, fully
consider and duly weight arguments and points raised by all counsels, even when they
conflict with my previous views. I am never beyond being convinced by good and substantial
ratiocination. Nothing has delighted me more than to discover that somebody else has
thought of more weighty arguments refuting my own, regardless of what or whose interests
are at stake. I would not have accepted my position in the Court had I felt I would not be able
to be above my personal prejudices. To my mind, it is not that a judge has preconceptions
that counts, it is his capacity and readiness to absorb contrary views that are indispensable
for justice to prevail. That suspicions of pre-judgment may likely arise is unavoidable; but I
have always maintained that whatever improper factors might influence a judge will
unavoidably always appear on the face of the decision. In any event, is there better guarantee
of justice when the preconceptions of a judge are concealed?
Withal, in point of law, I belong to the school of though that regards members of
the Supreme Court as not covered by the general rules relative to disqualification and
inhibition of judges in cases before them. If I have in practice actually refrained from
participating in some cases, it has not been because of any legal ground founded on said
rules, but for purely personal reasons, specially because, anyway, my vote would not have
altered the results therein.
It is my considered opinion that unlike in the cases of judges in the lower courts, the
Constitution does not envisage compulsory disqualification or inhibition in any case by any
member of the Supreme Court. The Charter establishes a Supreme Court "composed of a
Chief Justice and fourteen Associate Justices", with the particular qualifications therein set
forth and to be appointed in the manner therein provided. Nowhere in the Constitution is there
any indication that the legislature may designate by law instances wherein any of the justices
should not or may not take part in the resolution of any justices should not or may not take
part in the resolution of any case, much less who should take his place. Members of the
Supreme Court and definite constitutional officers; it is not within the power of the lawmaking
body to replace them even temporarily for any reason. To put it the other way, nobody who
has not been duly appointed as a member of the Supreme Court can sit in it at any time or
for any reason. The Judicial power is vested in the Supreme Court composed as the
Constitution ordains — that power cannot be exercised by a Supreme Court constituted
otherwise. And so, when as in the instant cases where, if any of the member of Court is to
abstain from taking part, there would be no quorum — and no court to render the decision —
it is the ineludible duty of all the incumbent justices to participate in the proceedings and to
cast their votes, considering that for the reasons stated above, the provisions of Section 9 of
the Judiciary Act do not appear to conform with the concept of the office of Justice of the
Supreme Court contemplated in the Constitution. cdll
The very nature of the office of Justice of the Supreme Court as the tribunal of last
resort and bulwark of the rights and liberties of all the people demands that only one of
dependable and trustworthy probity should occupy the same. Absolute integrity, mental and
otherwise, must be possessed by everyone who is appointed thereto. The moral character
of every member of the Court must be assumed to be such that in no case whatsoever,
regardless of the issues and the parties involved, may it be feared that anyone's life, liberty
or property, much less the national interests, would ever be in jeopardy of being unjustly and
improperly subjected to any kind of judicial sanction. In sum, every Justice of the Supreme
Court is expected to be capable of rising above himself in every case and of having full control
of his emotions and prejudices, such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable that his judgment cannot be
but objectively impartial, Indeed, even the appointing power, to whom the Justices owe their
positions, should never hope to be unduly favored by any action of the Supreme Court. All
appointments to the Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I shall
now address myself to the grave issues submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in the petitions herein
are political or justiciable, suffice it for me to reiterate the fundamental position I took in
the Martial Law cases, 1 thus:
"As We enter the extremely delicate task of resolving the
grave issues thus thrust upon Us. We are immediately encountered by
absolute verities to guide Us all the way. The first and most important of
them is that the Constitution (Unless expressly stated otherwise, all
references to the Constitution in this discussion are to both
the 1935 and 1973 charters, since, after all, the pertinent provisions are
practically identical in both.) is the supreme law of the land. This means
among other things that all the powers of the government and of all its
officials from the President down to the lowest emanate from it. None of
them may exercise any power unless it can be traced thereto either
textually or by natural and logical implication.
"The second is that it is settled that the Judiciary provisions
of the Constitution point to the Supreme Court as the ultimate arbiter of
all conflicts as to what the Constitution or any part thereof means. While
the other Departments may adopt their own construction thereof, when
such construction is challenged by the proper party in an appropriate
case wherein a decision would be impossible without determining the
correct construction, the Supreme Court's word on the matter controls.
xxx xxx xxx
"The fifth is that in the same manner that the Executive power
conferred upon the Executive by the Constitution is complete, total and
unlimited, so also, the judicial power vested in the Supreme Court and
the inferior courts, is the very whole of that power, without any limitation
or qualification.
"xxx xxx xxx
"From these incontrovertible postulates, it results, first of all,
that the main question before Us is not in reality one of jurisdiction, for
there can be no conceivable controversy, especially one involving a
conflict as to the correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified,
it extends over all situations that call for the ascertainment and protection
of the rights of any party allegedly violated, even when the alleged
violator is the highest official of the land or the government itself. It is,
therefore, evidence that the Court's jurisdiction to take cognizance of
and to decide the instant petitions on their merits is beyond challenge.
"In this connection, however, it must be borne in mind that in
the form of government envisaged by the farmers of the Constitution and
adopted by our people, the Court's indisputable and plenary authority to
decide does not necessarily impose upon it the duty to interpose its fiat
as the only means of setting the conflicting claims of the parties before
it. It is ingrained in the distribution of powers in the fundamental law that
hand in hand with the vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion to determine,
in consideration of the constitutional prerogatives granted to the other
Departments, when to refrain from imposing judicial solutions and
instead defer to the judgment of the latter. It is in the very nature of
republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or
thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by
their very nature, when one studiously considers the basic functions and
responsibilities entrusted by the charter to each of the great
Departments of the government. To cite an obvious example, the
protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being
within the ambit of judicial responsibility. The distinct role then of the
Supreme Court of being the final arbiter in the determination of
constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative
of the people articulated thru suffrage or thru the acts of their political
representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that
lie at the base of what is known in American constitutional law as the
political question doctrine, which in that jurisdiction is unquestionably
deemed to be part and purse of the rule of law, exactly like its apparently
more attractive or popular opposite, judicial activism, which is the fullest
exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has been invoked and applied by this
Court in varied forms and modes of projection in several momentous
instances in the past, (Barcelon vs. Baker, 5 Phil. 87; Severino vs.
Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612;
Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192;
Mabanag vs. Lopez Vito, 78 Phil. 1; Cabili vs. Francisco, 88 Phil.
654; Montenegro vs. Castañeda, 91 Phil. 882; Santos vs. Yatco, 55 O.G.
8641 [Minute Resolution of Nov. 6, 1959]; Osmeña vs. Pendatun, Oct.
28, 1960.) and it is the main support of the stand of the Solicitor General
on the issue of jurisdiction in the cases at bar. It is also referred to as the
doctrine of judicial self-restraint or abstention. But as the nomenclatures
themselves imply, activism and self-restraint are both subjective
attitudes, not inherent imperatives. The choice of alternatives in any
particular eventuality is naturally dictated by what in the Court's
considered opinion is what the Constitution envisions should be done in
order to accomplish the objectives of government and of nationhood.
And perhaps it may be added here to avoid confusion of concepts, that
We are not losing sight of the traditional approach based on the doctrine
of separation of powers. In truth, We perceive that even under such
mode of rationalization, the existence of power is secondary, respect for
the acts of a co-ordinate, co-equal and co-independent Department
being the general rule, particularly when the issue is not encroachment
of delimited areas of functions but alleged abuse of a Department's own
basic prerogatives. (59 SCRA, pp. 379-383.)
 Applying the foregoing considerations to the cases at bar, I hold that the Court has
jurisdiction to pass on the merits of the various claims of petitioners. At the same time,
however, I maintain that the basic nature of the issues herein raised requires that the Court
should exercise its constitutionally endowed prerogative to refrain from exerting its judicial
authority in the premises. Cdpr
Stripped of incidental aspects, the constitutional problem that confronts Us stems
from the absence of any clear and definite express provision in the Charter applicable to the
factual milieu herein involved. The primary issue is, to whom, under the circumstances, does
the authority to propose amendments to the Constitution property belong? To say, in the light
of Section 15 of Article XVII of the Charter, that faculty lies in the interim National Assembly
is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could
only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the
same Article XVII may be convoked. But precisely, the fundamental issue We are called upon
to decide is whether or not it is still constitutionally possible to convene that body. And relative
to that question, the inquiry centers on whether or not the political developments since the
ratification of the Constitution indicate that the people have in effect enjoined the convening
of the interim National Assembly altogether. On this score, it is my assessment that the
results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975
clearly show that the great majority of our people, for reasons plainly obvious to anyone who
would consider the composition of that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention together with its own members,
are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people
should be given effect without a formal amendment of the Constitution is something that
constitutional scholars may endlessly debate on. What cannot be disputed, however, is that
the government and the nation have acquiesced to it and have actually operated on the basis
thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the
people desire that the interim Assembly be not convened, has ordained the suspension of its
convocation, has not been assailed either judicially or otherwise since the date of its
promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what, under
these circumstances, is the constitutional relevance of the interim National Assembly to any
proposal to amend the Constitution at this time. It is my considered opinion that in resolving
that question, the Court must have to grapple with the problem of what to do with the will of
the people, which although manifested in a manner not explicitly provided for in the
Constitution, was nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence of well-meaning, if insufficiently substantial
dissent. Such being the situation, I hold that it is not proper for the Court to interpose its
judicial authority against the evident decision of the people and should leave it to the political
department of the government to devise the ways and means of resolving the resulting
problem of how to amend the Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people themselves in a well-ordered plebiscite
as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter in the manner
provided in Presidential Decree 1033, I hold that in the peculiar situation in which the
government is today, it is not incompatible with the Constitution for the President to propose
the subject amendments for ratification by the people in a formal plebiscite under the
supervision of the Commission on Elections. On the contrary, in the absence of any express
prohibition in the letter of the Charter, the Presidential Decree in question is entirely
consistent with the spirit and the principles underlying the Constitution. The correctness of
this conclusion should become even more patent, when one considers the political
developments that the people have brought about since the ratification of the Constitution on
January 17, 1973.
