Puno’s Separate Opinion, Macalintal vs. COMELEC, G.R. No.

157013, July 10, 2003

PLATO - rejected democracy as “tyranny of the majority” (numerical superiority) and supported the “philosopher-king rule”

ARISTOTLE - democracy is desirable but only under certain conditions and of the upper class; “will of the enlightened many”

INDUSTRIAL REVOLUTION - “social contract theory;” the people exercise their sovereignty and creates a government to which they consent

Who May Exercise the Right to Vote

ART. V, Sec. 1, 1987 Constitution: “Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen
years of age, 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
immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.”

Qualifications

Puno’s Dissenting Opinion, Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004

• Citizenship - Suffrage is a political right appertaining to citizenship; reserved only to Filipinos whose allegiance to the country are
undivided; each individual qualified to vote is a particle of popular sovereignty
• Age (18 years) - Voting is an act of choice and involves prescience; familiarity and maturity
• Residence - For the vote to be more meaningful, more than a passing acquaintance with the country’s problems and prospects is required

“One year residence in the Philippines” - refers to “domicile,” the place to which whenever absent for business or for pleasure, one intends to return

ELEMENTS OF DOMICILE:
1. Physical presence
2. Animus manendi (intent to return permanently)

“Six months residence in the place where one intends to vote” - refers to “temporary domicile”

PURPOSE OF 6-MONTH RESIDENCY:

• Determine the place where the voter will register
• Determine the place where voter will vote

CLASSES OF DOMICILE:
1. Domicile of Origin - place of birth
2. Domicile of Choice - replace the domicile of origin
3. Domicile by Operation of Law - applies to infants, incompetents and other persons under disabilities that prevent them from acquiring a domicile
of choice

Electoral System
- free and open party system; distinguished from a multi-party system because in free and open party system, a unicameral or bicameral system is possible
(ART. IX (c) (6), Sec. 6, 1987 Constitution)

OTHER MODES OF DEMOCRACY

Plebiscite - a system by which the people exercise their sovereignty by approving or rejecting any amendments or revisions of the Constitution prepared by
the legislative

Initiative - power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose

REQUISITES FOR AMENDMENTS TO THE CONSTITUTION BY INITIATIVE:

1. The people must author and thus sign the entire proposal
2. As an initiative upon a petition, the proposal must be embodied in a petition
Referendum - power of the electorate to approve or reject legislation

Amendment - changing a few provisions of the Constitution

WHO MAY AMEND THE CONSTITUTION:

1. Constitutional convention
2. Constitutional assembly (Congress)
3. People on Initiative

Revision - a total overhaul of the Constitution; changing the substance

People’s initiative: the amendment must be directly proposed by the people

Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006 (read digest)

An initiative petition is filed to change the 1987 Constitution, among such proposed changes is to shift thepresent Bicameral-Presidential system to
Unicameral-Parliamentary form of government. The Supreme Court denied the petition on ground of failure to comply with the basic requirements of the
Constitution for conducting a people’s initiative: the amendment must be directly proposed by the people through initiative upon a petition.

“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. xxx 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.”

2 ELEMENTS:
(1) The people must author and thus sign the entire proposal.
(2) As an initiative upon a petition, the proposal must be embodied in a petition.

“xxx 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.”

ELECTION PROCESS AND/OR PROCEEDINGS

Registration of Voters (System of Continuing Registration)

WHEN: daily during office hours; at the office of the Election Officer; personally file application to register as voter; no registration 120 days before regular
elections and 90 days before special elections (Sec. 1, RA 8189)

WHO MAY REGISTER: (Sec. 8, RA 8189)

1. citizens
2. not otherwise disqualified by law
3. 1-yr. Residence in the Philippines
4. 6-mo. Residence in the place where one will vote

DISQUALIFICATIONS:
1. Sentenced by final judgment to suffer imprisonment of not less than 1 yr. (Auto-reacquire right to register upon expiration of 5 yrs. after service)
2. Sentenced by final judgment of crime involving disloyalty to the duly constituted government (rebellion, sedition, violation of firearms laws,
crimes against national security, etc.; auto-reacquire upon expiration of 5 yrs. after service)
3. Insane or incompetent person

Challenges to Right to Register (sec. 18, RA 8189)

Q: Are there limitations to a person’s right to register?

A: Yes. The right to register to vote is not an absolute right but more of a privilege with limitations imposed by law. The COMELEC may motu propio or
upon application of any voter challenging the right to register deny a person’s registration application. The Court (MTC), through inclusion or exclusion
proceedings, may also limit a person’s right to register.

WHO CAN CHALLENGE: any voter, candidate or representative of a registered political party

WHAT: challenge to right to register in writing, under oath, attached to the application together with proof of notice of hearing to the challenger and
applicant
Exclusion and Inclusion Proceedings (Sec. 33)

WHERE: MTC (EOJ), who shall determine the right of voter to be included or excluded in the list; decide within 10 days

APPEAL: within 5 days from judgment to the RTC who shall decide the issue within 10 days

NO MOTION FOR RECONSIDERATION (Summary)

PROCEDURE: (Sec. 32)