I consider it apropos at this juncture to repeat my own words in a speech I delivered
on the occasion of the celebration of Law Day on September 18, 1975 before the members
of the Philippine Constitution Association and their guests:
"To fully comprehend the constitutional situation in the
Philippines today, one has to bear in mind that, as I have mentioned
earlier, the martial law proclaimed under the 1935 Constitution overtook
the drafting of the new charter by the Constitutional Convention of 1971.
It was inevitable, therefore, that the delegates had to take into account
not only the developments under it but, most of all, its declared
objectives and what the President, as its administrator, was doing to
achieve them. In this connection, it is worthy of mention that an attempt
to adjourn the convention was roundly voted down to signify the
determination of the delegates to finish earliest their work, thereby to
accomplish the mission entrusted to them by the people to introduce
meaningful reforms in our government and society. Indeed, the
constituent labors gained rapid tempo, but in the process, the delegates
were to realize that the reforms they were formulating could be best
implemented if the martial law powers of the President were to be
allowed to subsist even after the ratification of the Constitution they were
approving. This denouement was unusual. Ordinarily, a constitution born
out of a crisis is supposed to provide all the needed cures and can,
therefore, be immediately in full force and effect after ratification. Not so,
with our 1973 Constitution, Yes, according to the Supreme Court, 'there
is no more judicial obstacle to the new Constitution being considered in
force and effect', but in truth, it is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be
careful to distinguish between the body or main part thereof and its
transitory provisions. It is imperative to do so because the transitory
provisions of our Constitution are extraordinary in the sense that
obviously they have been designed to provide not only for the transition
of our government from the presidential form under the past charter to a
parliamentary one as envisaged in the new fundamental law, but also to
institutionalize, according to the President, the reforms introduced thru
the exercise of his martial law powers. Stated differently, the transitory
provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that
is neither presidential nor parliamentary. It is headed, of course, by
President Marcos who not only retains all his powers under the 1935
Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and does
legislate alone. But to be more accurate, I should say that he legislates
alone in spite of the existence of the interim National Assembly
unequivocally ordained by the Constitution, for the simple reason that he
has suspended the convening of said assembly by issuing Proclamation
No. 1103 purportedly 'in deference to the sovereign will of the Filipino
people' expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification.
The whole Constitution was submitted for approval or disapproval of the
people, and after the votes were counted and the affirmative majority
known, we were told that the resulting ratification was subject to the
condition that the interim National Assembly evidently established in the
Constitution as the distinctive and indispensable element of a
parliamentary form of government should nevertheless be not convened
and that no elections should be held for about seven years, with the
consequence that we have now a parliamentary government without a
parliament and a republic without any regular election of its officials. And
 as you can see, this phenomenon came into being not by virtue of the
Constitution but of the direct mandate of the sovereign people
expressed in a referendum. In other words, in an unprecedented extra-
constitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential
Decree No. 86, which later on have been transformed into barangays, a
system of government proclaimed by the President as 'a real
achievement in participatory democracy.' What I am trying to say, my
friends, is that as I perceive it, what is now known as constitutional
authoritarianism means, in the final analysis, that the fundamental
source of authority of our existing government may not be necessarily
found within the four corners of the Constitution but rather in the results
of periodic referendums conducted by the Commission on Elections in a
manner well known to all of us. This, as I see it, is perhaps what the
President means by saying that under the new Constitution he has
extra-ordinary powers independently of martial law — powers
sanctioned directly by the people which may not even be read in the
language of the Constitution. In brief, when we talk of the rule of law
nowadays, our frame of reference should not necessarily be the
Constitution but the outcome of referendums called from time to time by
the President. The sooner we imbibe this vital concept the more
intelligent will our perspective be in giving our support and loyalty to the
existing government. What is more, the clearer will it be that except for
the fact that all the powers of government are being exercised by the
President, we do not in reality have a dictatorship but an experimental
type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the referendum of
February 27, 1975. It is important to note, relative to the main issue now before Us, that it
was originally planned to ask the people in that referendum whether or not they would like
the interim National Assembly to convene, but the Comelec to whom the task of preparing
the questions was assigned was prevailed upon not to include any such question anymore,
precisely because it was the prevalent view even among the delegates to the Convention as
well as the members of the old Congress concerned that matter had already been finally
resolved in the previous referenda of January and July 1973 in the sense that the Assembly
should not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since January
17, 1973 the transitory provisions envisioning the convening of the interim National
Assembly have been rendered legally inoperative. There is no doubt in my mind that for the
President to convoke the interim National Assembly as such would be to disregard the will of
the people — something no head of a democratic republican state like ours should do. And I
find it simply logical that the reasons that motivated the people to enjoin the convening of the
Assembly — the unusually large and unmanageable number of its members and the
controversial morality of its automatic composition consisting of all the incumbent elective
national executive and legislative officials under the Old Constitution who would agree to join
it and the delegates themselves to the Convention who had voted in favor of the Transitory
Provisions — apply not only to the Assembly as an ordinary legislature but perhaps more to
its being a constituent body. And to be more realistic, it is but natural to conclude that since
the people are against politicians in the old order having anything to do with the formulation
of national policies, there must be more reasons for them to frown on said politicians taking
part in amendment of the fundamental law, specially because the particular amendment
herein involved calls for the abolition of the interim National Assembly to which they belong
and its substitution by the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution is
not contemplated. I disagree. It is inconsistent with the plenary power of the people to give
or withhold their assent to a proposed Constitution to maintain that they can do so only
wholly. I cannot imagine any sound principle that can be invoked to support the theory that
the proposing authority can limit the power of ratification of the people. As long as there are
reliable means by which only partial approval can be manifested, no cogent reason exists
why the sovereign people may not do so. True it is that no proposed Constitution can be
perfect and it may therefore be taken with the good and the bad in it, but when there are
feasible ways by which it can be determined which portions of it, the people disapprove, it
would be stretching technicality beyond its purported office to render the final authority — the
people — impotent to act according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding
the legal feasibility of qualified ratification. Proclamation 1103 categorically declares that:
"WHEREAS, fourteen million nine hundred seventy six
thousand five hundred sixty-one (14,976.561) members of all the
Barangays voted for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand eight hundred sixty-nine
(743,869) who voted for its rejection; but a majority of those who
approved the new Constitution conditioned their votes on the demand
that the interim National Assembly provided in its Transitory Provisions
should not be convened."
and in consequence, the President has acted accordingly by not convening the Assembly.
The above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it
is binding on the Court, the same being a political act of a coordinate department of the
government not properly assailed as arbitrary or whimsical. At this point, it must be
emphasized in relation to the contention that a referendum is only consultative,
that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the
ratification of the Constitution, must be accorded the same legal significance as the latter
proclamation, as indeed it is part and parcel of the act of ratification of the Constitution, hence
not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign
people have voted against the convening of the interim National Assembly, and faced with
the problem of amending the Constitution in order precisely to implement the people's
rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how
can any such amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office or body designed
by the constitutional convention to perform the constituent function of formulating proposed
amendments has been rendered inoperative by the people themselves, the people have
thereby foreclosed the possibility of amending the Constitution no matter how desirable or
necessary this might be. In this connection, I submit that by the very nature of the office of
the Presidency in the prevailing scheme of government we have — it being the only political
department of the government in existence — it is consistent with basic principles of
constitutionalism to acknowledge the President's authority to perform the constituent
function, there being no other entity or body lodged with the prerogative to exercise such
function.
There is another consideration that leads to the same conclusion. It is conceded
by petitioners that with the non-convening of the interim Assembly, the legislative authority
has perforce fallen into the hands of the President, if only to avoid a complete paralysis of
law-making and resulting anarchy and chaos. It is likewise conceded that the provisions of
Section 3 (2) of Article XVII invest the President with legislative power for the duration of the
transition period. From these premises, it is safe to conclude that in effect the President has
been substituted by the people themselves in place of the interim Assembly. Such being the
case, the President should be deemed as having been granted also the cognate prerogative
of proposing amendments to the Constitution. In other words, the force of necessity and the
cognate nature of the act justify that the department exercising the legislative faculty be the
one to likewise perform the constituent function that was attached to the body rendered
impotent by the people's mandate. Incidentally, I reject most vehemently the proposition that
the President may propose amendments to the Constitution in the exercise of his martial
law powers. Under any standards, such a suggestion cannot be reconciled with the ideal that
a Constitution is the free act of the people.
 It was suggested during the oral argument that instead of extending his legislative
powers by proposing the amendment to create a new legislative body, the President should
issue a decree providing for the necessary apportionment of the seats in the Regular National
Assembly and call for an election of the members thereof and thus effect the immediate
normalization of the parliamentary government envisaged in the Constitution. While indeed
procedurally feasible, the suggestion overlooks the imperative need recognized by the
constitutional convention as may be inferred from the obvious purpose of the transitory
provisions, for a period of preparation and acquaintance by all concerned with the unfamiliar
distinctive features and practices of the parliamentary system. Accustomed as we are to the
presidential system, the Convention has seen to it that there should be an interim parliament
under the present leadership, which will take the corresponding measures to effectuate the
efficient and smooth transition from the present system to the new one. I do not believe this
pattern set by the convention should be abandoned.
The alternative of calling a constitutional convention has also been mentioned. But,
in the first place, when it is considered that whereas, under Section 1 (1) and (2) of Article
XVI, the regular National Assembly may call a Constitutional Convention or submit such a
call for approval of the people, Section 15 of Article XVII, in reference to interim National
Assembly, does not grant said body the prerogative of calling a convention, one can readily
appreciate that the spirit of the Constitution does not countenance or favor the calling of a
convention during the transition, if only because such a procedure would be time consuming,
cumbersome and expensive. And when it is further noted that the requirement as to the
number of votes needed for a proposal is only a majority, whereas it is three-fourths in respect
to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI to the
effect that all ratification plebiscites must be held "not later than three months after the
approval" of the proposed amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in the assailed Presidential
Decree 1033 suggests itself as the one most in accord with the intent of the fundamental
law.