1. file during office hours
2. notice of place, date, time of hearing to the Board and the challenged voter
3. refer to one precinct and Board impleaded as respondent
4. no costs, EXCEPT: if it is found that the case was filed to harass the adverse party
5. if the ground for challenging right to register is the person is fictitious, the non-appearance of such person said to be fictitious shall be considered as
prima facie evidence
6. decide within 10 days for both MTC and RTC upon appeal; should not be later than 15 days before the election
7. Macalintal vs. COMELEC
8. a
9. D E C I S I O N
10.
11. AUSTRIA-MARTINEZ, J.:
12. Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration
that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that
he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and
appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.
13. The Court upholds the right of petitioner to file the present petition.
14. R.A. No. 9189, entitled, “An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes,” appropriates funds under Section 29 thereof which provides that a supplemental budget
on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement of an
unconstitutional statute.[2] The Court has held that they may assail the validity of a law appropriating public funds[3] because 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]
15. The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino
people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,[5] where the Court held:
16. Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the
other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.[6]
17. Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is
involved.
18. The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in
any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Tañada vs. Angara,[7] the Court held:
19. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where 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. “The question thus posed is judicial rather than political. The duty (to adjudicate) remains to
assure that the supremacy of the Constitution is upheld.” Once a “controversy as to the application or interpretation of constitutional provision is
raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.”
20. In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in
order to consider the controversy actual and ripe for judicial resolution.[8] In yet another case, the Court said that:
21. . . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid
when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives
it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its
decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate “to
make the hammer fall heavily,” where the acts of these departments, or of any official, betray the people’s will as expressed in the Constitution . . .
[9]
22. The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the
ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons
of public policy demand that the Court resolves the instant petition[10] and determine whether Congress has acted within the limits of the
Constitution or if it had gravely abused the discretion entrusted to it.[11]
23. The petitioner raises three principal questions:
24. A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by
their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of
Article V of the Constitution?
25. B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution
that the winning candidates for President and the Vice-President shall be proclaimed as winners by Congress?
26. C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to
review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating
the independence of the COMELEC under Section 1, Article IX-A of the Constitution?
27. The Court will resolve the questions in seriatim.
28. A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines?
29. Section 5(d) provides:
30. Sec. 5. Disqualifications. – The following shall be disqualified from voting under this Act:
31. . . . . . . ...
32. d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than
three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in
another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.
33. Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter
must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding
an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12] to support his claim. In that case, the Court held that a “green
card” holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines.
34. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise;[13] that the legislature should not be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to
qualify a Filipino abroad to vote.[14] He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not
possess the qualifications provided for by Section 1, Article V of the Constitution.
35. Respondent COMELEC refrained from commenting on this issue.[15]
36.
37. In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the
constitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant
to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government
owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to constitutional limitations; the
legislature intended to enact a valid, sensible, and just law.
38. In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the
1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives[16] wherein the Court held that the term
“residence” has been understood to be synonymous with “domicile” under both Constitutions. He further argues that a person can have only one
“domicile” but he can have two residences, one permanent (the domicile) and the other temporary;[17] and that the definition and meaning given to
the term residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates the Court’s ruling
in Faypon vs. Quirino,[19] the Solicitor General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile.[20]
39. Taking issue with the petitioner’s contention that “green card” holders are considered to have abandoned their Philippine domicile, the Solicitor
General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and permanent
residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains
that through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the Republic had in
fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had
in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite intentions,
i.e., “animus manendi” and “animus revertendi;” that Filipino immigrants and permanent residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189.
[22]
40. The seed of the present controversy is the interpretation that is given to the phrase, “qualified citizens of the Philippines abroad” as it appears in
R.A. No. 9189, to wit:
41. SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds
the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in
the exercise of this fundamental right.
42. SEC. 3. Definition of Terms. – For purposes of this Act:
43. a) “Absentee Voting” refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote;
44. . . . (Emphasis supplied)
45. f) “Overseas Absentee Voter” refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections. (Emphasis supplied)
46. SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied)
47. in relation to Sections 1 and 2, Article V of the Constitution which read:
48. SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, 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 immediately
preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.
49. SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
50. . . . . . . . . . (Emphasis supplied)
51. Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise
disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they
propose to vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from
voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she
shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act.
52. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent
residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No.
9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad.
53. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the
Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to live permanently
in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by
the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent than real.
54. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.[23] Laws that do not conform to the Constitution shall be stricken down
for being unconstitutional.
55. Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said:
56. . . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the
legislative department of the government itself.[24]
57. Thus, presumption of constitutionality of a law must be overcome convincingly:
58. . . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the
attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what
the fundamental law condemns or prohibits, the statute allows it to be done.[25]
59. As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent
provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a
whole. In Chiongbian vs. De Leon,[26] the Court held that a constitutional 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. Constitutional provisions are mandatory in character
unless, either by express statement or by necessary implication, a different intention is manifest.[27] The intent of the Constitution may be drawn
primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates
in the constitutional convention.[28]
60. R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall
provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of
legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined
in Article VI (The Legislative Department) of the Constitution.
61. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is
relatively new. It is viewed thus:
62. The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and
different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and
disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law.
63. Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose
duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from
constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of
ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence.
64. Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be construed in the light of any constitutional provisions affecting registration
and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without
doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole
and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion
thereof.[29] (Emphasis supplied)
65. Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. [30] However, under
our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the
Philippines as residence is considered synonymous with domicile.
66. In Romualdez-Marcos,[31] the Court enunciated:
67. Article 50 of the Civil Code decrees that “[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence.” In Ong vs. Republic, this court took the concept of domicile to mean an individual’s “permanent home,” “a place
to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose
intent.” Based on the foregoing, domicile includes the twin elements of “the fact of residing or physical presence in a fixed place” and animus
manendi, or the intention of returning there permanently.
68. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a
given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave
when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a
person’s intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite
perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile of choice. InUytengsu vs. Republic, we laid this distinction
quite clearly:
69. “There is a difference between domicile and residence. ‘Residence’ is used to indicate a place of abode, whether permanent or temporary;
‘domicile’ denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A
man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally
his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute
domicile.”
70. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously
with domicile.[32] (Emphasis supplied)
71. Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the
circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus:
72. MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos
at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and
1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino
labor force explosion overseas.
73. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate
communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world.
74. In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their
Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own
or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite
tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence
on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential
requirement in Section 1 which says:
75. Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election.
76. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution.
77. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of
“residence” in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of “residence” in the Election Law. Allow me to quote:
78. A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot
may decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities.
79. So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him.
80. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider
abandonment or loss of such residence of origin.
81. In other words, “residence” in this provision refers to two residence qualifications: “residence” in the Philippines and “residence” in the place
where he will vote. As far as residence in the Philippines is concerned, the word “residence” means domicile, but as far as residence in the place
where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a
resident of a place for six months and he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting, unless
the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile.
82. MR. OPLE. Thank you for citing the jurisprudence.
83. It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary
and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and
perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in
some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . .
84. [33] (Emphasis supplied)
85. Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence
they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this country’s leaders is
concerned.
86. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself
provides for the residency requirement of voters:
87. MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term “absentee voting” also includes transient voting;
meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes.
88. MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
89. MR. REGALADO. How about those people who cannot go back to the places where they are registered?
90. MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be
in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation
by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest.[34] (Emphasis supplied)
91. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section
1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos
who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting.
92. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution
on the proposed system of absentee voting for qualified Filipinos abroad is enlightening:
93. MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is
the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad?
94. THE PRESIDENT. Would Commissioner Monsod care to answer?
95. MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and
disqualifications would be the same.
96. THE PRESIDENT. Are we leaving it to the legislature to devise the system?
97. FR. BERNAS. I think there is a very legitimate problem raised there.
98. THE PRESIDENT. Yes.
99. MR. BENGZON. I believe Commissioner Suarez is clarified.
100. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence
in Manila, so he is able to vote in Manila.
101. MR. TINGSON. Madam President, may I then suggest to the Committee to change the word “Filipinos” to QUALIFIED FILIPINO VOTERS.
Instead of “VOTING BY FILIPINOS ABROAD,” it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED
VOTERS LIVING ABROAD, would that not satisfy the requirement?
102. THE PRESIDENT. What does Commissioner Monsod say?
103. MR. MONSOD. Madam President, I think I would accept the phrase “QUALIFIED FILIPINOS ABROAD” because “QUALIFIED” would
assume that he has the qualifications and none of the disqualifications to vote.
104. MR. TINGSON. That is right. So does the Committee accept?
105. FR. BERNAS. “QUALIFIED FILIPINOS ABROAD”?
106. THE PRESIDENT. Does the Committee accept the amendment?
107. MR. REGALADO. Madam President.
108. THE PRESIDENT. Commissioner Regalado is recognized.
109. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase “absentee voting” already took that into account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
110. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly.
111. THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to provide a system.
112. MR. MONSOD. Yes.
113. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.
114. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.
115. THE PRESIDENT. It is just to devise a system by which they can vote.
116.MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
117.Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee
voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw
up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have
the “qualifications and none of the disqualifications to vote.” In fine-tuning the provision on absentee voting, the Constitutional Commission
discussed how the system should work:
118.MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So
as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City.
119. In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I
just want to make that clear for the record.
120. MR. REGALADO. Madam President.
121. THE PRESIDENT. What does Commissioner Regalado say?
122.MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on
a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is
temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription
of Congress in that situation.
123. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record.
124.MR. MONSOD. Madam President, to clarify what we mean by “temporarily abroad,” it need not be on very short trips. One can be
abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able
to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing one’s name, in
a registry list in the embassy abroad. That is still possible under the system.
125. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.
126. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered
here. Where will he register? Will he be a registered voter of a certain locality in the Philippines?
127. MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the
United States and his name is then entered in the official registration book in Angeles City, for instance.
128. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here.
129. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here.
130. FR. BERNAS. So, he does not have to come home.
131. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body.
132. Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I move that we close the
period of amendments.
133. [36] (Emphasis supplied)
134.It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as
possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos
who reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the first time.
135.It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the
doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,[37] the strategic location
of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to
qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to
vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.
136. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the
subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
137.Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would
agree that the Constitution is supreme in any statute that we may enact.
138. Let me read Section 1, Article V, of the Constitution entitled, “Suffrage.” It says:
139. Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age,
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 immediately
preceding the election.
140. Now, Mr. President, the Constitution says, “who shall have resided in the Philippines.” They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the
original text of the bill will have any effect on this?
141.Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the
Constitution. One, the interpretation here of “residence” is synonymous with “domicile.”
142.As the gentleman and I know, Mr. President, “domicile” is the intent to return to one’s home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return
to the Philippines, will make him qualified as a resident of the Philippines under this law.
143. This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must provide a franchise to overseas Filipinos.
144.If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for
offshore voting to our offshorekababayan, Mr. President.
145.Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: “The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.”
146.The key to this whole exercise, Mr. President, is “qualified.” In other words, anything that we may do or say in granting our
compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And
“residents” (sic) is a qualification.
147. I will lose votes here from permanent residents so-called “green-card holders”, but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something that would affect or impair the Constitution.
148. Look at what the Constitution says – “In the place wherein they propose to vote for at least six months immediately preceding the election.”
149. Mr. President, all of us here have run (sic) for office.
150. I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who votes in Makati
cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution.
151. As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before
the election, otherwise, he is not qualified to vote.
152. That is why I am raising this point because I think we have a fundamental difference here.
153.Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in the constitutional commission of
1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.
154.The second reason, Mr. President, is that under our jurisprudence – and I think this is so well-entrenched that one need not argue about it
– “residency” has been interpreted as synonymous with “domicile.”
155. But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise – to enfranchise them and empower them to vote.
156. [38] (Emphasis supplied)
157. Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit:
158.SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and party-list representatives.
159. which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to
wit:
160.SEC. 5. Disqualifications. – The following shall be disqualified from voting under this Act:
161. a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
162. b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;
163.c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not
less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal
Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this
subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the
Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;
164.d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than
three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in
another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.
165. e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently
certifies that such person is no longer insane or incompetent.
166.As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is “recognized as
such in the host country” because immigration or permanent residence in another country implies renunciation of one’s residence in his country of
origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to
show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that
“all citizens of the Philippines not otherwise disqualified by law” must be entitled to exercise the right of suffrage and, that Congress must establish
a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee voting.
167.Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section
5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise.”
168.To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are
presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine
domicile shall remain.
169. Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It
wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by
legislation. Thus:
170.Senator Villar. Yes, we are going back.
171. It states that: “For Filipino immigrants and those who have acquired permanent resident status abroad,” a requirement for the registration is
the submission of “a Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consulate official authorized to
administer oath…”
172. Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
173.Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as long as
he is a Filipino, no matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a
green-card holder, that means he has acquired permanent residency in the United States, then he must indicate an intention to
return. This is what makes for the definition of “domicile.” And to acquire the vote, we thought that we would require the immigrants
and the green-card holders . . . Mr. President, the three administration senators are leaving, maybe we may ask for a vote [Laughter].
174.Senator Villar. For a merienda, Mr. President.
175.Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a green-card
holder should file an affidavit that he will go back to the Philippines is that, if he is already an immigrant or a green-card holder, that means
he may not return to the country any more and that contradicts the definition of “domicile” under the law.
176.But what we are trying to do here, Mr. President, is really provide the choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide “No, I think we are risking our permanent status in the United States if we file an affidavit that we
want to go back.” But we want to give him the opportunity to make that decision. We do not want to make that decision for
him. [39] (Emphasis supplied)
177.The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no
application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are
immigrants and permanent residents in their host countries.
178.In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a “qualified citizen of the Philippines
abroad” upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage.
179.It must be emphasized that Section 5(d) does not only require an affidavit or a promise to “resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration,” the Filipinos abroad must also declare that they have not applied for
citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return “shall be cause for the removal” of their
names “from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.”
180.Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not
otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to
his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service
establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while
providing for safeguards to a clean election.
181. Thus, Section 11 of R.A. No. 9189 provides:
182. SEC. 11. Procedure for Application to Vote in Absentia. –
183. 11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment
authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such
embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) days from
receipt thereof. The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee
voter certificate of registration.
184.11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections.
185. 11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the
overseas absentee voter.
186.Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee
voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that
necessarily presupposes that the “qualified citizen of the Philippines abroad” is not physically present in the country. The provisions of Sections
5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed
the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from
this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his
 intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not
actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.
187. Petitioner’s speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is
important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to
freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of
any election conducted pursuant to R.A. No. 9189.
188. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the
affidavit.
189.Petitioner argues that should a sizable number of “immigrants” renege on their promise to return, the result of the elections would be affected and
could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results
of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the
third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative
exercise. As expressed in Tañada vs. Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we
find it impractical.
190. Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence
which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee
voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee
Voters.
191.Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to
return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast
by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the
elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National
Registry of Absentee Voters and their permanent disqualification to vote in absentia.
192. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective.
193. B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution?
194. Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and party-list representatives.
195. Section 18.5 of the same Act provides:
196. SEC. 18. On-Site Counting and Canvassing. –
197. . . . . . . ...
198.18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected
by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite
the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the
control or influence of the Commission. (Emphasis supplied)
199. Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates
insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:
200. SEC. 4 . . .
201. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not
later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint
public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the
votes.
202. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.
203. The Congress shall promulgate its rules for the canvassing of the certificates.
204. . . .
205. which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president.
206.The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be
taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President.[41]
207. Respondent COMELEC has no comment on the matter.
208.Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the
proclamation of the winning candidates for the presidency and the vice-presidency.
209. Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded
the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president.
210. In addition, the Court notes that Section 18.4 of the law, to wit:
211.18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile,
electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the
Commission, . . . [Emphasis supplied]
212. clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and Vice-
President shall be certified by the board of canvassers to Congress.
213.Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach
“on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for the said positions.” The
provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence,
the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the
hands of Congress.
214. C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?
215. Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit:
216.Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and
the Commission on Audit. (Emphasis supplied)
217. He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can
promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by
the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the
legislators.
218.It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No.
9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It asserts that its power
to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that the power of the COMELEC to
formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C[43] of the
Constitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interference by any
government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion.
219.The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to wit:
220. SEC. 17. Voting by Mail. –
221.17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval
of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
222. a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;
223. b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and
224. c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
225. Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee.
226. . . . . . . . . . (Emphasis supplied)
227. is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions.
228.The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitioner that
Sections 19 and 25 are invalid and unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative Department
that would as much as imply that Congress has concurrent power to enforce and administer election laws with the COMELEC; and by the
principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated powers of Congress
circumscribe its authority to the exclusion of all others.
229. The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual issue forged
on this question raised by petitioner.
230.However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC) vis-à-
vis the independence of the COMELEC, as a constitutional body.
231. R.A. No. 9189 created the JCOC, as follows:
232.SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional Oversight Committee is hereby created, composed of the Chairman
of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate
President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of
Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each
House of Congress, four (4) should come from the majority and the remaining three (3) from the minority.
233.The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall
review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis supplied)
234.SEC. 19. Authority of the Commission to Promulgate Rules. – The Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval.
235. . . . . . . . . . (Emphasis supplied)
236. Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative
body. There is no question that the authority of Congress to “monitor and evaluate the implementation” of R.A. No. 9189 is geared towards
possible amendments or revision of the law itself and thus, may be performed in aid of its legislation.
237. However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to “review, revise,
amend and approve the Implementing Rules and Regulations” (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined
by COMELEC.
238.The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be “independent.”
239.Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that
“[w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government.”[44] In an earlier case, the Court elucidated:
240.The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will
insure the accomplishment of the great objective for which it was created – free, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical
matter, and political questions must be dealt with realistically – not from the standpoint of pure theory. The Commission on Elections, because of
its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political questions.
241. [45] (Emphasis supplied)
242.The Court has no general powers of supervision over COMELEC which is an independent body “except those specifically granted by the
Constitution,” that is, to review its decisions, orders and rulings.[46] In the same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory
powers over its rule-making authority.
243.By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to “issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity of this Act.” This provision of law follows the usual procedure in
drafting rules and regulations to implement a law – the legislature grants an administrative agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation.[47] Once a law
is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress
relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and
amend the IRR of the COMELEC.
244.By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went
beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under
such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional.
245. The second sentence of the first paragraph of Section 19 stating that “[t]he Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior approval,” and the second sentence of the second paragraph of Section
25 stating that “[i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission,” whereby
Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute
for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC.
246.Similarly, the phrase, “subject to the approval of the Congressional Oversight Committee” in the first sentence of Section 17.1 which empowers
the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, “only upon review and
approval of the Joint Congressional Oversight Committee” found in the second paragraph of the same section are unconstitutional as they require
review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or
disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in
Section 17.1 of R.A. No. 9189.[48] Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC.
247. During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on
the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.
248.WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for being
UNCONSTITUTIONAL:
249.a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: “subject to the approval of the Joint Congressional
Oversight Committee;”
250.b) The portion of the last paragraph of Section 17.1, to wit: “only upon review and approval of the Joint Congressional Oversight
Committee;”
251.c) The second sentence of the first paragraph of Section 19, to wit: “The Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act for prior approval;” and
252.d) The second sentence in the second paragraph of Section 25, to wit: “It shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission” of the same law;
253. for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC.
254.The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the
winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates
for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution.
255.The constitutionality of Section 5(d) is UPHELD.
256. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect.
257. SO ORDERED.
258.
259. CONCURRING AND DISSENTING OPINION
260.
261.PUNO, J.:
262.With all due respect, I would like to offer my humble views on the constitutional issues presented by the petitioner, viz:
263. A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by
their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of
Article IV of the Constitution?
264. B. Does Section 18. 5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party-list
representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution
that the winning candidates for President and Vice-President shall be proclaimed as winners by Congress?
265. C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to
review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating
the independence of the COMELEC under Section 1, Article IX-A of the Constitution?
266.To start off, let me stress the significance of the case at bar. Rep. Act No. 9189,[1] otherwise known as “The Overseas Absentee Voting Act of
2003” is a historic attempt to translate to reality a long awaited dream: the enfranchisement of millions of overseas Filipinos. Undoubtedly, the
efforts of Congress to give flesh to section 2, Article V of the 1987 Constitution mandating it to devise “a system for absentee voting for qualified
Filipinos abroad,” deserves the highest commendation. However, Rep. Act No. 9189 poses far reaching constitutional issues that merit more than
an invocation of abstract legal principles or a simplistic construction of the Constitution. For one, the petition affects the value of the right of
suffrage, a right that is the cornerstone of our democratic government. It is the responsibility of this Court to strike a balance between the need to
expand the right of suffrage in favor of those who cannot exercise it and the need to prevent the dilution of the right of suffrage of those already
exercising it. For another, the petition compels this Court to define the extent and the limits of Congress’ oversight powers or legislative veto over
“subordinate legislations” or the rules and regulations promulgated by administrative agencies of government. Undoubtedly, this oversight power is
indispensable for Congress to discharge its broad power to legislate. Thus, it again behooves this Court to draw the precise parameters of the
oversight power sought to be exercised by Congress to preserve the delicate balance of powers allocated to the different branches of our
government in the Constitution.
267.Prescinding from these premises, let me discuss the issues in seriatim.
268. A.
269. Does section 5 (d) of Rep. Act No. 9189 violate section 1, Article V of the 1987 Constitution?
270.Petitioner submits that section 5, par. (d) of Rep. Act No. 9189 is unconstitutional for it allows immigrants or permanent residents of foreign
countries to vote for President, Vice-President, Senators, and party-list representatives by mere execution of an affidavit stating that: (a) he shall
resume actual, physical, permanent residence in the Philippines not later than three (3) years from approval of his registration; and (b) that he has
not applied for citizenship in another country, viz:
271.Sec. 5. Disqualifications.- The following shall be disqualified from voting under this Act.
272. …
273.(d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. (emphasis ours)
274.Petitioner also contends that section 2, Article V of the 1987 Constitution[2] limits the authority of Congress to provide a system for absentee
voting to those Filipinos who are temporarily absent in the Philippines but otherwise satisfy the requirements under section 1 thereof, including
the one year residence in the Philippines and six months residence in the place where they propose to vote. [3]
275.Citing our ruling in Caasi v. Court of Appeals,[4] the petitioner avers that a Filipino who is an acknowledged immigrant or permanent resident of
a foreign country does not possess the necessary residence requirements as he is deemed to have already abandoned his domicile in the Philippines.
He alleges that the challenged provision amends or alters the residence requirements by granting “conditional” residence qualification to an
immigrant or permanent resident or through the execution of an affidavit.[5]
276.The majority, thru our esteemed colleague, Madam Justice Martinez, rules that section 2, Article V of the 1987 Constitution mandating Congress
to devise a system for overseas absentee voting operates as an exception to the residence requirements as the members of the Constitutional
Commission manifested a clear intent “to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of
origin,” viz:[6]
277.By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic
location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with
respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be
allowed to vote even though they do not satisfy residency requirement in Section 1, Article V of the Constitution.[7] (emphases ours)
278.The majority further holds that if actual physical residence in the Philippines is required, “there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.”[8]
279.The majority affirms our ruling in Caasi v. Court of Appeals[9] that an immigrant or permanent resident of a foreign country is deemed to have
relinquished his residence in his country of origin. However, it rules that this presumption is overturned by the execution of the
affidavit required under the challenged provision of Rep. Act No. 9189. Allegedly, the affidavit is an explicit expression that an immigrant or
permanent resident has not relinquished his domicile in the Philippines, to wit:
280.Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section
5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residence in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise.”
281.To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they
are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine
domicile shall remain.[10] (emphases ours)
282.The majority further rules that “the act of the immigrant or permanent resident in executing an affidavit pursuant to section 5(d) may be
considered as an express waiver of his status as an immigrant or permanent resident.” Thus, the majority concludes that section 5(d) of Rep.
Act No. 9189 is not unconstitutional.
283.With all due respect, I disagree with the majority. But before discussing the reasons for my dissent, let me put the issue in its proper historical
perspective.
284.Suffrage is an attribute of citizenship[11] and is ancillary to the principle of republicanism enshrined in section 1, Article II of the 1987
Constitution.[12] The right of suffrage, however, is not absolute. No political system in the whole world has literally practiced “universal” suffrage,
even among its citizens.[13] The scarlet history of the right of suffrage shows that restrictions have always been imposed on its exercise.
285.In England, for instance, suffrage originated as a political privilege granted to land owners by the monarchs.[14] The grant arose from the theory
that in the formation of the state, the people agreed to surrender to the King all political sovereignty. In return, the King extended suffrage to the
freeholders as a vested right. The origin and character of suffrage in England is chronicled by Chief Justice Holt in Ashby v. White, et al.,[15] viz:
286.The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the freehold, and can
be no more severed from the freehold than the freehold itself can be taken away. Before the statute of 8 Hen. 6, ch. 7, any man that had a freehold,
though never so small, had a right of voting; but by that statute the right of election is confined to such persons as have lands or tenements to the
yearly value of forty shillings at least, because, as the statute says, of the tumults and disorders which happened at elections by the excessive and
outrageous number of electors; but still the right of election is an original incident to and inseparable from freehold. As for citizens and burgesses,
they depend on the same rights as the knights of shires differ only as to the tenure; but the right and manner of their election is on the same
foundation.[16]
287.The economic theory of suffrage is also evident in the early history of the United States. The 1787 U.S. Constitution, as originally adopted, did
not expressly provide the right to vote.[17] The States were left to determine who should have the right to vote in national as well as local elections.
Most States restricted the right of suffrage to white males over twenty-one years of age with a certain amount of property.[18] Other States also
required religious,[19] literacy, and moral qualifications.[20]
288.Some legal scholars, however, contend that the right of suffrage is presumed from the provision of the Constitution guaranteeing each state a
“republican form of government.”[21]Veering away from the economic theory of suffrage prevalent in England, these scholars argue that in forming
the state, the people did not give up all their sovereign powers but merely delegated the exercise of these powers to some chosen representatives.
The right of suffrage is one of these delegated powers, viz:
289.The people, in their original sovereign character are the fountainhead of governmental authority, and all the powers necessary to be exercised in
the continued administration of a representative government originated and are delegated by exertion of their sovereign will. These propositions,
founded on necessity, and illustrated by long continued practice, have become the received doctrines of the American people… The people, in
 clothing a citizen with the elective franchise for the purpose of securing a consistent and perpetual administration of the government they ordain,
charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people.
This duty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing
it, but in good faith and with an intelligent zeal for the general benefit and welfare of the State…[22]
290.As a privilege delegated by the people, a citizen acquires no indefeasible right to the continuous exercise or enjoyment of the right of suffrage.
“The people of the State, in the exercise of their sovereign power, may disqualify, suspend or entirely withdraw it from any citizen or class of them,
providing always that representation of the people, the essential characteristics of a republican government, be not disregarded or abandoned.”[23]
291. Following the shift in its theoretical basis, the right of suffrage was extended to broader classes of citizens. In 1870, the Fifteenth Amendment was
enacted prohibiting the federal government and the states from discriminating on the basis of “race, color or previous conditions of servitude.” In
1920, the Nineteenth Amendment was ratified providing that the right of citizens to vote “shall not be denied or abridged by the United States or by
any State on account of sex.” In 1964, the Twenty-fourth Amendment was adopted providing that the right of any citizen to vote for President,
Vice-President or members of Congress “shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax
or other tax.” In 1971, the Twenty-sixth Amendment was passed providing that the right of any citizen eighteen years or older to vote “shall not be
denied or abridged by the United States or by any State on account of age.”
292.In our jurisdiction, the right of suffrage has evolved from a mere statutory right to a constitutional right. Our first election law was Act No.
1582, which took effect on January 15, 1907. We had no elections during the Spanish occupation of the country.
293.Like its foreign counterparts, the qualifications for the exercise of the right of suffrage set in section 14 of Act No. 1582 were elitist and gender-
biased. The right of suffrage was limited to male citizens twenty-three years of age or over with legal residence for a period of six months
immediately preceding the election in the municipality in which they exercise the right of suffrage. Women were not allowed to vote for they were
regarded as mere extensions of the personality of their husbands or fathers, and that they were not fit to participate in the affairs of government.
[24]
But even then, not all male citizens were deemed to possess significant interests in election and the ability to make intelligent choices. Thus,
only those falling under any of the following three classes were allowed to vote: (a) those who, prior to the August 13, 1898, held office of
municipal captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, or member of any ayuntamiento; (b) those who own real property
with the value of five hundred pesos or who annually pay thirty pesos or more of the established taxes; or (c) those who speak, read and write
English or Spanish.
294.But apart from possessing the necessary qualifications, a voter must not suffer from any disqualification. We elaborated the reasons for setting
disqualifications for the exercise of the right of suffrage in People v. Corral,[25] viz:
295.The modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by
law. Suffrage is a privilege granted by the State to such persons or classes as are most likely to exercise it for the public good. In the early stages of
the evolution of the representative system of government, the exercise of the right of suffrage was limited to a small portion of the inhabitants. But
with the spread of democratic ideas, the enjoyment of the franchise in the modern states has come to embrace the mass of the adult male
population. For reasons of public policy, certain classes of persons are excluded from the franchise. Among the generally excluded classes are
minors, idiots, paupers, and convicts.
296.The right of the State to deprive persons of the right of suffrage by reason of their having been convicted of crime, is beyond question. “The
manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by
conviction of felony, or other base offenses indicative of moral turpitude, is unfit to exercise the privilege of suffrage or to hold office. The
exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for punishment, the withholding of a privilege
and not the denial of a personal right.”[26]
297.On November 9, 1933, the Philippine Legislature enacted Act No. 4122 extending the right of suffrage to Filipino women starting January 1,
1935. However, before they could exercise their new right, the 1935 Constitution was adopted, once again, limiting the right of suffrage to male
citizens, viz:
298. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age 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. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that
purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question.
299.During the deliberations of the Constitutional Convention, it was conceded that Filipino women were capable of exercising the right of suffrage.
Their right, however, was opposed on the following grounds: (1) there was no popular demand for suffrage by Filipino women themselves; (2)
woman suffrage would only disrupt family unity; and (3) it would plunge women into the quagmire of politics, dragging them from the pedestal of
honor in which they had theretofore been placed.[27] Thus, in its report to the President of the Convention on September 24, 1934, the Committee
on Suffrage said:
300.The committee refrains from stating in this report the reasons on which it bases its decision to withdraw the right of suffrage from the women and
will merely say that the principal idea in the minds of the members not in favor of extending suffrage to women was that the sweet womanliness of
the Philippine women should be projected from political strife and passion in order that sweet home may not lose any of its sweetness.[28]
301.The proponents of woman suffrage in reply argued that it would be unfair to deprive Filipino women of the right of suffrage already granted to
them by the legislature without giving them the chance to prove whether they deserved it or not. They also submitted that the right would make
them more interested in the management of the affairs of government and that “it was necessary as a matter of justice to extend the frontiers of our
democracy to our women who had labored hard side by side with our men for the progress and development of the country.” [29] In a last ditch
attempt to save the cause of woman suffrage, women leaders distributed a petition to individual delegates that reads:
302. We, the undersigned, duly elected representatives of women who believe in the justice and wisdom of the enfranchisement of the Filipino women,
protest most solemnly against women being deprived of the vote in the Constitution of the Commonwealth and against any change in the existent
Law, No. 4112, passed by the Ninth Philippine Legislature on November ninth, 1933, and signed by Governor-General Frank Murphy on
December seventh, 1934.
303. We call the attention of the Constitutional Assembly and the Legislature to the plea for liberty made before the Congress and the President of
United States for thirty-seven years by the Filipinos; a plea based on the fact that we are a liberty-loving people equipped and capable of self-
government. Such government cannot exist “half-slave and half-free.” The women of this Christian land, serene in the knowledge that in peace or
war they have never failed their men or their country, in this crucial hour of the realization of the sacrifice and devotion of the years, insist upon
their political recognition and their share in the triumph of the cause of liberty.
304. It is not a matter of plebiscite nor specific numbers. It is a right earned, deserved and therefore claimed. It is not a matter of sex. In a democratic
government all qualified citizens, men and women alike, can and should make their valuable contribution in deciding what their community will
undertake to do through its government, by what means, and through what officials.
305. Under the law women suffer penalties, are summoned before the courts by law- laws they have had no voice in making- and pay taxes. “Taxation
without representation is tyranny” and more so in 1934 than in 1776.
306.So confident of the unalterable righteousness of this cause, to you, gentlemen of the Constitutional Assembly, we appeal for justice believing and
knowing that our cause is a just one, and that our rights have been won thru years of sacrifice, devotion and service to our common cause- the cause
of men and women alike- the welfare and progress of our native land- the Philippines.[30]
307. In the end, a compromise was reached limiting the right of suffrage to male citizens and leaving the issue of women suffrage for the women to
decide. In the plebiscite held on April 30, 1937, more than three hundred thousand women voted for woman suffrage. Thenceforth, Filipino women
were allowed to vote, thus, paving the way for women participation in the government.
308.To broaden the mass base of voters, the 1935 Constitution lowered the age requirement from 23 years to 21 years. The literacy requirement was
also relaxed. It is to be noted that from the opening days of the Convention, there was a prevalent sentiment among the delegates to bar illiterates
from exercising the right of suffrage. It was proposed that only those who can read and write English, Spanish, or other local dialects should be
allowed to vote. This proposal was defeated for the drafters felt that while the ability to read and write was necessary, [31] the specification of any
language or dialect would be discriminatory against the Mohammedans:
309.It is discriminatory against a respectable minority of the population of the Philippines. It would serve to discriminate against the Mohammedan
population of the Philippines for which I am one of the humble representatives. It is the opinion of this Convention, I think, to emancipate, to
enfranchise our backward elements, especially the Mohammedan population. And you would like to curtail that right and that privilege by inserting
a provision that only those who can read and write either English, Spanish, or any of the local dialects shall be allowed to vote. This amendment
would preclude the Mohammedans because their Arabic writing is not included under local dialects. Because when you say, local dialects, you
refer to the dialect and not to the system of writing. The system of writing is either Arabic or Roman. In view of this fact, Mr. President, I hope that
you will be liberal and tolerant enough to reject this proposed amendment because it is unnecessary and because it is discriminatory.[32]
310.Furthermore, the 1935 Constitution removed the property qualifications under Act No. 1582. We explained the reason for this removal in
Maquera v. Borra,[33] viz:
311.… property qualifications are inconsistent with the nature and essence of the republican system ordained in our constitution and the principle of
social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government
authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth
of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall
by reason of poverty, be denied the chance to be elected to the public office….[34]
312.In sum, the 1935 Constitution gave a constitutional status to the right of suffrage. Thus, suffrage is not anymore a privilege granted by the
legislature, but a right granted by the sovereign people to a definite portion of the population possessing certain qualifications. To be sure, the right
of suffrage was still subject to regulation by the legislature but only in accordance with the terms of the Constitution.
313.The march towards liberalization of the right of suffrage continued with the 1973 Constitution. The literacy requirement was removed while the
age bar was further lowered from 21 years to 18 years. Thus, section 1, Article VI of the 1973 Constitution reads:
314.Section 1. Suffrage shall be exercised by citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six
months preceding the election. No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage. The
National Assembly shall provide a system for the purpose of securing the secrecy and sanctity of the vote. (emphasis ours)
315.The rationale for these changes was expressed in the Explanatory Note of Resolution No. 03 of the Committee on Suffrage and Electoral
Reforms, viz:
316. In keeping with the trend for the broadening of the electoral base already begun with the lowering of the voting age to 18 and in keeping with the
committee’s desire to continue the alienation and exclusion of millions of citizens from the political system and from participation in the political
life in the country, the requirement of literacy for voting has been eliminated. It is noted that there are very few countries left in the world where
literacy remains a condition for voting. There is no Southeast Asian country that imposes this requirement. The United States Supreme Court only a
few months ago declared unconstitutional any state law that would continue to impose this requirement for voting.
317.Although there were more resolutions submitted proposing the increase of educational requirements for voting than those advocating the
elimination of the literacy requirement, the committee felt that favoring the elimination of the requirement would be more in keeping with its
objective and that of the Constitutional Convention encouraging popular participation and equalizing the privileges and rights of the people…
318. According to the Bureau of Census and Statistics, the projection for the population of the Philippines over 18 years old for 1970 is 17,659,000. Of
this, 12,384,000 are considered literates. However, the same Bureau admitted that there is no real scientific literacy test in counting literates. All
that is done is to ask each member of the population the question whether he is able to read and write and to take his answer at its face value.
319. These circumstances plus the well-known practice in all elections in which political leaders spend their time in the barrios showing the prospective
voters to write the name of the candidates instead of explaining the political issues to them, strengthened the conviction of the committee that
present literacy requirement is more of a joke, and worse, a deterrent to intelligent discussions of the issues. Finally, the committee took note of the
convincing argument that the requirement to read and write was written into our constitution at a time when the only medium of information was
the printed word and even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that
today the vast majority of the population learn about national matters much more from the audio-visual media, namely, radio and television, and
public meetings have become much more effective since the advent of amplifying equipment.
320. In addition, the 1973 Constitution provided that no property or other substantive requirement shall be imposed on the exercise of suffrage.
321.The 1987 Constitution further liberalized the right of suffrage. For the first time, it required Congress to provide a system for absentee voting
by qualified Filipinos abroad and to design a procedure for the disabled and the illiterates to vote without assistance from other persons. Be that as
it may, four qualifications existing since the 1935 Constitution were retained: (1) Filipino citizenship; (2) age; (3) one year residence in the
Philippines; and (4) six months residence in the place where the voter proposes to vote. The wisdom of these four qualifications has not been
questioned at any given time in the history of our suffrage. It is easy to see the reason. Suffrage is a political right appertaining to
citizenship. Each individual qualified to vote is a particle of popular sovereignty, hence, the right of suffrage cannot be extended to non-citizens.
As an attribute of citizenship, suffrage is reserved exclusively to Filipinos whose allegiance to the country is undivided.[35]
322.It is also conceded that the right of suffrage can be exercised only by persons of a certain age. Nobody could doubt the reason for preventing
minors from taking part in the political exercise. Voting is an act of choice and involves prescience. It requires not only a familiarity of political
realities but also the maturity to make reasoned choices out of these realities.[36]
323.But citizenship and age requirements are not enough. For the vote to be more meaningful as an expression of sovereignty, the voter must possess
more than a passing acquaintance with the problems and prospects of the country. Thus, residence is imposed as a qualification “to exclude a
stranger and a newcomer, unacquainted with the conditions and needs of the community and not identified with the
latter.” [37] The residence requirement is also necessary for administrative purposes such as the preparation of accurate list of voters.[38]
324.I now come to the case at bar. The first issue is whether section 5(d) of Rep. Act No. 9189 extending the right of suffrage to Filipinos who
are “immigrants” or “permanent residents” of foreign countries is unconstitutional. To resolve this issue, the following need to be addressed:
(1) whether section 2, Article V of the Constitution dispenses with the residence requirements prescribed in section 1 thereof; (2) whether an
“immigrant” or a “permanent resident” satisfies the residence requirements; (3) whether the execution of an affidavit is sufficient proof of non-
abandonment of residence in the Philippines; and (4) whether the system provided in section 5(d) of Rep. Act No. 9189 will dilute the right of
suffrage of other Filipino voters who possess the full residence qualifications under section 1, Article VI of the Constitution.
325. (1) Whether section 2 of Article V dispenses with the residence requirements prescribed in section 1 of the same Article.
326.Section 1, Article V of the 1987 Constitution prescribes two residence qualifications: (a) one year residence in the Philippines; and (2) six
months residence in the locality where the voter proposes to vote.
327.In its ordinary conception, residence connotes the actual relationship of an individual to a specific place. To be a resident, physical presence of a
person in a given area, community or country is required. [39] Even before the adoption of the 1935 Constitution, jurisprudence has equated
the first residence requirement (one year residence in the Philippines) with domicile or legal residence. [40] Domicile in turn has been defined as an
individual's permanent home or “the place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." [41] The domicile of a person is determined by the concurrence of the following elements: (1)
the fact of residing or physical presence in a fixed place; and (2) animus manendi, or the intention of returning there permanently.[42] The mere
absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile.[43]
328.The second residence requirement (six months residence in the place the voter proposes to vote) refers to either the voter’s domicile or to his
temporary residence.[44] A voter who is domiciled in a particular locality but has resided for six months in another locality may register and vote in
either locality, but not in both. To be sure, a person fulfilling the first residence requirement also fulfills the second so long as the voter registers in
his established domicile. The second residence requirement is relevant for two purposes: (1) the determination of the place where the voter will
register, and (2) the determination of the place where the voter will vote. It ought to be noted that as a general rule, a person should register and
vote in the place where he has established his domicile or the place where he has resided for six months.
329.The intent of the members of the Constitutional Commission to apply the residence requirements to absentee voters is evident from its
deliberations. They precisely used the phrase “QUALIFIED FILIPINOS ABROAD” to stress that the absentee voter must have all the
qualifications in section 1, Article VI of the Constitution, viz:
330. MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is
the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad?
331. THE PRESIDENT. Would Commissioner Monsod care to answer?
332.MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications
and disqualifications would be the same.
333. THE PRESIDENT. Are we leaving it to the legislature to devise the system?
334. FR. BERNAS. I think there is a very legitimate problem raised there.
335. THE PRESIDENT. Yes.
336. MR. BENGZON. I believe Commissioner Suarez is clarified.
337. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence
in Manila, so he is able to vote in Manila.
338. MR. TINGSON. Madam President, may I suggest to the Committee to change the word “Filipinos” to QUALIFIED FILIPINO VOTERS. Instead
of “VOTING BY FILIPINOS ABROAD,” it should be QUALFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING
ABROAD, would that not satisfy the requirement?
339. THE PRESIDENT. What does Commissioner Monsod say?
340.MR. MONSOD. Madam President, I think I would accept the phrase “QUALIFIED FILIPINOS ABROAD” because “QUALIFIED”
would assume that he has the qualifications and none of the disqualifications to vote.
341. MR. TINGSON. That is right. So does the Committee accept?
342. FR. BERNAS. “QUALIFIED FILIPINOS ABROAD”?
343. THE PRESIDENT. Does the Committee accept the amendment?
344. MR. REGALADO. Madam President.
345. THE PRESIDENT. Commissioner Regalado is recognized.
346.MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase “absentee voting” already took into account as its meaning. That is referring to qualified Filipino citizens temporarily
abroad.
347. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly.
348. THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to provide a system.
349. MR. MONSOD. Yes.
350. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.
351.MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.
352. THE PRESIDENT. It is just to devise a system by which they can vote.
353.MR. MONSOD. That is right, Madam President.[45]
354.In the course of the deliberations, Fr. Bernas perceived a problem that may arise from the meaning of the second residence requirement on the
place of registration and voting. As noted, a qualified voter normally registers and votes in the place where he is domiciled or has resided for six
months. Fr. Bernas feared that the second residence requirement may pose a constitutional obstacle to absentee voting “unless the vote of the
person who is absent is a vote which will be considered as cast in the place of his domicile,” viz:
355. MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of the government agencies, there ought to be about two million such Filipinos at
this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973,
with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor
force explosion overseas.
356. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate
communities of workers are found in the Middle East, they are scattered in 177 countries in the world.
357.In previous hearings of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their
Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own
or under pressure of economic necessity here, find that they have detached themselves from their families to work in other countries with definite
tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence
on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by residential
requirement in Section 1…
358. …
359. I, therefore, ask the Committee whether at the proper time, they might entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution.
360. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of
“residence” in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of “residence” in the Election Law…
361. …
362.In other words, “residence” in this provision refers to two residence qualifications: “residence” in the Philippines and “residence” in the place
where he will vote. As far as the residence in the Philippines is concerned, the word “residence” means domicile, but as far as residence where he
will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is allowed to vote
there. So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be
considered as cast in the place of his domicile.[46] (emphasis supplied)
363.Following the observation of Father Bernas and to obviate the constitutional problem, the members of the Constitutional Commission then
discussed the system of registration of qualified Filipinos abroad who will be allowed to vote. It was agreed that their registration abroad would
be considered as registration in a particular locality in the Philippines where he is domiciled, and the vote cast abroad would be considered cast in
that particular locality, to wit:
364.MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily abroad. He may or may not be actually residing abroad; he may just be
there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so that he could not cast his vote. He is
temporarily abroad but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily
residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that
situation.
365. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record.
366.MR. MONSOD. Madam President, to clarify what we mean by “temporarily abroad,” it need not be on very short trips. One can be abroad on a
treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the
candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing one’s name, in a registry list in
the embassy abroad. That is still possible under this system.
367. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.
368. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered here.
Where will he register? Will he be a registered voter of a certain locality in the Philippines?
369. MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United
States and his name is then entered in the official registration book in Angeles City, for instance.
370. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here.
371. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here.
372.FR. BERNAS. So, he does not have to come home.[47] (emphases ours)
373. It is crystal clear from the foregoing deliberations, that the majority erred in ruling that section 2 of Article V of the Constitution dispensed with the
residence requirements provided under section 1 of the same Article.
374. (2) Whether an “immigrant” or a “permanent resident” of a foreign country has lost his domicile in the Philippines.
375. The next question is whether an “immigrant” or a “permanent resident” of a foreign country has abandoned his domicile in the
Philippines. I respectfully submit that he has.
376.There are three classes of domicile, namely: domicile of origin, domicile of choice, and domicile by operation of law. At any given point, a
person can only have one domicile.
377.Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition of another domicile. More specifically, it is
the domicile of the child’s parents or of the persons upon whom the child is legally dependent at birth. Although also referred to as domicile of
birth, domicile of origin is actually the domicile of one’s parents at the time of birth and may not necessarily be the actual place of one’s birth.
[48]
Domicile of choice is a domicile chosen by a person to replace his or her former domicile. An adult may change domicile at will. The choice
involves an exercise of free will and presumes legal capacity to make a choice. While intention is a principal feature of domicile of choice, a mere
intention without the fact of actual presence in the locality cannot bring about the acquisition of a new domicile. Domicile of choice generally
consists of a bodily presence in a particular locality and a concurrent intent to remain there permanently or at least indefinitely.[49] Domicile by
operation of law is a domicile that the law attributes to a person independent of a person’s residence or intention. It applies to infants,
incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice.[50]
378.In Romualdez-Marcos v. COMELEC,[51] we ruled that domicile of origin is not easily lost. To successfully effect a change of domicile, one
must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one; and acts which correspond with purpose.[52] This change of domicile is effected by a Filipino who becomes an
“immigrant” or a “permanent resident” of a foreign country. Thus, we held in Caasi v. Court of Appeals, [53]viz:
379.Miguel’s application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are
conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status
should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his
green card to the appropriate U.S. authorities before he ran for mayor… [54]
380.The doctrine in Caasi is by no means new. Our election laws have continuously regarded “immigrants” or “permanent residents” of a foreign
country to have lost their domiciles in the Philippines and hence are not qualified to run for public office.[55] There is no reason not to apply
the Caasi ruling in disputes involving the qualification of voters. In essence, both cases concern fulfillment of the residence requirements.
381.Section 5(d) of Rep. Act No. 9189 itself reinforces the applicability of the Caasi doctrine. As observed by the majority, Rep. Act No. 9189
disqualifies an immigrant or a permanent resident who is recognized as such in another country “because immigration or permanent residence in
another country implies renunciation of one’s residence in his country of origin.”[56]
382. We now slide to the legal significance of the affidavit to be executed by “immigrants” or “permanent residents” to remove them from the class of
disqualified voters.
383. (3) Whether the execution by an immigrant or a permanent resident of the affidavit under section 5(d) of Rep. Act No. 9189 is
sufficient proof of non-abandonment of residence in the Philippines.
384.Again, with due respect, I submit that the majority ruling on the nature of the affidavit to be executed by an “immigrant” or a “permanent
resident” is inconsistent. On one hand, it theorizes that the act “serves as an explicit expression that he had not in fact abandoned his domicile of
origin.”[57] This concedes that while an “immigrant” or a “permanent resident” has acquired a new domicile in a foreign country by virtue of his
status as such, Rep. Act No. 9189 would consider him not to have abandoned his domicile in the Philippines. On the other hand, the majority
also theorizes that the affidavit constitutes an “express waiver of his status as an immigrant or permanent resident,” and upon fulfillment of the
requirements of registration, “he may still be considered as a ‘qualified citizen of the Philippines abroad’ for purposes of exercising his right of
suffrage.”[58] This presupposes that the “immigrant” or “permanent resident” abandoned his domicile in the Philippines, but seeks to reacquire
this domicile by the execution of the affidavit.
385.The first theory is untenable. Its inevitable result would be the establishment of two domiciles, i.e., domicile in the Philippines and domicile in
a foreign country where he is considered an “immigrant” or a “permanent resident.” This ruling will contravene the principle in private
international law that a person can be domiciled only in one place at a given time.[59]
386.The second theory is equally untenable. A person who has abandoned his domicile of origin by establishing a domicile of choice cannot just
revert back to his domicile of origin.[60] He must satisfy the same requisites for acquiring a new domicile, i.e., an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one; and acts which correspond with
the purpose. An existing domicile cannot be lost by abandonment alone, even if there is an intent to acquire a new one; the existing domicile
continues until a new one is in fact gained. To abandon domicile, a person must choose a new domicile, actually reside in the place chosen, and
intend that it be the principal and permanent residence. That is, there can be no change of domicile without the concurrence of act and intent.[61]
387.The doctrine established in England that the domicile of origin is revived upon the abandonment of a domicile of choice has long been
rejected in the United States.[62] Even in England, “the mobility of modern society has fostered both criticism of the rule and recommendation
for its change.”[63] Thus, the prevailing view at present is that if a domicile of choice is abandoned without acquiring a new domicile of choice,
“the domicil[e] of origin is not thereby revived, but the last domicil[e] of choice continues to be the domicil[e].”[64]
388.In his Separate Opinion, our esteemed colleague, Mr. Justice Azcuna, opines that the execution of the affidavit is the operative act that
revives the domicile of origin, and “the requirement of resuming actual physical presence within three (3) years is only a test of such
intention.” He further opines that “if the affiant does not resume the residence physically within said period, then the intent expressed in the
affidavit is defective and the law will deem it inoperative.”
389.With due respect, I submit that the affidavit merely proves the intent to return but not the other requisites for reacquiring the domicile
of origin. Intent, which is not coupled with actual physical transfer, is not sufficient either to abandon the former domicile or to establish a new
domicile.[65] Thus, the view that domicile could be established as soon as the old is abandoned even though the person has not yet arrived at the
new domicile, has not been accepted. In his latest work on the subject, Scoles, an acknowledged expert in Conflict of Laws stated as follows:
390.The element of physical presence is essential to confirm the requisite attitude of mind contemplated by the concept of domicile. As a
consequence, a person who is to acquire a domicile of choice at a place must actually be present at that place during the time in which the intention
to make it his home exists. For most people, intention is confirmed by the physical presence of considerable duration looking toward an indefinite
period of time. However, in light of the function that domicile serves, i.e., to identify a settled relationship with a place for a particular legal
purpose, it is sometimes necessary to make a determination when the physical presence has been very brief. Consequently, no particular length of
time is necessary in order to satisfy the requirement of physical presence if that stay at a place verifies the intention to make it a home.
391. …
392.In the case of the individual who has clearly manifested an intention to change a new home and center of social activities, the question sometimes
arises why that person’s domicile should not change as soon as the old is abandoned eventhough the individual has not yet arrived at the new.
Although this has sometimes been suggested as a possibility, it is contrary to the clear weight of authority, probably because physical
presence is ordinarily the principal confirming evidence of the intention of the person.[66] (emphases ours)
393.Beale, another acknowledged expert on the subject, shares the same view, viz:
394.One or two authorities under special circumstances have held that a domicil[e] might be acquired in a certain place while the person is on his way
toward the place with an intent to live there and during his journey toward that place, although he had not yet actually reached that place. In two
taxation cases in Massachusetts, where upon the taxing day the person in question was actually on his journey from a former residence in the state
to an intended second residence, whether in the same state or in another state, he was held to be taxable in the second residence in the ground that
under those peculiar circumstances his domicil[e] would shift at the moment of abandoning the first residence. These, however, were disapproved
and overruled. In one other case, a similar intimation has been made. In Matter of Grant, it appeared that a decedent had left a United States
reservation in the State of New York with intention to go to the District of Columbia, and there establish his residence, but he had died en
route. Fowler, Surrogate, intimated that he was already domiciled in the District of Columbia. It is not too much to say, however, that there is
absolutely no good authority for the opinion thus expressed, and that it is legally impossible for a man to acquire a domicil[e] before he is
present at the place where the domicil[e] is established.[67] (emphasis ours)
395.Beale also states that with the rejection of the English “automatic reversion” doctrine, physical presence is required before the person can
reacquire his domicile of origin, viz:
396. The doctrine in England is that the domicil[e] of origin revives upon the abandonment of a domicil[e] of choice… Inspite of a few English cases to
the contrary, this has become thoroughly established as the doctrine of the English courts, the court being especially emphatic in cases where a
person has left his domicil[e] of choice without intent to return and has started to return to his domicil[e] of origin. Here, evidence must of course
be introduced to show a definitive abandonment of domicil[e] of choice by actually leaving the country without intent to return. The English
doctrine has been approved in this country in several cases, in most of which the approval was a mere dictum, but in the United States, generally,
the opposite view is held, and upon the abandonment of a domicil[e] of choice there is no change of domicil[e] until a new domicil[e] is obtained…
397.On the other hand, a few American cases follow the English decision in so far as to declare that a domicil[e] of origin revives when a person
having abandoned a domicil[e] of choice is on his way to make a home at his domicil[e] of origin, but the better opinion in this country does not
allow the reacquisition of the domicil[e] of origin until the fact of presence at the place of domicil[e] of origin exists, as well as the intent to
return there.[68] (emphasis ours)
398.To stress, the burden of establishing a change in domicile is upon the party who asserts it.[69] A person’s declarations as to what he considers his
home, residence, or domicile are generally admissible “as evidence of his attitude of mind.”[70] However, whatever the context, “their accuracy is
suspect because of their self-serving nature, particularly when they are made to achieve some legal objective.”[71]
399.In the case at bar, the burden rests on an “immigrant” or a “permanent resident” to prove that he has abandoned his domicile in the foreign
country and reestablished his domicile in the Philippines. A self-serving affidavit will not suffice, especially when what is at stake is a very
important privilege as the right of suffrage. I respectfully submit that what makes the intent expressed in the affidavit effective and operative is the
fulfillment of the promise to return to the Philippines. Physical presence is not a mere test of intent but the “principal confirming evidence of the
intention of the person.”[72] Until such promise is fulfilled, he continues to be a domiciliary of another country. Until then, he does not possess
the necessary requisites and therefore, cannot be considered a qualified voter.
400. (4) Whether counting the votes of immigrants or permanent residents who fail to return to the Philippines will dilute the valid votes
of our fully qualified electors.
401.The only consequence imposed by Rep. Act No. 9189 to an “immigrant” or a “permanent resident” who does not fulfill his promise to return to
the Philippines is the removal of his name from the National Registry of Absentee Voters and his permanent disqualification to vote in
absentia. But his vote would be counted and accorded the same weight as that cast by bona fide qualified Filipino voters. I respectfully
submit that this scheme diminishes the value of the right of suffrage as it dilutes the right of qualified voters to the proportionate value of
their votes. The one person, one vote principle is sacrosanct in a republican form of government. The challenged provision which allows the value
of the valid votes of qualified voters to be diminished by the invalid votes of disqualified voters violates the sovereignty of our people . The
validation by the majority of this unconstitutional provision may result in the anomaly where the highest public officials of our land will
owe their election to “immigrants” or “permanent residents” who failed to fulfill their promise to return to our country or who repudiated
their domicile here.
402. The majority downplays the effect of the challenged provision on those who are already qualified prior to the enactment of Rep. Act No. 9189. It is
opined that the removal of an “immigrant” or a “permanent resident” from the list of the National Registry of Absentee Voters and his permanent
disqualification “would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit.” The majority misses the
point. Without section 5(d) of Rep. Act No. 9189, an “immigrant” or a “permanent resident” has no right to vote. Thus, even assuming that he
becomes qualified after executing the affidavit, he does not stand to lose anything when he is subsequently disqualified for his failure to comply
with his undertaking under the affidavit. He will just return to his original status.
403. B.
404. Is section 18.5 of Rep. Act No. 9189 in relation to section 4 of the same Act in contravention of section 4, Article VII of the Constitution?
405.Petitioner contends that section 18.5 in relation to section 4 of Rep. Act No. 9189 violates section 4, Article VII of the 1987 Constitution giving
Congress the power to canvass the votes and proclaim the winning candidates for President and Vice-President, viz:
406. …
407. The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not
later than thirty days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.
408. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Congress, voting separately.
409. The Congress shall promulgate its rules for the canvassing of the certificates.
410. …
411.Section 4 of Rep. Act No. 9189 allows all qualified Filipinos overseas to vote for President, Vice-President, Senators and party-list
representatives while section 18.5 thereof empowers the COMELEC to order the proclamation of winning candidates, viz:
412. SEC. 18. On-Site Counting and Canvassing.-
413. …
414. 18.5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by
the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact
the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by
events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or
influence of the Commission.
415.On its face, section 18.5 of Rep. Act No. 9189 appears to be repugnant to section 4, Article VII of the 1987 Constitution. It gives the impression
that Congress abdicated to COMELEC its constitutional duty to canvass and proclaim the winning candidates for President and Vice-President. I
agree with the majority that the impugned provision should be given a reasonable interpretation that would save it from a constitutional infirmity.
To be sure, Congress could have not allowed the COMELEC to exercise a power exclusively bestowed upon it by the Constitution. Thus, section
18.5 of Rep. Act No. 9189 empowering the COMELEC to proclaim the winning candidates should be construed as limited to the positions of
Senators and party-list representatives. In like manner, I agree with the majority that section 18.4 of Rep. Act No. 9189 which provides:
416.18.4…. Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission,….
(emphasis supplied)
417.should be construed in harmony with section 4, Article VII of the 1987 Constitution. Hence, with respect to the position of the President and the
Vice-President, the Certificates of Canvass and the Statements of Votes must be submitted to Congress and directed to the Senate President.
418. C.
419. Does Congress, through the Joint Congressional Oversight Committee created in section 25 of Rep. Act No. 9189, have the power to
review, revise, amend and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without
violating the independence of the COMELEC under section 1, Article IX-A of the Constitution?
420.Both the Commission on Elections (COMELEC) and the Office of the Solicitor General (OSG) agree with the petitioner that sections 19 and 25
of Rep. Act No. 9189 are unconstitutional on the ground that they violate the independence of the COMELEC.[73] The impugned provisions
require the public respondent COMELEC to submit its Implementing Rules and Regulations to the Joint Congressional Oversight Committee for
review, revision, amendment, or approval, viz:
421.Sec. 19. Authority of the Commission to Promulgate Rules.- The Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from effectivity of this Act. The Implementing Rules and Regulations shall be
submitted to the Joint Oversight Committee created by virtue of this Act for prior approval.
422. In the formulation of the rules and regulations, the Commission shall coordinate with the Department of Foreign Affairs, Department of Labor and
Employment, Philippine Overseas Employment Administration, Overseas Workers’ Welfare Administration and the Commission on Filipino
Overseas. Non-government organizations and accredited Filipino organizations or associations abroad shall be consulted.
423. …
424.Sec. 25. Joint Congressional Oversight Committee.- A joint Congressional Oversight Committee is hereby created, composed of the Chairman
of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate
President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other members of the House of
Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each
House of Congress, four (4) should come from the majority and the remaining three (3) from the minority.
425.The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (emphases supplied)
426.Public respondents aver that as an independent constitutional body, the COMELEC is not under the control of the executive or the
legislative[74] in the performance of its constitutional function to “enforce and administer all laws and regulations relative to the conduct of an
election.”[75] Public respondent COMELEC asserts that its right to formulate rules and regulations flows from its power to enforce and administer
election laws and regulations.[76] This power is exclusive and its exercise is not subject to the review, revision, or approval of Congress.[77]The
Solicitor General shares the same view that the role of the legislature ends with the finished task of legislation.[78] He opines that nothing in
Article VI of the 1987 Constitution suggests that Congress is empowered to enforce and administer election laws concurrent with the COMELEC.
[79]
427.Along the same lines, public respondent COMELEC assails section 17.1 of Rep. Act No. 9189 subjecting the implementation of voting by mail to
prior review and approval of the Joint Oversight Committee. It maintains that the development of a system for voting by mail involves the
“administration of election laws” and falls squarely within its exclusive functions.[80] Section 17.1 of Rep. Act No. 9189 reads:
428. Sec. 17. Voting by mail.-
429.17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval
of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
430. (a) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud;
431. (b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and
432. (c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned
are adequate and well-secured.
433.Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight Committee. (emphases
supplied)
434.The majority sustains the petitioner as it holds that “[b]y vesting itself with the powers to approve, review, amend and revise the IRR for The
Overseas Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC.”
435.I agree with the majority but wish to add my humble thoughts on this all important constitutional issue--- the extent of the exercise by
Congress of its oversight powers in the implementation of Rep. Act No. 9189. The resolution of the issue entails a two-tiered discussion of the
following: (1) whether Congress has oversight functions over constitutional bodies like the COMELEC; and (2) assuming that it has, whether
Congress exceeded the permissible exercise of its oversight functions.
436. Before proceeding, we must focus on the exact place of the power of congressional oversight in our constitutional canvass. This will involve an
exposition of two principles basic to our constitutional democracy: separation of powers and checks and balances.
437. Separation of powers and checks and balances
438.The principle of separation of powers prevents the concentration of legislative, executive, and judicial powers to a single branch of government
by deftly allocating their exercise to the three branches of government. This principle dates back from the time of Aristotle[81] but the “modern”
concept owes its origin in the seventeenth and eighteenth century writings of political philosophers including Locke and Montesquieu. Their
writings were mainly reactions to the ruinous struggle for power by the monarchs and the parliaments in Western Europe.[82]
439.In his Second Treatise of Civil Government,[83] John Locke advocated the proper division of the legislative, executive and federative powers
of the commonwealth. He defined legislative power as “that which has a right to direct how the force of the commonwealth shall be employed for
preserving the community and the members of it.”[84] He viewed executive power as involving “the execution of the municipal laws of the
society within its self, [and] upon all that are parts of it”[85] and federative power as concerned with “the management of the security and interest
of the public without” including “the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities
without the commonwealth.”[86]
440.Locke expostulated that executive powers should not be placed in one person or group of persons exercising legislative power because “it may be
too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power to execute them, whereby they may
exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and
thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government.”[87] But while the
executive and the federative are two distinct powers, Locke conceded that they are intricately related and thus may be exercised by the same
persons.[88]
441.Locke mothered the modern idea of division of power but it was Montesquieu who refined the concept. In his famed treatise, The Spirit of the
Laws,[89] Montesquieu authoritatively analyzed the nature of executive, legislative and judicial powers and with a formidable foresight counselled
that any combination of these powers would create a system with an inherent tendency towards tyrannical actions, thus:
442. In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the
executive in regard to matters that depend on the civil law. By virtue of the legislative power, the prince or magistrate enacts temporary or
perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies,
establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between
individuals. The latter we shall call the judiciary power, and the other, simply the executive power of the state.
443. The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is
requisite the government be so constituted as one man need not be afraid of another.
444. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
445. Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life
and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power,
the judge might behave with violence and oppression.
446.There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals.”[90]
447.At the time of the American Revolution, the more influential political leaders in the new states subscribed to Montesquieu’s concept of
separation of powers.[91] Some constitutions of the early state governments even referred to the principle. But the concept espoused at that
particular time was a lot different. As then understood, separation of powers requires a watertight compartmentalization of the executive, judicial,
and legislative functions and permits no sharing of government powers between and among the three branches of government. The Massachusetts
Constitution of 1780, for instance, provides:
448.In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the
executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive
powers, or either of them: to the end that it may be a government of laws and not of men.[92]
449.The 1787 U.S. Constitution did not contain a similar provision like that found in the Massachusetts Constitution or any principle proclaiming the
adherence of the Framers to the principle of separation of powers. But legal scholars are of the view that the Framers essentially followed
Montesquieu’s recommendation for the division of powers, noting that the U.S. Constitution vests “all legislative powers” in the Congress of the
United States,[93] the “executive power” in the President,[94] and the “judicial power” in one Supreme Court and in such inferior courts as
Congress may provide.[95]
450.These legal scholars also note that the U.S. Constitution allows the “sharing” of the three great powers between and among the three branches.
The President, for instance, shares in the exercise of legislative power through his veto power, and the courts through their power to make rules of
judicial procedure and especially through their right to interpret laws and invalidate them as unconstitutional. Congress shares in the exercise of
executive power through its confirmation of appointments and assent to treaties, and in the judicial power through its power to create inferior courts
and regulate the number and pay of judges.[96] Thus, they postulate that the Framers established a government guided not by strict separation of
powers but one of checks and balances to prevent the separate branches from “running wild” and to avert deadlocks and breakdowns, viz:
451.The Framers expected the branches to battle each other to acquire and defend power. To prevent the supremacy of one branch over any other in
these battles, powers were mixed; each branch was granted important power over the same area of activity. The British and Conference experience
has led the Framers to avoid regarding controversy between the branches as a conflict between good and evil or right or wrong, requiring definitive,
institutionally permanent resolution. Rather, they viewed such conflict as an expression of the aggressive and perverse part of human nature that
demanded outlet but has to be kept from finding lasting resolution so that liberty could be reserved.[97]
452.Even then, some legal luminaries were of the view that the concept of checks and balances is diametrically opposed to the principle of separation
of powers. James Madison, however, explained that Montesquieu’s concept of separation of powers did not require a strict division of functions
among the three branches of government. Madison defended the Constitution as having sufficient division of functions among the three branches of
government to avoid the consolidation of power in any one branch and also stressed that a rigid segregation of the three branches would undermine
the purpose of the separation doctrine.[98] He noted that unless the three branches “be so far connected and blended as to give to each a
constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be
duly maintained.”[99] Madison’s view has since then been the accepted interpretation of the concept of separation of powers under the
Constitution. Thus, in Youngstown Sheet & Tube Co. v. Sawyer,[100]the U.S. Supreme Court held that “[I]n designing the structure of our
Government and dividing and allocating the sovereign power among the three co-equal branches, the Framers of the Constitution sought to provide
a comprehensive system but the separate powers were not intended to operate with absolute independence.” In Buckley v. Valeo,[101] the Court
ruled that the Constitution by no means contemplates total separation of each of these essential branches of government and the framers viewed the
principle of separation of powers as a vital check against tyranny. It likewise warned that the “hermetic sealing off of the three branches of
Government from one another would preclude the establishment of a Nation capable of governing itself effectively.”[102] Thus, in Nixon v.
Administrator of General Services,[103] the Court rejected the “archaic view of separation of powers as requiring three airtight departments of
government.” In determining whether an act disrupts the proper balance between the coordinate branches, the Court suggested that the proper
inquiry should focus on the extent to which it prevents the other branch from accomplishing its constitutionally assigned functions.[104]
453.In this jurisdiction, our adherence to the principle of separation powers was succinctly discussed by Justice Laurel in Angara v. Electoral
Commission[105] decided in 1936, less than a year after the effectivity of the 1935 Constitution. Justice Laurel emphasized that “[T]he 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.”[106] Thus:
454.Each department of the government has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. But it
does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in
the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law
notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly.
The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly
operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointment of
certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to
determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the
National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments.
And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.[107]
455.In Planas v. Gil,[108] Justice Laurel further discussed the intricate interplay of the principle of separation of powers and checks and
balances, viz:
456.The classical separation of governmental powers, whether viewed in the light of political philosophy of Aristotle, Locke or Montesquieu, or to the
postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in
independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down “with mathematical
precision and divide the branches in watertight compartments” not only because “the ordinances of the Constitution do not establish and divide
fields of black and white” but also because “even more specific to them are found to terminate in a penumbra shading gradually from one extreme
to the other.”[109]
457.It is now beyond debate that the principle of separation of powers (1) allows the “blending” of some of the executive, legislative, or judicial
powers in one body; (2) does not prevent one branch of government from inquiring into the affairs of the other branches to maintain the balance of
power; (3) but ensures that there is no encroachment on matters within the exclusive jurisdiction of the other branches.
458.For its part, this Court checks the exercise of power of the other branches of government through judicial review. It is the final arbiter of disputes
involving the proper allocation and exercise of the different powers under the Constitution. Thus:
459.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. [110]
460.The power of judicial review is, however, 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,” for “any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation.”[111] Courts are also enjoined to
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.”[112]
461.The role of the judiciary in mapping the metes and bounds of powers of the different branches of government was redefined in the 1987
Constitution which expanded the jurisdiction of this Court to include the determination of “grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.”[113] The expansion was made because of the dissatisfaction with
the practice of this Court in frequently invoking the “political question”[114] doctrine during the period of martial law to dodge its duty.[115] Be
that as it may, the expanded power “definitely does not do away with the political question doctrine itself.”[116]
462.Thus, in Marcos v. Manglapus,[117] the Court held:
463. Under the Constitution, judicial power includes the duty 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. [Art. VIII, Sec. 1.] Given this wording, we cannot agree
with the Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court to decide.
464.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. But nonetheless there remain issues beyond the
Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor
can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.[118]
465.Since then, the Court has used its expanded power to check acts of the House of Representatives,[119] the President,[120] and even
of independent bodies such as the Electoral Tribunal,[121] the Commission on Elections[122] and the Civil Service Commission.[123]
466.Congress checks the other branches of government primarily through its law making powers. Congress can create administrative agencies, define
their powers and duties, fix the terms of officers and their compensation.[124] It can also create courts, define their jurisdiction and reorganize the
judiciary so long as it does not undermine the security of tenure of its members.[125] The power of Congress does not end with the finished task
of legislation. Concomitant with its principal power to legislate is the auxiliary power to ensure that the laws it enacts are faithfully
executed. As well stressed by one scholar, the legislature “fixes the main lines of substantive policy and is entitled to see that administrative policy
is in harmony with it; it establishes the volume and purpose of public expenditures and ensures their legality and propriety; it must be satisfied that
internal administrative controls are operating to secure economy and efficiency; and it informs itself of the conditions of administration of remedial
measure.”[126]
467. Concept and bases of congressional oversight
468.Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over
the implementation of legislation it has enacted.[127] Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional
perception of public interest.[128]
469.The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances
inherent in a democratic system of government.[129] Among the most quoted justifications for this power are the writings of John Stuart Mill
and Woodrow Wilson. In his Consideration of Representative Government,[130] Mill wrote that the duty of the legislature is “to watch and
control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one
considers objectionable; and to censure them if found condemnable.”[131] Wilson went one step farther and opined that the legislature’s informing
function should be preferred to its legislative function. He emphasized that “[E]ven more important than legislation is the instruction and guidance
in political affairs which the people might receive from a body which kept all national concerns suffused in a broad daylight of discussion.”[132]
470.Over the years, Congress has invoked its oversight power with increased frequency to check the perceived “exponential accumulation of
power” by the executive branch.[133] By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority
to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them.[134]
471.The oversight power has also been used to ensure the accountability of regulatory commissions like the Securities and Exchange Commission
and the Federal Reserve Board, often referred to as representing a “headless fourth branch of government.”[135] Unlike other ordinary
administrative agencies, these bodies are independent from the executive branch and are outside the executive department in the discharge of their
functions.[136]
472. Categories of congressional oversight functions
473.The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny,
investigation and supervision.[137]
474.a. Scrutiny
475.Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations.[138] Its primary purpose is to
determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may
request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the
agency involved.
476.Legislative scrutiny is based primarily on the power of appropriation of Congress. Under the Constitution, the “power of the purse” belongs
to Congress.[139] The President may propose the budget, but still, Congress has the final say on appropriations. Consequently, administrative
 officials appear every year before the appropriation committees of Congress to report and submit a budget estimate and a program of administration
for the succeeding fiscal year. During budget hearings, administrative officials defend their budget proposals.
477.The power of appropriation carries with it the power to specify the project or activity to be funded.[140] Hence, the holding of budget
hearing has been the usual means of reviewing policy and of auditing the use of previous appropriation to ascertain whether they have been
disbursed for purposes authorized in an appropriation act. The consideration of the budget is also an opportunity for the lawmakers to express their
confidence in the performance of a Cabinet Secretary or to manifest their disgust or disfavor of the continuance in office of a bureaucrat.
[141] Congress can even curtail the activities of the administrative agencies by denial of funds.[142] In the United States, for instance, Congress
brought to end the existence of the Civilian Conservation Corps, the National Youth Administration and the National Resources Planning Board,
simply by denying them any appropriation.[143]
478.But legislative scrutiny does not end in budget hearings. Congress can ask the heads of departments to appear before and be heard by
either House of Congress on any matter pertaining to their departments. Section 22, Article VI of the 1987 Constitution provides:
479. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each
House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted
to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations
shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and
the President so states in writing, the appearance shall be conducted in executive session.
480.This provision originated from the Administrative Code[144] and was later elevated to the level of a constitutional provision due to its
“great value in the work of the legislature.”[145] In drafting the 1935 Constitution, some delegates opposed the provision arguing that it is a
feature of a parliamentary system and its adoption would make our government a “hybrid system.”[146] But mainly attacked was the provision
authorizing the department secretaries on their own initiative to appear before the legislature, with the right to be heard on any matter pertaining to
their departments. It was pointed out that this would “give a chance to the department secretaries to lobby for items in the appropriation bill or for
provisions of other bills in which they had special interest, permitting them to bear influence and pressure upon Members of the law-making body,
in violation of the principle of separation of powers underlying the Constitution.”[147] Despite the objections, the provision was adopted to
“prevent the raising of any question with respect to the constitutionality of the practice” and “to make open and public the relations between the
legislative and the executive departments.”[148] As incorporated in the 1935 Constitution, the provision reads:
481.The heads of departments upon their own initiative or upon the request of the National Assembly on any matter pertaining to their departments
unless the public interest shall require otherwise and the President shall state so in writing.[149]
482.The whole tenor of the provision was permissive: the department heads could appear but the legislative was not obliged to entertain them;
reciprocally, the legislature could request their appearance but could not oblige them especially if the President objected.[150] The rule radically
changed, however, with the adoption of the 1973 Constitution, establishing a parliamentary system of government. In a parliamentary system, the
administration is responsible to the Parliament and hence, the Prime Minister and the Cabinet Members may be “required to appear and answer
questions and interpellations” to give an account of their stewardship during a “question hour,” viz:
483. Sec. 12 (1) There shall be a question hour at least once a month or as often as the Rules of the Batasang Pambansa may provide, which shall be
included in its agenda, during which the Prime Minister, the Deputy Prime Minister or any Minister may be required to appear and answer
questions and interpellations by Members of the Batasang Pambansa. Written questions shall be submitted to the Speaker at least three days before
a scheduled question hour. Interpellations shall not be limited to the written questions, but may cover matters related thereto. The agenda shall
specify the subjects of the question hour. When the security of the State so requires and the President so states in writing, the question hour shall be
conducted in executive session.
484.The “question hour” was retained despite the reversion to the presidential system in 1981. During the deliberations of the 1987 Constitution, the
report of the legislative committee called for the adoption of the “question hour” for the following reasons:
485.… Its purposes are to elicit concrete information from the administration, to request its intervention, and when necessary, to expose abuses and
seek redress. The procedure provides the opposition with a means of discovering the government’s weak points and because of the publicity it
generates, it has a salutary influence on the administration. On the whole, because of the detailed facts elicited during the interpellation or in the
written answers, it will help members to understand the complicated subject matter of bills and statutory measures laid before the Assembly. It may
be added that the popularity of this procedure can be attributed to the fact that in making use of his right to ask questions, the member is a
completely free agent of the people. The only limits on his actions are the rules governing the admissibility of questions concerned with matters of
form and not with the merits of the issue at hand. The fact that we also impose a time limit means that the government is obliged to furnish the
information asked for and this obligation is what gives the procedure its real strength….[151]
486.This proposal was vigorously opposed on the ground of separation of powers. CONCOM Delegate Christian Monsod pointed out that the
provision was historically intended to apply to members of the legislature who are in the executive branch typical in a parliamentary form of
government. In fine, the “question hour” was conducted on a peer basis. But since the delegates decided to adopt a presidential form of
government, cabinet members are purely alter egos of the President and are no longer members of the legislature. To require them to appear before
the legislators and account for their actions “puts them on unequal terms with the legislators” and “would violate the separation of powers of the
executive and the legislative branches.”[152] Delegate Monsod, however, recognized that a mechanism should be adopted where Cabinet members
may be summoned and may, even on their own initiative, appear before the legislature. This, he said, would promote coordination without
subordinating one body to another. He thus suggested that the original tenor of the provision in the 1935 Constitution be retained.[153]
487. After much deliberation, delegate Monsod’s suggestion prevailed. Thus, the President may or may not consent to the appearance of the heads of
departments; and even if he does, he may require that the appearance be in executive session. Reciprocally, Congress may refuse the initiative
taken by a department secretary.
488.Likewise, Congress exercises legislative scrutiny thru its power of confirmation. Section 18, Article VI of the 1987 Constitution provides for
the organization of a Commission on Appointments consisting of the President of the Senate as ex officio Chairman, twelve Senators and twelve
members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties or
organizations registered under the party-list system. Consent of the Commission on Appointments is needed for the nominees of the President for
the following positions: (a) heads of executive departments, (b) ambassadors, other public ministers and consuls, (c) officers of the armed forces
from the rank of colonel or naval captain, and (d) other officers whose appointments are vested with the President under the Constitution.[154]
489. Through the power of confirmation, Congress shares in the appointing power of the executive. Theoretically, it is intended to lessen political
considerations in the appointment of officials in sensitive positions in the government. It also provides Congress an opportunity to find out whether
the nominee possesses the necessary qualifications, integrity and probity required of all public servants.
490.In the United States, apart from the appropriation and confirmation powers of the U.S. Congress, legislative scrutiny finds expression in the
Legislative Reorganization Act of 1946 charging all House and Senate Standing Committees with continuous vigilance over the execution of any
and all laws falling within their respective jurisdictions “with a view to determining its economy and efficiency.”[155] Pursuant to this law, each
 committee was authorized to hire a certain number of staff employees. All Senate committees were likewise given the power to subpoena witnesses
and documents.[156]
491. b. Congressional investigation
492.While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation
involves a more intense digging of facts.[157] The power of Congress to conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, viz:
493. The Senate or the House of Representatives or any of its respective committee 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.
494.But even in the absence of an express provision in the Constitution, congressional investigation has been held to be an essential and appropriate
auxiliary to the legislative function. In the United States, the lack of a constitutional provision specifically authorizing the conduct of legislative
investigations did not deter its Congresses from holding investigation on suspected corruption, mismanagement, or inefficiencies of government
officials. Exercised first in the failed St. Clair expedition in 1792, the power to conduct investigation has since been invoked in the Teapot Dome,
Watergate, Iran-Contra, and Whitewater controversies.[158] Subsequently, in a series of decisions, the Court recognized “the danger to effective
and honest conduct of the Government if the legislative power to probe corruption in the Executive branch were unduly unhampered.”[159]
495.In Eastland v. United States Servicemen’s Fund,[160] the U.S. Supreme Court ruled that the scope of the congressional power of inquiry
“is penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”[161] It encompasses everything that
concerns the administration of existing laws as well as proposed or possibly needed statutes.[162] In the exercise of this power, congressional
inquiries can reach all sources of information and in the absence of countervailing constitutional privilege or self-imposed restrictions upon its
authority, Congress and its committees, have virtually, plenary power to compel information needed to discharge its legislative functions from
executive agencies, private persons and organizations. Within certain constraints, the information so obtained may be made public.
[163] In McGrain v. Daugherty,[164] it held that “a legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to effect change.”[165] But while the congressional power of inquiry is broad, it is not
unlimited. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress.”[166] Moreover, an investigating
committee has only the power to inquire into matters within the scope of the authority delegated to it by its parent body.[167] But once its
jurisdiction and authority, and the pertinence of the matter under inquiry to its area of authority are established, a committee’s investigative
purview is substantial and wide-ranging.[168]
496.American jurisprudence upholding the inherent power of Congress to conduct investigation has been adopted in our jurisdiction in
Arnault v. Nazareno,[169] decided in 1950, when no provision yet existed granting Congress the power to conduct investigation. In the said case,
the Senate passed Resolution No.8 creating a special committee to investigate the Buenavista and the Tambobong Estates Deal wherein the
government was allegedly defrauded P5,000,000.00. The special committee examined various witnesses, among whom was Jean L. Arnault. Due
to the refusal of Arnault to answer a question which he claimed to be “self-incriminatory,”[170] the Senate passed a resolution citing Arnault in
contempt. The Senate committed him to the custody of the Sergeant-at-Arms and ordered his imprisonment until he shall have answered the
question. Arnault filed a petition before this Court contending that (a) the Senate has no power to punish him for contempt; (b) the information
sought to be obtained by the Senate is immaterial and will not serve any intended or purported legislation; and (c) the answer required of him will
incriminate him.
497. Upholding the power of the Senate to punish Arnault for contempt, the Court ruled as follows:
498.Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function
as to be implied. In other words, the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which legislation is
intended to affect or change; and where the legislative body does not itself possess the requisite information — which is not frequently true —
recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed… The fact
that the Constitution expressly gives the Congress the power to punish its Members for disorderly behaviour, does not by necessary implication
exclude the power to punish for contempt any other person.[171]
499.The Court further ruled that the power of the Senate to punish a witness for contempt does not terminate upon the adjournment of the session.
[172] It held that the investigation was within the power of the Senate since the “transaction involved a questionable and allegedly unnecessary
and irregular expenditure of no less than P5,000,000.00 of public funds, of which the Congress is the constitutional guardian.”[173] The
investigation was also found to be “in aid of legislation.” As result of the yet unfinished investigation, the Court noted that the investigating
committee has recommended, and the Senate has approved three bills.[174]
500.The Court further held that once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the
investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject to his constitutional right
against self-incrimination. The inquiry must be material or necessary to the exercise of a power in it vested by the Constitution. Hence, a witness
cannot be coerced to answer a question that obviously has no relation to the subject of the inquiry. But the Court explained that “the materiality of
the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible
legislation.” The reason is that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined
by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single
question.[175]
501.Finally, the Court ruled that the ground on which Arnault invoked the right against self-incrimination “is too shaky, infirm, and slippery to afford
him safety.”[176] It noted that since Arnault himself said that the transaction was legal, and that he gave the P440,000.00 to a representative of
Burt in compliance with the latter’s verbal instruction, there is therefore no basis upon which to sustain his claim that to reveal the name of that
person would incriminate him.[177] It held that it is not enough for the witness to say that the answer will incriminate him for he is not the sole
judge of his liability, thus:
502.…[T]he danger of self-incrimination must appear reasonable and real to the court, from all the circumstances and from the whole case, as well as
from his general conception of the relations of the witness… The fact that the testimony of the witness may tend to show that he has violated the
law is not sufficient to entitle him to claim the protection of the constitutional provision against self-incrimination, unless he is at the same time
liable to prosecution and punishment for such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for protection
against an imaginary danger, or to secure immunity to a third person.[178]
503.As now contained in the 1987 Constitution, the power of Congress to investigate is circumscribed by three limitations, namely: (a) it must be
in aid of its legislative functions, (b) it must be conducted in accordance with duly published rules of procedure, and (c) the persons appearing
therein are afforded their constitutional rights.
504.In Bengzon, Jr. v. Senate Blue Ribbon Committee,[179] this Court held that the senate committee exceeded the permissible exercise of
legislative investigation. The case started with a speech by Senator Enrile suggesting the need to determine possible violation of law in the alleged
transfer of some properties of former Ambassador Benjamin “Kokoy” Romualdez to the Lopa Group of Companies. The Senate Blue Ribbon
Committee decided to investigate the transaction purportedly in aid of legislation. When the Blue Ribbon Committee summoned the petitioners to
appear, they asked this Court for a restraining order on the ground, among others, that the investigation was not in aid of legislation and that their
appearance before the investigating body could prejudice their case before the Sandiganbayan. Ruling in favor of the petitioner, we held as
follows:
505. Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible
violation of Sec. 5 of RA No. 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.” In other words, the purpose of the inquiry to
be conducted by respondent Blue Ribbon Committee was to find out whether or not the relatives of President Aquino, particularly, Mr. Ricardo
Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin “Kokoy” Romualdez to the Lopa
Group. There appears to be, therefore, no intended legislation involved.
506.The conduct of legislative investigation is also subject to the rules of each House. In the House of Representatives,[180] an inquiry may be
initiated or conducted by a committee motu proprio on any matter within its jurisdiction upon a majority vote of all its Members[181] or upon
order of the House of Representatives[182] through:
507. (1) the referral of a privilege speech containing or conveying a request or demand for the conduct of an inquiry, to the appropriate committee,
upon motion of the Majority Leader or his deputies; or
508.(2) the adoption of a resolution directing a committee to conduct an inquiry reported out by the Committee on Rules after making a
determination on the necessity and propriety of the conduct of an inquiry by such committee: Provided, That all resolutions directing any
committee to conduct an inquiry shall be referred to the Committee on Rules; or
509.(3) the referral by the Committee on Rules to the appropriate committee, after making a determination on the necessity and propriety of the
conduct of inquiry by such committee, of a petition filed or information given by a Member of the House requesting such inquiry and endorsed by
the Speaker: Provided, That such petition or information shall be given under oath, stating the facts upon which it is based, and accompanied by
supporting affidavits.[183]
510.The committee to which a privilege speech, resolution, petition or information requesting an inquiry is referred may constitute and appoint sub-
committees composed of at least one-third (1/3) of the committee for the purpose of performing any and all acts which the committee as a whole is
authorized to perform, except to punish for contempt. In case a privilege speech is referred to two or more committees, a joint inquiry by the said
committees shall be conducted. The inquiries are to be held in public except when the committee or sub-committee deems that the examination of a
witness in a public hearing may endanger national security. In which case, it shall conduct the hearing in an executive session.[184]
511.The Rules further provide that “the filing or pendency of a case before any court, tribunal or quasi-judicial or administrative bodies shall not stop
or abate any inquiry conducted to carry out a specific legislative purpose.”[185] In exercise of congressional inquiry, the committee has the power
“to issue subpoena and subpoena duces tecum to a witness in any part of the country, signed by the chairperson or acting chairperson and the
Speaker or acting Speaker.”[186] Furthermore, the committee may, by a vote of two-thirds (2/3) of all its members constituting a quorum, punish
for contempt any person who: (a) refuses, after being duly summoned, to obey such summons without legal excuse; (b) refuses to be sworn or
placed under affirmation; (c) refuses to answer any relevant inquiry; (d) refuses to produce any books, papers, documents or records that are
relevant to the inquiry and are in his/her possession; (e) acts in a disrespectful manner towards any member of the Committee or commits
misbehavior in the presence of the committee; or (f) unduly interferes in the conduct of proceedings during meetings.[187]
512.Nevertheless, any person called to be a witness may be represented by a counsel[188] and is entitled to all rights including the right against self-
incrimination.[189]
513. c. Legislative supervision
514.The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. “Supervision” connotes
a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area.
[190] While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive
branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits
Congress to retain part of that delegated authority.
515.Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an
agency to present the proposed regulations to Congress, which retains a “right” to approve or disapprove any regulation before it takes
effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time,
only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively approves it.[191]
516.The legislative veto was developed initially in response to the problems of reorganizing the U.S. Government structure during the Great
Depression in early 20th century. When U.S. President Hoover requested authority to reorganize the government in 1929, he coupled his request
with a proposal for legislative review. He proposed that the Executive “should act upon approval of a joint Committee of Congress or with the
reservation of power of revision by Congress within some limited period adequate for its consideration.”[192] Congress followed President
Hoover’s suggestion and authorized reorganization subject to legislative review.[193] Although the reorganization authority reenacted in 1933 did
not contain a legislative veto provision, the provision returned during the Roosevelt administration and has since been renewed several times.
[194] Over the years, the provision was used extensively. Various American Presidents submitted to Congress some 115 Reorganization Plans, 23
of which were disapproved pursuant to legislative veto provisions.[195]
517.During World War II, Congress and the President applied the legislative veto procedure to resolve the delegation problem involving national
security and foreign affairs. The legislative veto offered the means by which Congress could confer additional authority to the President while
preserving its own constitutional role. During this period, Congress enacted over 30 statutes conferring powers on the Executive with legislative
veto provisions.[196]
518.After World War II, legislative veto provisions have been inserted in laws delegating authority in new areas of governmental involvement
including the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of federal pay rates.[197] It has also
figured prominently in resolving a series of major constitutional disputes between the President and Congress over claims of the President to broad
impoundment, war and national emergency powers.[198] Overall, 295 congressional veto-type procedures have been inserted in 196 different
statutes since 1932 when the first veto provision was enacted into law.[199]
519.Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of
government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to
cancel particular exercise of such power without having to pass new legislation or to repeal existing law.[200] They contend that this arrangement
 promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies.[201] One proponent thus
explains:
520.It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the
complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals
and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims,
but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive
disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of
overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented
in accordance with legislative intent and thus whether legislative intervention is appropriate.[202]
521.Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment
measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the
separation of powers guaranteed by the Constitution.[203] They contend that legislative veto constitutes an impermissible evasion of the
President’s veto authority and intrusion into the powers vested in the executive or judicial branches of government.[204] Proponents counter that
legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power.
[205] They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of
delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the
opportunity for ongoing and binding expressions of congressional intent.[206] In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of “subordinate law” or those enacted by the executive branch pursuant to a delegation of authority
by Congress. They further argue that legislative veto “is a necessary response by Congress to the accretion of policy control by forces outside its
chambers.” In an era of delegated authority, they point out that legislative veto “is the most efficient means Congress has yet devised to retain
control over the evolution and implementation of its policy as declared by statute.”[207]
522.In Immigration and Naturalization Service v. Chadha,[208] the U.S. Supreme Court resolved the validity of legislative veto provisions. The
case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to § 244(c)(2) authorizing either
House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board
of Immigration Appeals dismissed the alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States
Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the alien’s deportation and that § 244(c)(2)
violated the constitutional doctrine on separation of powers.
523. On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and
instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in
purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses
and presentment to the President. Thus:
524. Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In
purporting to exercise power defined in Art I, § 8, cl 4, to “establish a uniform Rule of Naturalization,” the House took action that had the purpose
and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all
outside the Legislative Branch. Section 244(c)(2) purports to authorize one House Congress to require the Attorney General to deport an individual
alien whose deportation otherwise would be canceled under § 244. The one-House veto operated in these cases to overrule the Attorney General
and mandate Chadha’s deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action altered
Chadha’s status.
525. The legislative character of the one-House veto in these cases is confirmed by the character of the congressional action it supplants. Neither the
House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together,
could effectively require the Attorney General, in exercise of legislatively delegated authority, had determined the alien should remain in the
United States. Without the challenged provision in § 244(c)(2), this could have been achieved, if at all, only by legislation requiring deportation.
Similarly, a veto by one House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or
as a repeal of § 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art I.
526.The nature of the decision implemented by one-House veto in these cases further manifests its legislative character. After long experience with
the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the
Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this
choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art I.
Disagreement with the Attorney General’s decision on Chadha’s deportation- that is, Congress’ decision to deport Chadha- no less than Congress’
original choice to delegate to the Attorney General the authority to make decision, involves determinations of policy that Congress can implement
in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that
delegation is legislatively altered or revoked.[209]
527.Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto
provisions in the Natural Gas Policy Act of 1978[210] and the Federal Trade Commission Improvement Act of 1980.[211] Following this
precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both
Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised.[212]
528.Given the concept and configuration of the power of congressional oversight, the next level of inquiry is whether congress exceeded its
permissible exercise in the case at bar. But before proceeding, a discussion of the nature and powers of the Commission on
Elections as provided in the 1987 Constitution is decisive to the issue.
529. Congressional Oversight and COMELEC
530.The Commission on Elections (COMELEC) is a constitutional body exclusively charged with the enforcement and administration of “all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,”[213] and is invested with the power to decide
all questions affecting elections save those involving the right to vote. [214]
531.Given its important role in preserving the sanctity of the right of suffrage,[215] the COMELEC was purposely constituted as a
body separate from the executive, legislative, and judicial branches of government.[216] Originally, the power to enforce our election laws was
vested with the President and exercised through the Department of the Interior. According to Dean Sinco,[217] however, the view ultimately
emerged that an independent body could better protect the right of suffrage of our people. Hence, the enforcement of our election laws, while an
executive power, was transferred to the COMELEC.
532.The shift to a modified parliamentary system with the adoption of the 1973 Constitution did not alter the character of COMELEC as an
independent body.[218] Indeed, a “definite tendency to enhance and invigorate the role of the Commission on Elections as the independent
constitutional body charged with the safeguarding of free, peaceful and honest elections” has been observed.[219] The 1973
Constitution broadened the power of the COMELEC by making it the sole judge of all election contests relating to the election, returns and
qualifications of members of the national legislature and elective provincial and city officials.[220] Thus, the COMELEC was given judicial
power aside from its traditional administrative and executive functions.
533.The trend towards strengthening the COMELEC continued with the 1987 Constitution. Today, the COMELEC enforces and administers
all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional,
provincial and city elective officials are under its exclusive original jurisdiction while all contests involving elective municipal and barangay
officials are under its appellate jurisdiction.[221]
534.Several safeguards have been put in place to protect the independence of the COMELEC from unwarranted encroachment by the other
branches of government. While the President appoints the Commissioners with the concurrence of the Commission on Appointments, the
Commissioners are not accountable to the President in the discharge of their functions. They have a fixed tenure and are removable only by
impeachment.[222] To ensure that not all Commissioners are appointed by the same President at any one time, a staggered system of appointment
was devised. Thus, of the Commissioners first appointed, three shall hold office for seven years, three for five years, and the last three for three
years.[223] Reappointment and temporary designation or appointment is prohibited.[224] In case of vacancy, the appointee shall only serve the
unexpired term of the predecessor.[225] The COMELEC is likewise granted the power to promulgate its own rules of procedure,[226] and to
appoint its own officials and employees in accordance with Civil Service laws.[227]
535.The COMELEC exercises quasi-judicial powers but it is not part of the judiciary. This Court has no general power of supervision over the
Commission on Elections except those specifically granted by the Constitution.[228] As such, the Rules of Court are not applicable to the
Commission on Elections.[229] In addition, the decisions of the COMELEC are reviewable only by petition for certiorari on grounds of grave
abuse of discretion,[230] viz:
536. Conceived by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence and all the needed
concomitant powers, it is but proper that the Court should accord the greatest measure of presumption of regularity to its course of action and
choice of means in performing its duties, to the end that it may achieve its designed place in the democratic fabric of our government. Ideally, its
members should be free from all suspicions of partisan inclinations, but the fact that actually some of them have had stints in the arena of politics
should not, unless the contrary is shown, serve as basis for denying to its actuations the respect and consideration that the Constitution contemplates
should be accorded to it, in the same manner that the Supreme Court itself which from time to time may have members drawn from the political
ranks or even from the military is at all times deemed insulated from every degree or form of external pressure and influence as well as improper
internal motivations that could arise from such background or orientation.
537.We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over orders, rulings and
decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and
substantial denial of due process.[231]
538.The COMELEC is, however, subject to congressional scrutiny especially during budget hearings. But Congress cannot abolish the COMELEC
as it can in case of other agencies under the executive branch. The reason is obvious. The COMELEC is not a mere creature of the legislature; it
owes its origin from the Constitution. Furthermore, the salary of the Chairman and the Commissioners cannot be decreased during their tenure.
[232] Enjoying fiscal autonomy, the COMELEC has a wider discretion in the disbursement and allocation of approved appropriations. To
safeguard the COMELEC from undue legislative interference, the 1987 Constitution provides that its approved annual appropriations are to be
automatically and regularly released.[233] Also, Congress has no power to call the commissioners of the COMELEC to a question hour. The
Constitution provides that the question hour is limited to heads of departments under the Executive branch, and the deliberations during the drafting
of the 1987 Constitution clearly reflect this sentiment. Be that as it may, the COMELEC is mandated to “submit to the President and the Congress
a comprehensive report on the conduct of each election, plebiscite, initiative, referendum and recall.”[234] This provision allows Congress to
review and assess the effectivity of election laws and if necessary, enact new laws or amend existing statutes.
539.Be that as it may, I respectfully submit that the legislative veto power or congressional oversight power over the authority of COMELEC
to issue rules and regulations in order to enforce election laws is unconstitutional.
540. As aforediscussed, the Constitution divided the powers of our government into three categories, legislative, executive, and judicial. Although not
“hermetically sealed” from one another, the powers of the three branches are functionally identifiable. In this respect, legislative power is generally
exercised in the enactment of the law; executive power, in its execution; and judicial power, in its interpretation. In the absence of specific
provision in the Constitution, it is fundamental under the principle of separation of powers that one branch cannot exercise or share the power of
the other.
541.In addition, our Constitution created other offices aside from the executive, the legislative and the judiciary and defined their powers and
prerogatives. Among these bodies especially created by the Constitution itself is the COMELEC.
542.The COMELEC occupies a distinct place in our scheme of government. As the constitutional body charged with the administration of our
election laws, it is endowed with independence in the exercise of some of its powers and the discharge of its responsibilities. The power to
promulgate rules and regulations in order to administer our election laws belongs to this category of powers as this has been vested
exclusively by the 1987 Constitution to the COMELEC. It cannot be trenched upon by Congress in the exercise of its oversight powers.
543.In Gallardo v. Tabamo, Jr.,[235] this Court traced the origin of COMELEC’s power to promulgate rules and regulations. It was initially a
statutory grant. Both the 1935 and the 1973 Constitutions did not explicitly grant the COMELEC the power to promulgate rules and regulations.
The power was vested by Congress to the COMELEC in the Omnibus Election Code,[236] viz:
544. Sec. 52. Powers and functions of the Commission on Elections.- In addition to the powers and functions conferred upon it by the Constitution, the
Commission shall have the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections, and shall:
545. …
546. (c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and
administer.
547. …
548.This statutory power was elevated to a constitutional status with the insertion of the word “regulations” in section 2(1) of Article IX-C of the
1987 Constitution, viz:
549.While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the conduct of elections,"
exercised "all other functions . . . conferred upon it by law" and had the power to deputize all law enforcement agencies and instrumentalities of the
Government for the purpose of insuring free, orderly and honest elections, and under the 1973 Constitution it had, inter alia, the power to (a)
 "[E]nforce and administer all laws relative to the conduct of elections" (b) "[D]eputize, with the consent or at the instance of the Prime Minister,
law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free,
orderly, and honest elections," and (c) "[P]erform such other functions as may be provided by law," it was not expressly vested with the power to
promulgate regulations relative to the conduct of an election. That power could only originate from a special law enacted by Congress; this is the
necessary implication of the above constitutional provision authorizing the Commission to "[P]erform such other functions as may be provided by
law."
550. The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent portion of
Section 2 of Article IX-C thereof reads as follows:
551. "SEC. 2. The Commission on Elections shall exercise the following powers and functions:
552.(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall." (emphasis supplied)
553. x x x xxx xxx
554. The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present Constitution took
into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was already in force when the said
Constitution was drafted and ratified, to:
555. x x x xxx xxx
556. "Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and
administer . . . ."
557.Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more
flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to
depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly independent Commission on
Elections committed to ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of the people's sacred right of
suffrage — the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.[237]
558.The elevation of the COMELEC’s power to promulgate rules and regulations in the 1987 Constitution is suffused with
significance. Heretofore, it was Congress that granted COMELEC the power to promulgate rules and regulations, and hence, Congress can
withdraw or restrict it by the exercise of its veto or oversight power. Under the 1987 Constitution, the power to promulgate rules and regulations
has been directly granted by the Constitution and no longer by Congress. Undoubtedly, the power was granted to COMELEC to strengthen its
independence, hence, its exercise is beyond invasion by Congress. Under any lens, sections 19 and 25 of Rep. Act No. 9189 constitute undue
restrictions on the constitutional power of the COMELEC to promulgate rules and regulations for such rules are made subject to the prior review
and approval of Congress. The impugned provisions can result in the denial of this constitutionally conferred power because Congress can veto the
rules and regulations the COMELEC has promulgated. Thus, I respectfully submit that sections 19 and 25 of Rep. Act No. 9189 granting Congress
the power to review, revise, amend and approve the implementing rules and regulations of the COMELEC, otherwise known as subordinate
legislations in other countries, are unconstitutional.
559. I now come to section 17.1 of Rep. Act No. 9189 which provides:
560. Sec. 17. Voting by mail.-
561. 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
562. (d) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud;
563. (e) Where there exists a technically established identification system that would preclude multiple or proxy voting; and
564. (f) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned
are adequate and well-secured.
565.Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight Committee. (emphases
supplied)
566.From the law itself, it is clear that Congress has already set the necessary standards to guide the COMELEC in identifying the countries where
voting by mail may be allowed, viz: (1) the countries must have a mailing system which is fairly developed and secure to prevent occasion of
fraud; (2) there exists a technically established identification that would preclude multiple or proxy voting; and (3) where the system of reception
and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured.
567.Since the legislative standards have been defined, all that remains is their enforcement. Our Constitution has specifically given the COMELEC
the power to enforce and administer all laws and regulations relative to the conduct of an election. The power is exclusive and it ought to be self-
evident that it cannot be subject to review and revision or veto by Congress in the exercise of its oversight power. Again, the reason for the
exclusivity is to insulate COMELEC from the virus of partisan politics. In the exercise of this exclusive power, the Commission must be accorded
considerable latitude. Unless the means and methods adopted by COMELEC are clearly illegal or constitute grave abuse of discretion, they should
not be interfered with.[238] Thus:
568.There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of
good government. In the matter of the administration of the laws relative to the conduct of elections, as well as in the appointment of election
inspectors, we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal
mandates properly belongs to it. Due regard to the independent character of the Commission, as ordained in the Constitution, requires that the
power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases. We are not
satisfied that the present suit is one of such cases.[239]
569.I join the majority in holding that section 17.1 of Rep. Act No. 9189 is unconstitutional for it allows Congress to negate the exclusive power of
the COMELEC to administer and enforce election laws and regulations granted by the Constitution itself.
570.This is not to maintain that the Implementing Rules and Regulations promulgated by the COMELEC, or the system it devised to implement
voting by mail cannot be challenged. If they are illegal or constitute grave abuse of discretion, the courts can strike them down in an appropriate
case. This power is vested to the courts under section 1, Article VIII of the Constitution defining the scope of judicial power, and more specifically
under section 5, Article VIII empowering this Court to review, revise, reverse, modify or affirm on appeal or certiorari, “all cases in which the
constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation is in question.” Again, this power is exclusive and is not meant to be shared by any other branch or agency of the government.
571. In sum, it is my humble view that in the case at bar, Congress exceeded the permissible exercise of its oversight powers for the following reasons:
(1) it restricts the COMELEC’s constitutional grant of power to promulgate rules and regulations; and (2) it invades COMELEC’s exclusive
constitutional domain to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall.
572.I wish to stress, however, that granting the petition will not invalidate the entire Rep. Act No. 9189. It does not also mean that all overseas
Filipinos cannot vote. The law affects two classes of overseas Filipinos: (1) those who remain a domiciliary of the Philippines but were absent at
the time of the elections either briefly or for a long time; and (2) those who are now considered domiciled in foreign countries. To the first class of
overseas Filipinos belong the contract workers, students, members of the diplomatic corps and their families, businessmen, and the like. To the
second class belong Filipinos who are considered immigrants or permanent residents of foreign countries. The constitutional challenge in the case
at bar appertains only to the inclusion of the second category of overseas Filipinos in the coverage of Rep. Act No. 9189. Likewise, the challenge
on the exercise of Congressional oversight power over the COMELEC does not taint the core of the law. It merely affects the procedure in adopting
the mechanisms to implement the law. It cannot void the whole law.
573.IN VIEW OF THE FOREGOING, I dissent from the majority’s ruling upholding the constitutionality of section 5(d) of Rep. Act No. 9189,
which allows an immigrant or a permanent resident of a foreign country to vote for President, Vice-President, Senators and Party-List
Representatives after executing the required affidavit. I concur, however, with the majority’s ruling upholding the constitutionality of section 18.5
of Rep. Act No. 9189 with respect to the authority given to the COMELEC to proclaim the winning candidates for Senators and Party-List
Representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President. I also concur
with the majority with respect to the unconstitutionality of sections 17.1, 19 and 25 of Rep. Act No. 9189 subjecting the implementation of voting
by mail, and the Implementing Rules and Regulations of Rep. Act No. 9189 to be promulgated by COMELEC, to prior review and approval by
Congress.
574. I so vote.
575.
576. SEPARATE OPINION
577.CARPIO-MORALES, J.:
578.
579.In the assault against the validity of certain provisions of the newly enacted Republic Act No. 9189 or The Overseas Absentee Voting Act of 2003,
the pivotal issue centers on the constitutionality of the grant, under Section 5(d) of the law, of voting rights to Filipino immigrants or
permanent residents in foreign countries, conditioned on their execution of an affidavit declaring that they shall resume actual physical
permanent residence in the Philippines within three years from the approval of their registration as absentee voters.
580.The controversy arises because the Constitution prescribes, among other requirements for the exercise of suffrage, that a Filipino citizen must have
resided in the Philippines for at least one year and in the place where he is to vote for at least six months immediately preceding the election.[1]
581.Residence for purposes of ascertaining the right to vote and be voted for in public office has been jurisprudentially interpreted to mean domicile
which is an individual’s permanent home or the place to which, whenever absent for business or pleasure, one intends to return, the domicile of a
person being dependent on facts and circumstances disclosing intent.[2]
582.While there is no question that Filipinos who are temporarily abroad for various reasons are still qualified to vote for they still retain their domicile
in the Philippines, immigrants are generally deemed to be permanent settlers of the country where they are such, [3] thereby giving rise to the
conclusion that they have relocated their domicile elsewhere.
583.Republic Act No. 9189 was passed by mandate of the Constitution that “The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos abroad”[4] but this did not exempt the mechanics for absentee voting from
the reach of the basic requirements imposed by the Constitution on suffrage. It is clear from the deliberations of the members of the Constitutional
Commission that their intent was to limit absentee voting to Filipinos abroad who have all the qualifications and none of the disqualifications of a
voter, including the residency requirement.
584.A Filipino who is or has already become an immigrant or permanent resident in another country can, I am convinced, by a mere sworn undertaking
to return to the Philippines for the purpose of establishing permanent residence here within the statutorily fixed three-year period, be allowed by
law to vote in Philippine elections without transgressing the rules laid down by the Constitution on suffrage. For a Filipino immigrant or
permanent resident of a foreign country unquestionably has the Philippines as his domicile of origin, that which he acquires at birth and is the
domicile of his parents or of the person or persons upon whom he was legally dependent at the time of his birth. [5] A domicile, once acquired,
whether by origin or choice, continues until a new domicile is actually acquired.[6] And to acquire a new domicile by choice, the following must
concur: (1) residence or bodily presence in the new locality; (2) an intention to remain there (animus manendi); and (3) an intention to abandon the
old domicile (animus non revertendi).[7]
585.It is my view that the affidavit executed in accordance with Section 5(d) of R.A. 9189 by a Filipino immigrant or permanent resident of another
country expressing his intent to resume physical permanent residence in the Philippines is an eloquent proof of his intention not to abandon his
domicile of origin in the Philippines. It is a statement under oath of what a Filipino seeks to do for the future of his membership in a political
community. Why should this affidavit be discredited on the mere speculation that the immigrant might not fulfill his undertaking to return to the
Philippines for good? If Filipinos who are temporarily residing in foreign countries are accorded full faith and credit as to their domiciliary ties no
matter how indefinite their absence from the Philippines, what more in the case of Filipino immigrants who have formally declared their intent to
settle in their homeland?
586.While he may have stayed on a more or less permanent basis in the host country which conferred on him the status of an immigrant and may be
animated with all the desire to remain there, until and unless a Filipino immigrant had categorically expressed by words or by deeds his intent to no
longer return to his domicile of origin, no conclusion can be reached as to a change in domicile from one of origin to one of choice, hence, the old
domicile subsists. For at the core of every Filipino immigrant’s being is the fact of his Philippine citizenship. He is, after all, still a Filipino.
587.The acquisition of a new domicile must be completely perfected by a concurrence of the factum of removal to a new locality, the animus to remain
there, and abandonment of and intent not to return to the former domicile, for if there is a purpose to return, whether secret or open, no loss or
change of domicile will result.[8]
588.Two types of Filipino immigrants must then be distinguished. The first, a Filipino who has opted not to execute the required affidavit under
Section 5(d) of R.A. 9189, is clearly disqualified to exercise suffrage for he has manifested the animus non revertendi with respect to his domicile
in the Philippines, thereby effectuating his acquisition of a new domicile. The second, a Filipino who declares his wish to be reunited with his
homeland has, without doubt, shown that his residence of origin remained unchanged and so he is entitled to vote under the Overseas Absentee
Voting Law. Therefore, until that opportunity to execute the affidavit has been totally foregone by a Filipino immigrant, in the absence of any
conclusive evidence of his acquisition of a new domicile, the Filipino immigrant’s domicile of origin is intact, his presence abroad and his desire to
remain therein notwithstanding.
589.I, therefore, vote in favor of the constitutionality of Section 5(d) of R.A. 9189. I vote to declare as unconstitutional parts of Section 18.5 of the
subject law insofar as they authorize COMELEC to proclaim presidential and vice-presidential winners; and of Sections 17.1, 19 and 25 insofar as
 they are subject to congressional oversight, review and approval the implementation of voting by mail and the Implementing Rules and Regulations
of COMELEC.