There is nothing strange in adopting steps not directly based on the letter of the
Constitution for the purpose of amending or changing the same. To cite but one important
precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2 ,
the present Constitution of the United States was neither proposed nor ratified in the manner
ordained by the original charter of that country, the Articles of Confederation and Perpetual
Union.
In brief, if the convening and operation of the interim National Assembly has been
effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and
impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not
a duly held plebiscite suffice for the purpose of creating a substitute for that Assembly? It
should be borne in mind that after all, as indicated in the whereas of the impugned
Presidential Decree, actually, the proposed amendments were initiated by the barangays and
sanggunian members. In other words, in submitting the amendments for ratification, the
President is merely acting as the conduit thru whom a substantial portion of the people,
represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek
the approval of the people as a whole of the amendments in question. If all these mean that
the sovereign people have arrogated unto themselves the functions relative to the
amendment to the Constitution, I would regard myself as totally devoid of legal standing to
question it, having in mind that the most fundamental tenet on which our whole political
structure rests is that "sovereignty resides in the people and all government authority
emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree No.
1033 does not infringe the Constitution, if only because the specific provision it is supposed
to infringe does not exist in legal contemplation since it was coevally made inoperative when
the people ratified the Constitution on January 17, 1973. I am fully convinced that there is
nothing in the procedure of amendment contained in said decree that is inconsistent with the
fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue
conforms admirably with the underlying tenet of our government — the sovereignty and
plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the
people to sufficiently comprehend the issues and intelligently vote in the referendum and
plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other
colleagues are right in holding that the period given to the people is adequate, I would leave
it to the President to consider whether or not it would be wiser to extend the same. Just to
avoid adverse comments later I wish the President orders a postponement. But whether such
postponement is ordered or not, date of the referendum-plebiscite anywhere from October
16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J.; concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided
ultimately by the people in their sovereign capacity, the question is political as the term is
defined in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial
inquiry, for the reasons stated in Our opinion in Javellana, et al. vs. Executive Secretary, et
al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L-36164); Roxas, et al. vs. Executive
Secretary, et al. (L-36165); Monteclaro, etc., et al. vs. Executive Secretary, et al. (L-36236);
and Dilag, et al. vs. Executive Secretary, et al. (L-36283, March 31, 1973, 50 SCRA 30, 204-
283). The procedure for amendment is not important. Ratification by the people is all that is
indispensable to validate an amendment. Once ratified, the method of making the proposal
and the period for submission become irrelevant.
The contrary view negates the very essence of a republican democracy — that the
people are sovereign — and renders meaningless the emphatic declaration in the very first
provision of Article II of the 1973 Constitution that the Philippines is a republican state,
sovereignty resides in the people and all government authority emanates from them. It is
axiomatic that sovereignty is illimitable. The representatives cannot dictate to the sovereign
people. They may guide them; but they cannot supplant their judgment. Such an opposite
view likewise distrusts the wisdom of the people as much as it despises their intelligence. It
evinces a presumptuous pretension to intellectual superiority. There are thousands upon
thousands among the citizenry, who are not in the public service, who are more learned and
better skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs. Comelec, et al. (L-40004, Jan. 31, 1975,
62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule
during the period of martial law can legislate; and that he has the discretion as to when the
convene the interim National Assembly depending on prevailing conditions of peace and
order. In view of the fact that the interim National Assembly has not been convoked in
obedience to the desire of the people clearly expressed in the 1973 referenda, the
President therefore remains the lone law-making authority while martial law subsists.
Consequently, he can also exercise the power of the interim National Assembly to propose
amendments to the New Constitution (Sec. 15, Art. XVII). If, as conceded by petitioner
Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which
drafted the 1973 Constitution, the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a constituent power, it stands to
reason that the President can likewise legally propose amendments to the fundamental
law. LLpr
ANTONIO, J., concurring:
I.
At the threshold, it is necessary to clarify what is a "political question". It must be
noted that this device has been utilized by the judiciary "to avoid determining questions it is
ill equipped to determine or that could be settled in any event only with the effective support
of the political branches." 1 According to Weston, judges, whether "personal representatives
of a truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty
speaking through a written constitution, derive their power by a delegation, which clearly or
obscurely as the case may be, delineates and delimits their delegated jurisdiction. . . . Judicial
questions . . . are those which the sovereign has set to be decided in the courts. Political
question, similarly, are those which the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra-governmental
action." 2 Reflecting a similar concept, this Court has defined a "political question" as a
"matter which is to be exercised by the people in their primary political capacity or that has
been specifically delegated to some other department or particular officer of the government,
with discretionary power to act." 3 In other words, it refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of
government. 4
In determining whether an issue falls within the political question category, the
absence of a satisfactory criterion for a judicial determination or the appropriateness of
attributing finality to the action of the political departments of government is a dominant
consideration. This was explained by Justice Brennan in Baker v. Carr, 5 thus:
"Prominent on the surface of any case held to involve political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on one question. . . ."
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained by the people to be decided by
them in their sovereign capacity, or whether that branch exceeds whatever authority has
been committed, is indeed a delicate exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of
the ratification by state legislatures of a constitutional amendment is a political question. On
the question of whether the State Legislature could constitutionally ratify an amendment, after
the same had been previously rejected by it, it was held that the ultimate authority over the
question was in Congress in the exercise of its control over the promulgation of the adoption
of the amendment. And in connection with the second question of whether the amendment
has lost its vitality through the lapse of time, the Court held that the question was likewise
political, involving "as it does . . . an appraisal of a great variety of relevant conditions, political,
social and economic, which can hardly be said to be within the appropriate range of evidence
receivable in a court of justice and as to which it would be an extravagant extension of juridical
authority to assert judicial notice as the basis of deciding a controversy with respect to the
validity of an amendment actually ratified. On the other hand, these conditions are
appropriate for the consideration of the political departments of the Government. The
questions they involve are essentially political and not justiciable."
'In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas
stressed that:
"The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken place
'is conclusive upon the courts.' In the exercise of that power, Congress,
of course, is governed by the Constitution. However, whether
submission, intervening procedure for Congressional determination of
ratification conforms to the commands of the Constitution, call for
decisions by a 'political department' of questions of a type which this
Court has frequently designated 'political.' And decision of a 'political
question' by the political department' to which the Constitution has
committed it 'conclusively binds the judges, as well as all other officers,
citizens and subjects of . . . government. Proclamation under authority
of Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken place
as the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, leaving to
the judiciary its traditional authority of interpretation. To the extent that
the Court's opinion in the present case even impliedly assumes a power
to make judicial interpretation of the exclusive constitutional authority of
Congress over submission and ratification of amendments, we are
unable to agree."
Relying on this doctrine enunciated in Coleman v. Miller, supra, this Court,
in Mabanag v. Lopez Vito, 7 speaking through Mr. Justice Pedro Tuason, ruled that the
process of constitutional amendment, involving proposal and ratification, is a political
question. In the Mabanag case, the petitioners sought to prevent the enforcement of a
resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on
the ground that it had not been approved by the three-fourths vote of all the members of each
house as required by Article XV of the 1935 Constitution. It was claimed that three (3)
Senators and eight (8) members of the House of Representatives had been suspended and
that their membership was not considered in the determination of the three-fourths vote. In
dismissing the petition on the ground that the question of the validity of the proposal was
political, the Court stated:
"If ratification of an amendment is a political question, a
proposal which leads to ratification has to be a political question. The
two steps complement each other in a scheme intended to achieve a
single objective. It is to be noted that amendatory process as provided
in Section 1 of Article XV of the Philippine Constitution 'consists of (only)
two distinct parts: proposal and ratification.' There is no logic in attaching
political character to one and withholding that character from the other.
Proposal to amend the Constitution is highly political function performed
by the Congress in its sovereign legislative capacity and committed to
its charge by the Constitution itself. . . ." (At pages 4-5, emphasis
supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or
not a Resolution of Congress, acting as a constituent assembly — violates the Constitution is
essentially justiciable, not political, and hence, subject to judicial review." What was involved
in Gonzales, however, was not a proposed amendment to the Constitution but an act of
Congress, 9 submitting proposed amendments to the Constitution. Similarly, in Tolentino v.
Commission on Elections. 10 what was involved was not the validity of the proposal to lower
the voting age but rather that of the resolution of the Constitutional Convention submitting
the proposal for ratification. The question was whether piecemeal amendments to the
Constitution could be submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in
behalf of the people in proposing the amendment. There can be no question that in the
referendums of January, 1973 and in the subsequent referendums the people had clearly
and categorically rejected the calling of the interim National Assembly. As stated in the main
opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
the Kabataang Barangay organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and
the Sanggunian assemblies are effective instrumentalities through which the desires of the
people are articulated and expressed. The Batasang Bayan (Legislative Council), composed
of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-one (91)
members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga
Sangguniang Bayan voted in their special session to submit directly to the people in a
plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through
the Pambansang Katipunan ng mga Barangay and the Pampurok na Katipunan ng mga
Sangguniang Bayan, the people have expressed their desire not only to abolish
the interim National Assembly, but to replace it with a more representative body acceptable
to them in order to effect the desirable constitutional changes necessary to hasten the
political evolution of the government towards the parliamentary system, while at the same
time ensuring that the gains of the New Society, which are vital to the welfare of the people,
shall be safeguarded. The proposed constitutional amendments, therefore, represent a
consensus of the people.