Tolentino vs COMELEC

DECISION
CARPIO, J.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001 (“Resolution No. 01-005”) and Resolution No. NBC 01-
006 dated 20 July 2001 (“Resolution No. 01-006”) of respondent Commission on Elections (“COMELEC”). Resolution No. 01-005 proclaimed the 13
candidates elected as Senators in the 14 May 2001 elections while Resolution No. 01-006 declared “official and final” the ranking of the 13 Senators
proclaimed in Resolution No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-Arroyo nominated then Senator Teofisto T. Guingona, Jr.
(“Senator Guingona”) as Vice-President. Congress confirmed the nomination of Senator Guingona who took his oath as Vice-President on 9 February 2001.
Following Senator Guingona’s confirmation, the Senate on 8 February 2001 passed Resolution No. 84 (“Resolution No. 84”) certifying to the existence
of a vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the vacancy through a special election to be held simultaneously with the regular
elections on 14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected in that election. [1] Resolution No. 84 further provided that the
“Senatorial candidate garnering the 13th highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr.,” which
ends on 30 June 2004.[2]
On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but one (Lanao del Norte), COMELEC issued Resolution
No. 01-005 provisionally proclaiming 13 candidates as the elected Senators. Resolution No. 01-005 also provided that “the first twelve (12) Senators shall
serve for a term of six (6) years and the thirteenth (13 th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who
was appointed Vice-President.”[3] Respondents Ralph Recto (“Recto”) and Gregorio Honasan (“Honasan”) ranked 12 th and 13th, respectively, in Resolution
No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica (“petitioners”), as voters and taxpayers, filed the instant petition for prohibition,
impleading only COMELEC as respondent. Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator receiving the
13th highest number of votes as the winner in the special election for a single three-year term seat. Accordingly, petitioners prayed for the nullification of
Resolution No. 01-005 in so far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because: (1) it failed to notify the electorate of the position to be
filled in the special election as required under Section 2 of Republic Act No. 6645 (“R.A. No. 6645”); [4] (2) it failed to require senatorial candidates to
indicate in their certificates of candidacy whether they seek election under the special or regular elections as allegedly required under Section 73 of Batas
Pambansa Blg. 881;[5] and, consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking election under the special or
regular senatorial elections as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646 (“R.A. No. 6646”). [6] Petitioners add that because
of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates in the 14 May 2001 elections without distinction such that “there
were no two separate Senate elections held simultaneously but just a single election for thirteen seats, irrespective of term.”[7]
Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election must be distinguished in the documentation as well as in
the canvassing of their results. To support their claim, petitioners cite the special elections simultaneously held with the regular elections of 13 November
1951 and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their
tenures in the Senate.[8] Petitioners point out that in those elections, COMELEC separately canvassed the votes cast for the senatorial candidates running
under the regular elections from the votes cast for the candidates running under the special elections. COMELEC also separately proclaimed the winners in
each of those elections.[9]
Petitioners sought the issuance of a temporary restraining order during the pendency of their petition.
Without issuing any restraining order, we required COMELEC to Comment on the petition.
On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued Resolution No. 01-006 declaring “official and final” the
ranking of the 13 Senators proclaimed in Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an amended petition impleading Recto and Honasan as
additional respondents. Petitioners accordingly filed an amended petition in which they reiterated the contentions raised in their original petition and, in
addition, sought the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the seat vacated by Senator Guingona was validly held on
14 May 2001. COMELEC and Honasan further raise preliminary issues on the mootness of the petition and on petitioners’ standing to litigate. Honasan also
claims that the petition, which seeks the nullity of his proclamation as Senator, is actually a quo warranto petition and the Court should dismiss the same for
lack of jurisdiction. For his part, Recto, as the 12 th ranking Senator, contends he is not a proper party to this case because the petition only involves the
validity of the proclamation of the 13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally –
(a) whether the petition is in fact a petition for quo warranto over which the Senate Electoral Tribunal is the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill a vacant three-year term Senate seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Court’s Jurisdiction
A quo warranto proceeding is, among others, one to determine the right of a public officer in the exercise of his office and to oust him from its
enjoyment if his claim is not well-founded.[10] Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge of all contests
relating to the qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows, however, that what petitioners are questioning is the validity of the special election
on 14 May 2001 in which Honasan was elected. Petitioners’ various prayers are, namely: (1) a “declaration” that no special election was held simultaneously
with the general elections on 14 May 2001; (2) to enjoin COMELEC from declaring anyone as having won in the special election; and (3) to annul
Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as the winner in the special election. Petitioners anchor their prayers on
COMELEC’s alleged failure to comply with certain requirements pertaining to the conduct of that special election. Clearly then, the petition does not seek to
determine Honasan’s right in the exercise of his office as Senator. Petitioners’ prayer for the annulment of Honasan’s proclamation and, ultimately, election
is merely incidental to petitioners’ cause of action. Consequently, the Court can properly exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its subsequent confirmation on 20 July 2001 of the ranking of the 13
Senators render the instant petition to set aside Resolutions Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist from committing an act threatened to be done without
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. [11] Consequently, the writ will not lie to enjoin acts already done.
[12]
However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.[13] Thus,
in Alunan III v. Mirasol,[14] we took cognizance of a petition to set aside an order canceling the general elections for the Sangguniang Kabataan (“SK”) on 4
December 1992 despite that at the time the petition was filed, the SK election had already taken place. We noted in Alunanthat since the question of the
validity of the order sought to be annulled “is likely to arise in every SK elections and yet the question may not be decided before the date of such elections,”
the mootness of the petition is no bar to its resolution. This observation squarely applies to the instant case. The question of the validity of a special election
to fill a vacancy in the Senate in relation to COMELEC’s failure to comply with requirements on the conduct of such special election is likely to arise in
every such election. Such question, however, may not be decided before the date of the election.
On Petitioners’ Standing
Honasan questions petitioners’ standing to bring the instant petition as taxpayers and voters because petitioners do not claim that COMELEC illegally
disbursed public funds. Neither do petitioners claim that they sustained personal injury because of the issuance of Resolution Nos. 01-005 and 01-006.
“Legal standing” or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act. [15] The requirement of standing, which necessarily “sharpens the presentation of issues,” [16] relates to the
constitutional mandate that this Court settle only actual cases or controversies. [17] Thus, generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.[18]
Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In questioning, in their capacity as voters, the validity of the
special election on 14 May 2001, petitioners assert a harm classified as a “generalized grievance.” This generalized grievance is shared in substantially equal
measure by a large class of voters, if not all the voters, who voted in that election. [19] Neither have petitioners alleged, in their capacity as taxpayers, that the
Court should give due course to the petition because in the special election held on 14 May 2001 “tax money [was] ‘x x x extracted and spent in violation of
specific constitutional protections against abuses of legislative power’ or that there [was] misapplication of such funds by COMELEC or that public money
[was] deflected to any improper purpose.”[20]
On the other hand, we have relaxed the requirement on standing and exercised our discretion to give due course to voters’ suits involving the right of
suffrage.[21] Also, in the recent case of Integrated Bar of the Philippines v. Zamora,[22] we gave the same liberal treatment to a petition filed by the Integrated
Bar of the Philippines (“IBP”). The IBP questioned the validity of a Presidential directive deploying elements of the Philippine National Police and the
Philippine Marines in Metro Manila to conduct patrols even though the IBP presented “too general an interest.” We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole
citizenry x x x.
Having stated the foregoing, this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved. In not a few cases, the court has 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. Thus, when the issues raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence
occurs in increasing tempo, undoubtedly aggravated by the Mindanaoinsurgency problem, the legal controversy raised in the petition almost certainly will not
go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later .
[23]
(Emphasis supplied)
We accord the same treatment to petitioners in the instant case in their capacity as voters since they raise important issues involving their right of
suffrage, considering that the issue raised in this petition is likely to arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be called to fill any vacancy in the Senate and the House of Representatives “in
the manner prescribed by law,” thus:
In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but
the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. (Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next
regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the
case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If Congress is in
recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House
of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve
only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety
(90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: Provided, however, That if
within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. (Emphasis
supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. – x x x In case a permanent vacancy shall occur in the Senate or House of Representatives at least
one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term, Section 2 of R.A. No. 6645, as amended, requires
COMELEC: (1) to call a special election by fixing the date of the special election, which shall not be earlier than sixty (60) days nor later than ninety (90)
after the occurrence of the vacancy but in case of a vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular
election; and (2) to give notice to the voters of, among other things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May 2001 regular elections, comply with the requirements in
Section 2 of R.A. No. 6645?
 A survey of COMELEC’s resolutions relating to the conduct of the 14 May 2001 elections reveals that they contain nothing which would amount to a
compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere in its resolutions[24] or even in its
press releases[25] did COMELEC state that it would hold a special election for a single three-year term Senate seat simultaneously with the regular elections
on 14 May 2001. Nor did COMELEC give formal notice that it would proclaim as winner the senatorial candidate receiving the 13 th highest number of votes
in the special election.
The controversy thus turns on whether COMELEC’s failure, assuming it did fail, to comply with the requirements in Section 2 of R.A. No. 6645, as
amended, invalidated the conduct of the special senatorial election on 14 May 2001 and accordingly rendered Honasan’s proclamation as the winner in that
special election void. More precisely, the question is whether the special election is invalid for lack of a “call” for such election and for lack of notice as
to the office to be filled and the manner by which the winner in the special election is to be determined. For reasons stated below, the Court answers in
the negative.

COMELEC’s Failure to Give Notice

of the Time of the Special Election Did Not
Negate the Calling of such Election

The calling of an election, that is, the giving notice of the time and place of its occurrence, whether made by the legislature directly or by the body with
the duty to give such call, is indispensable to the election’s validity. [26] In a general election, where the law fixes the date of the election, the election is valid
without any call by the body charged to administer the election.[27]
In a special election to fill a vacancy, the rule is that a statute that expressly provides that an election to fill a vacancy shall be held at the next general
elections fixes the date at which the special election is to be held and operates as the call for that election. Consequently, an election held at the time thus
prescribed is not invalidated by the fact that the body charged by law with the duty of calling the election failed to do so. [28] This is because the right and duty
to hold the election emanate from the statute and not from any call for the election by some authority [29] and the law thus charges voters with knowledge of
the time and place of the election.[30]
Conversely, where the law does not fix the time and place for holding a special election but empowers some authority to fix the time and place after the
happening of a condition precedent, the statutory provision on the giving of notice is considered mandatory, and failure to do so will render the election a
nullity.[31]
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the Senate, the special election to fill such vacancy shall be
held simultaneously with the next succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate arising from Senator
Guingona’s appointment as Vice-President in February 2001 could not be held at any other time but must be held simultaneously with the next succeeding
regular elections on 14 May 2001. The law charges the voters with knowledge of this statutory notice and COMELEC’s failure to give the additional notice
did not negate the calling of such special election, much less invalidate it.
Our conclusion might be different had the present case involved a special election to fill a vacancy in the House of Representatives. In such a case, the
holding of the special election is subject to a condition precedent, that is, the vacancy should take place at least one year before the expiration of the
term. The time of the election is left to the discretion of COMELEC subject only to the limitation that it holds the special election within the range of time
provided in Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement in Section 2 of R.A. No. 6645, as amended, for COMELEC to
“call x x x a special election x x x not earlier than 60 days nor longer than 90 days after the occurrence of the vacancy” and give notice of the office to be
filled. The COMELEC’s failure to so call and give notice will nullify any attempt to hold a special election to fill the vacancy. Indeed, it will be well-nigh
impossible for the voters in the congressional district involved to know the time and place of the special election and the office to be filled unless the
COMELEC so notifies them.

No Proof that COMELEC’s Failure to Give Notice of the Office

to be Filled and the Manner of Determining the Winner
in the Special Election Misled Voters

The test in determining the validity of a special election in relation to the failure to give notice of the special election is whether the want of notice has
resulted in misleading a sufficient number of voters as would change the result of the special election. If the lack of official notice misled a substantial
number of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a small percentage of voters would be void.[32]
The required notice to the voters in the 14 May 2001 special senatorial election covers two matters. First, that COMELEC will hold a special election
to fill a vacant single three-year term Senate seat simultaneously with the regular elections scheduled on the same date. Second, that COMELEC will
proclaim as winner the senatorial candidate receiving the 13thhighest number of votes in the special election. Petitioners have neither claimed nor proved that
COMELEC’s failure to give this required notice misled a sufficient number of voters as would change the result of the special senatorial election or led them
to believe that there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no special election took place. This bare assertion carries no
value. Section 2 of R.A. No. 6645, as amended, charged those who voted in the elections of 14 May 2001 with the knowledge that the vacancy in the Senate
arising from Senator Guingona’s appointment as Vice-President in February 2001 was to be filled in the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC does not preclude the possibility that the voters had actual notice of the special election, the office
to be voted in that election, and the manner by which COMELEC would determine the winner. Such actual notice could come from many sources, such as
media reports of the enactment of R.A. No. 6645 and election propaganda during the campaign.[33]
More than 10 million voters cast their votes in favor of Honasan, the party who stands most prejudiced by the instant petition. We simply cannot
disenfranchise those who voted for Honasan, in the absence of proof that COMELEC’s omission prejudiced voters in the exercise of their right of suffrage so
as to negate the holding of the special election. Indeed, this Court is loathe to annul elections and will only do so when it is “impossible to distinguish what
votes are lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body of the voters have been prevented by violence,
intimidation, and threats from exercising their franchise.”[34]
Otherwise, the consistent rule has been to respect the electorate’s will and let the results of the election stand, despite irregularities that may have
attended the conduct of the elections.[35] This is but to acknowledge the purpose and role of elections in a democratic society such as ours, which is:
to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some
question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is
done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived
of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way
responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself.[36] (Emphasis in the
original)

Separate Documentation and Canvassing

not Required under Section 2 of R.A. No. 6645,
 Neither is there basis in petitioners’ claim that the manner by which COMELEC conducted the special senatorial election on 14 May 2001 is a nullity
because COMELEC failed to document separately the candidates and to canvass separately the votes cast for the special election. No such requirements exist
in our election laws. What is mandatory under Section 2 of R.A. No. 6645 is that COMELEC “fix the date of the election,” if necessary, and “state, among
others, the office or offices to be voted for.” Similarly, petitioners’ reliance on Section 73 of B.P. Blg. 881 on the filing of certificates of candidacy, and on
Section 4(4) of R.A. No. 6646 on the printing of election returns and tally sheets, to support their claim is misplaced. These provisions govern elections in
general and in no way require separate documentation of candidates or separate canvass of votes in a jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special election on 14 May 2001 merely implemented the procedure specified by
the Senate in Resolution No. 84. Initially, the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad (“Senator Tatad”) made no
mention of the manner by which the seat vacated by former Senator Guingona would be filled. However, upon the suggestion of Senator Raul Roco
(“Senator Roco”), the Senate agreed to amend Resolution No. 84 by providing, as it now appears, that “the senatorial candidate garnering the thirteenth (13th)
highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr.” Senator Roco introduced the amendment to
spare COMELEC and the candidates needless expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate Resolution No. 934 [later converted to Resolution No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of the Body, the Secretary will read only the title and text of the
resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE AND CALLING ON THE COMMISSION ON ELECTIONS
(COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON
MAY 14, 2001 AND THE SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in 1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo nominated Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all the members of both House of Congress, voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective Members of the House of Representatives, and all
elective provincial city and municipal officials shall be held on the second Monday and every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence of a vacancy in the Senate and calling the Commission on
Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senator thus
elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.
S[ENATOR] O[SMEÑA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the distinguished Majority Leader, Chairman of the Committee on Rules, author of this
resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a vacant seat in the Senate. As a matter of fact, the one who was
elected in that special election was then Congressman, later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In other words, the electorate had to cast a vote for a ninth senator – because at that time
there were only eight – to elect a member or rather, a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were 24 candidates and the first 12 were elected to a six-year term
and the next 12 were elected to a three-year term.
My question therefore is, how is this going to be done in this election? Is the candidate with the 13th largest number of votes going to be the one to take a
three-year term? Or is there going to be an election for a position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to
suggest that probably, the candidate obtaining the 13thlargest number of votes be declared as elected to fill up the unexpired term of Senator Guingona.
S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific
office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can… No, this is not a Concurrent
Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the
need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as
Vice President.
It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingona’s unexpired
term. In other words, it can be arranged in such a manner.
xxxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore
deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less
expensive because the ballot will be printed and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. – to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously as a special election under this
law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically –
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. – to fill up this position for three years and campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution.
xxxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being none, the motion is approved.[37]
Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the special election within the confines of R.A. No. 6645,
merely chose to adopt the Senate’s proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and affirmed COMELEC’s wide
latitude of discretion in adopting means to carry out its mandate of ensuring free, orderly, and honest elections subject only to the limitation that the means so
adopted are not illegal or do not constitute grave abuse of discretion.[38] COMELEC’s decision to abandon the means it employed in the 13 November 1951
and 8 November 1955 special elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of its discretion. Conversely, this
Court will not interfere should COMELEC, in subsequent special senatorial elections, choose to revert to the means it followed in the 13 November 1951 and
8 November 1955 elections. That COMELEC adopts means that are novel or even disagreeable is no reason to adjudge it liable for grave abuse of discretion.
As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of
its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may
err, so may this Court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great
objective for which it was created — free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal
or constitute gross abuse of discretion, this court should not interfere.[39]
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the electorate of necessary information regarding a special election, are central
to an informed exercise of the right of suffrage. While the circumstances attendant to the present case have led us to conclude that COMELEC’s failure to so
call and give notice did not invalidate the special senatorial election held on 14 May 2001, COMELEC should not take chances in future elections. We
remind COMELEC to comply strictly with all the requirements under applicable laws relative to the conduct of regular elections in general and special
elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.

DISSENTING OPINION

PUNO, J.:
The case at bar transcends the political fortunes of respondent Senator Gregorio B. Honasan. At issue is the right of the people to elect their
representatives on the basis and only on the basis of an informed judgment. The issue strikes at the heart of democracy and representative government
for without this right, the sovereignty of the people is a mere chimera and the rule of the majority will be no more than mobocracy. To clarify and sharpen
the issue, 1 shall first unfurl the facts.
I. Facts
The facts are undisputed. In February 2001, a Senate seat for a term expiring on June 30, 2004 was vacated with the appointment of then Senator
Teofisto Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying “the existence of a vacancy in the Senate and
calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14,
2001, and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto
T. Guingona, Jr.” In the deliberations of the Senate on the resolution, the body agreed that the procedure it adopted for determining the winner in the special
election was for the “guidance” and “implementation” of the COMELEC. The COMELEC had no discretion to alter the procedure.
Nobody filed a certificate of candidacy to fill the position of senator to serve the unexpired three-year term in the special election. All the senatorial
candidates filed the certificates of candidacy for the twelve regular Senate seats to be vacated on June 30, 2001 with a six-year term expiring on June 30,
2007. COMELEC distributed nationwide official documents such as the Voter Information Sheet, List of Candidates and Sample Ballot. The List of
Candidates did not indicate a separate list of candidates for the special election. The Sample Ballot and the official ballots did not provide two different
categories of Senate seats to be voted, namely the twelve regular six-year term seats and the single three-year term seat. Nor did the ballots provide a separate
space for the candidate to be voted in the special election and instead provided thirteen spaces for thirteen senatorial seats.
Without any COMELEC resolution or notice on the time, place and manner of conduct of the special election, the special election for senator was held
on the scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of senatorial candidates was done. On June 5, 2001, respondent
COMELEC promulgated COMELEC Resolution No. NBC01-005, the dispositive portion of which reads, viz:
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on
Elections sitting En Banc as the National Board of Canvassers hereby proclaims the above-named thirteen (13) candidates as the duly elected Senators of the
Philippines in the May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the first twelve (12) Senators shall serve for a term of
six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr., who was
appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the Constitution, in relation to Section 9, Article VI thereof, as
implemented under Republic Act No. 6645. (emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop respondent COMELEC from proclaiming any senatorial
candidate in the May 14, 2001 election as having been elected for the lone senate seat for a three-year term. Copies of the petition were served on respondent
COMELEC twice, first on June 20, 2001 by registered mail, and second on June 21, 2001, by personal delivery of petitioner Mojica. On June 26, 2001 the
Court issued a Resolution requiring respondent COMELEC to comment within ten days from notice. Even before filing its comment, respondent COMELEC
issued Resolution No. NBC-01-006 on July 20, 2001, the dispositive portion of which reads, viz:
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on
Elections sitting as the National Board of Canvassers hereby DECLARES official and final the above ranking of the proclaimed 13 Senators of the
Philippines in relation to NBC Resolution No. 01-005 promulgated June 5, 2001. Resolution No. NBC-01-006 indicates the following ranking of the 13
Senators with the corresponding votes they garnered as of June 20, 2001:
1. De Castro, Noli L. - 16,237,386
2. Flavier, Juan M. - 11,735,897
3. Osmeña, Sergio II R. - 11,593,389
 4. Drilon, Franklin M. - 11,301,700
5. Arroyo, Joker P. - 11,262,402
6. Magsaysay, Ramon Jr. B. - 11,250,677
7. Villar, Manuel Jr. B. - 11,187,375
8. Pangilinan, Francis N. - 10,971,896
9. Angara, Edgardo J. - 10,805,177
10. Lacson, Panfilo M. - 10,535,559
11. Ejercito-Estrada, Luisa P. - 10,524,130
12. Recto, Ralph - 10,498,940
13. Honasan, Gregorio - 10,454,527
On the day of its promulgation, respondent COMELEC forwarded Resolution No. NBC-01-006 to the President of the Senate. On July 23, 2001, the
thirteen senators, inclusive of respondents Honasan and Recto, took their oaths of office before the Senate President.
With the turn of events after the filing of the petition on June 20, 2001, the Court ordered petitioners on March 5, 2002 and September 17, 2002 to
amend their petition. In their amended petition, petitioners assailed the manner by which the special election was conducted citing as precedents the 1951
and 1955 special senatorial elections for a two-year term which were held simultaneously with the regular general elections for senators with six year
terms, viz:
(a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as Vice-President in the 1949 elections. A special election was held in
November 1951 to elect his successor to the vacated Senate position for a term to expire on 30 December 1953. Said special election was held simultaneously
with the regular election of 1951. A separate space in the official ballot was provided for Senatorial candidates for the two year term; moreover, the
candidates for the single Senate term for two years filed certificates of candidacy separate and distinct from those certificates of candidacy filed by
the group of Senatorial candidates for the six year term.
(...the votes for the twenty (20) candidates who filed certificates of candidacy for the eight Senate seats with six year terms were tallied and
canvassed separately from the votes for the five candidates who filed certificates of candidacy for the single Senate seat with a two year term...)
xxx xxx xxx
(b) Again, a vacancy was created in the Senate by the election of then Senator Carlos P. Garcia to the Vice Presidency in the 1953 presidential elections. A
special election was held in November 1955 to elect his successor to the vacated Senatorial position for a two year term expiring on 30 December 1957.
Said special election for one senator to fill the vacancy left by the Honorable Carlos Garcia was held in November 1955 simultaneously with the regular
election for eight Senate seats with a six year term. Here, separate spaces were provided for in the official ballot for the single Senate seat for the two
year term as differentiated from the eight Senate seats with six year terms. The results as recorded by Senate official files show that votes for the
candidates for the Senate seat with a two-year term were separately tallied from the votes for the candidates for the eight Senate seats with six-year
term...[1] (emphases supplied)
Petitioners thus pray that the Court declare the following:
(a) that no special election was conducted by respondent COMELEC for the single Senate seat with a three year term in the 14 May 2001
election.
(b) null and void respondent COMELEC’s Resolutions No. NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July 2001 for
having been promulgated without any legal authority at all insofar as said resolutions proclaim the Senatorial candidate who
obtained the thirteenth highest number of votes canvassed during the 14 May 2001 election as a duly elected Senator.[2]
Respondents filed their respective comments averring the following procedural flaws: (1) the Court has no jurisdiction over the petition for quo
warranto; (2) the petition is moot; and (3) the petitioners have no standing to litigate. On the merits, they all defend the validity of the special election on the
ground that the COMELEC had discretion to determine the manner by which the special election should be conducted and that the electorate was aware of
the method the COMELEC had adopted. Moreover, they dismiss the deviations from the election laws with respect to the filing of certificates of candidacy
for the special elections and the failure to provide in the official ballot a space for the special election vote separate from the twelve spaces for the regular
senatorial election votes as inconsequential. They claim that these laws are merely directory after the election.