It would be futile to insist that the interim National Assembly should have been
convened to propose those amendments pursuant to Section 15 of Article XVII of the
Constitution. This Court, in the case of Aquino v. Commission, on Elections, 11 took judicial
notice of the fact that in the referendum of January, 1973, a majority of those who approved
the new Constitution conditioned their votes on the demand that the interim National
Assembly provided in the Transitory Provisions should not be convened, and the President
"in deference to the sovereign will of the Filipino people" declared that the convening of said
body shall be suspended. 12 As this Court observed in the Aquino case:
"His decision to defer the initial convocation of
the interim National Assembly was supported by the sovereign people
at the referendum in January, 1973 when the people voted to postpone
the convening of the interim National Assembly until after at least seven
(7) years from the approval of the new Constitution. And the reason why
the same question was eliminated from the questions to be submitted at
the referendum on February 27, 1975, is that even some members of
the Congress and delegates of the Constitutional Convention, who are
already ipso facto members of the interim National Assembly, are
against such inclusion; because the issue was already decided in the
January, 1973 referendum by the sovereign people indicating thereby
their disenchantment with any Assembly as the former Congress failed
to institutionalize the reforms they demanded and had wasted public
funds through endless debates without relieving the suffering of the
general mass of citizenry" (p. 302.)
The action of the President in suspending the convening of the interim National Assembly
has met the overwhelming approval of the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect to the new
Constitution, then it must be accepted as a necessary consequence that their objection
against the immediate convening of the interim National Assembly must be respected as a
positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people and
all government authority emanates from them." 13 The term "people" as sovereign is
comprehensive in its context. The people, as sovereign creator of all political reality, is not
merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore,
a people which exists not only in the urgent present but in the continuum of history. The
assumption that the opinion of The People as voters can be treated as the expression of the
interests of The People as a historic community was, to the distinguished American journalist
and public philosopher, Walter Lippmann, unwarranted.
"'Because of the discrepancy between The People as Voters
and The People as the corporate nation, the voters have no title to
consider themselves the proprietors of the commonwealth and to claim
that their interests are identical to the public interest. A prevailing
plurality of the voters are not The People. The claim that they are is a
bogus title invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by
demagogic politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested
with the authority of The People. That is why so many crimes are
committed in the People's name.'" 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to
propose amendments or to amend the Constitution is part of the inherent power of the people
as the repository of sovereignty in a republican state. While Congress may propose
amendments to the Constitution, it acts pursuant to authority granted to it by the people
through the Constitution. Both the power to propose and the authority to approve, therefore,
inhere in the people as the bearer of the Constitution making power.
Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority to exercise constituent powers, it follows from
necessity that either the people should exercise that power themselves or through any other
instrumentality they may choose. For Law, like Nature, abhors a vacuum (natura vacuum
abhorret).
The question then is whether the President has authority to act for the people in
submitting such proposals for ratification at the plebiscite of October 16. The political
character of the question is, therefore, particularly manifest, considering that ultimately it is
the people who will decide whether the President has such authority. It certainly involves a
matter which is to be exercised by the people in their sovereign capacity, hence, it is
essentially political, not judicial.
While it is true that the constituent power is not to be confused with legislative
power in general because the prerogative to propose amendments is not embraced within
the context of ordinary lawmaking, it must be noted that the proposals to be submitted for
ratification in the forthcoming referendum are, in the final analysis, actually not of the
President but directly of the people themselves, speaking through their authorized
instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
". . . The President merely formalized the said proposals
in Presidential Decree No. 1033. It being conceded in all quarters that
sovereignty resides in the people and it having been demonstrated that
their constituent power to amend the Constitution has not been
delegated by them to any instrumentality of the Government during the
present stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as being ultra
vires. Accordingly, without venturing to rule on whether or not the
President is vested with constituent power — as it does not appear
necessary to do so in the premises — the proposals here challenged,
being acts of the sovereign people no less, cannot be said to be afflicted
with unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not
only because the President, in exercising said authority, has acted as a
mere alter ego of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than
constituent.
This is but a recognition that the People of the Philippines have the inherent, sole and
exclusive right of regulating their own government, and of altering or abolishing
their Constitution whenever it may be necessary to their safety or happiness. There appears
to be no justification, under the existing circumstances, for a Court to create by implication a
limitation on the sovereign power of the people. As has been clearly explained in a previous
case: 16
"'There is nothing in the nature of the submission which should
cause the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box,
and there can never be danger in submitting in an established form, to
a free people, the proposition whether they will change their fundamental
law. The means provided for the exercise of their sovereign right of
changing their constitution should receive such a construction as not to
trammel the exercise of the right. Difficulties and embarrassments in its
exercise are in derogation of the right of free government, which is
inherent in the people; and the best security against tumult and
revolution is the free and unobstructed privilege to the people of the
State to change their constitution in the mode prescribed by the
instrument."
III
The paramount consideration that impelled Us to arrive at the foregoing opinion is
the necessity of ensuring popular control over the constituent power. "If the people are to
control the constituent power — the power to make and change the fundamental law of the
State," observed Wheeler, 17 "the process of Constitutional change must not be based too
heavily upon existing agencies of government." Indeed, the basic premise of republicanism
is that the ordinary citizen, the common man, can be trusted to determine his political destiny.
Therefore, it is time that the people should be accorded the fullest opportunity to decide the
laws that shall provide for their governance. For in the ultimate analysis, the success of the
national endeavor shall depend on the vision, discipline and firmness of the moral will of
every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the
petitions.
Aquino, J., concur.
MUÑOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting opinion
of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement
it is only to unburden myself of some thoughts which trouble my mind and leave my
conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely and
at times precarious road, the burden being lightened only by the thought that in this grave
task of administering justice, when matters of conscience are at issue, one must be prepared
to espouse and embrace a rightful cause however unpopular it may be.
1.That sovereignty resides in the people and all government authority emanates
from them is a fundamental, basic principle of government which cannot be
disputed, but when the people have opted to govern themselves under the mantle of
a written constitution, each and every citizen, from the highest to the lowliest has the sacred
duty to respect and obey the Charter they have so ordained.
"By the Constitution which they establish, they not only tie up
the hands of their official agencies, but their own hands as well; and
neither the officers of the state, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law."
(Cooley's Constitutional Limitations, 7th Ed. p. 56, Emphasis Supplied)
The afore-quoted passage from the eminent jurist and author Judge Cooley,
although based on declarations of law of more than a century ago, lays down a principle
which to my mind is one of the enduring cornerstones of the Rule of Law. It is a principle with
which I have been familiar as a student of law under the tutelage of revered Professors, Dr.
Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure
the existence of a free, stable, and civilized society.
The Filipino people, wanting to ensure to themselves a democratic republican form
of government, have promulgated a Constitution whereby the power to govern themselves
has been entrusted to and distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which provisions in their
fundamental Charter may be amended or revised. Having done so, the people are bound by
these constitutional limitations. For while there is no surrender or abdication of the people's
ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that
they keep themselves within the procedural bounds of the existing fundamental law. The right
of the people to amend or change their Constitution if and when the need arises is not to be
denied, but we assert that absent a revolutionary state or condition in the country, the change
must be accomplished through the ordinary, regular and legitimate processes provided for
in the Constitution. 1
I cannot subscribe therefore to the view taken by the Solicitor General that the
people, being sovereign, have the authority to amend the Constitution even in a manner
different from and contrary to that expressly provided for in that instrument, and that the
amendatory process is intended more as a limitation of a power rather than a grant of power
to a particular agency and it should not be construed as limiting the ultimate sovereign will of
the people to decide on amendments to the Constitution. 2 Such a view will seriously
undermine the very existence of a constitutional government and will permit anarchy and/or
mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the
rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J., "The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:
". . . the amendatory provisions are called a 'constitution of
sovereignty' because they define the constitutional meaning of
'sovereignty of the people.' Popular sovereignty, as embodied in
the Philippine Constitution, is not extreme popular sovereignty. As one
American writer put it:
'A constitution like the American one serves as a basic
check upon the popular will at any given time. It is the distinctive
function of such written document to classify certain things as
legal fundamentals; these fundamentals may not be changed
except by the slow and cumbersome process of amendment.
The people themselves have decided, in constitutional
convention assembled, to limit themselves and future
generations in the exercise of the sovereign power which they
would otherwise possess. And it is precisely such limitation that
enables those subject to governmental authority to appeal from
the people drunk to the people sober, in time of excitement and
hysteria. The Constitution, in the neat phrase of the Iowa court,
is the protector of the people against injury by the people.'" *
Truly, what need is there for providing in the Constitution a process by which the
fundamental law may be amended if, after all, the people by themselves can set the same at
naught even in times of peace when civil authority reigns supreme?
 To go along with the respondents' theory in this regard is to render
written Constitutions useless or mere "ropes of sand", allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation may arise where the people
are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and
where passion overpowers reason, and mass action overthrows legal processes.
History has recorded such instances, and I can think of no better example than
that of Jesus Christ of Judea who was followed and loved by the people while curing the sick,
making the lame walk and the blind see, but shortly was condemned by the same people
turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action
by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:
"A good Constitution should be beyond the reason of
temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not to
the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is
to be safe, can be allowed efficiency. . . . Changes in government are to
be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99
N.E. 1, 15) 3
2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-
plebiscite on October 16, 1976 for the purpose, among other things, of amending certain
provisions of the 1973 Constitution are null and void; as they contravene the express
provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section
1(1) and Article XVII, Section 15, more particularly the latter which applies during the present
transition period. The Opinion of Justice Teehankee discusses in detail this particular matter.
I would just wish to stress the point that although at present there is
no interim National Assembly which may propose amendments to the Constitution, the
existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the
constitutional provisions on the manner of amending the fundamental law. We cannot cure
one infirmity — the existence of a "vacuum" caused by the non-convening of
the interim National Assembly — with another infirmity, that is, doing violence to the Charter.
"'All great mutations shake and disorder a state. Good does
not necessarily succeed evil; another evil may succeed and a worse.'"
(Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the purpose
indicated is a step necessary to restore the state of normalcy in the country. To my mind, the
only possible measure that will lead our country and people to a condition of normalcy is the
lifting or ending of the state of martial law. If I am constrained to make this statement it is
because so much stress was given during the hearings of these cases on this particular point,
leaving one with the impression that for petitioners to contest the holding of the October 16
referendum-plebiscite is for them to assume a position of blocking or installing the lifting
of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection
between the two. My esteemed colleagues should pardon me therefore if I had ventured to
state that the simple solution to the present dilemma is the lifting of martial law and the
implementation of the constitutional provisions which will usher in the parliamentary form of
government ordained in the Constitutional, which, as proclaimed in Proclamation 1102, the
people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by
their act and cannot escape from the pretended unfavorable consequences thereof, the only
remedy being to set in motion the constitutional machinery by which the supposed desired
amendments may properly be adopted and submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to maintain and
preserve the system of government decreed under the fundamental Charter. As said by
Justice Enrique Fernando in Mutuc vs. Commission on Elections:
". . . The concept of the Constitution as the fundamental law,
setting forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest 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." . . . (36 SCRA, 228, 234, Emphasis supplied)
A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox
of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular
sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the
exercise of power by the people for the general good under constant restraints of law.
3. The true question before Us is one of power: Does the incumbent President of
the Philippines possess constituent powers? Again, the negative answer is explained in detail
in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent
powers on theory that he is vested with legislative powers as held by this Court in Benigno
S. Aquino, Jr., et al. vs. Commission on Elections, et al., L-40004, January 31, 1975. I wish
to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the
Transitory provisions grants to the incumbent President legislative powers, I qualified my
statement as follows:
". . . As to, whether, or not, this unlimited legislative power of
the President continues to exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the moment,
and which at any rate I believe is not essential in resolving this Petition
for reasons to be given later. Nonetheless, I hold the view that the
President is empowered to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the proclamation of martial
law be it under the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its instrumentalities, and
agencies. This grant of legislative power is necessary to fill up a vacuum
during the transition period when the interim National Assembly is not
yet convened and functioning, for otherwise, there will be a disruption of
official functions resulting in a collapse of the government and of the
existing social order." (62 SCRA, pp. 275, 347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in the Charter, and
the 1973 Constitution contains provisions in this regard. This is well-explained in Justice
Teehankee's Opinion. The state of necessity brought about by the current political situation,
invoked by the respondents, provides no source of power to propose amendments to the
existing Constitution. Must we "bend the Constitution to suit the law of the hour?" 4 or cure
its defects "by inflicting upon it a wound which nothing can heal," commit one assault after
the other "until all respect for the fundamental law is lost and the powers of government are
just what those in authority please to call them?" 5 Or can we now ignore what this Court,
speaking through Justice Barredo, said in Tolentino vs. Comelec:
". . . let those who would put aside, invoking. grounds at best
controversial, any mandate of the fundamental law purportedly in order
to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of
the precedent and continue the destruction of the Constitution, making
those who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly." 6
 Respondents emphatically assert that the final word is the people's word and that
ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18,
19, 22) Granting in gratia argumenti that it is so, let it be an expression of the will of the people
under a normal political situation and not under the aegis of martial rule for as I have stated
in Aquino vs. Comelec, et al., supra, a referendum (and now a plebiscite) held under a regime
of martial law can be of no far reaching significance because it is being accomplished under
an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of
individual rights, such as, human liberty, property rights, rights of free expression and
assembly, protection against unreasonable searches and seizures, liberty of abode and of
travel, and so on.
4.The other issues such as the sufficiency and proper submission of the proposed
amendments for ratification by the people are expounded in Justice Teehankee's Opinion. I
wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments
is the abolition of the interim National Assembly and its substitution with an "interim Batasang
Pambansa", for that is not all. Proposed amendment No. 6 will permit or allow the
concentration of power in one man — the Executive — Prime Minister or President or
whatever you may call him — for it gives him expressly (which the 1973 Constitution or
the 1935 Constitution does not) legislative powers even during the existence of the
appropriate legislative body, dependent solely on the executive's judgment on the existence
of a grave emergency or a threat or imminence thereof. **
I must be forgiven if, not concerned with the present, I am haunted however by
what can happen in the future, when we shall all be gone. Verily, this is a matter of grave
concern which necessitates full, mature, sober deliberation of the people but which they can
do only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional
Convention which drafted the 1935 Philippine Constitution, once said:
". . . Nor is it enough that our people possess a
written constitution in order that their government may be called
constitutional. To be deserving of this name, and to drive away all danger
of anarchy as well as of dictatorship whether by one man or a few, it is
necessary that both the government authorities and the people faithfully
observe and obey the constitution, and that the citizens be duly
conversant not only with their rights but also with their duties." 7
Jose P. Laurel who served his people as Justice of the Supreme Court of this
country gave this reminder; the grave and perilous task of halting transgressions and
vindicating cherished rights is reposed mainly on the judiciary and therefore let the Courts be
the vestal keepers of the purity and sanctity of our Constitution. 8
On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and
1033 unconstitutional and enjoin the implementation thereof.
||| (Sanidad v. Commission on Elections, G.R. Nos. L-44640, L-44684 & L-44714, [October 12,
1976], 165 PHIL 303-447)
EN BANC
[G.R. No. L-34150. October 16, 1971.]
ARTURO
M. TOLENTINO, petitioner, vs. COMMISSION ON ELECTIONS, and
THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING
OFFICER OF THE 1971 CONSTITUTIONAL
CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G.
BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION
REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971
Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent
Disbursing Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; DETERMINATION OF PROPER
ALLOCATION OF POWERS IN GOVERNMENT. — As early as Angara vs.
Electoral Commission (63 Phil. 139, 157), this Court — speaking through one of the leading
members of the Constitutional Convention and a respected professor of Constitutional Law,
Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ
which can called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof."
2. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; POWER TO
AMEND OR PROPOSE AMENDMENTS VESTED IN THE PEOPLE. — The power to amend
the Constitution or to propose amendments thereto is not included in the general grant of
legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part
of the inherent powers of the people — is the repository of sovereignty in a republican state,
such as ours (Section 1, Art. II, Constitution of the Philippines) — to make, and, hence, to
amend their own Fundamental Law.
3. ID.; ID.; ID.; CONGRESS, AS CONSTITUENT ASSEMBLY ALSO
EMPOWERED TO PROPOSE AMENDMENTS. — Congress may propose amendments to
the Constitution merely because the same explicitly grants such power (Sec. 1, Art.
XV. Constitution of the Philippines). Hence, when exercising the same, it is said that Senators
and members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members of
Congress derive their authority from the Constitution, unlike the people, when performing the
same function, (Of amending the Constitution) for their authority does not emanate from the
Constitution — they are the very source of all powers of government, including the
Constitution itself .
4. ID.; ID.; ID.; ID.; CONSTITUTIONALITY OF ACTS, JUSTICIABLE, NOT
POLITICAL QUESTION. — The issue whether or not a Resolution of Congress — acting as
a constituent assembly — violates the Constitution is essentially justiciable, not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent with
the stand taken in Mabanag vs. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
5. ID.; ID.; ID.; ID.; EFFECTIVITY OF PROPOSED AMENDMENTS
DEPENDENT ON PEOPLE'S RATIFICATION. — True it is that once convened,
the Constitutional Convention became endowed with extraordinary powers generally beyond
the control of any department of the existing government, but the compass of such powers
can be co-extensive only with the purpose for which the convention was called and as it is
self-evident that the amendments it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts
of the convention, its officers and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its entirely and in everyone of
its parts, the existence of the Convention notwithstanding, and operates even within the walls
of that assembly.
6. ID.; ID.; ID.; ID.; EXTENT THEREOF. — While it is indubitable that in its internal
operation and the performance of its task to propose amendments to the Constitution it is not
subject to any degree of restraint or control by any other authority than itself, it is equally
beyond cavil that neither the Convention nor any of its officers or members can rightfully
deprive any person of life, liberty or property without due process of law, deny to anyone in
this country the equal protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such
Convention validly pass any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost, or assessment, or declare
war or call the Congress to a special session, suspend the privilege of the writ of habeas
corpus, pardon a convict or render judgment in a controversy between private individuals or
between such individuals and the state, in violation of the distribution of powers in
the Constitution.
7. POLITICAL LAW; JUDICIARY; "JUDICIAL SUPREMACY" OR POWER OF
JUDICIAL REVIEW. — When the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial review under
the Constitution.
8. ID.; ID.; ID.; LIMITATIONS. — This power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis mota presented. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions is in this manner, the judiciary
does not pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the executive and legislative
departments of the government.
9. POLITICAL LAW; ELECTORAL COMMISSION; POWER AND LIMITATIONS
THEREOF. — The Electoral Commission, is a constitutional organ, created for a specific
purpose, namely, to determine all contests resulting to the elections, returns and
qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while acting within the limits of
its authority, it does not follow that it is beyond the reach of the constitutional mechanism
adopted by die people and that it is not subject to constitutional restriction. The
Electoral Commission is not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between departmental powers and
agencies of the government are necessarily determined by the judiciary in justiciable and
appropriate cases.
10. CONSTITUTIONAL LAW; SECTION 1, ARTICLE XV OF CONSTITUTION;
CONGRESS AS CONSTITUENT ASSEMBLY; PROPOSED AMENDMENTS, SUBJECT TO
RATIFICATION BY PEOPLE; ONLY ONE ELECTION TO BE HELD THEREFOR. — The
language of Section 1 of Article XV of the Constitution is sufficiently clear. It says distinctly
that either Congress sitting as a constituent assembly or a convention called for the purpose
"may propose amendments to this Constitution," thus placing no limit as to the number of
amendments that Congress or the Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid as part of the this Constitution when
approved by a majority of the votes cast as an election at which the amendments are
submitted to the people for their ratification," thus leaving no room for doubt as to how many
"elections" or plebiscites may be held to ratify any amendment or amendments proposed by
the same constituent assembly of Congress or convention, and the provision unequivocally
says "an election" which means only one.
REYES, J.B.L., ZALDIVAR, RUIZ CASTRO and MAKASIAR, JJ., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION;
REQUIREMENTS FOR PROPER SUBMISSION THEREOF TO PEOPLE. — Amendments
must be fairly laid before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and to
reach a conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain every efforts to inform
every citizen of the provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be understood as saying that, if
one citizen or 100 citizens cannot be reached, then there is no submission within the meaning
of the word as intended by the framers of the Constitution. What the Constitution in effect
directs is that the government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people, educate
them with respect to their act of ratification or rejection. For as we have earlier stated, one
thing is submission and another is ratification. There must be fair submission, intelligent
consent or rejection.
FERNANDO, J., concurring and dissenting:
1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; CONSTITUTIONAL
CONVENTION, NOT SOVEREIGN IN CHARACTER. — It does not thereby follow that while
free from legislative control, a constitutional convention may lay claim to an attribute
sovereign in character. The Constitution is quite explicit that it is to the people, and to the
people alone, in whom sovereignty resides. Such a prerogative is therefore withheld from a
convention. It is an agency entrusted with the responsibility of high import and significance,
it is true; it is denied unlimited legal competence though. That is what sovereignty connotes.
It has to yield to the superior force of the Constitution. There can then be no basis for the
exaggerated pretension that it is an alter ego of the people.
2. ID.; ID.; ID.; AUTONOMY IN PROPOSING CONSTITUTIONAL
AMENDMENTS. — The view that commends itself for acceptance is that legislature
and constitutional convention, aliked recognized by the Constitution, are coordinate, there
being no superiority of one over the other. Insofar as the constituent power of proposing
amendments to the Constitution is concerned, a constitutional convention enjoys a wide
sphere of autonomy consistently with the Constitution which can be the only source of valid
restriction on its competence. It is true it is to the legislative body that the call to a convention
must proceed, but once convened, it cannot in any wise be interfered with, much less
controlled by Congress. A contrary conclusion would impair its usefulness for the delicate
and paramount task assigned to it. A convention then is to be looked upon as if it were one
of the three coordinate departments which under the principle of separation of powers is
supreme within its field and has exclusive cognizance of matters properly subject to its
jurisdiction.
3. STATUTORY CONSTRUCTION, RULES OF GRAMMAR NOT DULY
RELIABLE IN CONSTITUTIONAL INTERPRETATION. — No undue reliance should be
accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the
mosaic of significance derived from the total context. It could be, if it were not thus, self-
defeating. Such a mode of construction does not commend itself. The words used in
 the Constitution are not inert; they derive vitality from the obvious purposes at which they are
aimed.
DECISION
BARREDO, J p:
Petition for prohibition principally to restrain the
respondent Commission on Elections "from undertaking to hold a plebiscite on November 8,
1971," at which the proposed constitutional amendment "reducing the voting age" in Section
1 of Article V of the Constitution of the Philippines to eighteen years "shall be submitted" for
ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional
Convention of 1971, and the subsequent implementing resolutions, by declaring said
resolutions to be without the force and effect of law in so far as they direct the holding of such
plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be
null and void, for being violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC,
the Court required that copies thereof be served on the Solicitor General and
the Constitutional Convention, through its President, for such action as they may deem
proper to take. In due time, respondent COMELEC filed its answer joining issues with
petitioner. To further put things in proper order, and considering that the fiscal officers of the
Convention are indispensable parties in a proceeding of this nature, since the acts sought to
be enjoined involve the expenditure of funds appropriated by law for the Convention, the
Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the
Convention be made respondents. After the petition was so amended, the first appeared thru
Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said
respondents, thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and
even possible confusion, and considering that with the principal parties being duly
represented by able counsel, their interests would be adequately protected already, the Court
had to limit the number of intervenors from the ranks of the delegates to the Convention who,
more or less, have legal interest in the success of the respondents, and so, only Delegates
Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B.
Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all
distinguished lawyers in their own right, have been allowed to intervene jointly. The Court
feels that with such an array of brilliant and dedicated counsel, all interests involved should
be duly and amply represented and protected. At any rate, notwithstanding that their
corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case are
with the records and the Court acknowledges that they have not been without value as
materials in the extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of
1971 came into being by virtue of two resolutions of the Congress of the Philippines approved
in its capacity as a constituent assembly convened for the purpose of calling a convention to
propose amendments to the Constitution, namely, Resolutions 2 and 4 of the joint sessions
of Congress held on March 16, 1967 and June 17, 1969, respectively. The delegates to the
said Constitution were all elected under and by virtue of said resolutions and the
implementing legislation thereof, Republic Act 6132. The pertinent portions of Resolution No.
2 read as follows:
"SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be composed of two
elective Delegates from each representative district who shall have the
same qualifications as those required of Members of the House of
Representatives.
xxx xxx xxx
"SECTION 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to the
people for their ratification pursuant to Article XV of the Constitution."
Resolution No. 4 merely modified the number of delegates to represent the
different cities and provinces fixed originally in Resolution No. 2.
After the election of the delegates held on November 10, 1970, the Convention
held its inaugural session on June 1, 1971. Its preliminary labors of election of officers,
organization of committees and other preparatory works over, as its first formal proposal to
amend the Constitution, its session which began on September 27, 1971, or more
accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus:
"CC ORGANIC RESOLUTION NO. 1
"A RESOLUTION AMENDING SECTION ONE OF
ARTICLE V OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO
LOWER THE VOTING AGE TO 18.
"BE IT RESOLVED as it is hereby resolved by the 1971
Constitutional Convention:
"Section 1. Section One of Article V of the Constitution of the
Philippines is amended to as follows:
"Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disqualified by law, who are (twenty-
one) EIGHTEEN years or over and are able to read and write,
and who shall have resided in the Philippines for one year and
in the municipality wherein they propose to vote for at least six
months preceding the election.'
"Section 2. This amendment shall be valid as part of
the Constitution of the Philippines when approved by a majority of the votes
cast in a plebiscite to coincide with the local elections in November 1971.
"Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to other
amendments that will be proposed in the future by the 1971 Constitutional
Convention on other portions of the amended Section or on other portions
of the entire Constitution.
"Section 4. The Convention hereby authorizes the use of the
sum of P75,000.00 from its savings or from its unexpended funds for the
expense of the advanced plebiscite; provided, however that should there
be no savings or unexpended sums, the Delegates waive P250.00 each or
the equivalent of 2-1/2 days per diem.'"
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
respondent Comelec "to help the Convention implement (the above) resolution." The said
letter reads:
 "September 28, 1971
"The Commission on Elections
Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No.
1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No.
6132 otherwise known as the Constitutional Convention Act of 1971, may
we call upon you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P. MACAPAGAL
President"
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional
Convention that it will hold the plebiscite on condition that:
"(a) The Constitutional Convention will undertake the printing of
separate official ballots, election returns and tally sheets for the use of said
plebiscite at its expense;
"(b) The Constitutional Convention will adopt its own security
measures for the printing and shipment of said ballots and election forms;
and
"(c) Said official ballots and election forms will be delivered to
the Commission in time so that they could be distributed at the same time
that the Commission will distribute its official and sample ballots to be used
in the elections on November 8, 1971."
What happened afterwards may best be stated by quoting from intervenors'
statement of the genesis of the above proposal:
"The President of the Convention also issued an order forming
an Ad Hoc Committee to implement the Resolution.
"This Committee issued implementing guidelines which were
approved by the President who then transmitted them to
the Commission on Elections.
"The Committee on Plebiscite and Ratification filed a
report on the progress of the implementation of the plebiscite in the
afternoon of October 7, 1971, enclosing copies of the order, resolution and
letters of transmittal above referred to (Copy of the report is hereto attached
as Annex 8-Memorandum)
"RECESS RESOLUTION
"In its plenary session in the evening of October 7, 1971, the
Convention approved a resolution authored by Delegate Antonio Olmedo
of Davao Oriental, calling for a recess of the Convention from November
1, 1971 to November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and the
transcript of debate thereon are hereto attached as Annexes 9 and 9-A
Memorandum, respectively).
"RESOLUTION CONFIRMING IMPLEMENTATION
"On October 12, 1971, the Convention passed Resolution No.
24 submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts performed
in connection with said implementation."
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1
and the other implementing resolutions thereof subsequently approved by the Convention
have no force and effect as laws in so far as they provide for the holding of a plebiscite co
incident with the elections of eight senators and all city, provincial and municipal Officials to
be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending
to carry out the holding of the plebiscite directed by said resolutions are null and void, on the
ground that the calling and holding of such a plebiscite is, by the Constitution, a power lodged
exclusively in Congress, as a legislative body, and may not be exercised by the Convention,
and that, under Section 1, Article XV of the Constitution, the proposed amendment in
question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the
details of the plebiscite for the ratification of any amendment the Convention may deem
proper to propose is within the authority of the Convention as a necessary consequence and
part of its power to propose amendments and that this power includes that of submitting such
amendments either individually or jointly at such time and manner as the Convention may
direct in its discretion. The Court's delicate task now is to decide which of these two poses is
really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of
jurisdiction. They contend that the issue before Us is a political question and that the
Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of the Congress and the courts. In this
connection, it is to be noted that none of the respondent has joined intervenors in this posture.
In fact, respondents Chief Accountant and Auditor of the Convention, expressly concede the
jurisdiction of this Court in their answer acknowledging that the issue herein is a justiciable
one.