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

III. Laws on the Calling of Special Elections

Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in the Senate and House of Representatives, viz:
Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by
law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.
Congress passed R.A. No. 6645, “An Act Prescribing the Manner of Filling a Vacancy in the Congress of the Philippines,” to implement this
constitutional provision. The law provides, viz:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next
regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the
case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If the Congress is
in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the
House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall
serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety
(90) days from the date of such resolution or communication, stating among other things, the office or offices to be voted for: Provided, however, That if
within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election.
SECTION 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the
Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three
copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and public markets, and in
the municipal buildings. (emphasis supplied)
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section 4, viz:
SECTION 4. Postponement, Failure of Election and Special Election. - The postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its
members...
In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission
shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy.
However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. (emphases
supplied)
IV. Democracy and Republicanism
The shortest distance between two points is a straight line. In this case of first impression, however, the distance between existing jurisprudence and the
resolution of the issue presented to the Court cannot be negotiated through a straight and direct line of reasoning. Rather, it is necessary to journey through a
meandering path and unearth the root principles of democracy, republicanism, elections, suffrage, and freedom of information and discourse in an open
society. As a first step in this indispensable journey, we should traverse the democratic and republican landscape to appreciate the importance of informed
judgment in elections.

A. Evolution of Democracy from Plato to Locke

to Jefferson and Contemporary United States of America
In the ancient days, democracy was dismissed by thoughtful thinkers. Plato deprecated democracy as rule by the masses. He warned that if all the
people were allowed to rule, those of low quality would dominate the state by mere numerical superiority. He feared that the more numerous masses would
govern with meanness and bring about a “tyranny of the majority.” Plato predicted that democracies would be short-lived as the mob would inevitably
surrender its power to a single tyrant, and put an end to popular government. Less jaundiced than Plato was Aristotle’s view towards democracy. Aristotle
agreed that under certain conditions, the will of the many could be equal to or even wiser than the judgment of the few. When the many governed for the
good of all, Aristotle admitted that democracy is a good form of government. But still and all, Aristotle preferred a rule of the upper class as against the rule
of the lower class. He believed that the upper class could best govern for they represent people of the greatest refinement and quality.
In the Middle Ages, Europe plunged when the Roman Empire perished. Europe re-emerged from this catastrophe largely through reliance on the
scientific method which ultimately ushered the Industrial Revolution. Material success became the engine which drove the people to search for solutions to
their social, political and economic problems. Using the scythe of science and reason, the thinkers of the time entertained an exaggerated notion of
individualism. They bannered the idea that all people were equal; no one had a greater right to rule than another. Dynastical monarchy was taboo. As all
were essentially equal, no one enjoyed the moral right to govern another without the consent of the governed. The people therefore were the source of
legitimate legal and political authority. This theory of popular sovereignty revived an interest in democracy in the seventeenth century. The refinements of
the grant of power by the people to the government led to the social contract theory: that is, the social contract is the act of people exercising their
sovereignty and creating a government to which they consent.[3]
Among the great political philosophers who spurred the evolution of democratic thought was John Locke (1632-1704). In 1688, the English revolted
against the “Catholic tyranny” of James II, causing him to flee to France. This Glorious Revolution, called such because it was almost bloodless, put to rest
the long struggle between King and Parliament in England. The revolution reshaped the English government and ultimately brought about democracy in
England.
John Locke provided the philosophical phalanx to the Glorious Revolution. For this purpose, he wrote his Second Treatise of Government, his work
with the most political impact. In his monumental treatise, Locke asserted that the basis of political society is a contract whereby individuals consent to be
bound by the laws of a common authority known as civil government. The objective of this social contract is the protection of the individual’s natural rights
to life, liberty and property which are inviolable and enjoyed by them in the state of nature before the formation of all social and political arrangements.
[4]
Locke thus argues that legitimate political power amounts to a form of trust, a contract among members of societyanchored on their own consent, and
seeks to preserve their lives, liberty and property. This trust or social contract makes government legitimate and clearly defines the functions of
government as concerned, above all, with the preservation of the rights of the governed.
Even then, Locke believed that the people should be governed by a parliament elected by citizens who owned property. Although he argued that the
people were sovereign, he submitted that they should not rule directly. Members of parliament represent their constituents and should vote as their
constituents wanted. The government’s sole reason for being was to serve the individual by protecting his rights and liberties. Although Locke’s ideas were
liberal, they fell short of the ideals of democracy. He spoke of a “middle-class revolution” at a time when the British government was controlled by the
aristocracy. While he claimed that all people were equally possessed of natural rights, he advocated that political power be devolved only to embrace the
middle class by giving Parliament, which was controlled through the House of Commons, the right to limit the monarchical power. He denied political
power to the poor; they were bereft of the right to elect members of Parliament.
Locke influenced Thomas Jefferson, the eminent statesman and philosopher of the (American) revolution and of the first constitutional order which
free men were permitted to establish.”[5] But although Jefferson espoused Locke’s version of the social contract and natural law, he had respect for the
common people and participatory government. Jefferson believed that the people, including the ordinary folk, were the only competent guardians of
their own liberties, and should thus control their government. Discussing the role of the people in a republic, Jefferson wrote to Madison from France in
1787 that “they are the only sure reliance for the preservation of our liberties.”[6]
The wave of liberalism from Europe notwithstanding, a much more conservative, less democratic, and more paternalistic system of government was
originally adopted in the United States. The nation’s founders created a government in which power was much more centralized than it had been under the
Articles of Confederation and they severely restricted popular control over the government.[7] Many of the delegates to the Constitutional Convention of
1787 adhered to Alexander Hamilton’s view that democracy was little more than legitimized mob rule, a constant threat to personal security, liberty and
property. Thus, the framers sought to establish a constitutional republic, in which public policy would be made by elected representatives but individual
rights were protected from the tyranny of transient majorities. With its several elitist elements and many limitations on majority rule, the framers’
Constitution had undemocratic strands.
The next two centuries, however, saw the further democratization of the federal Constitution. [8] The Bill of Rights was added to the American
Constitution and since its passage, America had gone through a series of liberalizing eras that slowly relaxed the restraints imposed on the people by the new
political order. The changing social and economic milieu mothered by industrialization required political democratization. [9] In 1787, property qualifications
for voting existed and suffrage was granted only to white males. At the onset of Jacksonion democracy in the 1830s, property requirements quickly
diminished and virtually became a thing of the past by the time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended the franchise to
African-Americans, although it took another century of struggle for the Amendment to become a reality. In 1920, the Nineteenth Amendment removed sex as
a qualification for voting. The Progressive Era also saw the Seventeenth Amendment of the Constitution to provide for direct election of United States
senators[10] and established procedures for initiative, referendum and recall (otherwise known as direct democracy) in many states.[11] Poll taxes were
abolished as prerequisites for voting in federal elections through the Twenty-Fourth Amendment in 1964. Finally, the voting age was lowered to eighteen
with the ratification of the Twenty-Sixth Amendment in 1971.[12]
B. Constitutional History of Democracy
and Republicanism in the Philippines
The Malolos Constitution was promulgated on January 21, 1899 by the short-lived Revolutionary Government headed by Emilio Aguinaldo after the
Declaration of Independence from Spain on June 12, 1898. Article 4 of the Constitution declared the Philippines a Republic, viz:
Art. 4. The government of the Republic is popular,representative, alternative, and responsible and is exercised by three distinct powers, which are
denominated legislative, executive and judicial...
Shortly after the promulgation of the Malolos Constitution, the Philippines fell under American rule. The Americans adopted the policy of gradually
increasing the autonomy of the Filipinos before granting their independence.[13] In 1934, the U.S. Congress passed the Tydings-McDuffie Law “xxx the last
of the constitutional landmarks studding the period of constitutional development of the Filipino people under the American regime before the final grant of
Philippine independence.”[14] Under this law, the American government authorized the Filipino people to draft a constitution in 1934 with
the requirement that the “constitution formulated and drafted shall be republican in form.” In conformity with this requirement,[15]Article II, Section 1 of
the 1935 Philippine Constitution was adopted, viz:
Sec. 1. The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them.
The delegates to the Constitutional Convention understood this form of government to be that defined by James Madison, viz:
We may define a republic to be a government which derives all its power directly or indirectly from the great body of the people; and is administered
by persons holding offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great
body of the society, not from an inconsiderable proportion, or a favored class of it. It is sufficient for such government that the person administering it be
appointed either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified. [16](emphases
supplied)
The 1973 Constitution adopted verbatim Article II, Section 1 of the 1935 Constitution. So did the 1987 Constitution. The delegates to the 1986
Constitutional Commission well understood the meaning of a republican government. They adopted the explanation by Jose P. Laurel in his book, Bread and
Freedom, The Essentials of Popular Government, viz:
When we refer to popular government or republican government or representative government, we refer to some system of popular representation where
the powers of government are entrusted to those representatives chosen directly or indirectly by the people in their sovereign capacity. [17] (emphasis
supplied)
An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their
sovereignty. Thus, under the 1987 Constitution, the people can directly exercise their sovereign authority through the following modes, namely: (1)
elections; (2) plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people choose the representatives to whom they will entrust the
exercise of powers of government.[18] In a plebiscite, the people ratify any amendment to or revision of the Constitution and may introduce amendments to the
constitution.[19] Indeed, the Constitution mandates Congress to “provide for a system of initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body. . .” It also directs
Congress to “enact a local government code which shall provide for effective mechanisms of recall, initiative, and referendum.”[20] Pursuant to this mandate,
Congress enacted the Local Government Code of 1991 which defines local initiative as the “legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any ordinance through an election called for the purpose.” Recall is a method of removing a local
official from office before the expiration of his term because of loss of confidence.[21] In a referendum, the people can approve or reject a law or an issue of
national importance.[22] Section 126 of the Local Government Code of 1991 defines a local referendum as “the legal process whereby the registered voters of
the local government units may approve, amend or reject any ordinance enacted by the sanggunian.”
These Constitutional provisions on recall, initiative, and referendum institutionalized the people’s might made palpable in the 1986 People Power
Revolution.[23] To capture the spirit of People Power and to make it a principle upon which Philippine society may be founded, the Constitutional
Commission enunciated as a first principle in the Declaration of Principles and State Policies under Section 1, Article II of the 1987 Constitution that the
Philippines is not only a republican but also a democratic state.
The following excerpts from the Records of the Constitutional Commission show the intent of the Commissioners in emphasizing “democratic” in
Section 1, Article II, in light of the provisions of the Constitution on initiative, recall, referendum and people’s organizations:
MR. SUAREZ. . . . May I call attention to Section 1. I wonder who among the members of the committee would like to clarify this question regarding the use
of the word “democratic” in addition to the word “republican.” Can the honorable members of the committee give us the reason or reasons for introducing
this additional expression? Would the committee not be satisfied with the use of the word “republican”? What prompted it to include the word “democratic”?
xxx xxx xxx
MR. NOLLEDO. Madam President, I think as a lawyer, the Commissioner knows that one of the manifestations of republicanism is the existence of the Bill
of Rights and periodic elections, which already indicates that we are a democratic state. Therefore, the addition of “democratic” is what we call “pardonable
redundancy” the purpose being to emphasize that our country is republican and democratic at the same time. . . In the 1935 and 1973 Constitutions,
“democratic” does not appear. I hope the Commissioner has no objection to that word.
MR. SUAREZ. No, I would not die for that. If it is redundant in character but it is for emphasis of the people’s rights, I would have no objection. I am only
trying to clarify the matter.[24] (emphasis supplied)
In other portions of the Records, Commissioner Nolledo explains the significance of the word “democratic”, viz:
MR. NOLLEDO. I am putting the word “democratic” because of the provisions that we are now adopting which are covering consultations with the people.
For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity
of interference by the people through people’s organizations . . .[25]
xxx xxx xxx
MR. OPLE. The Committee added the word “democratic” to “republican,” and, therefore, the first sentence states: “The Philippines is a republican and
democratic state.”
May I know from the committee the reason for adding the word “democratic” to “republican”? The constitutional framers of the 1935 and 1973 Constitutions
were content with “republican.” Was this done merely lor the sake of emphasis?
MR. NOLLEDO. Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the Commissioner
to know that “democratic” was added because of theneed to emphasize people power and the many provisions in the Constitution that we have approved
related to recall, people’s organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances.”
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need. . .
xxx xxx xxx
MR. NOLLEDO. According to Commissioner Rosario Braid, “democracy” here is understood as participatory democracy.[26] (emphasis supplied)
The following exchange between Commissioners Sarmiento and Azcuna is of the same import:
MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words “republican state” because
“republican state” would refer to a democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people in government.
MR. SARMIENTO. But even in the concept “republican state,” we are stressing the participation of the people. . . So the word “republican” will suffice to
cover popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as
initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to
add the word “democratic” to emphasize that in this new Constitution there are instances where the people would act directly, and not through their
representatives.[27] (emphasis supplied)
V. Elections and the Right to Vote
A. Theory
The electoral process is one of the linchpins of a democratic and republican framework because it is through the act of voting that government by
consent is secured.[28] Through the ballot, people express their will on the defining issues of the day and they are able to choose their leaders[29] in accordance
with the fundamental principle of representative democracy that the people should elect whom they please to govern them. [30] Voting has an important
instrumental value in preserving the viability of constitutional democracy.[31] It has traditionally been taken as a prime indicator of democratic participation.[32]
The right to vote or of suffrage is “an important political right appertaining to citizenship. Each individual qualified to vote is a particle of popular
sovereignty.”[33] In People v. Corral,[34] we held that “(t)he modern conception of suffrage is that voting is a function of government. The right to vote is not
a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons as are most likely to exercise it for the public
good.” The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights that it ought to be considered as one
of the most sacred parts of the constitution. [35] In Geronimo v. Ramos, et al., [36] we held that the right is among the most important and sacred of the
freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through self-government for
themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his
government and in the choice of the people who will run that government for him. [37] The U.S. Supreme Court recognized in Yick Wo v. Hopkins[38] that
voting is a “fundamental political right, because [it is] preservative of all rights.” In Wesberry v. Sanders,[39] the U.S. Supreme Court held that “no right is
more precious in a free country than that of having a voice in the election of those who make the laws, under which, as good citizens, we must live. Other
rights, even the most basic, are illusory if the right to vote is undermined.” Voting makes government more responsive to community and individual
needs and desires. Especially for those who feel disempowered and marginalized or that government is not responsive to them, meaningful access to the
ballot box can be one of the few counterbalances in their arsenal.[40]
Thus, elections are substantially regulated for them to be fair and honest, for order rather than chaos to accompany the democratic processes.[41] This
Court has consistently ruled from as early as the oft-cited 1914 case of Gardiner v. Romulo[42] that the purpose of election laws is to safeguard the will of the
people, the purity of elections being one of the most important and fundamental requisites of popular government. We have consistently made it clear that
we frown upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.[43] To preserve the purity of elections, comprehensive and sometimes complex election codes are
enacted, each provision of which - whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting
process itself - inevitably affects the individual’s right to vote. [44] As the right to vote in a free and unimpaired manner is preservative of other basic civil and
political rights, Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims[45] cautioned that any alleged infringement of the right of
citizens to vote must be carefully and meticulously scrutinized. It was to promote free, orderly and honest elections and to preserve the sanctity of the
right to vote that the Commission on Elections was created.[46] The 1987 Constitution mandates the COMELEC to ensure “free, orderly, honest, peaceful, and
credible elections.”[47]
B. History of Suffrage in the Philippines
In primitive times, the choice of who will govern the people was not based on democratic principles. Even then, birth or strength was not the only basis
for choosing the chief of the tribe. When an old chief has failed his office or committed wrong or has aged and can no longer function, the members of the
tribe could replace him and choose another leader.[48]Among the Muslims, a council or ruma bechara chooses the sultan. An old sultan may appoint his
successor, but his decision is not absolute. Among the criteria for choosing a sultan were age, blood, wealth, fidelity to Islamic faith and exemplary character
or personality.[49] In times of crises, the community may choose its leader voluntarily, irrespective of social status. By consensus of the community, a serf or
slave may be voted the chief on account of his ability.
As far back as the Spanish regime, the Filipinos did not have a general right of suffrage.[50] It was only in the Malolos Constitution of 1899 that the right
of suffrage was recognized;[51]it was a by-product of the Filipinos’ struggle against the Spanish colonial government and an offshoot of Western liberal ideas
on civil government and individual rights.[52] The life of the Malolos Constitution was, however, cut short by the onset of the American regime in the
Philippines. But the right of suffrage was reiterated in the Philippine Bill of 1902.[53] The first general elections were held in 1907[54] under the first Philippine
Election Law, Aci No. 1582, which took effect on January 15, 1907. This law was elitist and discriminatory against women. The right of suffrage was carried
into the Jones Law of 1916. [55] Whereas previously, the right was granted only by the Philippine Legislature and thus subject to its control, the 1935
Constitution elevated suffrage to a constitutional right.[56] It also provided for a plebiscite on the issue of whether the right of suffrage should be extended to
women. On April 30, 1937, the plebiscite was held and the people voted affirmatively. In the 1973 Constitution,[57] suffrage was recognized not only as a
right, but was imposed as a duty to broaden the electoral base and make democracy a reality through increased popular participation in government. The
voting age was lowered, the literacy requirement abolished, and absentee voting was legalized. [58] The 1987 Constitution likewise enshrines the right of
suffrage in Article V, but unlike the 1973 Constitution, it is now no longer imposed as a duty.[59] The 1948 Universal Declaration of Human Rights[60] and the
1976 Covenant on Civil and Political Rights[61] also protect the right of suffrage.
VI. Voter Information:
Prerequisite to a Meaningful Vole in a Genuinely Free,
Orderly and Honest Elections in a Working Democracy
A. Democracy, information and discourse on public matters
1. U.S. jurisdiction
For the right of suffrage to have a value, the electorate must be informed about public matters so that when they speak through the ballot, the
knowledgeable voice and not the ignorant noise of the majority would prevail. Jefferson admonished Americans to be informed rather than enslaved by
ignorance, saying that “(i)f a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.”[62] Jefferson
emphasized the importance of discourse in a democracy, viz:
In every country where man is free to think and to speak, differences of opinion arise from difference of perception, and the imperfection of reason; but these
differences when permitted, as in this happy country, to purify themselves by discussion, are but as passing clouds overspreading our land transiently and
leaving our horizon more bright and serene.[63]
Other noted political philosophers like John Stuart Mill conceived of the “marketplace of ideas” as a necessary means of testing the validity of ideas, viz:
(N)o one’s opinions deserve the name of knowledge, except so far as he has either had forced upon him by others, or gone through of himself, the same
mental process which could have been required of him in carrying on an active controversy with opponents.[64]
In the same vein, political philosopher Alexander Meiklejohn, in his article “Free Speech Is An Absolute,” stressed that, “(s)elf-government can exist
only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is
assumed to express.”[65] To vote intelligently, citizens need information about their government.[66] Even during the diaper days of U.S. democracy, the
Framers of the U.S. Constitution postulated that self-governing people should be well-informed about the workings of government to make intelligent
political choices. In discussing the First Amendment, James Madison said: “The right of freely examining public characters and measures, and of free
communication thereon, is the only effectual guardian of every other right....” [67] Thus, the United States, a representative democracy, has generally
subscribed to the notion that public information and participation are requirements for a representative democracy where the electorate make informed
choices. The First Amendment to the U.S. Constitution, which establishes freedom of the press and speech supports this proposition. The First
Amendment’s jealous protection of free expression is largely based on the ideas that free and open debate will generate truth and that only an informed
electorate can create an effective democracy.[68]
The First Amendment reflects the Framers’ belief that public participation in government is inherently positive. An informed citizenry is a
prerequisite to meaningful participation in government. Thus, the U.S. Congress embraced this principle more concretely with the passage of the
Freedom of Information Act of 1966 (FO1A).[69] The law enhanced public access to and understanding of the operation of federal agencies with respect to
both the information held by them and the formulation of public policy.[70] In the leading case on the FOIA, Environmental Protection Agency v. Mink,
[71]
Justice Douglas, in his dissent, emphasized that the philosophy of the statute is the citizens’ right to be informedabout “what their government is up
to.”[72] In Department of Air Force v. Rose,[73] the U.S. Supreme Court acknowledged that the basic purpose of the FOIA is “to open agency action to the
light of public scrutiny. These rulings were reiterated in the 1994 case of Department of Defense, et al. v. Federal Labor Relations Authority, et al. [74] Be
that as it may, the U.S. Supreme Court characterized this freedom of information as a statutory and not a constitutional right in Houchins v. KQED, Inc., et
al.,[75] viz: “there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. . . The
Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.” [76] Neither the courts nor Congress has recognized an affirmative
constitutional obligation to disclose information concerning governmental affairs; the U.S. Constitution itself contains no language from which the duty
could be readily inferred.[77] Nevertheless, the U.S. federal government, the fifty states and the District of Columbia have shown their commitment to public
access to government-held information. All have statutes that allow varying degrees of access to government records.[78]
While the right of access to government information or the “right to know” is characterized as a statutory right, the right to receive information[79] was
first identified by the U.S. Supreme Court as a constitutional right in the 1936 case of Grosjean v. American Press Company. [80] The Court also stated that
the First Amendment protects the natural right of members of an organized society, united for their common good, to impart and acquire information about
their common interests. Citing Judge Cooley, the Court held that free and general discussion of public matters is essential to prepare the people for an
intelligent exercise of their rights as citizens. [81] The Court also noted that an informed public opinion is the most potent of all restraints upon
misgovernment. Many consider Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council[82] the seminal “right to receive” case.[83] In
this 1976 decision, the Court struck down a Virginia statute forbidding pharmacists from advertising the prices of prescription drugs. Writing for the
majority, Justice Blackmun held that the free flow of information about commercial matters was necessary to ensure informed public decision-making. He
reasoned that the protection of the First Amendment extends not only to the speaker, but to the recipient of the communication. Although the case dealt with
commercial speech, the majority opinion made it clear that the constitutional protection for receipt of information would apply with even more force
when more directly related to self-government and public policy.[84]
In 1982, the U.S. Supreme Court highlighted the connection between self-government and the right to receive information in Board of Education v.
Pico.[85] This case involved a school board-ordered removal of books from secondary school libraries after the board classified the book as “anti-American,
anti-Christian, anti-Semitic, and just plain filthy”.[86] Justice Brennan, writing for a three-justice plurality, emphasized the First Amendment’s role in assuring
widespread dissemination of ideas and information. Citing Griswold v. Connecticut,[87]the Court held that “(t)he State may not, consistently with the spirit of
the First Amendment, contract the spectrum of available knowledge.” The Court noted that “the right to receive ideas is a necessary predicate to
the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” It then cited Madison’s admonition that, “(a) popular
Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge
will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”[88]
The U.S. Supreme Court has reiterated, in various contexts, the idea that “the Constitution protects the right to receive information and
ideas.”[89] Kleindienst v. Mandel [90]acknowledged a First Amendment right to receive information but deferring to Congress’ plenary power to exclude
aliens. Lamont v. Postmaster General[91] invalidated a statutory requirement that foreign mailings of “communist political propaganda” be delivered only
upon request by the addressee. Martin v. City of Struthers[92] invalidated a municipal ordinance forbidding door-to-door distribution of handbills as
violative if the First Amendment rights of both the recipients and the distributors.[93]
Whether the “right to know” is based on a statutory right provided by the FOIA or a constitutional right covered by the First Amendment, the
underlying premise is that an informed people is necessary for a sensible exercise of the freedom of speech, which in turn, is necessary to a meaningful
exercise of the right to vote in a working democracy. In 1927, Justice Louis Brandeis gave the principle behind the First Amendment its classic
formulation, viz:
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the
deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of
happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to
the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political
duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are
subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of
reason as applied through public discussion,they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[94]
The U.S. Supreme Court also held in Stromberg v. California[95] that the First Amendment provides “the opportunity for free political discussion to
the end that government may be responsive to the will of the people and that changes may be obtained by lawful means...” [96] The Amendment is “the
repository of...self-governing powers”[97] as it provides a peaceful means for political and social change through public discussion. In Mills v. State of
Alabama,[98] it ruled that there may be differences about interpretations of the First Amendment, but there is practically universal agreement that a major
purpose of the Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures
and forms of government, the manner in which government is operated or should be operated, all such matters relating to political processes.
[99]
Justice William J. Brennan summarized the principle succinctly in his opinion for the Court in Garrison v. Louisiana, viz: “...speech concerning public
affairs is more than self-expression; it is the essence of self-government. (emphasis supplied)” [100]
2. Philippine jurisdiction
The electorate’s right to information on public matters occupies a higher legal tier in the Philippines compared to the United States. While the
right to information in U.S. jurisdiction is merely a statutory right, it enjoys constitutional status in Philippine jurisdiction. The 1987 Constitution not only
enlarged the democratic space with provisions on the electorate’s direct exercise of sovereignty, but also highlighted the right of the people to information
on matters of public interest as a predicate to good governance and a working democracy. The Bill of Rights sanctifies the right of the people to
information under Section 7, Article III of the 1987 Constitution, viz:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law. (emphasis supplied)
This provision on the right to information sans the phrase “as well as to government research data” made its maiden appearance in the Bill of Rights of
the 1973 Constitution. The original draft of the provision presented to the 1971 Constitutional Convention merely said that access to official records and the
right to information “shall be afforded the citizens as may be provided by law.” Delegate De la Serna pointed out, however, that the provision did not grant a
self-executory right to citizens. He thus proposed the rewording of the provision to grant the right but subject to statutory limitations.[101] The 1973
Constitution thus provided in Section 6, Article IV, viz:
Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.
The change in phraseology was important as in the pre-1973 case of Subido v. Ozaeta,[102] this Court held that freedom of information or freedom to
obtain information for publication is not guaranteed by the constitution. In that case, the issue before the Court was whether the press and the public had a
constitutional right to demand the examination of the public land records. The Court ruled in the negative but held that the press had a statutory right to
examine the records of the Register of Deeds because the interest of the press was real and adequate.
 As worded in the 1973 and 1987 Constitution, the right to information is self-executory. It is a public right where the real parties in interest are the
people. Thus, every citizen has “standing” to challenge any violation of the right and may seek its enforcement. [103] The right to information, free speech and
press and of assembly and petition and association which are all enshrined in the Bill of Rights are cognate rights for they all commonly rest on the premise
that ultimately it is an informed and critical public opinion which alone can protect and uphold the values of democratic government.[104]
In “splendid symmetry”[105] with the right to information in the Bill of Rights are other provisions of the 1987 Constitution highlighting the principle
of transparency in government.Included among the State Policies under Article II of the 1987 Constitution is the following provision, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions
involving public interest. (emphasis supplied)
Related to the above provision is Section 21 of Article XI, National Economy and Patrimony, which provides, viz:
Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or
guaranteed by the Government shall be made available to the public. (emphasis supplied)
The indispensability of access to information involving public interest and government transparency in Philippine democracy is clearly recognized in the
deliberations of the 1987 Constitutional Commission, viz:
MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Trenas, Romulo, Regalado and Rosario Braid. It
reads as follows: “SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS
TRANSACTIONS SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW.”
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In the United States, President Aquino has made much of the point that the government should be open and accessible to the public. This amendment is by
way of providing an umbrella statement in the Declaration of Principles for all these safeguards for an open and honest government distributed all over the
draft Constitution. It establishes a concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the people’s right
to know as the centerpiece.[106] (emphasis supplied)
Commissioners Bernas and Rama made the following observations on the principle of government transparency and the public’s right to information:
FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the right to information)
talks about the right of the people to information, and corresponding to every right is a duty. In this particular case, corresponding to this right of the
people is precisely the duty of the State to make available whatever information there may be needed that is of public concern. Section 6 is very
broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of Section 6 is that it challenges citizens to be active
in seeking information rather than being dependent on whatever the State may release to them.
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MR. RAMA. There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights. The basic difference
is that the Bill of Rights contemplates coalition (sic)(collision?) between the rights of the citizens and the State. Therefore, it is the right of the citizen to
demand information. While under the Declaration of Principles, the State must have a policy, even without being demanded, by the citizens, without
being sued by the citizen, to disclose information and transactions. So there is a basic difference here because of the very nature of the Bill of Rights and
the nature of the Declaration of Principles.[107] (emphases supplied)
The importance of information in a democratic framework is also recognized in Section 24, Article II, viz:
Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied).
Section 10 of Article XVI, General Provisions is a related provision. It states, viz:
Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures
suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a
policy that respects the freedom of speech and of the press. (emphasis supplied)
The sponsorship speech of Commissioner Braid expounds on the rationale of these provisions on information and communication, viz:
MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision of
society. Here we have a preferred vision where opportunities are provided for participation by as many people, where there is unity even in cultural diversity,
for there is freedom to have options in a pluralistic society. Communication and information provide the leverage for power. They enable the people to
act, to make decisions, to share consciousness in the mobilization of the nation.[108] (emphasis supplied)
In Valmonte v. Belmonte,[109] the Court had occasion to rule on the right to information of a lawyer, members of the media and plain citizens who
sought from the Government Service Insurance System a “list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban
who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda
Marcos.”[110] In upholding the petitioners’ right, the Court explained the rationale of the right to information in a democracy, viz:
This is not the first time that the Court is confronted wth a controversy directly involving the constitutional right to information. In Tañada v. Tuvera, G.R.
No. 63915, April 2 , 1985, 136 SCRA 27 (involving the need for adequate notice to the public of the various laws which are to regulate the actions
and conduct of citizens) and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (involving the
concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles), the Court
upheld the people’s constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for
by the petitioners.
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An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of
ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican
system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the
authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and
caprices of those to whom the power had been delegated...
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...The right of access to information ensures that these freedoms are not rendered nugatory by the government’s monopolizing pertinent information. For an
essential element of these freedoms is to keep open in continuing dialogue or process of communication between the government, and the people. It is in the
interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the
people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently.
Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an
adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-
in-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to
enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.[111] (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa[112] which involved the petitioner’s request addressed to respondent Executive Secretary
Ronaldo B. Zamora for the “names of the executive officials holding multiple positions in government, copies of their appointments, and a list of the
recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacañang.” [113] The respondent was ordered to furnish the petitioner the
information requested. The Court held, viz:
Under both the 1973 (footnote omitted) and 1987 Constitution, this (the right to information) is a self-executory provision which can be invoked by any
citizen before the courts...
Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that “[t]he incorporation of this
right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception
by the public of the nation’s problems, nor a meaningful democratic decision-making if they are denied access to information of general interest.
Information is needed to enable the members of society to cope with the exigencies of the times.”[114] (emphases supplied)
The importance of an informed citizenry in a working democracy was again emphasized in Chavez v. Public Estates Authority and Amari Coastal
Bay Development Corporation[115] where we held, viz:
The State policy of full transparency in all transactions involving public interest reinforces the people’s right to information on matters of public concern.
xxx xxx xxx
These twin provisions (on right to information under Section 7, Article III and the policy of full public disclosure under Section 28, Article II) of the
Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not
disclose its official acts, transactions and decisions to citizens, whatever citizens may say, even if expressed without any restraint, will be speculative
and amount to nothing. These twin provisions are also essential to hold public officials “at all times x x x accountable to the people,” (footnote omitted) for
unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is
essential to the existence and proper functioning of any democracy.[116] (emphases supplied)
B. Elections and the voters’ right to information on the elections
1. U.S. Jurisdiction
An informed citizenry’s opinions and preferences have the most impact and are most clearly expressed in elections which lie at the foundation of a
representative democracy. The electorate’s true will, however, can only be intelligently expressed if they are well informed about the time, place, manner of
conduct of the elections and the candidates therein. Without this information, democracy will be a mere shibboleth for voters will not be able to express their
true will through the ballot.
In Duquette v. Merrill,[117] which the ponencia cites by reference to 26 American Jurisprudence 2d §292, [118] a vacancy in the office of Country
Treasurer in York County occurred on July 24, 1944 upon the death of the incumbent Maynard A. Hobbs. The vacancy was filled in accordance with the law
providing that the governor may appoint a resident of the county who shall be treasurer until the 1st day of January following the next biennial election, at
which said election a treasurer shall be chosen for the remainder of the term, if any. The next biennial election was held on September 11, 1944. In the June
1944 primary election (prior to the death of Hobbs) where nominations of candidates for the upcoming biennial elections were made, there was no
nomination for the office of County Treasurer as Hobbes’ term was yet to expire on January 1947. Neither was a special primary election ordered by
proclamation of the Governor after Hobbes’ death. Nor were other legal modes of nominating candidates such as through nomination of a political party,
convention of delegates or appropriate caucus resorted to. Consequently, in the official ballot of the September 11, 1944 election, there was no provision
made for the selection of a County Treasurer to fill the vacancy for the unexpired term. The name of the office did not appear on the ballot. Petitioner
Duquette, however, claims that he was elected County Treasurer in the special election because in the City of Biddeford, the largest city in York County,
1,309 voters either wrote in the title of the office and his name thereunder, or used a “sticker” of the same import and voted for him. At the September 11,
1944 biennial election, there were approximately 22,000 ballots cast, but none included the name of the petitioner except for the 1,309 in Biddeford. In
holding that the special election was void, the Maine Supreme Judicial Court made the following pronouncements, the first paragraph of which was cited by
the ponencia in the case at bar, viz:
Although there is not unanimity of judicial opinion as to the requirement of official notice, if the vacancy is to be filled at the time of a general election, yet it
appears to be almost universally held that if the great body of the electors are misled by the want of such notice and are instead led to believe that no
such election is in fact to be held, an attempted choice by a small percentage of the voters is void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW
595; Wooton v. Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted).
Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting
of an electoral body to discharge that particular duty, and is also an essential and characteristic element of a popular election. Public policy requires
that it should be given in such form as to reach the body of the electorate. Here there had been no nominations to fill the vacancy, either by the holding
of a special primary election, or by nomination by county political conventions or party committees. The designation of the office to be filled was not
upon the official ballot. As before noted, except for the vacancy, it would have no place there, as the term of office of the incumbent, if living, would not
expire until January 1, 1947.[119](emphases supplied)
As early as the 1897 case of People ex rel. Dix v. Kerwin,[120] the requirement of notice in an election has been recognized, viz:
... We are not prepared to hold that this statute (requiring the giving of notice) is, under all circumstances and at all times, so far mandatory that a failure to
observe its requirements will defeat an election otherwise regularly holden. There are many cases which hold that elections regularly held and persons
regularly voted for on nominations made where there has been failure to observe some specific statutory requirement will not thereby be necessarily defeated
and the direction may, because of the excusing circumstances, be held directory rather than mandatory. We do not believe the circumstances of the present
case, as they are now exhibited, bring it all within this rule. The theory of elections is that there shall be due notice given to the voters, and that they
must be advised either by a direct notice published by the clerk, as provided by statute, or by proceedings taken by the voters and the people
generally in such a way as that it may be fairly inferred that it was generally and thoroughly well understood that a particular office was to be filled
at the election, so that the voters should act understandingly and intelligently in casting their ballots.
xxx xxx xxx
Since there was no notice published according to the statute, we may not assume that the nomination was regularly made, or that the voters were duly notified
that the office was to be filled at that general election, nine days afterwards. It has been generally held that some notice, regular in its form, and pursuant
to the requirements of law, must be given as a safeguard to popular elections, that the people may be informed for what officers they are to vote. Of
course, it might easily be true, as has already been suggested, that, if nominations had been made for an office, certificates regularly filed, and
tickets regularly printed, even though the clerk had failed to publish his notice, there would be no presumption that the body of the voters were
uninformed as to their rights and as to the positions which were to be filled. People v. Porter, 6 Cal. 26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110;
Adsit v. Osmun, 84 Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; Stephens v. People, 89 111. 337. [121](emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al.,[122] it was held, viz:
There is a clear distinction between the case of a vacancy which is to be filled at a special election to be held at a time and place to be appointed by some
officer or tribunal, authorized by statute to call it, and a case where the statute itself provides for filling a vacancy at the next general election after it
occurs. In such case nearly all the authorities hold that if the body of electors do in fact know the vacancy exists, and candidates are regularly
nominated by the various political parties to fill it, and the candidates receive most of the votes cast, such election is valid, even though no notice
thereof was published in a manner provided by the statute. It would be hypertechnical and unreasonable to hold that a failure to comply literally with the
statute in such case would avoid the election.[123](emphasis supplied)
In Duquette, Kerwin and Griffith, as in a great majority of cases on the state level, the mere fact that the election to fill a vacancy occasioned by
death, resignation, removal, or the like is held at the time of a general election in accordance with a constitutional or statutory provision, is not regarded as
sufficient in itself to validate the election if no notice of the election was given; it has been held that in such a case, it must be shown that a sufficient
part of the electors have actual notice that the vacancy is to be filled. The fact that a great percentage of voters cast their votes despite the failure of
giving proper notice of the elections appears to be the most decisive single factor to hold that sufficient actual notice was given. [124] These doctrines
were reiterated in Lisle, et al. v. C.L. Schooler[125] where it was held that mere allegation that “many” voters were informed that a special election to fill a
vacancy was being held was unsatisfactory proof of sufficient notice.
2. Philippine jurisdiction
In our jurisdiction, it is also the rule that the exercise of the right of suffrage should be an enlightened one, hence, based on relevant facts, data and
information. It is for this reason that the choice of representatives in a democracy cannot be based on lottery or any form of chance. The choice must be
based on enlightened judgment for democracy cannot endure the rule and reign of ignorance. This principle was stressed by the Court in Tolentino v.
Commission on Elections.[126] The issue before the Court was whether the Constitutional Convention of 1971 had the power to call for a plebiscite for the
ratification by the people of a partial constitutional amendment. The amendment was the proposal to lower the voting age to 18 but with the caveat that
“(t)his partial amendment, which refers only to 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.” The
Court ruled in the negative, emphasizing the necessity for the voter to be afforded sufficient time and information to appraise the amendment, viz:
. . .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 theConvention may establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to
the other parts of the Constitution with which it has to form a harmonious whole. In the 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. [127](emphasis supplied)
The need for the voter to be informed about matters which have a bearing on his vote was again emphasized by the Court in UNIDO v. Commission
on Elections.[128] This case involved the amendments to the 1973 Constitution proposed by the Batasang Pambansa in 1981. The Court reiterated that the
more people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better. We held, viz:
To begin with, we cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the “free, orderly and honest elections”
clause of Section 5, Article X1I-C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are
conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary
elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional
amendments.Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it is
indispensable that they be properly characterized to be fair submission - by which is meant that the voters must of necessity have had adequate
opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm
conviction that the charter’s reference to honest elections connotes fair submission in a plebiscite. (emphasis supplied)
Similarly, the Court ruled in Sanidad v. COMELEC[129] that plebiscite issues are matters of public concern and importance. The people’s right to be
informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the
forum.
It cannot be overemphasized that an informed electorate is necessary for a truly free, fair and intelligent election. The voting age was lowered
from 21 years to 18 years because the youth of 18 to 21 years did not differ in political maturity,[130] implying that political maturity or the capacity to discern
political information is necessary for the exercise of suffrage. It is for this obvious reason that minors and the insane are not allowed to vote. Likewise, the
literacy test for the right to vote was abolished because as explained by the Committee on Suffrage and Electoral Reforms of the 1971 Constitutional
Convention, “the requirement to read and write was written into our constitution at a time when the only medium of information was the printed word and
even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast majority of the
population learn about national matters much more from the audio-visual media, namely, radio and television, and public meetings have become much more
effective since the advent of amplifying equipment.” Again, the necessity of information relevant to an election is highlighted. Similarly, in the 1986
Constitutional Commission, Commissioner Bernas, in justifying enfranchisement of the illiterates, spoke of their access to information relevant to
elections, viz:
If we look at...the communication situation in the Philippines now, the means of communication that has the farthest reach is AM radio. People get their
information not from reading newspapers but from AM radio - farmers while plowing, and vendors while selling things listen to the radio. Without knowing
how to read and write, they are adequately informed about many things happening in the country.[131]
Several election cases, albeit not involving an issue similar to the case at bar, affirm the necessity of an informed electorate in holding free,
intelligent and clean elections. InBlo Umpar Adiong v. Commission on Elections[132] where this Court nullified a portion of a COMELEC Resolution
prohibiting the posting of candidates’ decals and stickers on “mobile” places and limiting their location to authorized posting areas, we held, viz:
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964]...) Too
many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be
free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, 36 SCRA 228 [1970]).
xxx xxx xxx
When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against
actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State’s power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
xxx xxx xxx
...we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the
vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but
more important, in the process, it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting
aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. (Martin v. City of Struthers, Ohio, 319 U.S. 141;
87 L. ed. 1313 [1943]).[133]
To facilitate the people’s right to information on election matters, this Court, in Telecommunications and Broadcast Attorneys of the Philippines,
Inc., et al. v. COMELEC[134]upheld the validity of COMELEC’s procurement of print space and airtime for allocation to candidates, viz:
With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through which
candidates can advertise their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of
broadcast stations to provide airtime unless paid by the government would clearly deprive the people of their right to know. Art. III, § 7 of the
Constitution provides that ‘the right of the people to information on matters of public concern shall be recognized...’[135] (emphasis supplied)
The importance of the people’s acquisition of information can be gleaned from several provisions of the Constitution under Article IX (C), The
Commission on Elections. Section 4 provides that the COMELEC is given the power to “supervise or regulate the enjoyment or utilization of all franchises
or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concession
granted by the Government... Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful and credible elections. Section 6 provides that, “(a) free and open party system shall be allowed to evolve according to the free choice of the
people”. Section 2(5) of the same article requires political parties, organizations and coalitions to present their platform or program of government before
these can be registered. In the robust and wide open debate of the electorate, these programs of government are important matters for discussion.
The deliberations of the Constitutional Commission on whether voting of Congressmen should be by district or province also evince a clear concern for
intelligent voting, viz:
SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our political system, especially in the campaign, is that many of us vote by personality
rather than by issue. So I am inclined to believe that in the elections by district, that would be lessened because we get to know the persons running more
intimately. So we know their motivation, their excesses, their weaknesses and there would be less chance for the people to vote by personality. I was
wondering whether the Commission shares the same observation.
MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote would no longer be personalities but more on issues, because the relationship is not
really very personal. Whereas, if it would be by district, the vote on personality would be most impressive and dominant.
SR. TAN. I cannot quite believe that. It would be like a superstar running around.
MR. DAVIDE. For instance, we have a district consisting of two municipalities. The vote would be more on personalities. It is a question of attachment; you
are the godson or the sponsor of a baptism, like that. But if you will be voted by province, it’s your merit that will be counted by all others outside your own
area. In short, the more capable you are, the more chance you have of winning provincewide.[136]
Several provisions of our election laws also manifest a clear intent to facilitate the voters’ acquisition of information pertaining to elections to
the end that their vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or the Omnibus Election Code gives the COMELEC the
following power and duty:
(j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully
inform the electorate about election laws, procedures, decisions, and other matters relative to the work and duties of the Commission and the necessity of
clean, free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC)
(k) Enlist non-partisan groups or organizations of citizens from the civic, youth, professional, educational, business or labor sectors known for their probity,
impartiality and integrity...Such groups or organizations...shall perform the following specific functions and duties:
A. Before Election Day:
1. Undertake an information campaign on salient features of this Code and help in the dissemination of the orders, decisions and resolutions of the
Commission relative to the forthcoming election. (emphasis supplied)
Section 87 of Article X of B.P. Blg. 881 also provides, viz: Section 87. xxx
Public Forum. - The Commission shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and
municipality, public for at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or
debate on their campaign platforms and programs and other like issues... (emphasis supplied)
Section 93 of the same Article provides, viz:
Section 93. Comelec information bulletin. - The Commission shall cause the printing, and supervise the dissemination of bulletins to be known as “Comelec
Bulletin” which shall be of such size as to adequatelycontain the picture, bio-data and program of government of every candidate. Said bulletin shall
be disseminated to the voters or displayed in such places as to give due prominence thereto.(emphasis supplied)
Of the same import is Section 25 of R.A. No. 8436, “An Act Authorizing the Commission on Elections to Use an Automated Election System in the
May 11, 1998 Elections and Subsequent Electoral Exercises” which provides, viz:
Section 25. Voters’ Education. - The Commission together with and in support of accredited citizens’ arms shall cany out a continuing and systematic
campaign though newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other nontraditional means
to educate the public and fully inform the electorate about the automated election system and inculcate values on honest, peaceful and orderly elections.
(emphasis supplied)
Similarly, R.A. No. 9006, “An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices,”
approved a few months before the May 2001 elections or on February 12, 2001 provides in Section 6.4, viz:
Sec. 6.4. xxx xxx xxx
In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and
their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending. (emphasis supplied)
The Omnibus Election Code also provides for procedures and requirements that make the election process clear and orderly to avoid voter confusion.
Article IX of the Code provides, viz:
Section 73. Certificate of candidacy.- No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the
period fixed herein.
xxx xxx xxx
No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office,
he shall not be eligible for any of them...
xxx xxx xxx
Certificates of Candidacy; Certified List of Candidates. -
...
...the Commission shall cause to be printed certified lists of candidates containing the names of all registered candidates for each office to be voted for
in each province, city or municipality immediately followed by the nickname or stage name of each candidate duly registered in his certificate of candidacy
and his political affiliation, if any. Said list shall be posted inside each voting booth during the voting period.
xxx xxx xxx
The names of all registered candidates immediately followed by the nickname or stage name shall also be printed in the election returns and tally
sheets (R.A. No. 6646, Sec. 4)
Section. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office;...
Article XVI, Section 181, also provides, viz:
Section 181. Official ballots. -
xxx xxx xxx
(b) The official ballot shall also contain the names of all the officers to be voted for in the election, allowing opposite the name of each office, sufficient
space or spaces with horizontal lines where the voter may write the name or names of individual candidates voted for by him.
In the case of special elections, the need for notice and information is unmistakable under Section 7 of the Omnibus Election Code of the
Philippines, as amended by R.A. No. 7166, which provides, viz:
Sec. 7. Call for special election. - In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the
expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90)
after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding
regular election. (R.A. No. 7166, Sec. 4)
The postponement, declaration of failure of election and the calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code
shall be decided by the Commission sitting en banc by a majority vote of its members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election. (R.A. No. 7166, Sec. 4)
The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election
registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city
or municipality affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al.,[137] we ruled that constituents could not be charged with notice of a second special elections held only two days after
the failure of the special election. This case involved the May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to the threats of violence and
terrorism in the area, there was a failure of election in six out of twenty-four precincts in Madalum. A special elections was set on May 27, 1995 but the
Board of Election Inspectors failed to report for duty due to the threats of violence. The Monitoring Supervising Team of the COMELEC reset the special
elections to May 29, 1995 in a school 15 kilometers away from the designated polling places. In ruling that the May 29 special elections was invalid, the
Court ruled, viz:
We cannot agree with the COMELEC that petitioner, his followers or the constituents must be charged with notice of the special elections to be held because
of the failure of the two (2) previous elections. To require the voters to come to the polls on such short notice was highly impracticable. In a place marred by
violence, it was necessary for the voters to be given sufficient time to be notified of the changes and prepare themselves for the eventuality.
It is essential to the validity of the election that the voters have notice in some form, either actual or constructive of the time, place and purpose
thereof. (Furste v. Gray, 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for holding it must be authoritatively
designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority after the
happening of a condition precedent, or at least there must be a substantial compliance therewith so that it may fairly and reasonably be said that the purpose
of the statute has been carried into effect. (State ex. rel. Stipp v. Colliver, supra). The sufficiency of notice is determined on whether the voters generally
have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on the
other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise
so as to change the result of the election. (Housing Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal Rptr, other citations omitted)
xxx xxx xxx
...even in highly urbanized areas, the dissemination of notices poses to be a problem. In the absence of proof that actual notice of the special elections has
reached a great number of voters, we are constrained to consider the May 29 elections as invalid...(emphases supplied)
Although this case did not involve a special election held simultaneously with a general election by mandate of law as in the case bar, the doctrine that can be
derived from this case is that the electorate must be informed of the special election as proved by official or actual notice.
VII. Application of the Principles of Democracy, Republicanism
Freedom of Information and Discourse to the Case at Bar
The 1987 Constitution, with its declaration that the Philippines is not only a republican but also a democratic state, and its various provisions
broadening the space for direct democracy unmistakably show the framers’ intent to give the Filipino people a greater say in government. The heart of
democracy lies in the majoritarian rule but the majoritarian rule is not a mere game of dominant numbers. The majority can rule and rule effectively only if
its judgment is an informed one. With an informed electorate, a healthy collision of ideas is assured that will generate sparks to fan the flames of
democracy. Rule by the ignorant majority is a sham democracy - a mobocracy - for in the words of Jefferson, a nation cannot be both free and
ignorant. If there is anything that democracy cannot survive, it is the virus of ignorance.
Elections serve as a crevice in the democratic field where voters, for themselves and the public good, plant the seeds of their ideals and freedoms. Yick
Wo is emphatic that voting is a fundamental right that preserves and cultivates all other rights. In a republic undergirded by a social contract, the
threshold consent of equal people to form a government that will rule them is renewed in every election where people exercise their fundamental
right to vote to the end that their chosen representatives will protect their natural rights to life, liberty and property. It is this sacred contract which
makes legitimate the government’s exercise of its powers and the chosen representatives’ performance of their duties and functions. The electoral
exercise should be nothing less than a pure moment of informed judgment where the electorate speaks its mind on the issues of the day and choose the men
and women of the hour who are seeking their mandate.
The importance of information and discourse cannot be overemphasized in a democratic and republican setting. Our constitutional provisions
and cases highlighting the people’s right to information and the duty of the State to provide information unmistakably recognize the indispensable need of
properly informing the citizenry so they can genuinely participate in and contribute to a functioning democracy. As elections lie at the foundation of
representative democracy, there should be no quarrel over the proposition that electoral information should also be disseminated to the electorate as a
predicate to an informed judgment.
The ponencia concedes that a survey of COMELEC’s resolutions relating to the conduct of the May 14, 2001 elections would reveal that they “contain
nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended.” Nowhere in its
resolutions or even its press releases did COMELEC state that it would hold a special election for a single Senate seat with a three-year term simultaneously
with the regular elections on May 14, 2001. Nor did COMELEC give official notice of the manner by which the special election would be
conducted, i.e., that the senatorial candidate receiving the 13th highest number of votes in the election would be declared winner in the special election. Still,
the ponencia upheld the holding of the May 14, 2001 special election despite “the lack of ‘call’ for such election and ... lack of notice as to the office to be
filled and the manner by which the winner in the special election is to be determined.”
With all due respect, I cannot subscribe to the ponencia’s position for it leaves the purity of elections and the ascertainment of the will of the
electorate to chance, conjecture and speculation. Considering that elections lie at the heart of the democratic process because it is through the act of voting
that consent to government is secured, I choose to take a position that would ensure, to the greatest extent possible, an electorate that is informed, a vote that
is not devalued by ignorance and an election where the consent of the governed is clear and unequivocal.
The ponencia justifies its position on the lack of call or notice of the time and place of the special election by holding that the law charges voters with
knowledge of R.A. No. 7166 which provides that in case of a vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously
with the next succeeding election, that is, the May 14, 2001 election. The ponencia’s argument is that the provisions of R.A. No. 7166 stating that the special
election would be held simultaneously with the regular election operated as a call for the election so that the absence of a call by the COMELEC did not taint
the validity of the special election. With due respect, this is not the intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that “in case of such
vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election”, the law nevertheless required in paragraph 3 of
the same section that “(t)he Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election
supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public
meetings are held in each city or municipality affected.”
The Duquette case cited by the ponencia does not lend support to its thesis that statutory notice suffices. In Duquette, it was held that in the absence
of an official notice of the special election mandated by law to be held simultaneously with the general election, there should be actual notice of the
electorate. Actual notice may be proved by the voting of a significant percentage of the electorate for the position in the special election or by other acts
which manifest awareness of the holding of a special election such as nomination of candidates. In the case at bar, however, the number of votes cast for
the special election cannot be determined as the ballot did not indicate separately the votes for the special election. In fact, whether or not the
electorate had notice of the special election, a candidate would just the same fall as the 13th placer because more than twelve candidates ran for the regular
senatorial elections. Nobody was nominated to vie specifically for the senatorial seat in the special election nor was there a certificate of candidacy filed for
that position. In the absence of official notice of the time, place and manner of conduct of the special election, actual notice is a matter of proof. Respondents
and the ponencia cannot point to any proof of actual notice.
With respect to the lack of notice of the manner by which the special election would be conducted, i.e., that the 13th placer would be declared winner
in the special election, there can be no debate that statutory notice will not operate as notice to the electorate as there is no law providing that a special
election held simultaneously with a general election could be conducted in the manner adopted by the Senate and the COMELEC. Instead,
the ponencia buttresses its holding by stating that the petitioner has not claimed nor proved that the failure of notice misled a sufficient number of voters as
would change the result of the special senatorial election. It relies on “actual notice from many sources, such as media reports of the enactment of R.A. No.
6645 and election propaganda during the campaign” but without even identifying these media reports and election propaganda. Suffice to state that before
theponencia can require proof that a sufficient number of voters was misled during the May 14, 2001 elections, it must first be shown that in the absence of
official notice of the procedure for the special election, there was nevertheless actual notice of the electorate so that the special election could be presumed to
be valid. Only then will the duty arise to show proof that a sufficient number of voters was misled to rebut the presumption of validity.
I respectfully submit that the electorate should have been informed of the time, place and manner of conduct of the May 14, 2001 special election for
the single senatorial seat for the unexpired term of former Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened
the doctrine that a meaningful exercise of the right of suffrage in a genuinely free, orderly and honest election is predicated upon an electorate informed on
the issues of the day, the programs of government laid out before them, the candidates running in the election and the time, place and manner of conduct of
the election. It is for this reason that the Omnibus Election Code is studded with processes, procedures and requirements that ensure voter information.
Bince and Benito further teach us that free and intelligent vote is not enough; correct ascertainment of the will of the people is equally
necessary. The procedure adopted in the case at bar for holding the May 14, 2001 special senatorial election utterly failed to ascertain the people’s choice
in the special election. Section 2 of R.A. No. 7166 provides that the “special election shall be held simultaneously with such general election.” It does not
contemplate, however, the integration of the special senatorial election into the regular senatorial election whereby candidates who filed certificates
of candidacy for the regular elections also automatically stand as candidates in the special election. The Omnibus Election Code is crystal clear that a
candidate can run for only one position in an election. Consequently, there were no candidates in the special election to vote for. Separate sets of candidates
for the special election and the regular elections are decisive of the election results. Each independent-minded voter could have a variety of reasons for
choosing a candidate to serve for only the unexpired term of three years instead of the regular term of six years or not choosing a candidate at all. A voter
might choose a neophyte to serve the three-year term as a shorter trial period. Another might be minded to choose an old timer to compel him to hasten the
completion of his projects in a shorter period of three years. Still another might want to afford a second termer who has not performed too satisfactorily a
second chance to prove himself but not for too long a period of six years. In not allowing the voter to separately indicate the candidate he voted for the
three-year senatorial term, the voter was deprived of his right to make an informed judgment based on his own reasons and
valuations. Consequently, his true will in the special election was not ascertained. As a particle of sovereignty, it is the thinking voter who must determine
who should win in the special election and not the unthinking machine that will mechanically ascertain the 13th placer in the general election by
mathematical computations.
The models to follow in the conduct of special elections mandated by law to be held simultaneously with a general elections are the special elections of
November 13, 1951 and November 8, 1955 to fill the seats vacated by then Senators Fernando Lopez and Carlos P. Garcia, respectively. In these special
senatorial elections, election activities prior (i.e., filing of certificate of candidacies), during (i.e., the act of voting for a special election candidate distinct
from the candidates for the regular election) and after the election (i.e., tallying and canvassing of results) were conducted simultaneously with,
but distinctly from the regular senatorial elections. This procedure minimized voter confusion and allowed the voter to freely and accurately speak his mind
and have his will truly ascertained. Regrettably, this objective appears to have been lost in the calling of the May 14, 2001 special election as can be gleaned
from the Senate deliberations on the resolution calling for that election, viz:
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to
suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona.
S[ENATOR] O[SMEÑA]. (J). Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific
office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can...No, this is not a Concurrent
Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the
need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as
Vice President.
It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingona’s unexpired
term. In other words, it can be arranged in such a manner.
xxx xxx xxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore
deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less
expensive because the ballot will be printed and there will be less disenfranchisement.
T[HE] P[PRESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the
law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. - to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously a? a special election under this
law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President.
T[HE P[RESIDENT]. What does the sponsor say?
S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically -
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. - to fill up this position for three years and campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution.
ADOPTION OF S. RES. NO. 934
If there are not other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being none, the motion is approved.[138] (emphases
supplied)
The Senate’s observation that the procedure for the special election that it adopted would be less costly for the government as the ballots need not be
printed again to separately indicate the candidate voted for the special election does not also lend justification for the manner of conduct of the May 14, 2001
special election. We cannot bargain the electorate’s fundamental right to vote intelligently with the coin of convenience. Even with the Senate stance, the
regular ballot had to be modified to include a thirteenth space in the list of senatorial seats to be voted for. At any rate, reliance on R.A. No. 6645 is
erroneous. This law provides that when a vacancy arises in the Senate, the Senate, by resolution, certifies to the existence of the vacancy and calls for a
special election. Upon receipt of the resolution, the COMELEC holds the special election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The
latter law provides that when a permanent vacancy occurs in the Senate at least one year before the expiration of the term, “the Commission (on Elections)
shall call and hold a special election to fill the vacancy...” Since under R.A. No. 7166, it is the power and duty of the COMELEC, and not the Senate, to call
and hold the election, the Senate cannot, by mere resolution, impose upon the COMELEC the procedure for the special election that it intended such that
“Comelec will not have the flexibility” to deviate therefrom. As a constitutional body created to ensure “free, orderly, honest, peaceful, and credible
elections”, it was the duty of the COMELEC to give to the electorate notice of the time, place and manner of conduct of the special elections and to adopt
only those mechanisms and procedures that would ascertain the true will of the people.
In sum, I submit that the ruling of the ponencia would result not just to a step back in an age of information, but would constitute a fall in the nation’s
rise to democracy begun as early as the Malolos Constitution and begun anew in the 1987 Constitution after the 1986 People Power Revolution. Informing
the electorate on the issues and conduct of an election is a prerequisite to a “free, orderly, honest, peaceful, and credible elections.” Free elections does not
only mean that the voter is not physically restrained from going to the polling booth, but also that the voter is unrestrained by the bondage of
ignorance. We should be resolute in affirming the right of the electorate to proper information. The Court should not forfeit its role as gatekeeper of
our democratic government run by an informed majority. Let us not open the door to ignorance.
I vote to grant the petition.