Strangely, intervenors cite in support of this contention portions of the decision of
this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the
Court, despite their being divided in their opinions as to the other matters therein involved,
were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel have
either failed to grasp the full impact of the portions of Our decision they have quoted or would
misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as a constituent
assembly, and, for that matter, those of a constitutional convention called for the purpose of
proposing amendments to the Constitution, which concededly is at par with the former. A
simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should
dispel any lingering misgivings as regards that point. Succinctly but comprehensively, Chief
Justice Concepcion held for the Court thus:
 "As early as Angara vs. Electoral Commission (63 Phil. 139,
157), this Court — speaking through one of the leading members of
the Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel — declared that 'the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.'
"It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political one, declined to
pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which
was being submitted to the people for ratification — satisfied the three-
fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant
of the Senate (81 Phil: 818), Avelino v. Cuenco, (L-2851, March 4 & 14,
1943), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and
Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first
we held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate President,
as claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act, on behalf of the
party having the second largest number of votes therein of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representatives districts for the
House of Representatives, upon the ground that the apportionment had not
been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the
determination of which is beyond judicial review.
"Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress (Section 1. Art. VI, Constitution of the Philippines). It
is part of the inherent powers of the people — as the repository sovereignty
in a republican state, such as ours (Section 1, Art, II, Constitution of the
Philippines) — to make, and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution merely because
the same explicitly grants such power. (Section 1, Art. XV, Constitution of
the Philippines) Hence, when exercising the same it is said that Senators
and members of the House of Representatives act, not as members of
Congress, but as component elements of a constituent assembly. When
acting as such, the members of Congress derive their authority from
the Constitution, unlike the people, when performing the same function, (Of
amending the Constitution) for their authority does not emanate from
the Constitution — they are the very source of all powers of
government including the Constitution itself .
"Since, when proposing, as a constituent assembly,
amendments to the Constitution, the members of Congress derive their
authority from the Fundamental Law, it follows, necessarily, that they do
not have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise. they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not
of men, and to the rigid nature of our Constitution. Such rigidity is stressed
by the fact that, the Constitution expressly confers upon the Supreme
Court, (And, inferentially, to lower courts.) the power to declare a treaty
unconstitutional. (Sec. 2 (1), Art. VIII of the Constitution), despite the
eminently political character of treaty-making power.
"In short, the issue whether or not a Resolution of Congress —
acting as a constituent assembly — violates the Constitution is essentially
justiciable not political, and, hence, subject to judicial review, and, to the
extent that this view may be inconsistent with the stand taken in
Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point."
No one can rightly claim that within the domain of its legitimate authority, the
Convention is not supreme. Nowhere in his petition and in his oral argument and memoranda
does petitioner point otherwise. Actually, what respondents and intervenors are seemingly
reluctant to admit is that the Constitutional Convention of 1971, as any other convention of
the same nature, owes its existence and derives all its authority and power from the
existing Constitution of the Philippines. This Convention has not been called by the people
directly as in the case of a revolutionary convention which drafts the first Constitution of an
entirely new government born of either a war of liberation from a mother country or of a
revolution against an existing government or of a bloodless seizure of power a la coup d'etat.
As to such kind of conventions, it is absolutely true that the convention is completely without
restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate
Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No
amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present Constitution which provides:
"ARTICLE XV — AMENDMENTS
"SECTION 1. The Congress in joint session assembled, by a
vote of three-fourths of all the Members of the Senate and of the House of
Representatives voting separately. may propose amendments to
this Constitution or call a convention for the purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the
people for their ratification."
True it is that once convened, this Convention became endowed with extraordinary
powers generally beyond the control of any department of the existing government, but the
compass of such powers can be co-extensive only with the purpose for which the convention
was called and as it may propose cannot have any effect as part of the Constitution until the
same are duly ratified by the people, it necessarily follows that the acts of convention, its
officers and members are not immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in everyone of its parts, the existence
of the Convention notwithstanding, and operates even within the walls of that assembly.
While it is indubitable that in its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or control by any
other authority than itself, it is equally beyond cavil that neither the Convention nor any of its
officers or members can rightfully deprive any person of life, liberty or property without due
process of law, deny to anyone in this country the equal protection of the laws or the freedom
of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor,
for that matter, can such Convention validly pass any resolution providing for the taking of
private property without just compensation or for the imposition or exacting of any tax, import
or assessment, or declare war or call the Congress to a special session, suspend the privilege
of the writ of habeas corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of the distribution of
powers in the Constitution.
 It being manifest that there are powers which the Convention may not and cannot
validly assert, much less exercise, in the light of the existing Constitution, the simple question
arises, should an act of the Convention be assailed by a citizen as being among those not
granted to or inherent in it, according to the existing Constitution, who can decide whether
such a contention is correct or not? It is of the very essence of the rule of law that somehow
somewhere the power and duty to resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess that the integrated system of
government established by our founding fathers contains a wide vacuum no intelligent man
could ignore, which is naturally unworthy of their learning, experience and craftmanship
in constitution-making.
We need not go far in search for the answer to the query We have posed. The very
decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates
and reenforces the irrefutable logic and wealth of principle in the opinion written for a
unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134,
reading:
". . . (I)n the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the legislative
and the judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off and the
other begins. In times of social disquietude or political excitement, the great
landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.
"As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of our
people, acting through their delegates to so provide, that instrument which
is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious
whole, under a system of check and balances and subject to specific
limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment and the principles
of good government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in any
living Constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this moderating power
of the courts, not to speak of its historical origin and development there.
has been set at rest by popular acquiescence for a period of more than one
and half centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of Article VIII of our
Constitution.
"The Constitution is a definition of the powers or government.
Who is to determine the nature, scope and extent of such powers?
The Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed 'judicial supremacy' which
properly is the power of judicial review under the Constitution. Even then,
this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics and barren legal
questions and to strike conclusions unrelated to actualities. Narrowed as
its functions is in this manner the judiciary does not pass upon questions
of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.
"But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered that.
in the language of James Madison, the system itself is not 'the chief
palladium of constitutional liberty.. the people who are authors of this
blessing must also be its guardians.. their eyes must be ever ready to mark,
their voices to pronounce. . . aggression on the authority of their
Constitution.' In the last and ultimate analysis then, must the success of
our government in the unfolding years to come be tested in the crucible of
Filipino minds and hearts than in consultation rooms and court chambers.
"In the case at bar, the National Assembly has by resolution (No.
8) of December 3, 1935, confirmed the election of the herein petitioner to
the said body. On the other hand. the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last day
for the filing of protests against the election, returns and qualifications of
members of the National Assembly; notwithstanding the Previous
confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has
the effect of cutting off the power of the Electoral Commission to entertain
protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935 then the resolution
of the Electoral Commission of December 9, 1935, is mere surplusage and
had no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its proceedings to
the exclusion of the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said date as the last day
for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
"Here is then presented an actual controversy involving as it
does a conflict of a grave constitutional nature between the National
Assembly on the one hand and the Electoral Commission on the other.
From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to determine
all contests relating to the election, returns and qualifications of the
members of the National Assembly. Although the
 Electoral Commission may not be interfered with, when and while acting
within the limits of its authority, it does not follow that it is beyond the reach
of the constitutional mechanism adopted by the People and that it is not
subject to constitutional restriction. The Electoral Commission is not a
separate department of the government, and even if it were, conflicting
claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the
judiciary in justiciable and appropriate cases. Discarding the English type
and other European types of constitutional government, the framers of our
Constitution adopted the American type where the written constitution is
interpreted and given effect by the judicial department. In some countries
which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a recognition of
what otherwise would be the rule that in the absence of direct prohibition,
courts are bound to assume what is logically their function. For instance,
the Constitution of Poland of 1921 expressly provides that courts shall have
no power to examine the validity of statutes (art. 81, Chap. IV). The former
Austrian Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this power. This
is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of
the Czechoslovak, Republic, February 29, 1920) and Spain (arts. 121-123,
Title IX, Constitution of the Republic of 1931) especial constitutional courts
are established to pass upon the validity of ordinary laws. In our case, the
nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus
created in our constitutional system which may in the long run prove
destructive of the entire framework? To ask these questions is to answer
them. Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason, and authority, we are clearly
of the opinion that upon the admitted facts of the present case, this court
has jurisdiction over the Electoral Commission and the subject matter of
the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral Commission as
'the sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly."
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did
in Angara, these postulates just quoted do not apply only to conflicts of authority between the
three existing regular departments of the government but to all such conflicts between and
among these departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in Congress,
the Comelec and the constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been convincingly
shown to Us by any of the respondents and intervenors, why the same ruling should not
apply to the present Convention, even if it is an assembly of delegates elected directly by the
people, since at best, as already demonstrated, it has been convened by authority of and
under the terms of the present Constitution.
Accordingly, We are left with no alternative but to uphold the jurisdiction of the
Court over the present case. It goes without saying that We do this not because the Court is
superior to the Convention or that the Convention is subject to the control of the Court, but
simply because both the Convention and the Court are subject to the Constitution and the
rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within
the power, as it is the solemn duty of the Court, under the existing Constitution to resolve the
issues in which petitioner, respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it
within the powers of the Constitutional Convention of 1971 to order, on its own fiat. the
holding of a plebiscite for the ratification of the proposed amendment reducing to eighteen
years the age for the exercise of suffrage under Section 1 of Article V of
the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and
form provided for in said resolution and the subsequent implementing acts and resolution of
the Convention?