LAMBINO VS. COMELEC

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections (“COMELEC”) denying due course to an

initiativepetition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado (“Lambino Group”), with other 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 hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c)[2] and Section 7[3] of Republic Act No. 6735

or the Initiative andReferendum Act (“RA 6735”).

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all

registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The Lambino Group also claimed that

COMELEC election registrars had verified the signatures of the 6.3 million individuals.
 The Lambino Group’s initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department)[4] and

Sections 1-4 ofArticle VII (Executive Department)[5] and by adding Article XVIII entitled “Transitory Provisions.” [6] These proposed changes will shift the

present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their

petition, the COMELEC shouldsubmit 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 toimplement 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 citedin contempt for the COMELEC’s verification of signatures and for “entertaining” the Lambino Group’s petition despite the permanent injunction

in Santiago. The Courttreated 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

theSantiago 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 aninitiative petition under Section 2, Article XVII of the 1987 Constitution;[12] (4) the nature of the

proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group’s

compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.
 The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties’ memoranda, the Court considered the

case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group’s initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution

through a people’s initiative;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 “incomplete, inadequate or wanting in essential terms and conditions”

to implement theinitiative clause on proposals to amend the Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group’s petition.

The Ruling of the Court

There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people’s initiative. Thus, there is

even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group’s glaring failure to comply with the basic

requirements of the Constitution. For following the Court’s ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people’s initiative to propose amendments to the

Constitution. This section states:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at
least three per centum of the registered voters therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment “directly proposed by the people through

initiative upon a petition,” thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of
the proposed constitutional amendment ready to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the
draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they
want to propose this constitutional amendment.
 MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.[13] (Emphasis supplied)

Clearly, the framers of the Constitution intended that the “draft of the proposed constitutional amendment” should be “ready and shown” to

the people “before” they sign such proposal. The framers plainly stated that “before they sign there is already a draft shown to them.” The framers also

“envisioned” that the people should sign on the 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. x x x
(The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate
whether to sign the initiative petition.”); x x x (publication of full text of amended constitutional provision required because it is
“essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he
must have this knowledge. Otherwise in many instances he would be required to vote in the dark.”) (Emphasis supplied)
Moreover, “an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed” and failure to do so is “deceptive

and misleading” which renders the initiative void.[19]

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed

amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American

jurisprudence on people’s initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the

people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full

text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people

must sign the “petition x x x as signatories.”

The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as

public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to

the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their

supporters, often pay those who gather the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the

burden of proving that they complied with the constitutional requirements in gathering the signatures - that the 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.

Precinct Name Address Birthdate Signature Verification

Number Last Name, First Name, M.I. MM/DD/YY
1
2
3
4
5
6
7
 8
9
10

_________________ _________________ __________________

Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

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 2006amended 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 thePhilippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the “Official Website of the Union

of Local Authorities of the Philippines”[22] has posted the full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE’S CONSULTATIVE COMMISSION ON CHARTER
CHANGE THROUGH PEOPLE’S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to
support the proposals of the People’s Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and
the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People’s Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the
1987 Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious
form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent
assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People’s Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE
UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE
PEOPLE’S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE’S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila.
[23]
(Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended

petition, filed with the COMELEC. ULAP Resolution No. 2006-02 “support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter

Change through people’s initiative and referendum as a mode of amending the 1987 Constitution.” The proposals of the Consultative

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 2006amended 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.

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 theamended 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 admits that “petitioner Lambino

initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x.”[25] This admission binds the Lambino Group

and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people

who signed the signature sheets.

 Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100

percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets

could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature

sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have

seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million

signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Group’s signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets,

or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and

this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to

so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the

amendment must be “directly proposed by the people through initiative upon a petition.” The signature sheet is not the “petition” envisioned in the
initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before

signing. They could not have known the nature and effect of the proposed changes, among which are:

1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected
indefinitely;[26]

2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of
Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the
expiration of their own term of office; [27]

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further
amendments or revisions to the Constitution.[28]

These three specific amendments are not stated or even indicated in the Lambino Group’s signature sheets. The people who signed the signature

sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred

or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the

elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local

elections. However, the text of the proposed changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely

requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year.
 Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word “next” before the

phrase “election of all local government officials.” This would have insured that the elections for the regular Parliament would be held in the next local

elections following the ratification of the proposed changes. However, the absence of the word “next” allows the interim Parliament to schedule the elections

for the regular Parliament simultaneously with anyfuture local elections.

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House

of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of

the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature

sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid

fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group

because the signature sheets did not 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 Constitutionconsistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a “surplusage” and the Court and the people should simply ignore it. Far from being a

surplusage, this provision invalidates the Lambino Group’s initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American

jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts

the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two

propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine

v. Firestone,[29] the Supreme Court of Florida declared:

Combining multiple propositions into one proposal constitutes “logrolling,” which, if our judicial responsibility is to
mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate
cannot know what it is voting on - the amendment’s proponents’ simplistic explanation reveals only the tip of the iceberg. x x x x The
ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails
to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that
proposed amendments embrace only one subject. (Emphasis supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,[30] the Supreme Court of Alaska warned against “inadvertence,

stealth and fraud” in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to
prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of
an initiative’s passage, and there is a greater opportunity for “inadvertence, stealth and fraud” in the enactment-by-
 initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize
particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to
potential petition-signers and eventual voters. Many voters will never read the full text of the initiative before the election. More
importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly
distinguish the initiative from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a

constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an

amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution

within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim

Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim

Parliament mandated to immediately amend or revise again the Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets

do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such

further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an

initiative is not “directly proposed by the people” because the people do not even know the nature and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group’s amended petition of 30 August 2006. The proposed Section 4(3) of the

Transitory Provisions states:

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 by30 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 theexclusion 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 x x x 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

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x
x. (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. x x x x

xxxx

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

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

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

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it
not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is
concerned, it can only relate to "amendments" not "revision."

MR. MAAMBONG: Thank you.[31] (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between “amendment” and “revision” of

the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The

framers intended, and wrote, that a people’s initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution

clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to

propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,[32] the Supreme Court of California

ruled:

The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and
the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed
initiative measure (hereinafter termed ‘the measure’) now before us is so broad that if such measure became law a substantial revision of
our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is
first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:[33]

It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by
those who favor amendments, revision, or other change only through the use of one of the specified means. The constitution itself
recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in
question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears
to be based in large part on the revision of the constitution drafted by the ‘Commission for Constitutional Revision’ authorized by the
1961 Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's
majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough
overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the
initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a
convention called in the manner provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people’s initiative can only propose amendments to the Constitution since the

Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A

popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.
 As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:[34]

It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise aconstitution in a manner other than the one provided in the instrument is
almost invariably treated as extra-constitutional and revolutionary. x x x x “While it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed
the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed
restrictions, is unconstitutional.” x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear

command of the Constitution ― that a people’s initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group’s initiative constitute an amendment or revision of the Constitution? If the Lambino Group’s initiative

constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the
distinction described the fundamental difference in this manner:

[T]he very term “constitution” implies an instrument of a permanent and abiding nature, and the provisions contained therein for its
revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term “amendment” implies such
an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it
was framed.[35] (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the

system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects

substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the

basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision

being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed

a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is “so extensive in its provisions as to

change directly the ‘substantial entirety’ of the constitution by the deletion or alteration of numerous existing provisions.” [36] The court examines only the

number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will

“accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” [37] Whether there is an alteration in the

structure of government is a proper subject of inquiry. Thus, “a change in the nature of [the] basic governmental plan” includes “change in its fundamental

framework or the fundamental powers of its 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 x x x affect several other

provisions of [the] Constitution.” The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects
not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government,
which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It
would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of
the Constitution, but would even affect the physical facilities necessary to carry on government.

xxxx
We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if
the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and
conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V,
to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point
unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing
about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous
and up-to-date document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in
the initiative petition here.[43] (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group’s initiative not only seeks a shift from a

bicameral to a unicameral 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 inAdams.

The Lambino Group theorizes that the difference between “amendment” and “revision” is only one of procedure, not of substance. The Lambino

Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called “revisions” because members of

the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called

“amendments” because the changes are made by ordinary people who do not make an “occupation, profession, or vocation” out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide for both “amendment” and
“revision” when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for “amendment”
when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand
the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their
occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work
full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words
“revision” and “amendment” pertain only to the process or procedure of coming up with the corrections, for purposes of
interpreting the constitutional provisions.

100. Stated otherwise, the difference between “amendment” and “revision” cannot reasonably be in the substance or
extent of the correction. x x x x (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group

wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes

in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as

private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter

of changing the fundamental law of the land.

The express intent of the framers and the plain language of the Constitution contradict the Lambino Group’s theory. Where the intent of the

framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.[45] Any theory

espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies

in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the

Constitution, only exposes the flimsiness of the Lambino Group’s position. Any theory advocating that a proposed change involving a radical structural

change in government does not constitute a revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any

success. In Lowe v. Keisling,[46] the Supreme Court of Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is
that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted
through the initiative process. They assert that the distinctionbetween 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 theconstitution.” 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 Oregonconstitutional 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, x x x, the Supreme Court concluded that arevision of the constitution may not be accomplished
by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to
proposed amendments,the court said:

“From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution.” x x x x

It then reviewed Article XVII, section 2, relating to revisions, and said: “It is the only section of the constitution which
provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure
before the electorate.” x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply
to constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group’s theory which negates the express intent of the framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the

middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably

located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers

among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may

generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 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; x x x x (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies

to construction of constitutions. However, the Lambino Group’s draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by

stating that in case of such irreconcilable inconsistency, the earlier provision “shall be amended to conform with a 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, orNew Zealand models, which are among the few countries with unicameral parliaments? The proposed changes could not possibly

refer to the traditional and well-known parliamentary forms of government ― the British, French, Spanish, German, Italian, Canadian, Australian, or

Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi,

Singaporean, Israeli, or New Zealand parliamentary form of government?

This drives home the point that the people’s initiative is not meant for revisions of the Constitution but only for amendments. A shift from the

present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the

Constitution. Revision of the Constitution through a people’s initiative will only result in gross absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Group’s initiative is a revision and not an amendment. Thus, the present initiative is void

and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people’s initiative to “[A]mendments to this

Constitution.”

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the

conduct and scope of a people’s initiative to amend the Constitution. There is no need to revisit this Court’s ruling in Santiago declaring RA 6735

“incomplete, inadequate or wanting in essential terms and conditions” to cover the system of initiative to amend the Constitution. An affirmation or reversal

of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does

not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution.
 This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other

grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be

resolved on some other grounds.[51]

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not

change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative

must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the “petition for an initiative on the 1987 Constitution must

have at least twelveper centum (12%) of the total number of registered voters as signatories.” Section 5(b) of RA 6735 requires that the people must sign

the “petition x x x as signatories.”

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only

Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for “Raul L. Lambino

and Erico B. Aumentado, Petitioners.” In the COMELEC, the Lambino Group, claiming to act “together with” the 6.3 million signatories, merely

attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply

with the basic requirement of RA 6735 that the Lambino Group claims as valid.

The Lambino Group’s logrolling initiative also violates Section 10(a) of RA 6735 stating, “No petition embracing more than one (1) subject shall

be submitted to the electorate; x x x.” The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further

amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative

embraces more than one subject matter, RA 6735 prohibits submission of the 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.

SO ORDERED.

People vs. San Juan

Before us for review, on appeal by the People of the Philippines, is an order, dated April 17, 1964, of the Court of First Instance of Leyte (Ormoc City)
quashing upon motion of the defense, an indictment for violation of Section 133 of the Revised Election Code.
The information charges
That on or about the 12th day of November, 1963 (election day), at around 10:00 o'clock in the morning at the polling place at the City
Central School, Ormoc City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused CLAUDIA SAN JUAN and
SEVERO SAN JUAN, conspiring, cooperating, confabulating and helping with one another, did then and there willfully, unlawfully, and
 feloniously with the use of force, prevent the complaining witness GENEROSA PILAPIL from exercising her right to freely enter the polling place
of Precinct No. 1 in order to vote.
Succinct to the point of curtness the one-sentence order appealed from decree that "As the facts charged do not constitute an offense, pursuant to the
ruling of our Supreme Court in the case of U.S. vs. Pompeya, 31 Phil. 245, this case is hereby dismissed".
The case having been allowed to go off summarily on a motion to quash predicated upon the insufficiency of the information, it is to be assumed that
the defense conformably to basic procedural tenets and for purposes of its motion — admits all the material averments of the information. Accordingly, the
inquiry in this appeal is limited to whether the indictment sufficiently avers all the essential elements of the prescribed act. 1
Section 133 of the Revised Election Code, a violation of which is denominated as a serious election offense by section 138 of the same Code, provides:
Order of Voting. — The voters shall have the right to vote in the order of their entrance into the polling place. The voters shall have the right
to freely enter the polling place as soon as they arrive unless there are more than forty voters waiting inside, in which case they have the right to
enter in the order of their arrival as those who are inside go out, which the latter shall immediately do after having cast their votes.
Implicit in the averment that the complainant was at the "polling place of Precinct No. 1 in order to vote" is the fact that she was, at the time, a duly
registered voter intent on exercising the right of suffrage. For that purpose and vis-a-vis other voters, the aforequoted legal precept guaranteed her the rights
(1) to vote in the order of her entrance into the polling place; (2) to freely enter the polling place as soon as she arrived unless there were then more than forty
voters waiting inside; and (3) in the latter eventuality, to enter in the order of her arrival as those inside went out.
We are here concerned more particularly with the second of these rights. For the gravamen of the information is that the accused Claudia San Juan and
Severo San Juan "willfully, unlawfully, and feloniously with the use of force prevent(ed) the complaining witness Generosa Pilapil from exercising her right
to freely enter the polling place of Precinct No. 1 in order to vote". However, the right thus allegedly infringed upon is qualified by the clause: "unless there
are more than forty voters waiting inside". This, in effect, defines an exception by virtue of which the right is not intended to be immediately operative. As
formulated, the information does not negative this exception. So that the key to the problem at hand lies in the determination of whether, to sufficiently
charge a violation of that right, the indictment should explicitly negate the exception.
Well delineated in our jurisprudence are the pertinent guiding principles. U.S. vs. Chan Toco, 12 Phil. 268, teaches that —1äwphï1.ñët
. . . As a rule, an exception in a statute by which certain particulars are withdrawn from or excepted out of the operation of the enacting
clause thereof defining a crime concerning a class or species, constitutes no part of the definition of such crime, whether placed close to or remote
from such enacting clause. And, whenever a person accused of the commission of such a crime claims to be within such exception, it is more
logical and convenient that he should aver and prove the fact than that the prosecutor should anticipate such defense, and deny it.
Adherence to this rule has been unswerving for instance, in prosecutions under the Opium Law 2 which punishes the use of prohibited drugs "save upon
the prescription of a duly licensed and practicing physician".
The rule — that for an information to be sufficient, it need not allege that the accused is outside the periphery of the saving clause — was echoed in
People vs. Cadabis, 97 Phil., 829, a prosecution for violation of section 53 of the Revised Election Code, which statutory provision prohibits the carrying of
deadly weapons in a polling place but exempts from the prohibition public officers enforcing the law or preserving peace in the premises. On the contention
therein that the facts charged in the information do not constitute an offense, because "there is no statement denying that the accused had been authorized to
supervise the elections and/or carried the firearm on the occasion of tumultuous affray or disorder", this Court held that
. . . It was not incumbent on the prosecution to make the allegation, because the matter was something for the accused to assert and establish
in his defense. The law prohibits the carrying of deadly weapons in the polling place. An exception is made for peace or public officers enforcing
the law or preserving peace in the premises. . . . The exception is for the defendant to prove — not for the prosecution to disprove.
To our mind, the case at bar stands on the same footing. The limitation — when there are more than forty voters waiting inside — on the right of a
voter to freely enter the polling place does not constitute an essential part of the definition of the crime contemplated in section 133 of the Revised Election
Code. Instead, it is but a matter which the accused must assert and establish as a defense, and not for the prosecution to anticipate, allege, and disprove.
True it is that U.S. v. Pompeya, 31 Phil. 245, 255, 256, 257, is authority for the rule that where a statute exempts certain persons or classes of persons
from liability, the indictment, to be sufficient, must show that the person charged does not fall within the exemptions. This is so because in that case, the
ordinance alleged to have been violated applied only to specific classes of persons and to special conditions. Thus —
With reference to the first question presented by the appeal, relating to the sufficiency of the complaint, it will be noted that Act. No. 1309
authorized the municipal governments to established ordinances requiring (a) all able-bodied male residents, between the ages of 18 and 55 [50],
and (b) all householders, under certain conditions, to do certain things.
It will also be noted that the law authorizing the president of the municipality to call upon persons, imposes certain conditions as pre-
requisites: (1) The person called upon to render such services must be an able-bodied male resident of the municipality; (2) he must be between the
ages of 18 and 55 [50], and (3) certain conditions must exist requiring the services of such persons.
It will not be contended that a non-resident of the municipality would be liable for his refusal to obey the call of the president; neither can it
be logically contended that one under the age of 18 or over the age of 55 [50] would incur the penalty of the law by his refusal to obey the
command of the president. Moreover, the persons liable for the service mentioned in the law cannot be called upon at the mere whim or caprice of
the president. The conditions mentioned in the law must exist. There must be some just and reasonable ground, at least sufficient in the mind of a
reasonable man, before the president can call upon the persons the service mentioned in the law. The law does not apply to all persons. The law
does not apply to every condition. The law applies to special persons and special conditions.
A complaint based upon such a law, in order to be free from objection under a demurrer, must show that the person charged belongs to the
class of persons to which the law is applicable.
xxx xxx xxx
The complaint must show, on its face that, if the facts alleged are true, an offense has been committed. It must state explicitly and directly
every fact and circumstances necessary to constitute an offense. If the statute exempts certain persons, or classes of persons, from liability, then the
complaint should show that the persons charged does not belong to that class.
Even admitting all of the facts stated in the complaint in the present case, the court would be unable to impose the punishment provided for
by law, because it does not show (a) that the defendant was a male citizen of the municipality; (b) that he was an able-bodied citizen; (c) that he
was not under 18 years of age nor over 55 [50]; nor (d) that conditions existed which justified the president of the municipality in calling upon him
for the services mentioned in the law.
 In the case at bar, however, like in Chan Toco and Cabadis, the legal provisions involved prohibit and penalize generally the acts therein defined, and
are intended to apply to all persons indiscriminately. Besides, in Pompeya, the exemptions are so incorporated in the language defining the crime that the
ingredients of the offense cannot be accurately and clearly set forth if the exemption are omitted. This is not so in the present case where the complete
definition of the offense is entirely separable from the exception and can be made without any reference to the latter.
This view, which thus far is purely from the perspective of legal technology, finds affirmation of its validity when we realize that we are here dealing
with the exercise of the right of suffrage which, in the consensus of political philosophers of consequence, is the bedrock of all republican institutions. The
unadorned statement in Article V of the Constitution is a simple but sacred avowal of faith in the efficacy and durability of the democratic process. It is a
recognition that the people in their sovereign character are the fountainhead of governmental authority, and that their right to participate in the power process
is indispensable for democratic government to constitute an effective instrument of social control. In the phrase of Mr. Justice Jose Laurel—
As long as popular government is an end to be achieved and safeguarded, suffrage, whatever be the modality and form devised, must
continue to be the means by which the great reservoir of power must be emptied into receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type
of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established
authority.3
Indeed, each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If
that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to
assure the unmolested exercise of the citizen's free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage
is to inflict the ultimate indignity on the democratic process. As numerous as they are insidious are long-standing techniques of terror and intimidation that
have been conceived by man — in derogation of the right of suffrage — which we have repeatedly and unqualifiedly condemned. When the legislature
provided in section 133 of the Revised Election Code an explicit and unequivocal guarantee of a voter's free access to the polling place, it could have
intended no purpose other than to maintain inviolate the right to vote by safeguarding the voter against all manner of unauthorized interference and travesty
that surveyors of fear can devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast
his vote, strikes at the very heart of the right of suffrage.
That the transgressor is outside the compass of the excepted situation, cannot be regarded as an essential ingredient of the offense. Let him prove his
disclaimer who pleads that he comes within the ambit of the exception.
Upon the foregoing disquisition, we hold that the information here satisfies the requirements for the legal sufficiency of an indictment lodged under
section 133 of the Revised Election Code.
ACCORDINGLY, the order appealed from is set aside. This case is hereby ordered remanded to the court of origin for further proceedings in
accordance with law. No costs.