At the threnold, the environmental circumstances of this case demand the most
accurate and unequivocal statement of the real issue which the Court is called upon to
resolve. Petitioner has very clearly stated that he is not against the constitutional extension
of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or
sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended
by him to prevent that the proposed amendment here involved be submitted to the people for
ratification, his only purpose in filing the petition being to comply with his sworn duty to
prevent, whenever he can, any violation of the Constitution of the Philippines even if it is
committed in the course of or in connection with the most laudable undertaking. Indeed, as
the Court sees it, the specific question raised in this case is limited solely and only to the
point of whether or not it is within the power of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment proposed in the abovequoted
Organic Resolution No. 1, in the manner and form provided in said resolution as well as in
the subsequent implementing actions and resolution of the Convention and its officers, at this
juncture of its proceedings, when, as it is a matter of common knowledge and judicial notice,
it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering
other reforms or amendments affecting other parts of the existing Constitution; and, indeed,
Organic Resolution No. 1 itself expressly provides that the amendment therein proposed
"shall be without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended section or on other
portions of the entire Constitution." In other words, nothing that the Court may say or do in
this case should be understood as reflecting, in any degree or means, the individual or
collective stand of the members of the Court on the fundamental issue of whether or not the
eighteen-year-olds should be allowed to vote, simply because that issue is not before Us
now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of
the youth have not blinded them to the absolute necessity, under the fundamental principles
of democracy to which the Filipino people is committed, of adhering always to the rule of law.
Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct
or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself
was born, in a great measure, because of the pressure brought to bear upon the Congress
of the Philippines by various elements of the people, the youth in particular, in their incessant
search for a peaceful and orderly means of bringing about meaningful changes in the
structure and bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the preservation and
protection of our natural resources and the national patrimony, as an alternative to violent
and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of
enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the
streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the
people, do not want confusion and disorder, anarchy and violence; what they really want are
law and order, peace and orderliness, even in the pursuit of what they strongly and urgently
feel must be done to change the present order of things in this Republic of ours. It would be
tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow
itself in deciding this case to be carried astray by considerations other than the imperatives
of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a
larger measure than when it binds other departments of the government or any other official
or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor
to the Constitution, by interpreting and construing its provisions in appropriate cases with the
proper parties and by striking down any act violative thereof. Here, as in all other cases, We
are resolved to discharge that duty.
During these times when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful change is the only
alternative to a violent revolution, this Court would be the last to put any obstruction or
impediment to the work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution in its entirety, since
its enabling provision, Article XV, from which the Convention itself draws life expressly
speaks only of amendments which shall form part of it, which opinion is not without
persuasive force both in principle and in logic, the seemingly prevailing view is that only the
collective judgment of its members as to what is warranted by the present condition of things,
as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit
of the Convention's authority. Desirable as it may be to resolve this grave divergence of
views, the Court does not consider this case to be properly the one in which it should
discharge its constitutional duty in such premises. The issues raised by petitioner, even those
among them in which respondents and intervenors have joined in an apparent wish to have
them squarely passed upon by the Court do not necessarily impose upon Us the imperative
obligation to express Our views thereon. The Court considers it to be of the utmost
importance that the Convention should be untrammelled and unrestrained in the performance
of its constitutionally assigned mission in the manner and form it may conceive best, and so
the Court may step in to clear up doubts as to the boundaries set down by
the Constitution only when and to the specific extent only that it would be necessary to do so
to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter.
Withal, it is a very familiar principle of constitutional law that constitutional questions are to
be resolved by the Supreme Court only when there is no alternative but to do it, and this rule
is founded precisely on the principle of respect that the Court must accord to the acts of the
other coordinate departments of the government, and certainly, the Constitutional
Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that
the Convention came into being by a call of a joint session of Congress pursuant to Section
1 of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also
that as to matters not related to its internal operation and the performance of its assigned
mission to propose amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now We hold that
even as to its latter task of proposing amendments to the Constitution, it is subject to the
provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should not be
undertaken with the same ease and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in a constitutional democracy
such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives,
fortunes, future and every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in preparing and
drafting it. A constitution worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole Constitution itself,
and perforce must be conceived and prepared with as much care and deliberation. From the
very nature of things, the drafters of an original constitution, as already observed earlier,
operate without any limitations, restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent conventions called to amend
the original constitution. Generally, the framers of the latter see to it that their handiwork is
not lightly treated and as easily mutilated or changed, not only for reasons purely personal
but more importantly, because written constitutions are supposed to be designed so as to
last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty
actions motivated by more or less passing political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations and conditions, more or less stringent, made
so by the people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie in the
delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the
number and nature and the scope and extent of the amendments the Convention may deem
proper to propose. Nor does the Court propose to pass on the issue extensively and brilliantly
discussed by the parties as to whether or not the power or duty to call a plebiscite for the
ratification of the amendments to be proposed by the Convention is exclusively legislative
and as such may be exercised only by the Congress or whether the said power can be
exercised concurrently by the Convention with the Congress. In the view the Court takes of
;the present case, it does not perceive absolute necessity to resolve that question, grave and
important as it may be Truth to tell, the lack of unanimity or even of a consensus among the
members of the Court in respect to this issue creates the need for more study and
deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain
from making any pronouncement or expressing Our views on this question until a more
appropriate case comes to Us. After all, the basis of this decision is as important and decisive
as any can be.
The ultimate question, therefore, boils down to this: Is there any limitation or
condition in Section 1 of Article XV of the Constitution which is violated by the act of the
Convention of calling for a plebiscite on the sole amendment contained in Organic Resolution
No. 1? The Court holds that there is, and it is the condition and limitation that all the
amendments to be proposed by the same Convention must be submitted to the people in a
single "election" or plebiscite. It being indisputable that the amendment now proposed to be
submitted to a plebiscite is only the first amendment the Convention will propose We hold
that the plebiscite being called for the purpose of submitting the same for ratification of the
people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution,
hence all acts of the Convention and the respondent Comelec in that direction are null and
void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. It
says distinctly that either Congress sitting as a constituent assembly or a convention called
for the purpose "may propose amendments to this Constitution, "thus placing no limit as to
the number of amendments that Congress or the Convention may propose. The same
provision also as definitely provides that "such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification," thus leaving no room for
doubt as to how many "elections" or plebiscites may be held to ratify any amendment or
amendments proposed by the same constituent assembly of Congress or convention, and
the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the Constitution is as serious
and important an undertaking as constitution making itself. Indeed, any amendment of
the Constitution is as important as the whole of it, if only because the Constitution has to be
an integrated and harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and reliable as the
succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and
national and nationalistic policies and aspirations of the people, on the other. It is
inconceivable how a constitution worthy of any country or people can have any part which is has its own duties to the people under the Constitution which is to decide in appropriate
out of tune with its other parts. oases with appropriate parties whether or not the mandates of the fundamental law are being
complied with. In the best light God has given Us, we are of the conviction that in providing
A constitution is the work of the people thru its drafters assembled by them for the for the questioned plebiscite before it has finished, and separately from, the whole draft of
purpose. Once the original constitution is approved, the part that the people play in its the constitution it has been called to formulate, the Convention's Organic Resolution No. 1
amendment becomes harder, for when a whole constitution is submitted to them, more or and all subsequent acts of the Convention implementing the same violate the condition in
less they can assume its harmony as an integrated whole, and they can either accept or Section 1, Article XV that there should only be one "election" or plebiscite for the ratification
reject it in its entirety. At the very least, they can examine it before casting their vote and of all the amendments the Convention may propose. We are not denying any right of the
determine for themselves from a study of the whole document the merits and demerits of all people to vote on the proposed amendment; We are only holding that under Section 1, Article
or any of its parts and of the document as a whole. And so also, when an amendment is XV of the Constitution, the same should be submitted to them not separately from but
submitted to them that is to form part of the existing constitution, in like fashion they can study together with all the other amendments to be proposed by this present Convention.
with deliberation the proposed amendment in relation to the whole existing constitution and
or any of its parts and thereby arrive at an intelligent judgment as to its acceptability. IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic
Resolution No. 1 of the Constitutional Convention of 1971 and the implementing acts and
This cannot happen in the case of the amendment in question. Prescinding already resolutions of the Convention, insofar as they provide for the holding of a
from the fact that under Section 3 of the questioned resolution, it is evident that no fixed frame plebiscite on November 8, 1971, as well as the resolution of the
of reference is provided the voter, as to what finally will be concomitant qualifications that will respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
be required by the final draft of the constitution to be formulated by the Convention of a voter and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
to be able to enjoy the right of suffrage, there are other considerations which make it Constitutional Convention are hereby enjoined from taking any action in compliance with the
impossible to vote intelligently on the proposed amendment, although it may already be said organic resolution. In view of the peculiar circumstances of this case, the Court declares
observed that under Section 3, if a voter would favor the reduction of the voting age to this decision immediately executory. No costs.
eighteen under conditions he feels are needed under the circumstances, and he does not
see those conditions in the ballot nor is there any possible indication whether they will ever Concepcion, C . J ., Teehankee, Villamor and Makasiar, JJ ., concur.
be or not, because Congress has reserved those for future action, what kind of judgment can
he render on the proposal? ||| (Tolentino v. Commission on Elections, G.R. No. L-34150, [October 16, 1971], 149 PHIL 1-
325)
But the situation actually before Us is even worse. No one knows what changes in
the fundamental principles of the constitution the Convention will be minded to approve. To
be more specific, we do not have any means of foreseeing whether the right to vote would
be of any significant value at all. Who can say whether or not later on the Convention may
decide to provide for varying types of voters for each level of the political units it may divide
the country into. The root of the difficulty in other words, lies in that the Convention is
precisely on the verge of introducing substantial changes, if not radical ones, in almost every
part and aspect of the existing social and political order enshrined in the present Constitution.
How can a voter in the proposed plebiscite intelligently determine the effect of the reduction
of the voting age upon the different institutions which the Convention may establish and of
which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of
an amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per
seas well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where the Convention has
hardly started considering the merits of hundreds, 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. We are of the opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the
dark as to frame of reference they can base their judgment on. We reject the rationalization
that the present Constitution is a possible frame of reference, for the simple reason that
intervenors themselves are stating that the sole purpose of the proposed amendment is to
enable the eighteen year olds to take part in the election for the ratification of the Constitution
to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, "no proper submission"
III
The Court has no desire at all to hamper and hamstring the noble work of
the Constitutional Convention. Much less does the Court want to pass judgment on the merits
of the proposal to allow these eighteen years old to vote. But like the Convention, the Court